AHM AD NADEEM ARSHAD, J. Through this Civil Revision filed under section 115 of Code of Civil Procedure, 1908, petitioners have called in question the validity and legality of judgments and decrees of learned Courts below whereby their suit for declaration along with consequential relief for recovery of possession was dismissed concurrently.
2. Shorn of unnecessary details, petitioners/plaintiffs instituted a suit for declaration against the respondents/defendants qua the plot (fully detailed in the plaint) by contending therein that they are owners in possession of the suit plot on the basis of registered deed Nos.1771-1772 dated 15.10.1984 which was rented out by them earlier to Muhammad Akmal and then to one Allah Bachaya by constructing boundary wall and a room; that there was dispute of property measuring 01 Kanal and 01 Marla adjacent to the suit plot between respondents Nos.2 and 3 and respondents Nos. 4 and 5 regarding which a suit was pending between them which was decreed on the basis of compromise; that after decree of their suit respondents Nos.2 and 3 filed execution petition; that before issuance of warrant of possession, latter filed an application for amendment in plaint and correction in decree; that being in connivance with each other and respondent No.6 who was bailiff in the Court, respondents succeeded in getting warrant of possession No.103/X by committing fraud with the Court in year 1986 and by joining hands with respondent No.6 (bailiff) they forcibly got possession of the suit property and ousted tenant of the petitioners with bag and baggage; that subsequently respondents Nos. 2 and 3 fraudulently transferred possession of the suit plot in favour of respondent No.1 which is illegal and inoperative on the rights of the petitioners.
Respondents Nos. 1, 2 and 3 and respondents Nos. 4 and 5 contested the suit by filing their separate written statements, whereas, respondent No.6 (retired bailiff) also submitted his written statement.
Owing to the divergent pleadings of the parties, learned Trial Court settled necessary issues and invited the parties to produce evidence in support of their contentions and after recording evidence of the parties pro and contra, oral as well as documentary, suit of the petitioners was dismissed vide judgment and decree dated 21.04.2004. Feeling aggrieved, they preferred an appeal which also met the, same fate and dismissed by the learned Appellate Court via judgment and decree dated 14.10.2004. Being dissatisfied, they filed instant Revision Petition.
3. This Court vide order dated 28.11.2016 proceeded ex-parte against respondents Nos. 2 and 5, vide order dated 01.03.2018 respondents Nos.1-D and 6-F, 4-A to 4-E, 5-G, 4-11, 4-1, 6-A, 6-E and 6-G were proceeded ex-parte, whereas, vide order dated 27.11.2019 and 29.09.2021 ex-parte proceedings were initiated against respondent No.3 after procuring proclamation in the newspaper.
4. I have heard learned counsel for the parties at length and perused the record with their able assistance.
5. From scanning of the record, it appears that petitioners sought declaration and recovery of possession on the 'basis of registered sale deed No.1771 and registered sale deed No.1772 dated 15.10.1984 with the version that they are owners in possession in the Khata No.279/274, Khasra No.52/41 land measuring 12 Marlas, whereas, the claim of the respondents Nos. 2 and 3 is that they are owners in possession of Khata No.275, Khatuni No.352, Khasra No.52/40 and got the possession in pursuance of donsent decree by filing an execution and got the possession through bailiff of the Court. Both the parties are claiming their title with possession in two different Khata numbers and Khasra numbers with regard to same suit property. Stance of the petitioners is that respondents Nos.2 and 3 got the decree from Khata No.275, Khatuni No.352, Khasra No.52/40 measuring 16 Marlas from the Civil Court but got the possession of the property owned and possessed by the petitioners which is situated at Khata number 279/274, Khasra No.52/41 measuring 12 Marlas.
