WIQAR AHMAD, J.---- My this order is directed to dispose of Civil Revision No. 613-P of 2007 filed by the petitioners against the judgment and decree dated 09.04.2007 of the learned Additional District Judge/Izafi Zila Qazi-II Swat.
2. The plaintif fs (petitioners herein) had filed a suit against defendants (respondents herein) for declaration to the effect that they had been co-owners with defendants to the extent of the share described fully therein and that defendants had got no right to show them selves as exclusive owners of the property in dispute which comprised of a Hujra. In prayer "Bay" the plaintif fs had prayed for grant of decree for perpetual injunction in respect of the property in dispute while in prayer "Jim" a decree for possession had been sought in the alternative. It was contended in the plaint that the parties are close relatives and in the said respect a pedigree table ({{URDU TEXT}}) had also been given in the plain t. Ownership of the property in dispute i.e. Hujra had been running joint, according to the plaintif fs. Defendants were alleged to have started construction in the year 1995 with the intention to dispossess the plaintif fs therefrom. In the said respect, they had also submitted applications for restraining them from construction, detail of which has been given in the plaint.
3. Defendants were summoned, who appeared and filed their respective written statements. Defendants Nos. 1 to 5 and 18 to 23 contended that the property had not been the ownership of Muhammad Jan Khan, a common predecessor-in-interest of the parties but that of Faqir Khan, son of Muhammad Jan Khan and was therefore owned by the legal heirs of the said Faqir Khan only. Defendants Nos. 6 to 17 contended that the property which had once been joint between the predecessor-in-interest of the parties had been partitioned 85 years ago, whereafter the Hujra had been constru cted by Faqir Khan from his pocket and that the plaintif fs or their predecessor had nothing to do with the same.
4. Divergent pleadings of the parties were reduced into issues and the parties were invited to adduce their respective evidences. The plaintif fs produced three (3) witnesses and closed their evidence, whereafter , the defendants produced five (5) witnesses and closed their evidence. On conclusion of the proceedings in the case, the suit was decreed by the learned Civil Court vide judgment and decree dated 29.10.2005. Appeal was filed against the said judgment, which was allowed by the learned appellate Court vide the impugned judgment dated 09.04.2007 and the suit of the plaintif fs (petitioners herein) was resultantly dismissed. Feeling aggrieved from the judgment of the learned appellate Court, the petitioners have invoked the revisional jurisdiction of this Court under section 1 15, C.P .C.
5. The learned counsel for the petitioners referred to various pieces of oral evidence and contended that the plaintif fs had proved that the property in dispute had been owned by the parties jointly and their suit had rightly been decreed by the learned civil Court. The learned counsel placed special reliance on the entry in Wajib-ul-Arz Ex.PW -3/1 and contended that the revenue record had also been supporting the case of the plaintif fs/petitioners.
6. The learned counsel for the contesting respondents drew the attention of this Court towards an order dated 17.04.1949, Ex.DW -3/2 and another order dated 18.04.1949, Ex.DW -3/3 as well as Ex. ADW -1/1 and contended that the property in dispute had earlier been decreed in favour of the predecessor-in-interest of the contesting defendants namely Mukaram Khan during the era of the Ex-Ruler of the State of Swat.
7. I have heard arguments of learned counsel for the parties and perused the record.
8. Perusal of record reveals that the dispute in the case in hand relates to a Hujra, which is a common place for a segment of the people living in contiguous streets which is known as `Tal' (J) (neig hborhood) in local parlance. The defendants are admitting the property in dispute to be a Hujra but they claimed that same had been owned and possessed by the legal heirs of Faqir Khan, predecessor-in-interest of defendants Nos. 6 to 23 only. Analysis of the oral as well as documentary evidence would be required for answering the question as to whether the property in dispute i.e. Hujra was joint ownership of the parties or exclusively owned by the predecessor-in-interest of defendants Nos. 6 to 23.
9. The attorney for the plaintif fs appeared as PW-1. In his examination-in-chief he has mainly narrated the story as given in the plaint. In the first page of his cross-examination he replied that it was correct that the Hujra in dispute was 100/120 years old. He denied the suggestion that the said Hujra had been constructed by the defendants and added that same had been jointly constructed by the parties. He also stated that he had never desired to partition the Hujra , rather wanted that the parties use the same jointly . He did not agree with the suggestion that the actual name of the predecessor-in-interest of plaintif fs had been Jehangir instead of Muhammad Jan. On page 3 of his statement he had conceded that one lady namely Mst. Misal Hawa, who had died 8/10 years before had not been shown in the pedigree table, given in the plaint. He had also denied the sugg estion that the Hujra had been reconstructed in the year 1991 and quickly added that same had been reconstructed in the year 1987. He also stated in his cross-examination that his uncles namely Daulat Khan and Gul Muhammad Khan have had their own separate Hujras . PW-2 is the statement of Muzafar Khan, who was son of the said lady-Mst. Misa l Hawa who had been left out from the pedigree table. In his examination-in-chief he had supported the claim of the plaintif fs. A portion of his cross-examination is found necessary as it helps in understanding the real controversy regarding construction in the property , same is therefore reproduced hereunder , verbatim; {{URDU TEXT}} Patwari Halqa was examined as PW-3. In his examination-in-chief he has produce d the most important document i.e. Wajib-ul-Arz as Ex. PW-3/1. The attorney for defenda nts Nos. 1 to 5, 18 to 23 namely Faridoon appeared as DW-2. In his examination-in-chief he state d that the property in dispute was the legacy of Faqir Khan, predecessor- in-interest of the defendants. In cross-examination at page No. 5 he stated as follows; He has further given the following narration in his cross-examination; {{URDU TEXT}} DW-3 stated in his cross-examination that it was correct that Faqir Khan, Aman Khan and Ajab Khan were brothers.
