' MEHMOOD MAQBOOL BAJWA, J.---Order dated 17-9-1992 and judgment dated 20-8-1996 recorded by learned civil Court as well as by learned Additional District Judge, Vehari respectively have been called in question by the petitioners whereby the District Collector was directed to hand over the possession of property to the respondent as the same was taken by the petitioners in utter disregard of temporary injunction issued by learned civil Court duly confirmed by the learned appellate, Court.
2. Necessary facts resulting in filing of present revision petition are that Atta Muhammad, the present respondent instituted suit against Muhammad Islam (predecessor-in-interest of the petitioners) in order to protect his possessory rights in respect of the property subject-matter of the suit measuring 62-kanals 13-marlas comprising of Khewat No.3 Khatoni No.162 situated in Chak No.19-W.B Tehsil and District Vehari, which according to the respondent was in his possession as a tenant under the Provincial Government. The suit was contested by the predecessor-in-interest of the present petitioners claiming to be in possession of the same as allottee under the Provincial Government, specifically controverting the claim of respondent with reference to his possessory rights.
3. Along with the suit, an application for grant of temporary injunction was made by the respondent in order to protect his possessory rights which application was allowed by learned civil Court vide order dated 14-6-1988 restraining the predecessor-in-interest of the present petitioners from interfering in the possession of the respondent till the final adjudication of the suit. Being aggrieved, an appeal was preferred by the predecessorin-interest of petitioners which was dismissed vide judgment dated 29-9-1988.
4. Applications under section 151 and under Order XXXIX Rule 2(3) of The Code of Civil Procedure, 1908 were made by the respondent against the predecessor-ininterest of present petitioners (Muhammad Islam) contending that he dispossessed the respondent from the property subject matter of the suit otherwise than in due course of law despite confirmation of prohibitory order issued by the learned trial Court duly endorsed by the learned District Court, Vehari. The petitioners while contesting the applications, denied the factum of dispossession of respondent maintaining that respondent was not in possession of the property subject matter of the suit and the same was in posscsi on of the predecessor- in-interest of the petitioners. After recording evidence, the learned trial Court accepted the application vide order dated 17-9-1992 with the direction to the District Collector, Vehari to hand over the possession of the suit property to the respondent. Aggrieved by the said order, the present petitioners being successors of Muhammad Islam, preferred an appeal which was dismissed vide judgment dated 20-8-1996.
5. Heard.
6. The learned counsel for the petitioners maintained that the respondent was not in possession of the property subject matter of the suit and evidence was led accordingly which was not properly appreciated by the learned trial Court as well as by the learned appellate Court. Submitted that Revenue Record produced by the petitioners substantiate the contention of the petitioners regarding their possession and as such question of dispossession of the respondent did not arise at all. Submitted that findings of both the courts below are result of misreading and non-reading of evidence and as such are liable to be set aside.
' On the other hand, the learned counsel for the respondent while making reference to the evidence led by the parties contended that the evidence was sufficient to prove the case of respondent regarding his dispossession otherwise than in due course of law and that too after acceptance of the application for temporary injunction. Contended that acceptance of the application for temporary injunction and dismissal of the appeal preferred by present petitioners was sufficient to prove the factum of possession of the respondent. Further submitted that the evidence, oral as well as documentary, adduced by the respondent was sufficient to prove the factum of possession of the respondent at the time of institution of suit and as such the findings of both the courts below which even otherwise are concurrent in nature cannot be disturbed.