Learned Trial Court while deciding issue No.1 observed as under: "Firstly plaintiffs had to prove their ownership with regard to suit land situated in Khasra No.52/41.The ownership of the plaintiffs' is not disputed relating to Khasra No.52/41 but so far as possession is concerned the defendants present in the proceedings of this case had contended that plaintiffs have no locus standi to file this suit as defendants Nos. 2 and 3 got 'possession of Khasra No.52/40 which was decreed in their favour in previous suit between the defendants Nos. 2 and 3 and defendants Nos.4 and 5. In nutshell, I cannot say that Khasra number 52/41 is in fact Khasra No.52/40. Defendants have not denied the ownership or possession of the plaintiffs over Khasra number 52/41 but they have stated that they had got the possession of Khasra No.52/40 in the presence of bailiff of the Court. For getting decree for declaration along with possession, plaintiff's have to prove their entitlement of possession over the suit land allegedly got by defendants Nos. 2 and 3 in execution proceedings. In fact, this is very technical case in its nature.
Neither ownership of the plaintiff is disputed in this case with regard to Khasra No.52/41 nor the possession of the plaintiff's is disputed one over Khasra No.52/41 but the matter in dispute is that in fact defendants Nos. 2 and 3 got the possession of Khasra No.52/47. Both the Khasra numbers are adjacent. In fact, the whole case is regarding demarcation and identification of the suit land.
No doubt plaintiffs have purchased land measuring 12 Marlas through registries Nos. 1771 and 1772 dated 15.10.1984 but in the. Said registries Khasra number has not been mentioned. In previous suit remained pending between defendants Nos. 2 and 3 with the defendants Nos. 4 and 5 demarcations was held. The report of demarcation has been produced as Exh.P.7. Plaintiffs have relied upon the report of learhed Local Commission prepared in the previous suit. The relevant portion of the report of learned Local Commission with regard to Khasra No. 52/40 is hereby reproduced as under: The above said para of the report of learned Local Commission itself does not prove that defendants Nos.2 and 3 got possession of Khasra No.52/41. As per report, at that time Khasra No.52/41 was in possession of Muhammad Khalid etc. defendants in that suit.
8. The plaintiffs have contended that defendants Nos.2 and 3 got illegal possession of his land in execution proceedings. If plaintiffs were aggrieved, they should have challenged this .fact by filing objection petition in execution proceedings, which they had not challenged. Moreover, the plaintiffs had also pled a suit for recovery of possession under section 9 of Specific Relief Act, 1877, which was dismissed due to non-production of evidence on 22.06.1988 which was with regard to suit land. Appeal of the plaintiffs was also dismissed due to non-prosecution. Although, plaintiffs are not debarred to file suit for declaration after the dismissal of suit filed by them under section 9 of Specific Relief Act, 1877 but in the present case plaintiffs have failed to prove that they are the owners of the land got by the defendants in the execution proceedings. In these circumstances, 1 am of the view that neither the plaintiffs could prove that defendants Nos. 2 and 3 had got the possession of their land nor it has been proved by the plaintiffs that possession got by defendants Nos.2 and 3 is in fact' the land situated in Khasra number 52/41 pertaining to Khata No. 279/274.
The defendants have successfully proved that plaintiffs have no locus standi and cause of action to file this suit, therefore, this issue is decided in favour of the defendants.The learned Appellate.
Court endorsed the said findings of learned Trial Court by dismissing the appeal of the petitioners.
6. Although, both the Courts below at one hand acknowledged ownership and possession of the petitioners over the Khata No.279/274, Khasra No.52/41 but in the same breath denied their ownership and possession over the suit property.
7. Therefore, first of all it is better to see the ownership and possession of the petitioners upon the suit property. Petitioners produced copy of RL-II No.196/187/216 whereby Muhammad Akram son of Mehdi Khan, Ghulam Mohai-Uddin, Ghulam Rasool, Imdad Ali, Sardar Ali, Taj Ali, Muhammad Ali sons of Munshi Khan were allotted land in Khewat No.255, Khewat No.258 and Khewat. No.255. One of the allottee namely Sardar Ali son of Munshi Khan was the vendor of petitioners. Perusal of said document it appears that Khasra number 2097 measuring 01 Kanal and 10 Marla was allotted.
Petitioners produced copy of record of rights for the year 1975-76 whereby Khata No.271/267, Khatuni No.279 was belonged to Sardar Ali, who was vendor of the petitioners. It is also evident from the said document that old Khasra No.2097 with present Khasra No.41 was shown. Petitioners also produced copy of record of rights for the year 1975-76 as Exh.P.22, whereby respondents Nos.2 and 3 were shown owners of Khata No.272, Khatuni No.280. In the said document, old Khasra No.2096 was presently shown as Khasra No.40.
