JUDGMENT JAWWAD S. KHAWAJA, J.- Respondents Nos. 4 and 6 have neither appeared despite service nor have they arranged representation. They are, therefore, proceeded against ex parte. The remaining respondents are duly represented by counsel.
2. The Petitioner/plaintiff impugns the appellate decree dated 24.1.2002 whereby the decree of the learned Trial Court dated 19.5.1995 was set aside and the suit filed by the Petitioner/plaintiff seeking possession of the disputed property, was dismissed. The facts of the case have been duly noted in the appellate judgment and need not, therefore, be reproduced in extenso. The most critical aspect of the case is that the petitioner is a vendee of the property, In para 2 of the plaint, he alleged that the respondents were tenants on the disputed land and that a month prior to the filing of the plaint they had denied the ownership of the petitioner. However, while appearing as, PW-3, he testified that the respondents were in cultivating possession of the land since the time. Of their forefathers. He also expressed ignorance as to the fact that the grandfather of the respondents gave share of produce to anyone, although he then stated that he used to give the batai to Nawab.
The learned Appellate Court, therefore, rightly held against the petitioner.
3. The learned Appellate Court, however, fell in error by not taking note of the statement made by and on behalf of Kala and Mst. Hurmat who are the L.Rs. Of respondent No. 7 to the effect that they did not press their appeal against the Petitioner/plaintiff. The father of Kala and Mst. Hurmat, namely, Sultan was, admittedly, in possession of one half of the suit land, In the circumstances, in view of the statement of Kala and the learned counsel for Kala and Mst. Hurmat recorded on 13.10.1999, the learned Appellate Court was not justified in dismissing the suit of the petitioner in its entirety.
4. The appellate decree, therefore, is modified to the extent that the suit of the petitioner shall be decreed to the extent of the claim against Sultan deceased (respondent No. 7) now represented by his L.Rs. Kala and Mst Hurmat. In all-other respects the impugned appellate decree is maintained.