7. It is the case of the respondent that he was in possession of the property subject matter of the suit as a tenant. Perusal of the written statement submitted at the instance of predecessor-in- interest of the present petitioners suggest that he claimed the property as allottee under the Provincial Government maintaining that the respondent has no concern, whatsoever, with the property subject matter of the suit. Perusal of the order dated 14-6-1988 recorded by the learned civil Court Vehari suggest that while accepting the application made by respondent there is a specific finding of learned civil Court that respondent is in possession of the property and as such while accepting the application the predecessor-in-interest of the present petitioners was restrained from disturbing the possession of the respondent till the final disposal of the suit. The said order though assailed by way of appeal as endorsed by the learned Additional District Judge, vide judgment dated 29-9-1988. Admittedly the order recorded by the learned District Court was not called in question by the petitioners before any higher forum and as such the findings attained finality with reference to the possession of the respondent in respect of the property subject- matter of the suit. It is not disputed that the respondent during the pendency of the suit became out of possession which fact by itself when taken into consideration in view of findings of both the courts below while accepting the application for grant of temporary injunction and dismissal of the appeal preferred by present petitioners clearly suggest that possession of the respondent was disturbed by Muhammad Islam by adopting measures and means not warranted by law. No other evidence was required to prove the factum of possession of respondent and then his dispossession.
8. However, evidence led by the respondent and petitioners when evaluated clearly demonstrate that evidence led by respondent is convincing, corroborative and worthy of credit proving the factum of possession of the respondent at the time of institution of the suit in the year 1988. It is not disputed that during the pendency of the suit it was admitted from both the sides that respondent is out of possession.
9. Though the learned counsel for the petitioners while seeking help from the copies of Khasra Gardawari for the Kharif 1990 and uptil Rabi 1992, contended that the predecessor-in-interest of the petitioners was in possession of the property subject matter of the suit but nevertheless the said entries in the Revenue Record, if any, cannot advance plea of the petitioners because the question of possession was required to be determined with reference to date of institution of the suit.
Evidence, oral as well as documentary adduced by the respondent substantiate the contention of the respondent. It is further to be noted that both the applications under section 151 and Order XXXIX Rule 2(3) of The Code of Civil Procedure, 1908 were made by the respondent when partial evidence of the petitioners in the suit was recorded. It is further to be noted that while submitting reply to the application under Order XXXIX Rule 2(3) of The Code of Civil Procedure, 1908 it was maintained at the instance of predecessor-in-interest of petitioners that he was not only in possession of the disputed property at the time of institution of suit but later on as well. Statement of Mst. Hameeda Bibi while appearing as DW.1 in the suit clearly suggest that he admitted the possession of respondent as a tenant and in cross-examination there was a frank admission on her part that now the predecessor-in-interest of the petitioners is in possession of the same. One can also make reference to the statement of Muhammad Sadiq who appeared as DW.3 who in his direct statement admitted that respondent being plaintiff is in possession of property as a tenant under the predecessor-in-interest of the petitioners.
10. Interestingly rather strangely the petitioners introduced a new version in the evidence led in the application. Muhammad Islam (original respondent in the application) while appearing as RW.1 admitted that the property was leased out to respondent but he maintained that possession was surrendered by respondent five years ago. Though same fact was deposed by the other witnesses produced by the petitioners but nevertheless the said evidence cannot advance plea of the petitioners in view of the frank admission on the part of Mst. Hameeda Bibi (DW.1), Abdul Khaliq, (DW.2) as well as Muhammad Sadiq (DW.3).
11. Pursuant to above discussion, the respondent proved the case regarding his possession at the time of institution of suit and then dispossession and as such findings of both the courts below are based on the evidence. Argument canvassed by the learned counsel for the petitioners that the suit of the respondent was dismissed being infructuous cannot advance plea of the petitioners for the simple reason that suit was dismissed due to filing the applications by the respondent under section 151 and under Order XXXIX Rule 2(3) of The Code of Civil Procedure, 1908 admitting the factum of his dispossession. Prayer was made at his instance to adjourn the case sine-die till the decision of both the applications but the same request was not accepted.
12. Revisional jurisdiction can be exercised in case of Non-assumption- Illegal-assumption or exercise of jurisdiction illegally or with material irregularity.
13. In view of the discussion made above, one cannot point out any jurisdictional defect in the impugned order as well as judgment assailed.
14. Epitome of above discussion is that revision petition being devoid of force is hereby dismissed.