' AMIN-UD-DIN KHAN, J.--- Through this single judgment I intend to decide the above captioned civil revision and Civil Revision Nos.1360 & 1361 of 2004, as common question of law and fact is involved in all the three revision petitions.
2. Through these revisions, petitioner-plaintiff has impugned the judgment & decrees dated 09.02.2004 passed by the learned Addl: District Judge, Sargodha, whereby the appeals filed the respondents-defendants ware accepted, by way of which, judgment & decree dated 20.02.1993 passed by the learned Civil Judge, Bhalwal decreeing the suit for possession filed by the petitioner- plaintiff, were set aside.
3. Briefly, the facts are that on 04.10.1990 petitioner plaintiff filed a suit for possession of suit property subject matter of each of civil revisions fully described in the head note of each plaint in accordance with Jamabandi for the year 1985-86 on the basis of ownership and previous possession. The case as narrated by the plaintiff that a person namely Salehoon was the owner of suit property, who gifted the same to the plaintiff in the year 1975 and possession was delivered on the basis of a decree of Civil Court qua Hibba the property was transferred through mutation in the name of plaintiff. One Yara defendant was in possession of suit land under the lease but during the minority of plaintiff through a decree of civil Court dated 19.01.1980 he got transferred the suit property in the name of defendant s. On coming to know the plaintiff filed an .Application under section 12 (2) of the CPC and the civil Court declared that decree was void and nullity. It is pleaded that now the plaintiff came to know that through decree of civil Court dated 28.05.1985 said defendant has transferred the property in the name of his children, therefore, above mentioned decrees are against the law and facts of case. The plaintiff is entitled to the possession of suit property.
4 The written statement was filed and suit was contested. Learned Trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. Only the plaintiff appeared in witness box to substantiate his pleadings and produced documentary evidence. Muhammad Riaz, one of the defendants, appeared as his own witness. The defendants also produced documentary evidence.
Learned Trial Court vide judgment & decree in each case dated 20.02.1993 decreed the suit. The appeals were preferred before the learned first appellate Court, which were accepted on 02.12.1996, against which Civil Revision Nos.416-D-1997 to 418-D-1997 were filed before this Court. This Court vide judgment dated 11.07.2002 accepted all the revisions and remanded the case to the learned District Judge, Sargodha to hear the appeals and decide afresh or to entrust the same for hearing to any learned Addl: District Judge. Vide judgment & decrees dated 09.02.2004, appeals were accepted and judgment & decrees passed by the learned Trial Court decreeing the suit of petitioner-plaintiff have been set aside. Hence this civil revision.
5. Learned counsel for the petitioner-plaintiff argues that no compromise can be effected in civil Court on behalf of minor without leave of the Court; that when at the time of decision of application u/s 12 (2) of the CPC filed by the plaintiff learned Trial Court passed remarks that the decree impugned in application u/s 12 (2) of the CPC through which the property has been transferred in favour of defendants was nullity in the eye of law, therefore, the decree remained no more in the field; that though the application u/s 12 (2) of the CPC was dismissed on the basis of limitation, copy of judgment has been produced in evidence, therefore, petitioner-plaintiff' preferred a revision petition against the dismissal of application u/s 12 (2) of the CPC which was dismissed on the ground that when the decree has been declared nullity, the revision was filed unnecessarily and as such the same was dismissed; that when there is observation of the Court that decree is nullity in the eye of law, therefore, on the basis of decree whereby the suit property has been transferred in the name of defendants is no more in the field and suit for possession has rightly been filed. Prays for acceptance of this civil revision and setting aside the judgment & decrees passed by the learned first appellate Court.
6.' On the other hand, learned counsel representing the respondents argues that when ultimately application u/s 12 (2) of the CPC was dismissed on 03.02.2012, it necessitated that a revision was filed by the petitioner-plaintiff which too was dismissed, therefore, the observation given by the learned Trial Court and remarks passed by the learned revisional Court were having no adverse effect against the rights of respondents defendants; that when ultimately the application u/s 12 (2) of the CPC as well as revision against whereof were dismissed, therefore, the decree in favour of plaintiff impugned in application u/s 12 (2) of the CPC dated 19.01.1980 remained intact. Learned counsel further argues that the pleadings of suit are false, as the plaintiff has mentioned that a person namely Salehoon who is the real father of plaintiff was actually owner of suit property and through the decree of Court in the year 1975 same was got mutated in the name of present petitioner -plaintiff; that the defendants have paid price of land and father of plaintiff was natural guardian, who has not been made party in this suit and that in order to burden the defendants this litigation has been started dishonestly.
7. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
8. Admittedly the application u/s 12 (2) of the CPC filed by the petitioner-plaintiff was dismissed, revision against whereof filed by him was also dismissed by the revisional Court. If any remarks were made, that have no force because the decree impugned in the application u/s 12 (2) of the CP C was not set aside. The solitary statement of plaintiff is very interesting in cross-examination.
He deposed that when the suit land was gifted to him, he was 25/26 years of age and he cultivated the land approximately 4/5 years. Admittedly after five years of transfer of property in the name of plaintiff, same was transferred in the name of defendants. In accordance with his own statement he was of 31 years of age at the time of transfer of suit property in the name of respondents- defendants. I have noticed that the plaintiff has not opted to produce the proceedings of original suit in which a decree was passed in favour of defendants as well as complete proceedings of application u/s 12 (2) of the CPC filed by the petitioner-plaintiff. When nothing is on record with regard to the suit in which a decree was passed in favour of defendants/respondents, the Court can adjudge the matter on the basis of pleadings and evidence available on the file.
9. Admittedly on the basis of a decree of Civil Court mutation of transfer of rights in the suit property were entered and sanctioned in the name of defendants and against said decree application u/s 12 (2) of the CPC was dismissed on the ground of limitation, revision was also dismissed and it was not further challenged before any forum. When the name of plaintiff is not in the revenue record as owner, rather the names of respondents defendants are available in the revenue record, therefore, simple suit for possession was not maintainable. Even there is another decree dated 28.05.1985 whereby the original transferee of land from the plaintiff has further transferred the land to his children, that decree has neither been challenged in the suit nor it could have been challenged and further that admittedly no application u/s 12 (2) of the CPC has been filed against the said decree. The argument of learned counsel that when the remarks were passed by the learned Trial Court seized of the application u/s 12 (2) of the CPC against the decree dated 19.01.1980 that it is nullity in the eye of law, the superstructure automatically falls. I am afraid that when ultimately the application u/s 12 (2) of the CPC was dismissed, passing of any remarks about the decree dated 19.01.1980 do not set aside the said decree. Admittedly the suit in hand has been filed simply for possession on the basis of entry of revenue record in the year 1985-86 and the previous possession. Admittedly the plaintiff is not recorded owner of suit property in the revenue record, when the suit has been filed and the decree on the basis of which suit property was transferred in the name of defendants is not the subject matter of this suit and it is also admitted position that the application u/s 12 (2) of the CPC against the said decree was dismissed and revision was also dismissed, in this view of the matter, the view taken by the learned first appellate Court is absolutely in accordance with law and there is no flaw in the findings recorded by the learned Addl: District Judge.
10. In the light of what has been discussed above, learned counsel for the petitioner-plaintiff has not been able to make out a case for interference by this Court while exercising jurisdiction under section 115 of the CPC. Resultantly, all the three civil revisions having no force stand dismissed.