' AMIN-UD-DIN KHAN, J.--- Through this civil revision petitioners-plaintiffs have challenged the judgment and decree dated 31-8-2004 passed by learned dditional District Judge, Gujranwala whereby appeal filed by the petitioners was disposed of maintaining the judgment and decree passed by the learned trial Court and against the judgment and decree dated 29-6-2002 passed by the learned trial Court, Gujranwala whereby suit for possession and mandatory injunction filed by the petitioners-plaintiffs was dismissed.
2. Brief facts of the case are that on 29-3-1989 plaintiffs-petitioners filed a suit for possession and mandatory injunction with regard to the suit property fully described in the plaint as well as shown in red colour in the map attached with the plaint, subsequently produced in evidence as Exh.P.5.
Case of the plaintiffs-petitioners that plaintiff No. 1 and predecessor of plaintiffs Nos. 2 to 11 namely Bashir Ahmad purchased land measuring 18 marlas consisting of Khasra No. 5125/1265, Khatuni No. 2512, Khewat No. 1948 through a sale-deed registered on 27-3-1971 (Exh.P.6) and Mutation No. 29880 was sanctioned in favour of the purchasers. Defendants Nos. 2 to 5 acquired a huge area from Had Bast of village Gujranwala Zari for the establishment of a Low Income Housing Scheme commonly known as "Peoples Colony, Gujranwala". Khasra No. 5125/ 1265 had a total area of 2 kanals, 18 marlas, out of which defendants Nos.2 to 5 acquired an area of 1 Kanal, 5 Marlas including 13-1/4 marlas from the ownership of plaintiffs for establishment of said housing scheme, therefore, the area equivalent to 4-1/4 marlas remained free from acquisition in the name of the plaintiffs; that defendant No. 1 was owner of 6-3/4 marlas of land. In this Khasra his total ownership was acquired and in lieu thereof he was allotted a developed plot measuring 3-1/2 marlas bearing No.34-9/Y. He transferred the said plot in the name of one Naveed Zafar and defendant No. 1 is in possession of the land owned by the plaintiffs. Previous to that for location of land and for redressal of their grievance they filed suit against the official defendants wherein a Local Commission was appointed, who submitted his comprehensive report, therefore, plaintiffs came to know about the correct factual situation and filed this suit. Written statement was filed by defendant No. 1, who contested the suit and evasively denied from the contents of the plaint. Defendants Nos. 2 to 5 also filed written statement. Learned trial court on 2-7-2001 framed issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence in support of their contentions. After closing the trial, learned trial Court after hearing the arguments vide judgment and decree dated 29-6-2002 dismissed the suit. Appeal was preferred by the plaintiffs-petitioners, same was disposed of while maintaining the judgment and decree of the learned trial Court with the following observation:-- "The appellants are, therefore, advised to seek their remedy against Housing and Physical Planning Department Punjab. Respondents No. 1(1) to 1(ix) can be asked about their entitlement to retain the possession of 6-3/4 marlas of above khasra number by them by the above mentioned department only. They could not be dispossessed by the appellants from there."
