' SHAH JEHAN KHAN AKHUNDZADA, J.---This revision petition has been directed against the judgment and decree dated 7-4-2010 of the learned Additional District Judge-VII, Mardan whereby he dismissed the appeal of Akbar Khan and others defendants/petitioners against the judgment and decree dated 15-5-2009 of the learned Civil Judge-VII, Mardan and upheld the judgment and decree of the trial Court.
2. Brief facts of the instant revision petition are that Daud Khan and others plaintiffs/respondents brought a suit against Akbar Khan and others defendants/ petitioners for possession of the suit property measuring six marlas comprising in old Khasra No,2350 new Khasra No,6155/1 situated in Mauza Bakhshali District Mardan. It was averred in theme,, plaint that the plaintiffs/respondents are owners in possession of the suit property while defendants Nos.17 to 20 are their tenants and now they refused to give them their shares and also denied their ownership, that they were asked time and again to admit the claim of the plaintiffs/ respondents but they refused. Hence this suit.
3. The defendants/petitioners have only contested the suit by filing written statement. The pleadings of the parties gave rise to the following issues:-- ISSUES.
' Whether the plaintiffs have got a cause of action?
' Whether this court has got jurisdiction to entertain the present suit?
' Whether the suit is competent in its present form?
' Whether the suit is liable to be rejected due to non-affixation of court-fee?
' Whether the suit is liable to be rejected due to misjoinder and non-joinder of necessary parties?
' Whether the plaintiffs are owners of the suit property and defendants Nos. 17 and 18, are in possession on the suit property as tenant at will? If so its effect?
(7) Whether the predecessor of defendants Nos.17 and 18, purchased the suit property from predecessor of plaintiffs, through deed dated 31-10-1951 and after that they are in possession of suit property as owner? If so its effect?
(8) Whether defendants Nos.17 and 18 are entitled for compensatory cost under section 35-A of C.P.C.
(9) Whether the plaintiffs are entitled to the decree as prayed for?
(10) Relief.
4. Both the parties produced their evidence in support of their respective claims and after hearing their learned counsel, the learned trial Judge vide his judgment and decree dated 15-5-2009 decreed the suit in favour of the plaintiffs/ respondents. Feeling dis satisfied from the above findings of the trial Court, the defendants/petitioners preferred an appeal which too was dismissed by the learned Appellate Court below vide judgment and decree dated 7-4-2010. Hence the instant revision petition against the concurrent findings of both the Courts below.
5. Learned counsel for the defendants/ petitioners reiterated the grounds of revision and further strenuously contended that the judgments and decrees of both the Courts below are outcome of misreading and non-reading of evidence, hence not sustainable in the eye of law and this fact was also not noted by the first appellate Court and in fact the learned Appellate Court has countersigned the judgment of the trial Court; that both the courts below have decided the case in violation of parameters prescribed by the superior Courts, therefore, this Court has ample jurisdiction to interfere in the concurrent findings of fact arrived by both the Courts below while exercising powers under section 115, C.P.C. He further contended that the predecessor-in-interest of the defendants/petitioners has purchased the suit property through deed dated 31-10-1951 Exh.DW- 1/1 and since then they are owners in possession of the same while the plaintiffs/respondents have failed to prove through reliable evidence that they are owners in possession of the land in dispute.
It was further contended that P.W.1 has admitted in the cross-examination that on the spot three marlas out of six Marlas are available as a plot in the suit Khasra number while the remaining three marlas have been encroached upon by one Khalid Khan but the plaintiffs/respondents have not arrayed the said Khalid Khan as a party in the suit and as a rule of substantial law in absence of necessary and proper parties the suit shall fail. Learned counsel also contended to accept the instant revision petition and strike down the judgments and decrees of the courts below and the suit filed by the plaintiffs/respondents be dismissed.
6. Learned counsel for the plaintiffs/ respondents defended the impugned judgments and decrees and further contended that both the courts below have passed the judgments and decrees in accordance with law and facts of the case, which requires no interference by this court. He further contended that the defendants/petitioners have failed to prove the unregistered deed Ex.DW-1/1 through documentary as well as oral evidence. He further submitted that the said document does not fulfil the requirements of proof of execution under Article 79 of Qanun-eShahadat Order, 1984.
