JAWWAD S. KHAWAJA, J. --- The respondent No. 3, namely, Muhammad Sher has been served but has not appeared despite service. He is, therefore, proceeded against ex-parte. Here I may and that Muhammad Sher is not directly an interested party as he has only been impleading because he was appointed supurdari of the crop growing on the disputed land, by the Tehsildar.
2. The petitioners/plaintiffs filed a declaratory suit claiming title and right to possession of the suit property described in the plaint. It was their case that the said property was part of shamlat deh over which they had built houses and were residing since long The Province was impleading as a defendant alongwith respondent No. 3, who was appointed supurdar by virtue of some order passed by the Tehsildar The suit has been dismissed by both Courts below although the respondents did not adduce any evidence and, according to learned counsel for the petitioners, the testimony of the PWs remained unrebutted. Learned counsel for the petitioners has also argued that the petitioners did not receive any notice of the alleged proceedings undertaken by the Tehsildar, which purportedly resulted in an order for dispossession of the petitioners.
3. The learned Law Officer, appearing for the Province, has not been able to controvert the above submissions advanced on behalf of the petitioners. Furthermore, the Tehsildar, who is present in person, has not been able. To show that any notice was issued to the petitioners when proceedings were undertaken by the then Tehsildar in 1998, before the petitioners were dispossessed.
Furthermore, no record or documentary evidence was produced before the learned Trial Court to justify the disposession of the petitioners from the suit property In the circumstances, the unrebutted testimony of the petitioners and their witnesses was sufficient to justify the decree passed in their favour by the learned Trial Court. The reversal of the said decree by the learned Appellate Court is not based on evidence and is, therefore, set aside.
4. This judgment, however, shall not preclude the Province and its functionaries from initiating proceedings in accordance with law, if they so decide, with the object of taking possession of the suit land. Until the time the Province adopts such legal recourse, the petitioners.Shall be entitled to possessi9n of the suit land.
5. The petitioners shall also be entitled to their costs throughout.