3. Learned counsel for the petitioners argues that onus of issue No. 1 was upon the plaintiffs- petitioners, which reads as follows:-- "Whether the plaintiff is owner of land consisting of 4-1/2 marlas existing in Khasra No. 5125/1265, situated in Had Bast of the village Gujranwala and entitled to take possession over? OPP"
' States that plaintiffs fully proved Issue No.1 by producing the comprehensive evidence rather this evidence remained un rebutted, therefore, states that both the courts below fell in error while not considering it in its true perspective as well as taking into consideration real controversy between the parties and findings recorded by both the courts below are result of misreading and non- reading of evidence available on the file. Learned counsel for the petitioners has referred the statement of P.W.1, who is Junior Clerk from Housing and Physical Planning Department, Gujranwala, who brought the original file of allotment in favour of defendant No. 1 and stated that vide allotment order dated 31-12-1981 (Exh.P.1) the plot measuring 3-1/2 marlas was allotted in the name of Muhammad Sadiq defendant No. 1 and on his application same was transferred in the name of Naveed Zafar son of Muhammad Zafar. Copy of application is Exh.P.2 and the statements of both i.e. The transferor and transferee were recorded, copy of the same is Exh.P.3 and copy of affidavit of Naveed Zafar/transferee is Exh.P.4. Further that Shaukat Ali, Patwari Lahore Camp, Gujranwala appeared as P.W.2, who categorically made the statement in support of the plaintiffs, which is in line with the pleadings of the plaintiffs in the plaint. Further that P.W.3 Muhammad Fazil, Sub-Registrar (Urban), Gujranwala appeared who got exhibited his report as Exh.P.3/1, which is submitted in the civil court in a previous suit filed by the petitioners. He also produced the complete statement, showing possession of various persons upon the suit-land and also submitted the detail of measurement as well as site plan showing possession of the suit-land. He was not cross- examined by the defendants, therefore, his statement was to be admitted as true. Further that site plan annexed with the plaint has been produced as Exh.P.5. Copy of sale-deed through which the plaintiffs purchased the suit-land was produced as Exh.P.6 and copy of Jamabandi for the year 1971-1972 showing the share of the suit-land owned by the parties is Exh.P.7. Learned counsel for the petitioners argues that all the ingredients that plaintiffs purchased 18 marlas of land and therefrom 13-3/4 marlas of land was acquired by the official respondents-defendants and that defendant No. 1 was owner of 6-3/4 marlas of land in Khewat No.2991 Khasra No. 5125/1265, Khatoni No.3641 total khewat measuring 2 Kanals, 18 marals. Petitioners' land measuring 13-3/4 marlas was acquired, therefore, 4-1/4 marlas land owned by the petitioners remained in their name whereas total land of defendant No. 1 has been acquired and against the acquisition of defendant No. One's land in compensation thereof a developed plot measuring 3-1/2 marlas was allotted in his name through Exh.P.1, which he transferred in the name of Naveed Zafar and he is also in possession of the land owned by the plaintiffs as well as others land also, therefore, it was clearly established the ownership of the plaintiffs, possession of defendant No. 1 upon the suit-land without entitlement and plaintiffs right to get the decree of possession about the suit-land. He argues that in existence of the clear evidence produced by the plaintiffs which is unrebutted despite that both the courts below failed to exercise jurisdiction vested in them by law. Prays that this civil revision be allowed.
4. On the other hand, learned counsel representing defendant No. 1 argues that there are concurrent findings of fact recorded by the two courts below. Further argues that defendant No. 1 is in possession of 6-3/4 marlas of land, which is in his ownership and the land acquired by the respondent-department was other land owned by defendant No. 1 measuring 6-3/4 marlas. States that after sanction of the site plan the defendant No. 1 has constructed a house and is residing therein. While relying upon "Langar and others versus Ch. Muhammad Shafi and others" (1994 M LD 2169) argues that simply suit for possession was not competent as the title of the plaintiffs was denied by the defendants. Prays that this civil revision be dismissed.
5. Learned A.A.-G. Has stated that revision is not maintainable though he has admitted that land of defendant No. 1 measuring 6-3/4 marlas was acquired and he was compensated for acquisition by allotting him a developed plot measuring 3-1/2 marlas of land, which he transferred in the name of Naveed Zafar.
6. I have considered the arguments advanced by learned counsel for the parties and have gone through the record with their able assistance.
7. I have noticed that plaintiffs have proved through producing registered Sale Deed (Exh.P.6) that they have purchased land measuring 18 marlas from Khata and khasra number fully mentioned in detail in the plaint and after attestation of mutation their name was entered in the Register Haqdaran Zameen for the year 1971-1972, copy of which has been produced as Exh.P.7. In Register Haqdaran Zameen Khewat No. 2991 Khasra No. 5125/1265 Khatoni No. 3641 consists upon land total measuring 2 kanals, 18 marlas and entitlement of every co-sharer is mentioned in detail therein.
