JUDMENT This Civil Revision impugns judgment date 4.5.6.2010 passed by the Additional District Judge, Bhakkar in Civil Appeal No. 76/2009.
2. The basic facts are that the Petitioners filed a suit for possession (Civil Suit No. 276/1997) on 23.10.1997 before the Civil Judge 1st Class, Mankera against the Respondents with respect to property measuring 3 Marlas within the vicinity of Ward No. 2, Town Committee, Mankera ("the Property"). The Suit was contested by Defendants No. 1; 2 and 3 being Respondents No. 7, 8 and 3 before this Court and decreed in favour of the Petitioners vide judgment and decree dated 20.6.2005 wherein Respondents No. 7 and 8 were declared to be illegal occupants of the Property and the Petitioners were declared owners of the Property , thereby rejecting Respondent No. 3's claim of title. Consequently Respondents No. 7 and 8 were directed to hand over possession of the Property to the Petitioners. Aggrieved by this judgment and decree, the Respondents filed an appeal before the Additional District Judge, Bhakkar who remanded the case with the direction that the case be decided afresh after framing an additional issue regarding limitation being Issue No 1 A. 'The learned trial Court again decreed the suit in favour of the Petitioners vide judgment and decree dated 16.4.2008. Against this judgment and decree dated 16.4.2008, the Respondents filed Civil Appeal No 76/2009 which was accepted and the impugned judgment and decree was set aside vide judgment dated 5.6.2010 passed by the appellate Court. The Petitioners filed the instant Civil Revision against the judgment of the appellate Court dated 5.6.2010 on the ground that the Respondents were neither owners nor in possession of the Property; that the rapat roznamcha waqiati Ex.P1 clearly stated that Respondents No 7 and 8 were in illegal possession of the Property; that the Petitioners had a registered sale deed dated 26.2.1991, Ex.P3 which was not disputed by the Respondents. Hence there was no basis to give possession of the land to the Respondents.
3. Learned counsel for the Petitioners argued that the case of the Respondents before the trial Court and the appellate Court was essentially that they are joint owners in Khasra No 2425, Khata No 156 which comprises of 42 Kanals 2. Marlas of land; that they purchased and in the said Khasra and since the properties have not been partitioned, the Petitioners cannot lay claim to any specific piece of land within the joint Khata as all co-sharers have rights in the said Khata. Learned counsel argued that there was nothing on the record to establish the title of Defendant No. 3 who is Respondent No. 3 before this Court; that Respondent No. 3 claimed that he was owner in possession of 5 Kanals of land out of which 3 Marlas is disputed. However Resp ondent No 3 did not tender any title documents before the trial Court. This fact has been totally ignored in the order of the appellate Court which accepted the contentions of the Respon dents that they were co-owners in Khasra No 2425 and Khata No 156 without, actually considering the issue of their title.
4. On behalf of Respondent No. 4, it is argued that the said Respondent is the legal heir of Ameer Muhammad along with Respondents No. 2 and 3; that Ameer Muhammad is the owner of the Property which the Petitioners claim that they are in ownership of, however since the issue is of joint ownership in the same Khasra and Khata, the suit for possession is not maintainable without partition of the Property and without impleading all co-sharers. In this case, he argued that the Petitioners did not implead all the co-sharers and as such, there was no report available on the file to support the Petitioners' contention that the Property they claim ownership of was the specific land which they are entitled to
5. This is an old case pending since the year 2017. As per the order sheet, Respondent No. 4 has been contesting this case whereas the other Respondent s despite service have never tendered appearance before the Court. On 18.9.2019 notice `pervi' was issued to the Respondents except Respondents No 2 to 4 yet despite the same no one has tendered appearance. On 1.6.20 20 final opportunity was given and again no one appeared on behalf of Respondents No. 1, 2, 3, 5, 6, 7 and 8, hence they are proceeded against ex-parte. Respondent No. 4 is present before this Court.
6. In this regard, it is noted that as per, the Amended Memo of Parties filed on 8.2.2 018 Respondents No 2, 3 and 4 are the legal heirs of Ameer Muhammad who was Defendant No 3 in the suit filed by the 3 Petitioners arid.
Respondents No 7 and 8 are the legal heirs of Defendants No 1 and 2 in the said suit.