8. Petitioners produced copy of sale deed No.1771 dated 15.10.1984 as Exh.P.17 whereby Sardar Ali son of Munshi Khan sold land measuring 04 Marlas to petitioner No.1. Perusal of said sale deed it appears that surrounding details of the said 04 Marlas are given as under: Towards North: Shops Nadar Khan Pathan deceased 46 feet.
Towards South: Plot owned by Sardar Ali vendor 46 feet.
Towards East: Plot owned by Mst. Raeesa Begum (petitioner No.2) 24 feet.
Towards West: Matlled Road Alipur to Jawi24 feet.
9. Petitioners produced sale deed No.1772 dated 15.10.1984 as Exh.P.18 whereby Sardar Ali son of Munshi Khan sold land measuring 08 Marlas to Mst. Raeesa Begum (petitioner No.2). In the said sale deed, surrounding details of the plot are shown as under: Towards North: Shops owned by Nadar Khan deceased 48 feet.
Towards South: Plot owned by Sardar Ali 48 feet.
Towards East: Closed street 24 feet.
Towards West: Plot owned by Sheikh Liaqat Ali (petitioner No.1) 24 feet.
In this way measurements and metes and bounds of petitioners plot is as under: Towards North: Shops owned by Nadar Khan deceased 94 feet.
Towards South: Plot owned by Sardar Ali 94 feet.
Towards East: Closed street 24, feet.
Towards West: Matlled Road Alipur to Jatoi24 feet.
10. Petitioner produced copy of decree sheet/order whereby petitioner No.1 Liaqat Ali moved an application against Allah Bachaya before the Chairman Conciliation Courts Town Committee Alipur for recovery of rent amounting to Rs.3300/- for a period of 11 months and the Court passed ex-parte decree vide order dated 22.12.1988. Said document reveals that Allah Bachaya son of Elahi Bakhsh was tenant of Sheikh Liaqat Ali (petitioner No.1).
11. Respondents Nos. 2 and 3 namely Mst. Zubaida alias Jeelan, Mst. Jameelan alias Jaili instituted a suit for recovery of possession with regard to plot measuring 21 Marlas situated in Khasra No.52/40, consisted of land measuring 02 Kanals and 06 Marlas against respondents Nos.4 and 5 Muzaffar Ali Khalid and Zafar Ali by maintaining that they being legal heirs of Mst. Faxlan are owners in possession of Khata No.275 being co-sharer and because of private partition Khasra No.52/40 measuring 02 Kanals and 06 Marlas was came in their possession, whereas, respondents Nos.4 and 5 are owner of adjacent Khasra No.52/41 and the said respondents after getting illegal possession started construction of shops over the suit property. Respondents Nos. 4 and 5 filed its contesting written statement whereby they claimed that they are raising construction on their owned land situated in Khasra No.52/41. During the pendency of said suit, Commission was appointed who prepared his report. The relevant portion of the said report was discussed by the learned Trial Court in its judgment but at the cost of repetition' a portion of the said report which is necessary to reach a just conclusion is reproduced as under: Local Commissioner in the said report specifically identified the plot owned by petitioners and also verified that it consists of 12 Marlas.