Petitioners are admittedly recorded owners of 18 marlas of land in this Jamabandi and Muhammad Sadiq defendant No. 1 is recorded owner of 6-3/4 marlas of land. When P.W.3 produced his report as Exh.P.3/1, which is comprehensive one, in which it has been mentioned that the defendant Housing and Physical Planning Department acquired .1 kanal, 15 marlas of land from this Khewat, therefore, land measuring 1 Kanal, 13 marlas remained in the ownership of the shareholders of this Khewat. In detail it has been mentioned in the report that on this 1 Kanal, 13 marlas Barkat Ali and Muhammad Bashir shareholders are in possession of 13-1/4 marlas, Muhammad Sadiq son of Chiragh Din (defendant No. 1) 6-3/4 marlas, Allah Lok son of Wahab Din 4-1/2 marlas, Roshan Din son of Nanna 4-1/2 marlas, Abdul Rahim son of Fazal Din 4-1/2 marlas and land measuring 2-1/4 marlas is under thoroughfare. In his report he has also mentioned that according to the record of Housing and Physical Planning Department defendant No. 1 was compensated for acquisition of his whole land measuring 6-3/4 marlas but despite that he is in possession of 6-3/4 marlas of land. He has also reported that 13-3/4 marlas of land from the ownership of plaintiffs was acquired by the Housing and Physical Planning Department,, therefore, land measuring 4-1/4 marlas remained in their name and Muhammad Sadiq is in possession of their owned land. Defendants opted not to cross-examine this witness nor any counter record or report was produced by defendant No. 1 upon file of this case. In this situation when from the oral as well as documentary evidence produced by the plaintiffs it is clear that from Khewat in question which in total consists upon 2 kanals, 18 marlas land, 1 Kanal, 15 marlas was acquired by Housing and Physical Planning Department whereas land measuring 13-3/4 marlas from the ownership of the plaintiffs by the Housing and Physical Planning Department, therefore, land measuring 4-1/4 marlas remained intact in the ownership of plaintiffs and total land from the ownership of Muhammad Sadiq defendant No. 1 was acquired by the Housing and Physical Planning Department and in lieu thereof he was compensated with a Plot bearing No. 34-9/Y measuring 3- 1/2 marlas and he accepted the compensation and transferred the allotted plot in the name of Naveed Zafar. There is no rebuttal to these facts. The argument of learned counsel for the respondents that his acquired 6-3/4 marlas were another property whereas the property in possession of defendant No. 1 Muhammad Sadiq is another 6-3/4 marlas, is not borne out from the record. Defendant-respondent No. 1 has not produced any document to show his ownership of the suit-land. It is established by the plaintiffs' evidence that defendant No. 1 was owner of only 6-3/4 marlas and whole of his owned land was acquired by the Housing and Physical Planning Department and he is in illegal possession of the land including the land of the plaintiffs mentioned in the plaint. Case-law relied by learned counsel for the respondents is not applicable to the facts of this case as plaintiffs are recorded owners of the suit-land in the Jamabandi produced by them.
When most of the evidence produced by the plaintiffs remained unrebutted, therefore, the findings recorded by both the courts below against this unrebutted evidence are result of misreading and non-reading of evidence, therefore, same are set aside and Issue No. 1 is decided in favour of the plaintiffs-petitioners.
8. Issue No. 2 was also decided against the plaintiffs-petitioners on the basis of findings on Issue No. 1 by the learned trial Court. As the findings on issue No. 1 are reversed, therefore, the findings on issue No.2 are also not sustainable, which are reversed. As plaintiffs have proved their entitlement of decree, therefore, they have locus standi to file the suit. Issue Nos. 3 and 4 have already been decided against the defendants-respondents, therefore, need no fresh finding when not challenged by anybody.
9. For what has been discussed above, this civil revision is accepted. Judgments and decrees passed by both the learned courts below are set aside and suit is decreed as prayed for.