' The above titled appeal has been filed to challenge the validity of decree and judgment passed by District Judge, Bhimber dated 31.05.2012, whereby first appeal has been dismissed.
2. Facts forming background of the instant appeal are that Mst. Zanib Bibi, the respondent herein, filed a suit for possession with consequential relief of perpetual injunction in the Court of Senior Civil Judge Bhimber, alleging therein that land under Khewat No, 275/435/439, number khasra 802 measuring 3 kanals, situated in village Kas Jamal, Tehsil Bhimber is owned by her and that appellants/defendants are in unlawful possession of the suit land. It was further averred in the plaint that defendants (appellants) now intend to raise construction in the land, so a decree for possession as well as perpetual injunction be issued in her favour. The appellants/ defendants filed written statement in the trial Court and contended that the plaintiff has no cause of action, the suit is not maintainable, it is hit by the law of limitation and that the plaintiff (respondent) should have proceeded to Revenue Department for partition of land.
3. Keeping in view the pleadings of the parties, the following issues were framed:--
(i) Has the plaintiff cause of action? OPP
(ii) Is the suit hit by limitation? OPD
(iii) Is the suit liable to dismissal for mis-joinder and non-joinder? OPD
(iv) Is the suit land in the ownership of the plaintiff and the defendants are in unlawful possession of the land and whether the plaintiff is entitled to decree for possession? OPP
(v) Has the Court jurisdiction to proceed with the suit? OPP
4. After hearing the parties and giving them chance of leading evidence, Senior Civil Judge, Bhimber decreed the suit in the tone that the plaintiff is owner of the suit land and is entitled to possession of the same. Moreover, that defendants are in unlawful possession of the suit land. The suit was dismissed to the extent of relief of perpetual injunction. The first appeal before the Court below was dismissed by learned District Judge, Bhimber, vide his decree and judgment dated 31.05.2012. The appellants/defendants have now challenged the concurrent findings of the Courts below through the instant second appeal.
5. The points agitated in the appeal are that judgments of the Courts below are against law and facts and a result of mis-reading and non-reading. Moreover, that the judgment and decree under appeal are vague and telegraphic, so are liable to be set aside. Arguments on behalf of the respondents were heard on 11.11.2013 and the appellants were directed to file written arguments within a week time but the same have not been filed.
6. I have gone through the record of the case and have kept in to consideration the rival version of the parties. The appellants/defendants have contended in their pleadings that respondent/plaintiff is not the only owner of the property, so rest of the co-sharers are necessary party to the instant litigation. It is the version of the appellants that without impleading rest of the co-sharers as party, the suit filed before the trial Court was not maintainable. It is also the stance of the appellants/defendants that the respondent/ plaintiff ought to have proceeded to Revenue authorities for partition of the land and that a Civil Court has no jurisdiction to entertain the suit.
7. The stance of the appellants/defendants does not find support from law. A perusal of attested copy of Misl-e-Haqeat 2007-08 exhibit "PC" with the original file transpires that Zanib Bibi daughter of Muhammad Hussain is a co-sharer in Khewat No, 5 to the extent of 28 shares. Names of the appellants/defendants Muhammad Younas and Muhammad Akram have been entered in Misle- Haqeat as possessors of the land as "ghair morosee". Copy of Khasra Girdawri khareef 2008 exhibit "PB" with the original file also reveals the same situation. The appellants/defendants have never claimed that they are owners of the land in question. They have just raised technical grounds to non-suit the respondent/plaintiff. Non-joinder of necessary parties would have been a good argument for the appellants, had they been the co-sharers in the suit land. But the case is not so, as they have been entered in the Revenue record as unlawful possessors. Any of the co-sharers has a right to lodge suit for dispossession of a usurper and an unlawful possessor has no right to claim that the plaintiff cought to have proceeded to Revenue authority for partitioning of the land.
Partitioning of land is obviously, a matter between the co-sharers and a usurper has nothing to do with it. I find support for holding this view from the following judgments:--
(i) 1989 CLC 500,
(ii) 1992 CLC 1117,
(iii) 1991 SCMR 2063,
(iv) PLD 1957 Lahore 43, and
(v) PLD 1963 Dhaka 57.
8. It may also be added here that a suit for possession or perpetual injunction falls within the ambit of jurisdiction of a Civil Court and has no nexus with the Revenue Court.
9. It is also worth mentioning here that the appellants have not raised a question of law in the instant second appeal and have not pointed out that what portion of evidence has not been read or misread by the Courts below. A second appeal lies on a question of law only, under Section 100 of the CPC and it is not competent on facts.
' For the foregoing reasons, the instant appeal does not succeed. However, decree passed by the trial Court is amended in the tone that the respondent/plaintiff is entitled to decree for specific possession of the suit land. This decree is, however, subject to partition between the co-sharers.
Appeal is dismissed with no order as to costs.