WAZIR SHAKEEL AHMED, J.---The petitioners named above have called in question the judgment/decree dated 8-11-2012 passed by the learned District Judge Gilgit whereby the partial Appeal No,13 of 2009 of the petitioners against the judgment dated 29-11-2008 of the trial court was dismissed the suit of the petitioners was also rejected finding the same time barred and not maintainable in its present form.
2. Brief facts of the case are that the present petitioners filed a suit for declaration and possession with consequential relief that they are the owners of suit property measuring 23 kanal 11 marals on the basis of Misle-Haqiat No,32/90 dated 19-11-1990 and mutation numbers mentioned in the plaint.
The petitioners also prayed for payment of rent of the suit property from the respondents a Rs, 150 per kanal and also sought stay order restraining the respondents from making improvements on the suit property.
3. The respondents contested the suit by filing their original and amended written statements Wherein they denied any relationship of tenancy and also challenged the documents pertaining to the ownership of the petitioners as the result of fraud and collusion with the revenue staff besides taking number of legal objections.
4. The trial court on the basis of above pleadings framed the following issues:--
1. Whether suit of plaintiffs is time barred? OPP.
2. Whether the suit is liable to be dismissed on the principle of adverse possession? OPD.
3. Whether the suit is liable to be dismissed under section 42 of Specific Relief Act? OPD.
4. Whether the suit is liable to be dismissed under Punjab Tenancy Act? OPD.
5. Whether the plaintiffs are not in possessions of suit property, have not made any improvement on suit property and missal No, 32/90 and mutation Nos. 629, 632, 648, 705, 707, 717,739,740,741 are based on fraud and collusion committed by plaintiffs in connivance with revenue authorities? OPD
6. Whether the suit is liable to be dismissed as missal No, 32/90 dated 19-11-1090 and mutations mentioned in issue No,5 are fictitious and plaintiffs are not owners of suit property? OPD
7. Whether the plaintiffs have received rent, from the defendants and are entitled to receive rent?
OPP.
8. Relief.
5. The petitioners in support of their case got recorded statements of three witnesses and also relied on documents Exh-1 to Exh-5 which are the revenue record of the suit property in the shape of Kasra Girdawari, Jamabandi, mutations and report dated 09-4-1994. While the respondents failed to produce any witness nor filed any document in their defence and relied on the sole statement of their attorney.
6. The learned trial court after full trial returned the suit of the petitioners vide his judgment dated 29-11-2008 with the findings that:- Keeping in view the above discussion the suit of the plaintiffs is returned to the plaintiffs for presentation before the proper forum for recovery of rent as the instant court lacks adjudication between landlord and tenant.
7.It is pertinent to mention here that the trial court vide his judgment dated 29-11-2011 has found that the respondents have failed to prove issues Nos.3, 5 and 6 whereby the respondents have sought dismissal of the suit, and also challenged the ownership of the petitioners through Misle- Haqiat No,32/90 and mutations being based on fraud and collision committed by the petitioners in connivance with the revenue authorities.
8. The learned District Judge while adjudicating upon the partial appeal of the petitioners passed the following order vide its judgment/decree dated 08-11-2012 ' which has been impugned before this court:- I therefore, hold that appellants have badly failed to prove their title to the suit property and suit property is still government property in possession of government.
Result is that appeal stands dismissed and plaint of the suit of appellants/plaintiffs stands rejected finding the same time barred and not maintainable in the present form. Impugned judgment/ order varied accordingly.
9. It is worth mentioning here that the learned 1st appellate court has disposed of the suit on the above terms on the basis of already framed issue No,1 and issue No,8-A which was framed by the 1st appellate court which runs as:-- 10.The learned District Judge has failed to apply his judicious mind into the contents of the issue No,1 which has been wrongly framed by the learned trial court and the same has discussed by the learned District Judge as it is. The issue No,1 was as framed by the learned trial court and discussed by the 1st appellate court is reproduced as under:-- Whether the suit of the plaintiffs is time barred? OPP.
11.It is clear from the plain perusal of the above issue that the same is not only wrongly framed wherein the burden of proof has been placed on the wrong party. The onus of proof of this issue should have been on the shoulders of respondents/ defendants as OPD. The learned trial court did not discuss this issue as finding not pressed, but the learned District Judge has discussed this issue of limitation without even ascertaining himself about the factual proposition of onus of proof of the issue on the shoulder of the parties. In the given situation the framed issued should have been answered in affirmative. As discussed above the correct issue should have been reframed by the District Judge as under:-- Whether the suit of the plaintiffs is within time ?OPP.
