' MAULVI ANWARUL HAQ, J.--- On 27-2-2002 the respondents Nos,1 to 9 filed a suit against the petitioners and respondents Nos.10 and 11. A pedigree table was drawn in para.1 of the plaint. It was stated that the suit house was owned by Noor Zaman who died 20 years ago and the house devolved upon the parties. Mst. Bhag Bhari petitioner No.1 only has 1/11 share in the house. The plaintiffs have 29/66 while the defendants have 31/66. However, Bhag Bhari proceeded to exchange the house with Ghulam Ali, petitioner No.2 and delivered the possession to him vide registered exchange deed dated 14-2-1995. A declaration and decree for separate possession of 29/66 partition was accordingly prayed for The plea taken by the petitioner was that the house was not owned by Noor Zaman. It was owned by one Mst. Begum who sold it to Bhag Bhari vide registered sale-deed dated 19-5-1975 and delivered the possession and thereafter Bhag Bhari gave the house to Ghulam Ali petitioner No.2 vide exchange deed dated 14-2-1995. Following issues were framed from time to time by the learned trial Court and parties went on trial.
(1) Whether plaintiff is entitled to declaration as prayed for along with possession, if so, to what extent? OPP (1-A) Whether transaction dated 19-5-1975 in favour of defendant is against law and facts and without jurisdiction and is null and void on the rights of plaintiffs? OPP.
(2) Whether Mst. Begum was real owner of disputed property and later transaction by her was according to law and facts? OPD (2-A) Whether suit is barred by time? OPD (2-B) Whether suit is incorrectly valued for the purse of court-fee and jurisdiction? OPD
(3) Relief.
' Evidence of the parties was recorded. The suit was dismissed by the learned trial Court on 14-9- 1996. First appeal was allowed by a learned Additional District Judge, Attock on 16-3-1998, who directed the trial Court to frame a specific issue regarding ownership of Noor Zaman. After remand following issues were framed:-- ' 1-B Whether Noor Zaman predecessor-in-interest of the plaintiffs and defendants Nos.1, 3 to 8 was the last owner of the property in dispute and after his death the property devolved on his lawful heirs? OPP 2.C Whether Ghulam Ali defendant No.2 is bona fide transferee of the land with consideration without notice? OPD.
' Some evidence was recorded. The learned trial Court passed a preliminary decree on 15-12-2000.
First appeal filed by the petitioners has been dismissed by a learned Additional District Judge, Attock, on 24-1-2002.
2. Before I proceed further I may note here that this civil revision was filed by seven persons mentioned in the memo. Of parties. Vide order dated 29-10-2008, the civil revision stands dismissed as withdrawn to the extent of petitioners Nos.1 and 4 to 7 while to the extent of petitioner No.3 it was dismissed for non-prosecution. This hearing is being conducted inter se petitioner No.2 and the respondents.
3. Learned counsel for the petitioner No.2 contends that it is a finding recorded by both the courts that there is no evidence of title either of Begum Jan, Bhag Bhari or Noor Zaman. The precise contention in the said state of evidence is that a decree for possession could not have been passed. Relies on the case of Allah Din v. Habib PLD 1982 SC 465. Further contends that this was a case of oath against oath and the plaintiffs were bound to fail. Learned counsel for the respondents, on the other hand, contends that this is civil litigation and has been decided on preponderance of the evidence.
4. I have gone through the copies of the record, with assistance of the learned counsel for the parties. It will be noted that the plaintiffs/respondents had sought possession of the property to the extent of their alleged share on the ground that Noor Zaman was the last male owner of the suit property. This was burden of issue No.1-B. It is true that the defendants were also burdened to prove ownership of Mst. Begum. However, they were already in possession and had not come to the Court for any relief.
5. Learned Courts below after holding that claim of Begum Jan that house was transferred to her by husband has not been proved proceeded to hold that Noor Zaman was owner of the property when admittedly there was not an iota of evidence on record in support of issue-l-B regarding ownership of Noor Zarrian.
6. Under Article 126 of Qanun-e-Shahadat Order, 1984 where a person is in possession the burden to prove that he is not owner is upon person who is seeking possession. The rule emanating from the said statutory provision is that a person in possession can be dispossessed only by a person having a title superior to person who is in possession. There is no proof of any such superior title vesting in the plaintiffs/respondents. Findings recorded by the learned Courts below are that there is no evidence of ownership of Begum Jan, Bhag Bhari and Noor Zaman. In such eventuality rule of inperidelicto would also become effective and the case will have to be decided in favour of person who is in possession. Thus from whatever angle seen impugned judgments and decrees clearly attract mischief of section 115, C.P.C. And cannot be sustained. Civil revision is accordingly allowed.
Both the impugned judgments and decrees are set aside and suit of the plaintiffs/respondents dismissed as against petitioner No.2 but without any order as to costs.