' MAULVI ANWARUL HAQ, J.--- On 10-7-1990 the petitioner filed a suit against the respondents. In the plaint it was stated that in the year 1969, the petitioner occupied the plot described in para.1 of the plaint and raised some construction thereon and obtained an electric connection in the year 1976; that Katchi Abadi stands established in the said area; that the petitioner is a Murid of Hazrat Sakhi Sarwar and in the said structures he reserved a place for organizing Majlis in the memory of the said Saint; that in 1988 the petitioner demolished the old structure and constructed a Pacca room and boundary wall and thereafter had been raising construction from time to time; that 9 Marlas of plot was reserved for the purposes of holding Majlis in memory of the Saint while 7 Marlas were reserved for his residence; that he installed a loom; that the Excise and Taxation Department conducted a survey and record is being maintained in respect of the suit property in his name; that his name was also mentioned in the survey list prepared by respondent No,1; that when it was decided by the Federal Government to confer proprietary rights on the occupants of the Katchi Abadi, Barkat Ali, the predecessor-in-interest of respondents Nos.2 to 4, got the ownership certificate in his name on 25-8-1987. It was further stated in the plaint that the said defendant tried to interfere with his possession and he filed a civil suit and a temporary injunction was issued in his favour; that on 4-4-1988 the said defendant along with his accomplices entered the house of the petitioner and he and his family members were beaten up and were turned out of the house; that an application for disobedience of injunction is pending while the suit stands disposed of as having been rendered infructuous. With these averments he sought a decree for possession on the ground that since he had been in possession of the plot and had raised construction, it was he who was entitled to the grant of ownership certificate. In his written statement the deceased defendant denied the said allegation. According to him the petitioner had never been in possession and it was he who was in possession and has got the property being a Mutwali of Dera Sakhi Sarwar.
Following issues were framed by the learned trial Court:--
(1) Whether the suit is not proceedable in its present form? OPD.2
(2) Whether the suit liable to be stayed under section 10 of C.P.C.? OPD . 2 .
(3) Whether the plaintiff has no cause of action to file this suit as contended in preliminary objections Nos.3 and 4 of the written statement? OPD.2.
(4) Whether the suit is not proceedable in view of preliminary objections Nos.5 and 6 of the written statement? OPD.2.
(5) Whether the valuation of the suit for the Court-fees and jurisdiction is incorrect, if so what is correct valuation? OPD.
(6) Whether the plaintiff's suit is mala fide and if so whether defendant No,2 is entitled to special cost? OPD.2.
(7) Whether the disputed plot is Waqf property, if so its effect? OPD.2.
(8) Whether the plaintiff has become owner of suit Ihata on the basis of notification issued by Board of Revenue? OPP
(9) Whether "Sanad Malikana" No,0117275 dated 25-8-1987 issued by defendant No,1 in favour of defendant No,2 in respect of disputed plot is result of fraud, collusiveness so ineffective upon the rights of the plaintiff? OPP
(10) Whether the plaintiff was dispossessed by the defendant on 4-4-1988, if so its effect? OPP
(11) Relief.
'Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 3-4-1993. A first appeal filed by the petitioner was dismissed by the learned Additional District Judge, Kamalia on 28-7-1999. The petitioner is represented by Ch. Nazir Muhammad, Advocate, whereas the respondents Nos.2 to 4 are represented by Rana Muhammad Arshad Khan, Advocate. Names of both the learned counsel are duly published in the cause list for today but no one has appeared either for the petitioner or for the said respondents. So far as respondent No,1 is concerned it is pro forma and an official is present on its behalf.
3.(sic) Having gone through the records of the civil revision I am not at all inclined to dismiss the same for non-prosecution.