Only on the basis of above framed issue the findings of the learned District Judge can be against the petitioners/appellants/ plaintiffs. The findings of the learned District Judge on this issue are also not tenable as the same has been made with respect to the claim of the present petitioners to the extent of their claim of rent which has already been rightly decided by the learned trial court returning the plaint of the petitioners for presentation before the proper forum and this finding of the trial court regarding the absence of jurisdiction of the learned trial on the matters of tenancy was not challenged by the present petitioners and by preferring partial appeal they have claimed that despite rightly of the trial court regarding adjudication of tenancy matters, the trial court had got ample power to adjudicate upon the suit of the petitioners regarding their claim of declaration of right pertaining to their ownership of the suit land. The learned District Judge failed to apply his judicious mind on this particular fact and decided the issue of limitation in favour of respondents, and that also on the basis of jurisdiction pertaining to the matter of tenancy. On facts also I am of the clear view that as for as the matter of the declaration of the rights of ownership of the petitioners is concerned the matter was well within the jurisdiction of the trial court because the suit of the petitioners was filed just after getting proprietary rights as far as their claim of declaration of their right was concerned.
12. Now let's go through the findings of the learned District Judge on the newly added issue No,8-A which is worth reproducing:-- In this connection Exh-P/1 to Exh-P/5 is the relevant documentary evidence. The documentary evidence of the appellant is important and worth perusal. Exh-P/1 is Sketch prepared on 06-4-1995.
Exh P/2 is document showing list of owners of village Juglote Nomal. Exh-P/1 and P/2 are irrelevant documents as the same are not showing any title of appellants to the suit land. Exh-P/5 is comprised of many parts Exh-P/3 and Exh-P/5 are the documents and column No,3 of the shows that Government is owner of the lands described in all said documents.
So the documentary evidence of appellants/plaintiffs is helpful in proof of this issue, firstly because the above referred documents have been prepared in the year 1995 long after possession of respondents on the suit land. Secondly because column No, 3 of Exh-P/3 and Exh-P/5 shows that suit property is still government land.
13.The record of the case shows that the learned 1st appellate court has clearly misconceived the relevant record of rights and other exhibited documents P-1 to P-5 F and wrongly and illegally found the government as owner in possession of the suit property. Exh-P5 is the respective documents of mutations of ownership of the suit land conferred upon the petitioners which have been misconceived and misread by the learned District Judge. Under the column 3 of Indaraj Sabiq of the above documents the initial ownership is admittedly is shown to be with the government as Khalisa Sarkar but in column 9 of Jadee-indaraj the names of respective Asami's have been incorporated and their respective possessions have also been shown both in column Nos.4 and 9 of register of mutations which clearly shows the possession of the respective plaintiffs on the suit land before and after getting the proprietary rights. So the petitioners have fully established their ownership on the suit land through oral and un rebutted documentary evidence in the shape of Exh. P/1 to P/5.
14.It is also on record that vide judgment dated 29-11-2008 the learned trial court has found issues Nos.3, 5 and 6 in favour of the petitioners against the respondents vide which the trial court held that the respondents failed to prove their claims of the dismissal of the suit under section 42 of Specific Relief Act and as that of the ownership on the basis of missal No,32/90 and connected mutations being allegedly based on fraud and collusion of the revenue authorities. The record of the case is also silent about any cross objection filed by the present respondents against the above material issues Nos.5 and 6 before the District Judge and any finding on the same vide impugned judgment.
15.It is also worth mentioning here that the answering respondent No,3 has also filed undertaking before the trial Court on 23-4-1995 in the proceedings on the application filed by the present petitioners under Order XXXIX, Rules 1, 2, C.P.C., to the effect that in case of passing a decree of in favour of the plaintiffs, defendants shall vacate the disputed land along with material there on will pay rent to the plaintiffs or if the land is permanently required by the defendants/respondents they shall acquire the suit land under Land Acquisition Act.
16.In the light of what has been discussed above this revision petition is accepted by setting aside the impugned judgments/decree of the two courts below. A decree to the extent of ownership of the suit land is passed in favour of petitioners against respondents with consequential relief as prayed for. The findings of the trial court to the extente of returning plaint of petitioners with respect to their claim of rent is hereby maintained.