' LAL JAN KHATTAK, J.---This civil revision petition under section 115 C.P.C. Is directed against the judgment and decree dated 10-11-2009 of the learned Additional District Judge-IV, D.I.Khan whereby appeal of the respondent-plaintiff against the judgment and decree dated 22-1-2009 of the learned Civil Judge-VI, D.I.Khan, was accepted and suit of the respondent-plaintiff was decreed.
2. Precise facts of the case are that the respondent-plaintiff, namely Jalil-urRehman, filed a suit against Khuda Bakhsh, who is now dead and survived by his legal heirs, for possession of landed property, measuring about 1 kanal, and 16 marlas, by demolishing the construction carried out by the present petitioners over the suit property. The petitioners-defendants contested the suit by filing their written statement. The learned trial Court after framing necessary issues directed parties to the suit to produce their respective evidence which they did whereafter the learned trial Court vide its judgment and decree dated 22-1-2009, dismissed the suit of the respondent-plaintiff. The dismissal of suit was impugned by the respondent-plaintiff in appeal and vide judgment and decree dated 10-11-2009 the appeal was accepted and suit was decreed. It is against this judgment and decree that the petitioners-defendants have come up in revision petition.
3. Learned counsel for the petitioners has contended in support of the revision petition that the learned appellate court has failed to appreciate the evidence produced by the parties in its true perspective and has passed its judgment on surmises which is conjectural in nature and needs reversal as admittedly the respondents have sold out all their landed property per admission of their attorney who appeared as P.W.3. The learned counsel contented that the respondent No.1 has claimed possession from the petitioners of an area measuring 1 kanal, and 16 marlas by demolishing their house but he has not given any khasra number either in the plaint or in the evidence of the area on which claim is based. The learned counsel for the petitioners further contented that the predecessor-in-interest of the petitioners has purchased the suit-land through two separate transactions, first through Mutation No.639 attested on 9-10-1973, which is based on a court decree vide which an area of 2 kanals and 14 marlas was purchased from the respondents and the second transaction is through a deed dated 4-1-1979 whereby an area of 1 kanal was also purchased froth the respondents. The learned counsel lastly contented that suit of the respondents is hopelessly time-barred and that the suit property has changed its nature and status from agricultural to residential one. He concluded his argument by submitting that the impugned judgment and decree of the learned appellate court is the outcome of non-reading and misreading of case evidence and is liable to be set aside.
4. As against the above, learned counsel for the contesting respondent No.1, has defended with vehemence the judgment and decree of the learned appellate court by contending that a clear- cut encroachment has been- found with the petitioners of an area of one kanal and 13 marlas for which they have not given, any legal justification to retain it being more than their entitlement of 2 kanals and 14 marlas. The learned counsel next contended that the deed dated 4-1-1975 relied upon by the petitioners, is unregistered one and the same has not been proved in accordance with law. It was contended by the learned counsel that even if it is assumed for the sake of arguments that the deed dated 4-1-1975 which is Exh.DW1/1 is a legal document even then the same is not of any help to the petitioners because the same has not been complied with and acted upon by the petitioners themselves. The learned counsel concluded arguments by contending that the encroachment and excess area has been worked out and found with the petitioners and the learned appellate court has correctly decreed the suit of the respondent-plaintiff.
5. I have heard learned counsel for each of the parties in detail and also gone through the available 'record of the case with their valuable assistance.
6. Thorough and careful examination of the case record shows that for the first time in 1973 father of the petitioners purchased from respondents an area of 2 kanals and 14 marlas falling in seven Khasra Nos.3128, 3129, 3132, 3133, 3138, 3139 and 3140 in a joint Khata bearing No.276. The above fact is proved not only through Mutation No.639 which is Exh.DW1/3 incorporated in the subsequent Revenue Record produced by the patwari halqa as Exh.W1/D-1 but also through a court decree dated 10-9-1973 of the learned Senior Civil Judge, D.I.Khan which is available on the record of this revision petition. Predecessor further purchased an additional area of about one kanal or so vide deed dated 4-1-1975 but to be very fair they have not proved the above deed in accordance with law. But the affirmative onus was on the respondent-plaintiff No.1 to prove that the entire area of land underneath the house of the petitioners exclusively belongs to him, his brother and sisters which has allegedly been occupied by the petitioners which he has not discharged through convincing and reliable evidence rather his claim is contradicted by the report of the local commissioner.
7. Worth-consideration is the report of the local commission which is Exh.CW1/1. According to this report house of the petitioners is constructed in eight khasra Nos. i.e. Khasra Nos.3139, 3161, 3162, 3163, 3164, 3165, 3156 and 3157. The report of the local commission shows that, except Kahsra No.3139 which is common in the exhibits mentioned in the preceding para of this judgment as well as in the report of local commission, the constructed house is built upon khasra numbers other than those sold by the respondents to the predecessor of the petitioners and it is not the case of the respondent that the land falling in khasra Nos. Mentioned in the report of local commission over which the house is constructed exclusively belongs to him and his bother or sisters who are pro forma respondents. The learned appellate court has not considered the above aspect of the commission report qua the construction of the house over an area other than the one claimed by the respondent.
8. Though the petitioners have averred in their written statement and deposed in evidence that apart from purchasing an area of 2 kanals and 14 marlas through Mutation No.639, their predecessor further purchased an additional area of about one kanal or so vide deed dated 4-1- 1975 but to be very fair they have not proved the above deed in accordance with law. But the affirmative onus was on the respondent-plaintiff No.1 to prove that the entire area of land underneath the house of the petitioners exclusively belongs to him, his brother and sisters which has allegedly been occupied by the petitioners which he has not discharged through convincing and reliable evidence rather his claim is contradicted by the report of the local commissioner.
9. Another important aspect of the case is that one Nizam Khan attorney of the respondent appeared as P.W.3 and produced evidence on behalf of the respondent. He admitted in his cross- examination that the respondent-plaintiff has sold out their entire land and nature of the landed property has now been converted into residential one over which people have constructed houses since long. This admission of the attorney of the respondents must be seen in the context of the over all aspect of the case and should not be termed as irrelevant and misdirected one as is held by the learned appellate court. The respondent No.1 was duty bound to prove his case by showing that in the joint khata he and the pro forma defendants were owners to a certain extent and after selling out a specified share he still owns some further share in the the khata. To this effect there is not an iota of evidence on the record. On the other hand, predecessor of the petitioner bias purchased the suit area in seventies and constructed house over it along with other people. The agricultural nature of the land has changed its character and apart from houses of different people there are roads and streets on the suit-land and in such-like scenario it is indeed very difficult to hold that the encroached and excess area occupted by the petitioner actually belongs to the respondent No. 1 and the pro forma respondents as apart from them there are other numerous persons who are co-sharers in the joint kahta now converted into a town.
10. For what has been discussed above, this court is of the considered view that the judgment' and decree of the learned appellate court is not based on correct appreciation of case evidence. The same is, therefore, reversed and the judgment and decree of the learned trial Court is maintained.
Resultantly suit of the respondent-plaintiff is dismissed with no order as to costs.