This revision petition has been preferred against the impugned Judgment and decree dated 04.12.2010, passed by learned Additional District Judge, Mardan, whereby the appeal of petitioners against Judgment and decree dated 20.06.2009 passed by trial Court, was dismissed.
Arguments heard record perused.
2. A perusal of record reveals that the plaintiffs/respondents are owners in possession of the disputed property as per revenue record right from settlement from the year 1994-95. It is also admitted fact that defendants have got no right in the suit property some mutations were entered, on behalf of plaintiffs/respondents in favour of defendants which were not attested as the plaintiff had refused on the ground that no transaction took place between the parties. Previously a suit bearing No, 24/1 was filed on 3.2.1980 by the plaintiffs which was decreed however the appeal filed by petitioner was partially allowed against which revision petition was filed before this Court, wherein respondents were allowed to withdraw the suit with permission to file fresh one and to include other property in the plaint on 10.11.1993, who thereafter filed the instant Suit No, 483/1 on 18.2.1998.
3. It was argued that the suit is hopelessly time barred in terms of Order um Auk 1(2), GPO as the instant suit has been filed on 18.2.1998, after 18 years as the previous suit was filed on 3.2.1980, which is misplaced, as permission was granted by this Court on 10.11.1993 and suit was filed on 18.2.1998 well within time. No doubt the plaintiffs shall be bound by law of limitation in the same manner as if the suit has not been instituted, however it is subject to the condition for permission to withdraw and if the plaintiffs succeeded to comply with the condition then would not be hit by the mischief of limitation. As it is permission of withdrawal which is material for the reason that it is not simple withdrawal rather permission has been granted by the Court and in case it is treated like simple withdrawal then the provision relating to grant of permission would become redundant. Moreover the permission to file fresh suit was allowed by this Court with consent of the parties which precludes the petitioner to raise objection at this juncture.
4. So far as the format of the suit is concerned, it is submitted on behalf of petitioners that being joint owners decree for possession cannot be granted and the only course open to the plaintiffs was to seek partition or file suit u/S. 9 of Specific Relief Act, which plea too, is misplaced, for the variety of reasons as the defendants are not co-owners in the property, the receipts relied upon by defendant in this respect have not been proved nor bestow any title upon the defendants/petitioners and as such cannot be termed as co-owners in the property. Apart from this, partition can only be sought against the co-owners and similarly suit for possession u/S. 9 of Specific Relief Act has its different parameters, which is not the case of petitioners defendants.
5. So far as the plea of estoppels on the ground that plaintiffs remained mum during the period when petitioner/defendant raised construction over the property is concerned, it is also not proved o the record though the petitioners have raised construction over the property, the record is silent to the effect that plaintiff let him to raised construction and petitioner failed to prove the active consent of plaintiff in this regard. Defendant while deposing as DW3 has admitted that no consent was obtained from plaintiffs for construction nor Map was approved from the Municipal Committee, however consent obtained from one Khalid Khan but that too has been proved. To declare the market value of constructions, local commissioner was appointed who has properly assessed the value and the petitioners have been compensated by the Courts below to this effect by allowing the market value of superstructure and are held entitled to receive the same.
6. The learned counsel for respondents informed the Court that property has been sold by the plaintiff/respondent during pendency of lis and the purchaser has also taken possession and purchased superstructure from the defendants/petitioners and as such the parties have left with no right in the matter however stressed for dismissal of this Civil Revision. Counsel for petitioners submitted that he is unaware of the situation. The petitioner was not present in the Court where attorney, for respondents admitted that property has been sold however unable to name the purchaser. No document pertaining to sale produced nor the purchaser has made any effort to get impleaded in the lis and as such at this stage no determination in this regard could be made and that too in the absence of any documentary proof/record.
7. Both the Courts below have passed the impugned orders with reasons. There is no jurisdictional or legal error in the impugned judgments and the Courts below have neither misdirected nor misled the evidence available on file and the findings arrived are entirely in consonance with law and facts of the case, warrants no interference For the aforesaid reasons, this petition being devoid of merit is dismissed.