MUHAMMAD KHALID MEHMOOD KHAN, J.---The petitioner filed a suit for declaration against respondents declaring that he is the transferee of house No,11/95 detailed of which is given in para 1 of the plaint and the respondents are occupying the portion of said house illegally and they be ordered to be ejected. The respondents controverted the assertions of petitioner and claimed that they are transferee of house No,11/96 adjacent to the house of the petitioner and as such they are occupying their own house under a valid transfer order issued by the Settlement Department. The learned trial Court framed the following issues out of pleadings of the parties:-- "ISSUES.
(1) Whether the plaintiff has no locus standi and cause of action? OPD
(2) Whether the plaintiff is estopped by his conduct to file this suit? OPD
(3) Whether the suit cannot proceed further in the present form? OPD
(4) Whether the suit is time barred? OPD
(5) Whether the suit is bad for failing to implead necessary parties? OPD
(6) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? If yes, then what is the correct valuation for both the purposes? OPD
(7) Whether the gift made by the defendant No,1 in favour of defendant No,2 with regard to the disputed house is illegal, against facts, without lawful authority, based upon mala fide and fraud etc. and liable to be set aside? OPP
(8) Whether the subsequent transaction of sale by defendants No,2 in favour of defendants Nos.4 and 5 is illegal, void liable to be set aside and ineffective qua the rights of plaintiff? OPP
(9) Relief."
2. Both the parties recorded their evidence both verbal as well as documentary and the learned trial Court dismissed the suit vide judgment and decree dated 4-1-1998. The petitioner assailed the said judgment and decree through an appeal which too was dismissed vide judgment dated 2-9- 2000, hence, the present petition.
3. The dispute between the parties is that the petitioners are claiming to be the transferee of house No,11/95 situated in Crali Chandawala, Ward No,20 Lalamusa, Tehsil Kharian District Gujrat. The property bearing No,11/95 is an Evacuee property and PTD of the said property was issued in favour of the petitioner on 10-7-1970 by the Deputy Settlement Commissioner Gujrat. The respondents were also issued a PTD by the Deputy Settlement Commissioner regarding house No,11/96 on 8-7- 1970. The measurements of both the properties are not available in their respective title documents and only in schedule of property it is mentioned as house No,11/95 Bazar Dolat Nagar Lalamusa.
Likewise the detail of house No,11/96 is mentioned as house No,11/96/Lalamusa. The name of evacuee owner of house No,11/95 is shown as Dowarka Naath and owner of house No,11/96 is shown as Projan Singh. The petitioner claims that respondents are his maternal nephew and at the time of creation of Pakistan they were orphan. He gave them shelter and accommodated in house No,11/95 but subsequently they started to claim the owner of house No,11/95 under the garb of their PTD issued for a house No,11/96. The respondents claim is that two houses are independent units but adjacent to each other and house No,11/95 was transferred to the petitioner which is in his possession and house No,11/96 was transferred to them which is in their possession. They are not occupying any portion of house transferred to the petitioner. DWI Pervaiz Akhtar the Settlement Clerk appeared and produced settlement record of both properties and confirmed that house No,11/95 was transferred to Muhammad Ismail son of Rehmatullah the predecessor-in-interest of petitioner and house No,11/96 has been transferred to Abdul Rashid son of Din Muhammad, the predecessor-in-interest of respondents. He deposed that property Nos.11/95 and 11/96 are two independent houses but the area and number of rooms are not available in their record of both the parties. Both the parties are evacuee properties and as per their record name of owner of property No,11/95 is Dawarka Naath, whereas the name of owner of property No,11/96 is Projan Singh. The Parties have produced copy of house tax register for the year 1959-60 as Ex.P5 which shows that house No,11/96 is in possession of Abdul Rashid is measuring 2-1/2 marlas. Exh.P4 shows that house No,11/95 is measuring 4 marlas and consisting of 03.rooms with one Chobara. It is an established fact on record that the above said two properties are different A properties owned by different evacuee owners. D.W.2 in his statement deposed that there is one main gate which is in front of house of both the parties and the main gate is in the use of both the parties but the property in possession of both the parties is different. He further deposed that after entering in the main gate and passing through the land of house No,11/95 the parties enter in to their own properties.
4. Leaned trial Court has framed Issue No,5 on the point that Settlement Department the transferee of property is a necessary party or not and answered this issue assuming that the petitioners are not challenging the PTD of respondents, hence, the title of both the parties is not disputed and as such the Settlement Department is not a necessary party to the suit.
5. Both the parties admit their title document, Settlement Clerk appeared as DW-1 states that both the parties were valid transferee of two independent houses, the Evacuee owner of both the properties is different, but he is unable to produce any document showing that the property in possession of parties are different from each other by measurement and boundaries. He has not produced any site plan, it is an admitted fact that both the properties are residential houses and the site plan must be available in the Settlement record along with survey register and other ancillary documents, hence, Settlement Department was necessary party to the suit for resolving the controversy which is about the identification of two properties. The learned trial Court has failed to appreciate this aspect of the fact and the learned trial Court has also ignored this important aspect. If the Settlement Department would have been impleaded party to the suit definitely then they were bound to produce all documents showing the actual location of two properties. The dispute between the parties is about the identification of property which can be resolved only after examining the Settlement Department record as the two Evacuee owners are different persons and in the absence of a necessary party to the suit i,e, Settlement Commissioner the result is that the dispute has not been resolved and parties are litigating with each other for the last 50 years. The argument of learned counsel for the petitioner that property No,11/96 is located some where else and, property in possession of respondent belongs to petitioner and is part of house No,11/95 has not been established on record. Learned counsel for the petitioner referred C,H Form submitted by the petitioner at the time of filing application for allotment of this property. The perusal of said C.H Form shows that petitioner was in possession of one "Chobara" and one "Kothari", whereas the Municipal Committee record shows that he is in possession of 3 rooms along with "Chobara", hence, the C.H. Form is not helpful for resolving the said issue, hence, in my view the Settlement Department was necessary party to the suit for resolving of dispute between the parties and as such the findings of learned trial Court as well as appellate court on Issue No,5 is set aside and the case is remanded to the learned Civil Court with the direction that he will direct the petitioner to implead Settlement Department as party to the suit. The Settlement Department then be bound being party to the suit to produce all record which will be helpful for identification of two properties which is the only way for resolution of dispute for ending this long litigation. It is an old case and the learned trial Court will decide the suit after impleading the Settlement Department as party to the suit within 4 months from the date of receipt of certified coy of this order. The revision is allowed and judgments of both the courts below are set side.
6. There is no order as to costs.