JAWWAD S. KHAWAJA, J. --- The petitioner-defendants impugn the appellate judgment and decree dated 1.12.2001 whereby the decree of the learned Trial Court dated 30.11.2000 was set aside and a suit filed by Mst. Khurshid Begum deceased respondent- plaintiff (now represented by her L.Rs.) seeking possession of the suit property, was decreed.
2. The facts of the case have been elaborately set out in the judgment of the learned Trial Court and need not, therefore, be reproduced in extenso. For valid reasons recorded in paragraph 13 of the judgment of the learned Trial Court the respondents' suit was dismissed on the ground that it was barred by limitation. The learned Appellate Court has not given any finding on the question of limitation and has simply decreed the suit of the respondent on the ground, that they have been able to establish their ownership in the suit land.
3. According to the facts of the case, the Government Primary School No. 2 (petitioner No. 4) has been functioning at the site since 1950. The plea raised by the petitioners, inter alia, was that they had acquired prescriptive title in the property by virtue of Section 28 of the Limitation Act. This defence was upheld by the learned Trial Court for proper reasoning based on the record. Learned counsel for the petitioner rightly argued that the learned Appellate Court had failed to address the rationale of the learned Trial Court which had resulted in the dismissed of the suit.
4. Learned counsel appearing for the respondents contended that no issue in relation to limitation had been framed by the learned Trial Court and, therefore, the respondents were not called upon to lead evidence on the same. This contention, however, is misconceived. Issue No. 3 was framed by the learned Trial Court in the following terms:-- "Whether the suit is liable to be dismisses in view of preliminary objections Nos. 2 to 6? OPD"
5. In addition to above, is to be noted that none of the respondents appeared in the witness-box.
Only their general attorney, namely, Zafer Iqbal appeared as PW-1. The case set up by the respondents was that the petitioners had forcibly taken possession of the disputed area four years prior to the filing of the suit. This contention, however, was not proved considering the overwhelming evidence both oral and documentary brought on record by the petitioners- defendants. Learned counsel for the respondent argued that some revenue functionary had prepared a report to substantiate the plea that the petitioners had taken possession of the suit land by force. No revenue functionary, however, was produced by the respondents as a witness in the case.
6. In the foregoing circumstances, I find the impugned appellate judgment and decree to be a result of .Illegality in the exercise of the Court's jurisdiction. The same is, therefore, set aside. As a result, the decree of the learned Trial Court dated 30.11.2000 stands restored. The petitioner shall also be entitled to their costs throughout.
Civil revision .