' SH. AZMAT SAEED, J.---This Civil Appeal is directed against the judgment dated 27-3-2006 of the Lahore High Court, Lahore.
2. The brief facts necessary for adjudication of the lis at hand are that the present appellant filed a suit for declaration to the effect that the appellant is owner in possession of residential part of the property bearing No, P-26/B-I situated in Malkanwala Bazar, Gojra, measuring 4 marlas and 259 Sq.
Ft., while the respondents were owners only of a shop forming a part of the ground floor measuring 10' x 22' Sq. Ft. And further that the chobara situated in the said building was also in the ownership of the appellant. The appellant claimed title to the property in question on the basis of a suit for specific performance, which was filed against the original allotters of the residential part of property, which was decreed and where after a sale-deed executed through the intervention of the Court. The mutations recording a larger area of the shop in favor of respondents were also challenged. An injunction seeking protection of possession was also prayed for. The respondents contested the suit and upon the divergent pleadings of the parties issues were framed and evidence was led where after the trial Court seized of the mater vide judgment and decree dated 12-10-1996 held that the chobara was in fact the property of the appellant. However, it was further held that the dimension of the shop vesting in the respondents was not 10' x 22' as alleged by the appellant but 25-1/2 x 21-1/2 as claimed by the respondents. Being aggrieved, both sides filed appeals against the said judgment and decree dated 12-10-1996. The first appellate Court seized of the matter, vide its judgment and decree dated 23-4-1998 accepted the appeal filed by the appellant and dismissed the appeal filed by the respondents. As a consequence whereof the suit filed by the present appellant was decreed 'in its entirety. Aggrieved the respondents filed two separate Civil Revisions before the learned Lahore High Court. Lahore and vide impugned judgment dated 27-3-2006 the revisions were accepted and the suit of the appellant dismissed in its entirety.
3. It is an admitted fact between the parties that the property in dispute i,e, composite building bearing No,P-26/B-1 was evacuee property. The predecessors-in-interest of the appellant namely, Ghulam Muhammad and Kaka as well as the predecessor-in-interest of the respondents namely, Abdul Rehman variously applied for transfer of the property in their names. Originally, the entire property was transferred in the name of Abdul Rehman, the predecessor-in-interest of the respondents. Aggrieved Ghulam Muhammad and Kaka, the predecessor in-interest of the present appellant filed an appeal before the Additional Settlement Commissioner, which was accepted in terms that the residential portion of the property stood transferred in the name of Ghulam Muhammad and Kaka, while the shop was transferred in the name of Abdul Rehman.
Subsequently, the said Abdul Rehman filed a revision petition against the order of the Additional Settlement Commissioner referred to above, which was dismissed by the Settlement and Rehabilitation Commissioner and the matter attained finality. Subsequently, the appellant acquired the property in dispute from Ghulam Muhammad and Kaka, while the respondents are the successors in-interest of-Abdul Rehman.
4. We have heard the learned 'counsel for the parties and with their assistance examined the impugned judgment as well as the pleadings and the evidence of the parties.
5. By way of the impugned judgment, the learned High Court has held that the suit filed by present appellant was barred under Order IX, Rule 9, C.P.C. As an earlier suit was dismissed in default and never restored where after the instant suit has been filed. Adverting to this aspect of the matter, it appears from the record that an earlier, suit was filed by one Bashir Ahmed regarding the suit property, which was dismissed in default on 21-2-1985. The copy of the order sheet, including the title of the suit is on record as Exh.P-6, perusal whereof reveals that inter alia predecessors-in- interest of the present appellant were impleaded as defendants. Ex facie the appellant is not the successor-in-interest of the plaintiff in the suit. Thus, the dismissal of the A suit in default cannot have any consequences for the appellant, who does not claim any title through Bashir Ahmed, the plaintiff in the said suit. It has also been noticed that the copy of the plaint in the said suit filed by Bashir Ahmed was never produced in evidence nor any specific issue pertaining to the suit being barred under Order IX, Rule 9, C.P.C. Was ever framed. In fact only issue in this behalf pertained to res judicata was framed. In the above circumstances, we find ourselves unable to hold that the suit filed by the present appellant was barred by Order IX, Rule 9, C.P.C. .
6. It is an admitted fact between the parties that the property in question was evacuee and was originally transferred to the predecessor rin-interest of the respondents. The predecessors-in- interest of the appellant namely, Ghulam Muhammad and Kaka challenged the same through an appeal before the Additional Settlement and Rehabilitation Commissioner, which was accepted vide order dated 1F-4-1960, Exh-D-1. In the said order, it was held that the property consisted one shop with residential portion on top and at the backside of it. The' shop was transferred to the predecessor-in-interest of the respondents, while the residential portion was transferred to the predecessors-in-interest of the appellant: The predecessor-in-interest of the respondents filed a revision petition before the Settlement and Rehabilitation Commissioner, which was dismissed vide order dated 3-8-1960 Exh.D-2, whereby the order of the Additional Commissioner was maintained and it was specifically held that shop on the ground floor and the residential portion situated on the ground floor and first floor are distinct and separate.
7. The dimensions of the shop in question are not mentioned in the said orders. It is the case of the respondents which has found favour that along with the grounds of appeal filed by the predecessors-in-interest of the appellant before the Additional Settlement Commissioner, 'a site plan of the property was attached in which the dimensions of the shop are shown as 25-1/2' x 21- 1/2', as claimed by the respondents; hence, the case of the appellant stood admitted.
8. The said site plan being relied upon by the respondents is on record as Exh-D-4. The perusal whereof reveals that it is purported to ave been made on 3-4-1960, which is the date mentioned thereupon.