He, however , disputed the name of their father as Muhammad Jan Khan and stated that his name was Jehangir Khan. This confusion regarding the name of Muhammad Jan Khan had been running in the evidence but both the parties agree that father of Faqir Khan, Aman Khan and Ajab Khan is one and the same, the plaintif fs called him Muhammad Jan Khan while the defendants have been calling him as Jehangir Khan. It is also an admitted fact that the plaintif fs are successor-in-interest of Aman Khan while the contesting defendants are successor-in-interest of Faqir Khan (brother of Aman Khan). This witness has further stated in his cross-ex amination on page 6 that it was correct that in their village every 'Tar/neighborhood used to have its own mosque, a land attached to the mosque and a common 'Hujra'.
He further stated in the concluding part of his cross-examination as follows; {{URDU TEXT}} DW-4 and DW-5 have also testified on the same lines. ADW -1 had -produced a decision dated 10.01.1950 of the earlier days of the Ex-Ruler of the State of Swat as Ex. ADW -1/1. In the document ary evidence the most important piece of evidence is Wajib-ul-Arz which was exhibited as Ex. PW-3/1. Relevant portion of a the said document is important for the instant controversy , which is reproduced hereunder for ready reference; {{URDU TEXT}} It has been admitted by the witnesses of the plaintif fs particularly PW-2 that the 'Hujra' was commonly known as 'Hujra' of "Tal Makah Khail". The said 'Hujra' has duly been reflected as joint ownership of the respective Tal i.e. neighborhood in the Wajib-ul-Arz , a portion of which has been reproduced ,above. It has also been recorded therein that all the people of the neighbo rhood used the common 'Hujras ' for their needs, wherefrom none of the co-owner may be restrained. Regarding construction, it is also provided in clause 10 of Wajib-ul-Arz that same has normally been conducted jointly . Strong presumption of correctness is attached to entries in Wajib-ul-Arz under section 52 of the West Pakistan Land Revenue Act, 1967. Entries in respect of Wajib-ul-Arz in the case in hand can therefore be safely relied upon. Reliance in this respect is placed on the case of "Noor Salam v. Gul Badshah" reported as "PLD 2002 SC 622". So much so that entries in Wajib-ul-Arz were equated with law in the judgment in the case of "Haji Oudrat Ali v. Government of N. W. F. P. through Secretary Law Department Peshawar" reported as. "1993 SCMR 381 .
10. From the analysis of evidence it become clear that the property in dispu te was inherited property . The defendants have claimed that it was exclusively owned by Faqir Muhammad Khan but they could not produce any evidence as to how said Faqir Muhammad Khan became exclusive owner of the property in dispute. The plaintif fs/petitioners have been successful in proving that the 'Hujra' i.e. property in dispute had been running jointly and same had been an inherited property 'between the parties. Entries in the Wajib-ul-Arz, Ex. PW-3/1 reproduced above gives added vigor to the case of the plaintif fs and is sufficient to shift burden to the defendants to prove that it was their predecessor-in-interest namely Faqir Muhammad Khan who had acqui red the property . Nowhere it has been asserted even that the said Faqir Muhammad Khan had ever purchased the said 'Hujra' from the other co- owners or anyone else. The defendants have mainly relied upon the decisions made by the authorities in the time of Ex-Ruler of Swat produced as Ex. DW-3/2 and Ex. DW-3/3 as well as Ex. ADW -1 /1 and the oral evidence in respect of reconstruction of the 'Hujra' made under their supervision. So far as the deed Ex. DW-3/2 is concerned, it is a short order of the then Tehsildar Charbagh stating therein that the property claimed by the plaintif fs in the case should be handed over to a receiver while rest of the property shall be cultivated by the parties themselves and that they shall not interfere in each other properties. Nowhere has this 'Hujra' been mentioned therein, which according to the evidence of the parties has been running as such for the last more than 100 years. Similarly , Ex.
