' MAULVI ANWARUL HAQ, J.---On 3-12-1975 the respondent No,1 filed a suit against the petitioner and the respondent No,2. In the plaint, it was stated that the petitioner is the owner in possession of the land described in the heading of the plaint. According to him, he acquired 19 Marlas of land from Allah Baldish vide Mutation No,230 attested on 28-7-1973 for a consideration of Rs,2,000 while the remaining land measuring one Kanal, 5 Marlas was so acquired by him by means of a registered exchange deed dated 17-4-1972 and that the land is located in Khasra No,102, the total area whereof' is 127 Kanals and 5 Marlas. There is a graveyard in this Khasra number which is being managed by the petitioner. However, the petitioner is trying to include the said suit-land in the said graveyard. Earlier when the respondent No,1 was the owner of only one Kanal and 5 Marlas of land, he had filed a suit against the petitioner wherein it was stated on its behalf that it does not intend to include the said land within the graveyard nor does it intend to occupy the same forcibly. The suit was accordingly dismissed for absence of cause of action. It was then stated that about a week back, the petitioner is taking steps to demolish the structures and to include the suit-land in the graveyard. With these averments, he sought a declaration that he is the exclusive owner in possession of the suit-land and that the petitioner be restrained from including the said land in any scheme and from interfering with his possession. The suit was contested by the petitioner. The averments as to acquisition of the land were denied and it was stated that the sale as well as exchange is without authority and that the respondent No,1 is an illegal occupant. It was then stated that the entire land is located within the graveyard which is under the control of the petitioner. It was explained that when the earlier suit was filed, the area in question was not within the limits of the petitioner and as such the statement was made. It was insisted that the land is already part of the graveyard. Following issues were framed by the learned trial Court:--
(1) Whether the plaintiff has got no cause of action to bring the present suit?
(1-A) Whether this suit is barred by res judicata? OPD (1-B) Whether this suit is mala fide? OPD
(2) Whether the Court has got no jurisdiction to try the present suit?
(3) Whether the plaintiff is the owner in possession of the suit property?
(4) Whether the defendants are not legally authorized to eject the plaintiff from the suit property?
(5) Relief.
' Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 10-5-1981. A first appear filed by the respondent No,1 was allowed by a learned Additional District Judge, Multan, `on 29-9-1996 who decreed his suit.
2. Learned counsel for the petitioner contends that the learned Additional District Judge has misread the evidence on record and the impugned judgment fails to meet the reasoning of the learned trial Court with reference to the evidence on record dismissing the suit of the respondent No,
1. The learned counsel for the respondent No,1, on the other hand, supports the impugned judgment and decree by asserting that it is fully supported by the evidence on record.
3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. I have already detailed above the contents of the respective pleadings of the parties. Now as noted by me above, according to the plaint, the total suit-land measuring 2 Kanals and 4 Marlas is stated to have been acquired by the respondent No,1 in two parcels. I deem it appropriate to state here the particulars stated in the plaint which are as follows:--
(i) Land measuring 19 Marlas constituting 639/85757 share of 127 Kanals and 5 Marlas of land comprising Khata No,129 with reference to Jamabandi for the year 1970-71.
(ii) Land measuring one Kanal 5 Marlas being 960/85757 share of land measuring 110 Kanals, 18 Marlas and one Sarsai comprising Khata No,69 with reference to Jamabandi for the year 1966-67.
' The first mentioned is stated to have been acquired through Mutation No,230 attested on 28-7- 1973 while the second mentioned land has been alleged to have been acquired by means a registered document dated 17-4-1972.
4. Now whereas the said Mutation No,230 has been produced as Exh.P.1. The said registered document mentioned in the plaint has not been produced and no reason is forthcoming for the omission. Similarly, the copy of Jamabandi for the year 1970-71 has not been produced by the respondent No,1 whereas the copy of Jamabandi for the year 1966-67 pertaining to Khata No,114 has been produced by the petitioner as Exh.D.1. The Jamabandi mentioned in the plaint with reference to Khata No,69 is not available on record.
