This petition under section 115 of the Code of Civil Procedure seeks-revision of the judgment and decree of the learned Additional District Judge, Lahore, dated the 13th January, 1973, accepting the respondent's appeal and reversing the judgment and decree of the learned Civil Judge, Lahore, dated the 2nd February, 1972, whereby the petitioner's suit for possession of 14 marlas of land in dispute bearing khasra No. 1557, situate in village Dalu Khurd, tahsil and district Lahore, had been decreed.
2. Mehr Din, petitioner, alleged that since the time of his forefathers he had been in possession of the land in question which had been given to the petitioner's family by the owners of the village for purpose of residence as he was a kumbar and saipee (moeen) of the owners. He averred that Siddiq Khan, respondent, had forcibly taken illegal possession of the land about five months before the institution of the suit which he filed on the 6th October, 1970. The respondent asserted his ownership over the land in dispute and denied that he had taken its illegal possession or that it was ever in possession of the petitioner.
3. The learned trial Court found that the petitioner bad been in possession of the land and that he had been illegally dispossessed by the respondent. Accepting the petitioner---s version of the case it decreed his suit.
4. Instead of preferring appeal the respondent questioned the decision of the learned trial Court in revision before this Court. He appeared to be under the impression that the petitioner's suit was one under section 9 of the Specific Relief Act, 1877. However, as the respondent's thinking in that matter was not correct, this Court dismissed the revision petition as not maintainable. Thereafter he filed appeal in the District Court. The learned Additional District Judge seized with the appeal did not touch the merits of the case. He was led away by a remark in the order by this Court dismissing the revision petition that the petitioner had based the suit on a question of title and observing a that as the title had not been established the petitioner could not claim possession of the land accepted the appeal and recorded dismissal of the suit. Feeling aggrieved the petitioner has invoked the revisional jurisdic--tion of this Court.
5. The basis and the process of- reasoning adopted by the learned Additional District Judge for non-suiting the petitioner is obviously fallacious and cannot. Be endorsed. The observation made by this Court while dismissing the respondent's revision petition which was not sustainable in the eye of law could hardly be used to dispose of the appeal. The petitioner nowhere claimed ownership of the land in question. He gave himself out to be in its possession since the time of his forefathers as they were moeens of the owners who had given them the land according to the well recognized custom.
6. The land in dispute was admittedly owned by ' non-Muslim evacuees. The respondent did not produce any documentary evidence bearing out his title to the land. He is a refugee from Amritsar district and claims himself to have been in possession of the land since 1947. It was not allotted or transferred to him by the. Rehabilitation or Settlement authorities. The learned counsel for the respondent contended that the land in question would be deemed to have been transferred to the respondent without the obligation of obtaining any transfer order by virtue of the proviso added to sub-para. (2) .(a) of para. 5 of Settlement Scheme No. VII. However, the respondent produced copy of the jamabandi of the land entered in khasra No. 1557 for the year 1968-69, Exh. D 1, wherein one Muhammad Sharif son of Abdul Ghani is mentioned as owner of the land. The learned counsel for the respondent viewed Muhammad Sharif to be a transferee of the land. If that be so it is difficult to believe that the land stood transferred to the respondent. In these circumstances the only point which was to be adjudicated upon was whether the respondent had dispossessed the petitioner from the land as alleged by the latter.
7. The learned Civil Judge after analysing the evidence of the parties concluded' that the petitioner had been in possession of the land since long and that his possession had been disturbed by the respondent. The learned Additional District Judge did not touch the evidence. Therefore, it is desirable to adjudge the correctness of the decision of the learned Civil Judge. The two witnesses produced by the petitioner, namely, Nawab Din. P. W. 1, and Chiragh Din, P. W. 2, were fairly old and living close by the place in dispute were expected to bear out the petitioner's possession over the land. They were independent and their testimony was rightly relied upon by the learned trial Civil Judge. They deposed that the petitioner, like his father, had been in possession of the land when the respondent ousted him there from and took forcible possession thereof. The petitioner also examined himself in the witness box in support of his case. The respondent's witness, Muhammad Din, chowkidar of the village, D. W. 1, was considered by the learned Civil Judge to be not independent and his testimony was even otherwise not acceptable at face value. He seems to have made a sweeping statement against the petitioner. His deposition to the effect that there had been no custom in village to give land to the moeens and that the land had been allotted to the respondent was patently incorrect. In such a state of affairs the learned Civil Judge was right in preferring the petitioner's evidence to the one produced by the respondent and holding that the petitioner's dispossession of the land by the respondent had been established. By not dealing with the merits of the case the learned Additional District Judge committed a material irregularity and illegality which must be set right. His judgment, therefore, cannot be upheld.
8. The learned counsel for the respondent drew attention to the statement of the petitioner at the tail end of his cross-examination wherein he said that he was not Kameen but owner. This fact has been explained by the fact that by the time . The petitioner's statement was recorded he had acquired proprietary rights in respect of the occupancy rights which he was holding in some land in the village as a result of land reforms. Anyway this portion of his statement does not affect the merits of the case.
9. In view of the above this petition is accepted, the judgment and decree passed by the learned Additional District Judge are set aside and those of the learned trial Civil Judge restored. The petitioner will get his costs throughout.