JAWWAD S. KHAWAJA, J.---The case has been called repeatedly at intervals. None has appeared for the respondent. He is, therefore, proceeded against ex parte.
2. The petitioner/plaintiff, namely, Muhammad Yaqoob impugns the appellate judgment and decree dated 5-7-2001, whereby the decree of the learned trial Court in favour of the petitioner dated 29-5-2000 was set aside and the plaintiffs' suit for possession was dismissed.
3. The facts of this case are simple. The petitioner claims possession of the roof of the two shops which were conveyed to him through sale-deed (Exh.P.2) dated 4-1-1984 executed in his favour by the A reader of the Court in execution of a decree for specific performance dated 21-12-1983. The Khasra number of the area conveyed to the petitioner is 20/2/1 measuring 1 Marla, 2 Sirsahis. This is mentioned in the sale-deed (Exh.P.2) and is also recorded in the Jamabandi for the year 1979-80 (also marked as Exh.P.2).
4. The case set up by the petitioner/plaintiff was that the property conveyed to him included the roof of the two shops. The defence set up by the respondent was that he was a tenant in the adjacent property for many years and had thereafter purchased the same. He conceded in his testimony that the roof on top of the shops purchased by the petitioner was not included in the conveyance in his favour. He merely asserted a B right on the basis that he was using the roof while he was a tenant/ occupant of the adjacent property. It is not in dispute that the respondent acquired title subsequent to the conveyance (Exh.P.2) in favour of the petitioner.
5. The respondent/defendant appeared as his sole witness and reiterated the above position viz. That he had been using the rooftop over the shops purchased by the petitioner. As to title, he conceded, as noted above, that his title document did not mention the disputed rooftop but he added that subsequently he had purchased the same from the previous owner, namely, Abdul Rahim.
6. The above evidence goes to show that title, which was conveyed to the petitioner/plaintiff, included the rooftop. A presumption to this C effect also can be drawn from the Jamabandi (Exh.P.2) which shows the petitioner as the owner of 1 Marla, 2 Sirsahis comprised in Khasra No.20/2/1. As against this, the Jamabandi (Exh.P.3) in respect of the respondent's property shows that it measures 3 Marlas, 7 Sirsahis in five Khasra numbers i.e. 21/4/1, 20/12/2, 20/1/4, 20/11/1 and 21/3/2. It is clear from Exh.P.3 that Khasra No.20/2/1 does not belong to the respondent/defendant. It is equally evident from the aforesaid Revenue Record that separate Tatinuna numbers were allocated to the different properties. The respondent himself has admitted that the property of the petitioner and of the respondent bore different numbers.
7. It is in the above circumstances that the learned trial Court decreed the petitioner's suit for possession. The learned Appellate Court has not taken note of the above circumstances and nor has it addressed the reasoning of the learned trial Court while dismissing the petitioner's suit in appeal. Here I also need to note that P.W. And P.W.2, who are residents of the locality, had appeared as witnesses to support the case set up by the petitioner/plaintiff while the respondent could not produce any witness in support of his case. Furthermore, the respondent's own case is that he acquired title in the roof after the conveyance in favour of the petitioner. In view of the above discussion, it is evident that the respondent could not have acquired title in the disputed rooftop once it had been conveyed to the petitioner. The case of the petitioner is also adequately supported by the Revenue Record (Exh.P.2 and Exh.P.3) discussed above.
8. In the above circumstances, I find that the learned Appellate Court exercised its jurisdiction with material irregularity and ignored the material aspects of the case and evidence discussed above, The appellate judgment and decree, therefore, are not legally sustainable and are set aside. As a consequence, the decree of the learned trial Court stands restored.