He also contended that High Court has very limited jurisdiction to interfere in the concurrent findings of the Courts below while exercising jurisdiction under section 115, C.P.C. Because unless and until the judgments of the courts below are result of misreading or non-reading of evidence or, decision of the case or is violative of the parameters prescribed by the superior courts. On account of material placed on the file, learned counsel reiterated that both the Courts below have appreciated it in its true perspective and thus the same warrants no interference by this Court, therefore, the concurrent findings of both the courts below cannot be disturbed in the instant revision petition and the same is liable to be dismissed.
7. After hearing arguments of learned counsel of either side and perusing the record I find that as per assertion of the plaintiffs/respondents, their stance is that they are owners and in possession of the suit-land measuring 6-marlas whereas the defendants/petitioners are their tenant-atwill while the claim of the defendants/ petitioners is that their predecessor had purchased the property in dispute through one unregistered deed dated 31-10-1951 Exh.DW-1/1 from the predecessor of the plaintiffs/respondents. At the trial, Noor-ulAmin, special attorney of the plaintiffs/ respondents appeared as P.W.4 and stated that the suit property is the ownership of the plaintiffs/respondents while the defendants/petitioners are their tenant-atwill but in his cross-examination he admitted that the defendants/petitioners are in possession of the suit property from the date of institution of the suit and before that nobody was in possession of it but again stated that the defendants/petitioners are in possession of the property in dispute before the institution of the suit and also before his memory. Except the statement of the attorney for the plaintiffs/respondents no witness has been produced by them to substantiate their claim. Akbar Khan, petitioner No,1 appeared as DW-1 and stated that the suit property measuring 6-marlas has been purchased by his father from Litaf predecessor of plaintiffs/ respondents through deed DW-1/1 and they are owners in possession of it. He further stated that scribe and the marginal witnesses of the said deed have passed away. Shams-ur-Rehman appeared as DW-2 who also stated the same facts as narrated by the DW-1. Sher Zaman appeared as DW-3 and stated that since his memory the defendants/petitioners are in possession of the suit property which has been purchased by them from Litaf Baba and they are still in its possession.
8. So perusal of the record shows that both the parties have failed to fully substantiate their claim through cogent, reliable and convincing evidence. The evidence so far produced by the parties is not enough in, my view, to resolve the controversy between the parties. Therefore, in order to arrive at a correct conclusion it would be appropriate to send the case back to the trial Court for recording fresh pro and contra evidence oral well as documentary including the Revenue Record of the parties. It was also stated by Nabiur-Rehman, Patwari Halqa P.W.1 in his cross-examination that 3-marlas land out of 6-marlas of land in dispute in Khasra No,6155/1 is available on the spot as plot (Dagga) while the remaining 3-marlas have been encroached upon by Khalid Khan legal heirs of Amirzada Khan in their property which is adjacent to the suit Khasra number. The said Khalid Khan and others have also not been impleaded as party in the suit and a decree cannot be passed in their absence, thus, they are also necessary parties in the suit. It is also on the record that the scribe and the marginal witnesses of the deed dated 31-10-1951 Exh.DW-1/1 relied upon by the defendants/plaintiffs have been stated to be dead but none of their legal heirs been examined by the defendants/petitioners at least to affirm the thumb impressions of the said deceased persons.
9. For the foregoing reasons, the impugned judgments and decrees of the two learned courts below are not sustainable in the eye of law and safe administration of justice but are liable to be set aside. Hence this revision petition is accepted, the impugned judgments and decrees of both the courts below, having not been based on proper appreciation of evidence, are set aside and the case remanded back to the trial Court (Civil Judge-VII Mardan) with the direction that after giving full opportunity to both the parties to produce their fresh pro and contra evidence including the Revenue Record, decided the case on merits afresh by giving findings issue-wise on each issue.
The trial Court after receipt of file issue fresh notices to both the parties for appearance before it.
Costs shall follow the event. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.