AMIN-UD-DIN KHAN, J. --- Through this civil revision the petitioners have challenged the judgment and decree dated 9.3.2005 passed by the learned Additional District Judge, Mianwali whereby the appeal filed by the plaintiff-respondents was accepted and judgment and decree dated 5.1.2004 passed by the Senior Civil Judge, Mianwali dismissing the suit was set aside.
2. Brief facts of the case are that plaintiff respondent on 21.9.2000 filed a suit for declaration that he be declared owner in possession of suit property on the basis of Mutation No. 434 alongwith a right of share in Shamlat Deh of land measuring 81 kanals and 18 marlas purchased from Muhammad Anwar etc. Written statement was filed by defendant No. 1, who contested the suit wherein the maintainability of the suit was also challenged and it was pleaded that the plaintiff has no concern with the suit property and on the basis of tempering with the revenue record, he has filed the suit.
The petitioners-defendants Nos. 2 to 8 also filed written statement and contested the suit. The learned Trial Court framed the issues and invited the parties to produce their respective evidence.
Both the parties produced their respective evidence. The learned Trial Court vide judgment and decree dated 5.1.2004 dismissed the suit. An appeal was preferred dismissed the suit. An appeal was preferred which was accepted through the impugned judgment and decree dated 9.3.2005 by the learned first Appellate Court hence this civil revision.
3. Learned counsel for the petitioners has stated that the suit was not maintainable. The plaintiff- respondent is not in possession of the suit property and the suit filed for declaration under Section 42 of the Specific Relief Act, 1877 without prayer of possession as consequential relief was not C.L.R. maintainable. Further in para No. 6 of the plaint, the plaintiff has himself pleaded that previously on the basis of same cause of action, he has filed a suit which has been withdrawn. Though the plaintiff has stated that the suit has been withdrawn with permission to file afresh but no permission has been produced in this case, therefore, legal presumption is that he has withdrawn the suit and no permission has been granted to him. On this score, learned counsel states that in accordance with Order 23, Rule 1, C.P.C. Suit is not maintainable. Further that when the learned Trial Court dismissed the suit, the learned Appellate Court was bound under the law to decide each and every issue as he was reversing the findings of the learned Trial Court. He has not recorded independent findings on the issues, therefore, the impugned judgment is bad in the eyes of law also. Learned counsel further states that the cuttings made in the revenue record by the plaintiff were inquired upon by the revenue hierarchy and through the order dated 5.6.2000 passed by the ADC(C) whereby the correction has been made in the revenue record has not been challenged.
Therefore, it is stated that the suit was not competent. Further states that even on the basis of this order Sehat Intiqal was also entered and attested. Further states that the first Appellate Court without any justification or application from the other side de-exhibited documentary evidence produced by the petitioners-defendants as Ex-D-7 to Ex.D-11.
4. On the other hand, learned counsel for the respondents states that previous suit was withdrawn by the plaintiffs-respondents and fresh suit has been filed after obtaining permission from the Court but admitted that the order granting permission to file afresh suit has not been produced in the Court. Learned counsel states that the findings recorded by the first Appellate Court are in accordance with law, therefore, need not to be interfered by this Court.
5. I have heard the arguments of the learned counsel for the parties and have perused the record.
6. The plaintiff-respondent No. I was bound under the law to prove the case pleaded by him and he was also bound to prove the claim for declaration seeking from the Court. The revenue record on the basis of which the plaintiff has built his claim stood already corrected after inquiry through the order passed by the ADC(C) and admittedly this order has not been challenged in this suit. The revenue record is in favour of the petitioners-defendants which clearly shows their ownership and only on the basis of that plaintiff is claiming share in the Shalmat Deh, which is against the law.
When a person is not owner of agricultural land in the village, he cannot claim share in the Shamlat Deh. Even as I have observed that the record on the basis of which the respondent has claimed the ownership is no more available with him. As the same has been corrected after thorough inquiry by the revenue hierarchy and the order passed by the ADC (C) on 5.6.2000 was a judicial order which has not been challenged any further in any higher forum. This being the judicial order the learned first Appellate Court fell in error while de-exhibiting this document. Even this order being a judicial order presumption of correctness is attached to this order as certified copies of this order was presented before the learned Trial Court which order was duly exhibited. The learned first Appellate Court was not competent to de-exhibit this document and all other documents which were the certified copies produced before the Trial Court, therefore, the learned first Appellate Court fell in error while de-exhibiting the document. The plaintiff- respondent produced no evidence except his solitary statement who appeared as PW.1 in the witness-box. Against the oral statement the documentary evidence has to be accepted, whereby the defendants-petitioners were recorded owners in possession of the suit property. Even the statement of the plaintiff-respondent as he appeared as PW.1 is not in line with the pleadings in the suit. He admitted that stay order was not granted to him from the date of filing of the suit till the decision of the appeal.
7. When it is admitted that previously he filed suit on the same cause of action and permission to file the fresh suit has not been produced, suit in hand was also barred under Order 23, Rule 1, C.P.C.
The objection of the learned counsel for the petitioners is correct that learned first Appellate Court while reversing the findings of the learned Trial Court was bound under the law to record his findings on each and every issue and also to give reasons while setting aside the findings of the learned Trial Court. It is not denied that on the basis of the order passed by the ADC(C) dated 5.6.2000 Sehat Intiqal was already entered and sanctioned with regard to correction of the revenue record.
Civil revision .