DW-3/3 states that the property which has been inherited by Mukaram Khan shall not be disputed by Aman, the other co-owner . This decision also refers to the property and not to the 'Hujra'. As to what was the inherited property of Mukaram Khan had not been particularized in the said judgment though. Similarly , ADW -1/1 says that Mukaram Khan was appointed as Malak and entitle to `Mawajib' Cr (URDU TEXT) but same nowhere mention about the property in dispute i.e. 'Hujra'. It is thus clear that all the three decisions relied upon by the defendants do not relate to the property in dispute.
11. It is also important to be noted that not only from oral evidence of the parties it can be deducted that the property in dispute had been running joint but mentioning of the same in the Wajib-ul-Arz also establishes the fact that it had been the ancestral property of the parties. In the case of "Allah Wasaya and others v. Atta Muhammad reported as "2007 SCMR 1850 " the Hon'ble Supreme Court of Pakistan held that Wajib-ul-Arz applies only to ancestral properties unless its application to non-ancestral property is specifically mentioned therein. We could not find any specific entry in the Wajib-ul-Arz and anywhere else in the revenue record wherein the property in dispute i.e. 'Hujra' had been showing as exclusively owned by defendants Nos. 6 to 23. So far as reconstruction of the 'Hujra' is concerned, the defendants have been able to prove that same had been carried on in their supervision as this fact had been so admitted by the witnesses of the plainti ffs in parts of their statements reproduced above or at least an inference may safely be drawn from the said statements in this respect. But one thing is important to be noted that the witnesses of defendants has also admitted that there had been old trees of pine (URDU) which had been cut and sold and there had also been some timbers used in the earlier construction of the 'Hujra' which had also been sold and sale proceeds were used for the construction of the 'Hujra'. As stated earlier , it was found that the 'Hujra' in dispute in its earlier shape was jointly owned so the money derived therefrom would also be deemed to be a common fund. Therefore, the defendants could not assert their exclusive right on the use of the property in dispute.
12. The learned trial Court had therefore rightly decreed the suit in favour of the plaintif fs. The learned appellate Court had set aside the said judgment on flimsy grounds like non-joinder etc. It is settled principle of law that a person cannot be non-suited merely because of non-joinder . Reliance in this respe ct is placed on the judgments of the Hon'ble Supreme Court of Pakistan in the case of "Mst. Jannat Bibi v. Saras Khan" reported as "2011 SCMR 1460 ", in the case of "Chaudhry Muhammad Munir v. Election Tribunal Mandi Bahauddin" reported as "2009 SCMR 1368 " and in the case of "Anoud Power Generation Limited v. Federation of Pakistan" reported "PLD 2001 SC 340". Non-joinder in the case in hand is not lethal for the reason that the plaintif fs are claiming joint use of the property in dispute i.e. 'Hujra'. With non-joining of any other co-owner his rights would not be effected. Non-joinder is potentially lethal in those cases where in case of grant of decree a person is deprived from some rights or is likely to be deprived therefrom. In other words non-joinder of necessary parties is damaging only and they must be impleaded before grant of decree, same may not be the case with proper or proforma parties, but it depends on the particular facts of each case. The lady namely Mst. Misal Hawa mentioned above was not a necessary party as no relief had been prayed against her nor rights of the defendants had ever been denied by her, nor any prayer of partition or the like had been prayed for in the suit.
13. In the case in hand the present controversy existed between those parties who had already been arrayed as defendant and the lady Mst. Misal Hawa or legal heirs had never been part of the controversy . In such a situation she or legal heirs are not found as necessary party . Reliance in this respect is also placed on the judgment of Hon'ble apex Court given in the case of "Ayyub v. Nom- Ahmad" reported as "2004 SCMR 791". The Hon'ble Supreme Court of Pakistan held in the said case that the dispute rested between plaintif f and one defendant, legal heirs of other defendants had no interest in the property in dispute, thus, their non-joining as party had not been fatal to the suit filed by the plaintif fs.
14. The judgment of learned appellate Court was the result of misreading of the evidence particularly when it held that the plaintif fs had failed in proving that the property in dispute had been jointly owned by the parties. It appears that the relevant evidence reproduced above had skipped the attention of the learned appellate Court.
15. In light of what has been discussed above, the instant revision petition is allowed the judgment of the learned appellate Court dated 09.04.2007 is set aside and that of learned civil Court dated 29.10.2005 is restored. It is however clarified that the decree granted to the plaintif fs shall be construed as the one whereby they had been declared co-owners in possession in respect of the property in dispute i.e. 'Hujra' and the defendants were restrained from asserting exclusive rights of ownership in respect of the 'Hujra' as well as from the other consequential acts, as prayed for in the plaint. On the basis of the decree in hand, the plaintif fs shall not claim the exclusive ownership or partition unilaterally , as the nature of 'Hujra' i.e. property in dispute do not allow it except with mutual consent.