4. I have already referred to the pleadings of the parties in some detail above. As noted by both the learned Courts below all important issue in the case is the said Issue No,9 reproduced above and the gist of the issue is as to who amongst two contestants was in possession of the plot. Having examined the evidence on record I find that both the learned Courts below have misread the record and have opted to completely omit from consideration some very important pieces of evidence. Deceased Barkat Ali defendant did not put in appearance in the witness-box. Instead his special attorney Muhammad Shafi appeared as D.W.1. He has proceeded to state that the parties are known to him; that the Darbar was constructed in the year 1960 by the residents of the Mohallah and the Murids and that Barkat Ali was the Mutwali; that the petitioner used to sweep the Darbar; that the petitioner had never been in possession of the suit property; that the petitioner owned a house nearby which he has sold to one Khaleel. In his cross-examination he admitted that Barkat Ali is residing in Chak No,92/GB for the last 35/40 years. He admitted that the area of the plot is 16 Marlas. He admitted that there is no grave in this plot, rather a figure has been made. He admitted that the petitioner was also a Murid of the Saint. He admitted that the persons who were in possession in the year 1986 were given the ownership rights. He admitted that at the time of survey the petitioner was present in the Darbar but as a sweeper. Thereafter, he expressed ignorance that on 20-3-1988 the petitioner has obtained a stay order regarding the plot. He admitted that a contempt case was made against Barkat Ali. He admitted that Barkat Ali was fined Rs,1,000 and possession of the petitioner was restored. He admitted that an appeal was filed which was dismissed. He expressed ignorance as to whether the order was challenged any further. He admitted that the electric meter in the property is in the name of the petitioner. He expressed ignorance that the petitioner has installed a loom in the property. Exh.P.17 is the judgment, dated 18-4-1992 of a learned Civil Judge 3rd Class, Kamalia in the application filed by the petitioner under Order XXXIX, rule 2(3), C.P.C. Issues were framed and the learned Civil Judge recorded a finding that the petitioner was in possession of the suit property and was dispossessed by Barkat Ali defendant in violation of the status quo order. The learned Civil Judge, proceeded to impose a fine of Rs,1,000 and to direct Barkat Ali to put the petitioner in possession within ten days. Exh.P.16 is the judgment of a learned Additional District Judge, T.T. Singh, whereby the appeal filed by Barkat Ali defendant was dismissed on 6-5-1992. These judgment fully bear out the contentions of the petitioner in his plaint as to the manner in which the petitioner was got arrested then made to sign some documents and thereafter dispossessed in violation of the injunction issued by the learned Civil Court.
5. Coming to the impugned judgment, I find no reference at all to the said admitted and proved facts on record that the petitioner was in possession, he was dispossessed by Barkat Ali, defendant and that under orders of the Court his possession was restored. To my mind in the presence of the said evidence on record and the said statement of the special attorney of Barkat Ali, defendant the impugned judgments and decrees could not have been passed dismissing the suit filed by the petitioner for the reason that all his contentions stood proved, I, therefore, reverse the findings recorded by the learned Courts below on Issue No,9 and hold the issue in affirmative.
6. It will be pertinent to note here that Issue No,10 which deals with the question of dispossession of the petitioner has deliberately been avoided to be answered by both the learned Courts below.
This is a classic case of non-reading of the evidence on record by both the learned Courts below.
The learned trial Court was constrained to refer to Exhs.P.16 and P.17 while dealing with Issue No,4 and got rid of the matter by stating that these are tentative orders. The observation is shockingly perverse. An order passed under Order XXXIX, rule 2(3), C.P.C. Between the parties after framing of issues and recording of evidence and made subject to an appeal by virtue of section 104 read with Order XLIII, rule 1, C.P.C. Cannot be said to be a tentative order. These are speaking orders based on evidence holding that the petitioner had been in possession, was dispossessed and possession was ordered to be restituted.
7. It will be interesting to note that finding on Issue No,5 pertaining to court-fee was reversed by the learned Additional District Judge for the precise reason that the possession stands restored to the petitioner, still he blindly followed the findings of the learned trial Court on Issue No,9. Findings on all other issues flow from the findings on Issue No,9 and as such are reversed.
8. As a result of the above discussion, the civil revision is allowed. Both the impugned judgments and decrees are set aside and the suit of the petitioner is decreed as prayed for.