Sharafat s/o Zarin resident of Zarin Kalay and two others have impugned the judgment and decree of learned Additional District Judge Charsadda at Tangi in Civil Appeal No, 46/13 vide which appeal of the petitioners-defendants against the judgment and decree of the learned Civil Judge Tangi was dismissed.
2. Respondents-plaintiffs had instituted a suit against the petitioners-defendants for possession in respect of property measuring 31 Kanal 19 Marla bearing Khasra Nos, 898, 899, 902, 904 and 918 to 920 situated in Mauza Koz Behram Dheri Tehsil Tangi District Chairsadda.
3. The respondents-plaintiffs claimed that the suit property was their ownership and was given to one Muhammad Ghawas as tenant and after his death one Zardad was cultivating the same as tenant. That in the year 2001, the said Zardad handed over the possession of the suit property to the respondents-plaintiffs and thereafter it was cultivated by them. The relinquishment of tenancy by Zardad was later on brought into black and white vide Iqrar Nama dated 20.8.2003. The plaint further reveals that proceedings under Section 145 Cr.P.0 were initiated in respect of possession of the suit property by the respondents-plaintiffs and it was observed by the learned Court during the proceedings -tinder Section 145 Cr.P.0 that possession of the petitioners-defendants Was illegal and the dispute between the parties was of civil nature, hence the parties were directed to approach the Court of competent jurisdiction. In para 4 of the plaint it is averred that the petitioners-defendants being desperate persons were all out to take forcible possession of the disputed property which necessitated the submission of complaint under Section 145 Cr.P.C.
4. The petitioners-defendants when summoned submitted written statement and claimed that they were tenant in possession of the suit property and the respondents-plaintiffs never cultivated the land. They termed the relinquishment deed as bogus and fabricated one. They claimed that they were inducted in the suit land by one Zardad. In the preliminary objection the question of jurisdiction was also raised.
5. The pleadings of the parties led to the following issues:--
1. Whether the plaintiffs have got cause of action? OPP.
2. Whether the suit is competent in its present form? OPP
3. Whether the Court has got the jurisdiction? OPP.
4. Whether the suit is bad because of non-joinder and misjoinder of necessary parties? OPD.
5. Whether the plaintiffs are owners of suit property? OPP.
6. Whether Zardad has executed a deed dated 20.8.2003 in favour of plaintiffs, if so, to what effect?
OPP.
7. Whether the defendants are trespassers? OPD.
8. Whether Defendant No, 1 is a tenant while Defendant No, 2 and 3 works for Zardad, who is a tenant? OPD.
9. Whether the plaintiffs are entitled to decree as prayed for? OPP.
10.Relief.
6. The learned Appellate Court formulated the following questions:--
1. Whether the Civil Court had the jurisdiction to entertain the present suit?
2. Whether [plaintiffs/respondents are owners of the suit property?
3. Whether the defendants are tenant under the plaintiffs?
7. While addressing the above questions, the learned Appellate Court made detail reference to the statement of Patwari Halqa who was examined as PW1 and had produced the relevant Fard Jamabandi pertaining to the year 1990-91 till 2003 which were exhibited as Ex.PW1/2 to Ex.PW1/7.
8. Arguments of learned counsel for the parties heard, considered and record perused.
9. PW1 admitted in his statement that the suit property was the ownership of Fazle Mehbood etc. through family partition dated 12.11.2001 and the same was given to Mst. Sardar Bibi who transferred the same in favour of the respondents-plaintiffs through Tamleek Mutation No, 2708 Ex.PW-1/14. Not only this PW but the witness produced by petitioners-defendants as DW1 also admitted that the suit property was the ownership of respondents-plaintiffs, hence this question was resolved in favour of respondents-plaintiffs.
10.From Fard Jamabandi 1990-91 Ex.PW-1/4 it is manifest that Khasra Nos, 798, 799, 902 and 904 alongwith others are in possession of Muhammad Ghos son of Janis as Ghair Dakhilkar alongwith Khasra Nos, 918, 919 and 920. PW1 produced Fard Jamabandi for the year 1994-95 Ex.PW1/5 wherein the above mentioned Khasra numbers are recorded in possession of Muhammad Ghos as Ghair Dakhilkar. Similar is the case in Jamabandi for the year 1998-99 which is Ex.PW1/6 and Khasra Girdawari from Kharif 1995 to Kharif 2003 Ex.PW1/7. From Kharif 1995 to Kharif 2000 it is recorded in possession of Muhammad Ghos while in 2001 the tenancy is recorded in the name of Zarin in respect of Khasra Nos, 918, 919 and 920.
11.DW2 Maazullah had stated that the suit property which is about 7/8 jeribs was cultivated by Zardad and petitioners-defendants No, 2 and 3 are the tenant of Zardad on payment of Rs, 1000/- per jerib per year. Both the revenue record and the statement of the DW make it clear that the suit property was in possession of Zardad and he was tenant under the respondents-plaintiffs.
12.During the proceedings before the learned Civil Judge the petitioners-defendants had also produced the son of said Zardad namely, Ajmal, as DW3 who stated that he had gone to Saudi Arabia about five years ago and had returned four months back. He has admitted that he did not know about the transaction of the suit property. However, he also stated that he came to know, on his return, that his father has given the suit property to Petitioners-Defendants No, 2 and 3. This DW has admitted it correct that his father has died before his return to the country. Nothing in black and white could be brought on record by the petitioners-defendants that they were inducted as sub-tenants in the suit land by Zarda.d. Similarly DW-1 admits that it is correct that the suit property is the sole ownership of the respondents-plaintiffs aid 12 Kanal is in his possession while 10 Kanal in possession of Sharafat and 9 Ka :A in possession of Saifullah the petitioners-defendants herein. He was unable to produce any agreement to show that he was holding the tenancy on behalf of Zardad.
13.The respondents-plaintiffs have specifically pleaded that Zardad had relinquished the possession of suit property in their favour in 2001 and subsequently relinquishment deed Ex.PW2/1 was scribed which was duly proved by producing PW2, PW3, PW4 and PW5. Even otherwise, if it is presumed that Zardad had inducted the petitioners-defendants as tenants in the suit land, even he was not competent to do so and as such the Appellate Court has rightly held them to be trespassers.
14.When once they were held and declared to be trespassers, then the civil Court had the jurisdiction to adjudicate upon the lis.
15. The judgment and decree of the learned Appellate Court is well reasoned and suffer from no- irregularity or illegality much less jurisdictional in nature, hence this petition stands dismissed in limine.