7. As per the record, the Petitioners filed a suit for possession against the Respondents on 23.10.1997. They claimed that they purchased 19 Marlas of land in Khasra No 2425, Khata No 126/1 56, of which they have obtained possession of 16 Marlas of land and that 3 Marlas of land was wrongfully in the possession of Ghulam Qadir and Mazhar being Defendants No 1 and 2 in the said suit. Defendants No 1 and 2 filed written statements as did Defendant No 3 being Respondent No 3 in the instant Civil Revision in which it was claimed that Defendant No 3, Ameer Muhammad was owner of 5 Kanals of land of which he had handed over possession of some land to Defendants No. 1 and 2. Hence the Petitioners' claim that they are owners of the Property was contested. Eight Issues were framed in the suit and the suit was decided in favour of the Petitioners on 20.6 2005. As per the judgment dated 20.6.2005 passed by the Civil Judge 1st Class, Mankera, the Petitioners produced four witnesses and placed reliance on rapat roznamcha waqiati Ex.P 1, map of the disputed plot Ex.P2 and registered sale deed as Ex.P.3. Whereas Defendants No 1 and 2 produced two witnesses along with two affidavits Ex.D1 and Ex.D2, Defendant No. 3 relied upon the statement of the Clerk of TC, Mankera as DWI and he himself appeared as a witness as DW2. He also relied upon a decree dated 13.12.1995 as Mark-A. On the basis of the evidence the Court held that the Petitioners have a registered sale deed in their favour and that the rapat roznamcha waqiati clearly provides that Defendants No. 1 and 2 are in illegal occupation of some land. The Court also concluded that there was no document on the basis of which Defendant No. 3 could claim ownership of 5 Kanals of land as nothing was produced in Court. Consequently they failed to make out their case of ownership and possession.
8. The appellate Court vide judgment dated 5.6.2010 while setting aside the judgment and decree dated 16.4.2008 disagreed with the opinion of the trial Court on the ground that the Respondents were the owners of land in Khasra No. 2425, Khata No. 156 and that as per the sale deed the defendants were in possession of two rooms on the Property which originally the vendor Sharif-ud-Din had requested the defendants to vacate. Hence the appellate Court concluded that the Petitioners neve r got possession of 3 Marlas of land out of the 19 Kanals of land and that the Respondents were the owners of 11 Marlas of land in Khasra No. 2425, Khata No. 156 being co-sharers in the said Khata. Consequently judgment and decree dated 16.4.2008 passed by Civil Judge 1st Class, Mankera was set aside on the ground that co-sharers cannot lay claim to specific land in a joint Khata and that the Petitioners cannot claim the specific property as being their property as there has been no demarcation or partition.
9. The record shows that the Petitioners exhibited rapat roznamcha waqiati Ex.P1 in which the revenue officer made a clear finding that Defendants No. 1 and 2 were in illegal possession of the Property . The order of the appellate Court did not take into consideration the rapat roznamcha waqiati Ex.P1. In fact the appellate Court has incorrectly held in its order that the Petitioners have not obtained any report of any revenue authority to establish that the Property is part and parcel of the 19 Marlas of land they had purchased. The rapat roznamcha waqiati Ex.P1 is available on the file, in terms of which the revenue officer not only stated that Defendant No 3 was in possession of his 5 Kanals of land but was prepared in his presence, he can hardly justify claiming ownership or possession over the Petitioners' land under the garb of joint ownership. Hence this finding of the appellate Court is contrary to the record. Furthermore the Respondents No 7, 8 and Respondent No 3, Ameer Muhammad relied upon Mark-A to establish title in Khasra No 2425, Khata No 156. In the first instance it is noted that as per the record and on the basis of the arguments made before this Court, no title document, in favour of Defendant No. 3, was ever produced in the Court. The stated defendant relied upon the decree sheet in Civil Suit No. 222/1992 dated 13.12.1995 which does not establish that he is the owner of the Property , or that he has a share in the aforementioned Khasra or Khata nor was the judgment attached with the said decree sheet nor any details were provided. The appellate Court failed to consider this aspect of the matter and concluded in favour of Respondent No. 3 on, the basis of the possession Respondents No 1 and 2. Hence there was no justification for the Court to conclude that the defendants were co-sh arers in khasra No. 2425, Khata No. 156 as Respondent No. 3 already had possession of the land he was in ownership of. Finally the Petitioners have a registered sale deed in their favour which was never disputed. Admittedly they were in possession of 16 Marlas of land on the basis of the sale deed and, the description of the land given therein. The appellate Court had no document before it on the basis of which joint ownership in Khasra No. 2425 and Khata No. 156 was established with respect to the Property . Mere possession, without any title in support thereof does not give Respondent No. 3 title nor justifies Respondents No.7and 8's possession which was reported as illegal by the revenue authority . Furthermore Ex.P1 provides that the parties settled their dispute with respect to possession in Khasra No. 2425, Khata No. 156, consequently Respondent No. 3 is unable to justify his claim over 3 Marlas of land in the said Khasra, especially since Respondent No. 4 admits that Ameer Muhammad' s possession over 5 Kanals of land is not in issue.
10. In view of the aforesaid, the instant Civil Revision is accepted and the impugned judgment dated 5.6.2010 passed by the Additional District Judge, Bhakkar in Civil Appeal No. 76/2009 is set aside.