' The appeal filed by the predecessors-in-interest of the appellant is dated 12-1-1960. The date on the form under Order XIII, Rule 1, C.P.C. i,e,list of documents is attached with the site plan is also dated 12-1-1960. It is impossible to accept that the alleged site plan purportedly prepared on 13-4- 1960 could have been filed with the grounds of appeal dated 12-1-1960. The said site plan Exh-D-4 is therefore dubious. It is also noticed that the said site plan which was tendered in evidence subject to objection by the defendants in the suit and the custodian of the record i,e, the settlement authorities were never summoned to authenticate it lending credence to the contention of the learned counsel for the appellant but Exh.D-4 is not the site plan which was filed by his predecessors-in-interest along with the appeal before the Additional Commissioner. The present appellant adduced Exh.P-2, which is the site plan of the proposed construction of the property in dispute submitted to the Municipal Authorities. The said site plan is dated 26-4-1945, wherein the shop is identified as having the dimension of 22' x 10' . The certified copy of the said site plan was produced as Exh.P-2 without any objection raised by the respondents. No doubt the said site plan stood sanctioned in the name of a Muslim owner in 1945 which itself is no reason for discarding the said document, as the property very well could become evacuee in 1947 if transferred to a non- Muslim in the meanwhile. Furthermore, the number of the property is mentioned and its location is clearly identified and the learned counsel for the respondents has been unable to show as' to how the said site plan Exh.P-2 does not relate to the property in dispute. Similarly, another site plan pertaining to the proposed alterations in the building as submitted to the Municipal Authorities is also on record. The said document pertains to the year 1966 and certified copy thereof has been produced in evidence as Exh.P-3 without any objection from the opposite side. The said site plan also shows the dimensions of the shop as 10' x 22' as claimed by the appellant. This document also pertains to the property in dispute which is clearly identified by number. There is nothing on record to persuade us that the said site plan is not genuine or does not pertain to the property in question.
9. Some reference has been made to interim orders passed by the learned High Court in contempt proceedings pertaining to the suit filed by Bashir Ahmed. The said documents are of no relevance as they do not record any finding as to the dimensions of the shop in question. In fact no final order was passed. Even otherwise, the question of title is to be determined through a civil suit and not through quasi criminal proceedings.
10. In view of the above, it is clear and obvious that the dimensions of the shop in question are not mentioned in the orders of the Settlement Authorities. The site plan Exh-D-4 was apparently not filed by the predecessors-in-interest of the respondents along with their appeal before the Additional Commissioner as the said site plan on the face of it was prepared on a date after the filing of the appeal. The said documents were taken into evidence subject to objections including as to its proof and was never authenticated through any evidence of the custodian of the record.
While on the other hand a certified copy of the site plan pertaining to the proposed construction dated 16-4-1945 was produced in evidence as Exh-P-2 without any objection from the opposite side and supports the case of the appellant. The site plan Exh.P-3 which too was produced without any objection also shows the dimensions of the shop as 10' x 22' Sq. Ft. In the circumstances, the findings arrived at by the first appellate Court qua dimensions of the shop are based on the evidence before it, therefore, there was no. Occasion to set it aside the same.
12. It is an admitted fact between the parties that only the shop situated on a part of, the ground floor was transferred to the predecessors-in-interest of the respondents. While the residential portion situated on a part of the ground floor as well as on the first floor stood transferred to the predecessors-in-interest of the appellant. The learned counsel. For the respondents has not been able to show how the chobara which is admittedly not situated on the ground floor can be considered to be the part of the shop. Hence, the findings of the trial Court as well as the first appellate Court to this effect that the chobara stood transferred to the predecessors-in-interest of the appellant are unexceptionable and there was no occasion to set aside the said decision.
13. The learned counsel for the respondents had taken a plea that the instant civil appeal has been directed against the acceptance of only one of the Civil Revision i,e, C.R. No,831 of 1998 and no appeal has been filed against the judgment passed in Civil Revision No,832 of 1998, hence the judgment of the learned High Court in Civil Revision No,832 of 1998 has attained finality and the Civil Appeal against the same would be barred by limitation. This has been controverted by the learned counsel for the appellant.
14. The record reveals that the appellant filed one suit against the respondents which was partially decreed through a single judgment and decree. Both sides filed separate appeals which were decided by a single composite judgment and decree by the first appellate Court. The respondents chose to file two separate civil revisions before the leafned High Court which was perhaps unnecessary as the matter would have been adjudicated through one single civil revision. Both the Civil Revisions were disposed of by one judgment dated 27-3-2006 scribed in Civil Revision No,831 of 1998 accepting the said Civil Revision. In the short order dated 27-3-2006 in Civil Revision No,832 of 1998, it was written that for the reason recorded in the judgment passed in Civil Revision No,831 of 1998 this Civil Revision No,832 of 1998 is dismissed, where after the instant civil appeal was filed challenging the impugned judgment dated 27-3-1996. Subsequently, the respondents filed as application under section 152, C.P.C. Seeking rectification of the dismissal recorded in Civil Revision No,832 of 1998, which was accepted without notice to the appellant and it was recorded that the said Civil Revision has been accepted. In the above circumstance, we are unable to agree with the learned counsel for the respondents and the objection raised by him appears to be misconceived specially as only one decree was drawn by the learned High Court.
(c) In this view of the matter, this Civil Appeal is accepted, impugned judgment dated 27-3-2006 is set aside. As a consequence, the appellate judgment and decree of the first appellate Court dated 23-4-1998 stands restored and the suit filed by the appellant decreed.