5. Now according to the said Mutation Exh.P.1, the petitioner acquired 639/85757 share equal to 19 Marlas in Khata No,129 total measuring 127 Kanals 5 Marlas. This mutation was effected in the column of ownership. Now on the basis of this mutation, the respondent No,1 is claiming to be owner in possession of the suit-land stated to be located in Khasra No,102. According to the Jamabandi for the year 1966-67 Exh.D.1, Khasra No,102 measuring 33 Kanals, 12 Marlas is located in Khata No,114. This entire area is recorded as "Ghair Mumkan Qabristan" in possession of "Ahal-e- Islam". Now somehow or the other in the Register of Haqdaran Zamin for the year 1974-75 (copy issued on 10-7-1976 i.e, after the institution of the suit), the two Khasra numbers came to be recorded. The first is 102/1 measuring 3 Kanals stated to be in possession of Allah Ditta to the extent of 32/60 share and Mahr Bakhsh respondent No,1 to the extent of 28/60 share on behalf of Mst.
Sabhia Begum co-sharer. Similarly, Khasra No,-102/3 measuring 28 Kanals one Marla is recorded as "Ghair Mumkan Qabristan" to the extent of 27 Kanals one Marla in possession of "Ahal-e-Islam" and one Kanal as a plot in 'possession of Mahr Bakhsh respondent No,1 on behalf of Sughran Begum co-sharer.
6. I called upon the learned counsel for the respondent No,1 to explain as to how the respondent No,1 managed to get himself entered in the column of possession on the basis of a mutation according to which a sale of unspecified share has been made in his favour in the column of ownership. He is unable to state anything. Needless to state that the said vendor recorded in the said mutation i.e, Allah Bakhsh is not recorded to be in possession of any specific portion of the said 127 Kanals and 5 Marlas of land, a share whereof was sold by him to the respondent No,1 in column of ownership. Now under the law where a co-sharer is in possession of a specific piece of joint land, within his share in the joint holding, he can sell the said specific land. However, in the present case, neither the said vendor is proved to be in possession of any specific portion of the said joint land nor, in fact, any specific land has been sold. So far as the remaining one Kanal and 5 Marlas of land is concerned, I have already noted above that the said registered document or its copy has not been produced. There are no particulars of the exchange in the plaint. Whereas the name of the vendor in the mutation has been mentioned, even the name of the transferor is not in the plaint. However, in his statement as P.W.1 Mahr Bakhsh respondent No,1 proceeded to state that he acquired the second plot measuring 28 Marlas (and not 25 Marlas as mentioned in the plaint) from Raazaq Bakhsh in exchange. I am afraid this Raazaq also does not find any mention anywhere in the column of possession.
7. Now the position that emerges is that the entire Khasra No,102 measuring 33 Kanals and 12 Marlas was a graveyard and there is nothing on record to support the entries in the Register Haqdaran Zamin for the year 1974-75. Needless to state that where an entry is not changed in accordance with law, it shall be deemed that the earlier entry continues to hold the field. Reference be made to the case of Misri through Legal Heirs and others v. Muhammad Sharif and others 1997 SCM R 338.
8. I may further note here that the learned counsel for the respondent No,1 tried to argue with reference to the pleadings of the earlier suit i.e, Exhs.P.5 and P.7 that it was admitted that the plaintiff is the owner in possession. I have checked up the said documents and find no such admission. In fact, it was stated that the area in question where the respondent No,1 is stated to have raised construction is beyond the limits of the petitioner and as such it is not taking any action. There is no dispute that the entire graveyard now falls within the limits of the petitioner. It is in the plaint itself that the graveyard is in the control of the petitioner. Nothing, therefore, turns on the said argument of the learned counsel for the respondent No,1.
9. Now whereas the learned trial Court had read the entire evidence and has correctly concluded that the respondent No,1 has failed to make out a case for grant of relief, the learned Additional District Judge has failed to read the entire evidence on record. The impugned judgment, therefore, cannot be sustained on the touchstone of section 115, C.P.C. The civil revision is allowed. The impugned judgment and decree dated 29-9-1986 passed by learned Additional District Judge, Multan, is set aside while the one passed by the learned trial Court on 10-5-1981 dismissing the suit of the respondent No,1 is restored with costs throughout.