12. In the said report, Local Commission also disclosed that land situated in Khasra No.52/41 is under the possession of respondents Nos.4 and 5 in the following manner:
13. Critical analysis of said report clarified that plot of petitioners' land is situated in Khasra No.52/41 under possession of Allah Bachaya tenant, disputed plot of respondents Nos.2 and 3's suit is western side of Khasra No.52/40 and respondents Nos.4 and 5 also possessed land in Khasra No.52/41. It means that Khasra No.52/41 consisted of two portions; one under the possession of respondents Nos.4 and 5 and second portion of Khasra No.52/41 which was belonged to petitioners and under the tenancy of Mistri Allah Bachaya son of Mistri Elahi Bakhsh. Along with the report of Local Commission, Aks Shajra prepared by, concerned Patwari was attached at Exh.P.1. Petitioners produced said Aks Shajra as Exh.P.8. Perusal of said Aks Shajra reveals that Khasra No.52/40 and Khasra No.52/41 are two different plots; the said Aks Shajra is pasted as under for ready reference:
14. During the pendency of said suit, respondents Nos. 2 and 3 reached to a compromise with respondents Nos.4 and 5 and on the basis of said compromise respondents Nos.4 and 5 agreed to surrender the land measuring 16 Marlas and in this regard a map was prepared and produced before the Court as Exh.C.1. Petitioner produced said map as Exh.P.9. Said map also disclosed Khasra No.52/40 and Khasra No.52/41 separately. Photo of said map (Exh.C.1) is pasted as under for better understanding:-
15. Learned Trial Court recorded statements of the parties on 21.09.1986 whereby respondents Nos. 2 and 3 were agreed to surrender 5-1/2 Marla land situated adjacent to land of respondents Nos.4 and 5 at southern side and remaining land measuring 16 Marlas was to be handed over to respondents Nos.2 and 3. It is also maintained in the statements that possession was delivered to respondents Nos.2 and 3 (plaintiffs of said suit). In view of said statements, learned Trial Court decreed the suit on 01.11.1986 in the light of map (Exh.C.1). Order sheet, judgment and decree is available on the file as Exh.P.10 and Exh. P.11.
16. Despite that, possession of 16 Marlas had been given to respondents Nos.2 and 3 as per statements recorded on 21.09.1986 but they filed execution petition for the recovery of possession of the decretal land. Copy of execution petition is available on record as Exh.P.12 wherein respondents Nos.2 and 3 (decree-holders) prayed for issuance of warrant of possession. Learned Executing Court issued warrant of possession No.103 to the bailiff for delivery of possession as per attached map. Petitioners produced warrant of possession along with report as Exh.P.13. Perusal of the said report of bailiff dated 25.02.1987 it appears that possession of a vacant plot was given to respondents Nos.2 and 3. Allah Bachaya son of Elahi Baldish was shown as one- of the witness, who allegedly put his thumb impression on the report in that capacity. Peaceful presence of Allah Bachaya suggests that at that time petitioners plot was not given to the respondents Nos. 2 and 3.
Petitioners impleaded said bailiff as defendant No.6 in the plaint who submitted his written statement whereby while replying Para No.4 of the plaint he stated as under: But in his report dated 25.02.1987 he maintained as under:
17. Respondent No.6/defendant No.6 stated that suit plot is lying vacant and no one present on behalf of judgment debtors, therefore, possession of vacant plot according to attached map was delivered to special attorney of decree holders and he put his signatures as a token. No one created hurdle at that time. Silent presence of Allah Bachaya also verified it. But against his report, he maintained in the written statement that Allah Bachaya was forcibly dispossessed by the decree holders. Report and written statement verified that a piece of land under possession of Allah Bachaya was present there. Admittedly, said piece of land belonged to the petitioners.
Petitioners were not party in the suit of respondents Nos. 2 and 3 and no decree was passed against them. Then how their plot could be delivered to the respondents Nos.2 and 3.
18. It is evident from the record that petitioners were owner in possession of Khata No.279/274 bearing Khasra No.52/41 measuring 12 Marlas. Respondents Nos.2 and 3 instituted the suit for recovery of plot according to map and shown points as Alif, Bay, Jeem and Daal Alipur to Jatoi road. Said plot was mentioned in compromise deed as Exh.C.1. Suit plot was quite different from the plot owned by petitioners. When written statement and report of bailiff dated 24.02.1987 is read in juxtaposition, it appears that initially respondents Nos.2 and 3 got the possession of decreed suit plot and then forcibly snatched the possession of petitioners from his tenant namely Allah Bachaya. Petitioners proved their ownership and possession through volumes documentary evidence. Now it was the duty of respondents Nos. 2 and 3 to bring on record that they got possession of the land as per compromise deed Exh.C.1 but scanning of the evidence produced by the respondents it appears that respondents badly failed to prove that they got the possession only of decreed land measuring 16 Marlas from Khata No.275, Khatuni No.352 bearing Khasra No.52/40 as per map (Exh.C.1).
19. Learned Courts below much impressed with the fact that respondent Nos. 4 and 5 was also owner of the land in Khasra No.52/41 but failed to consider that respondents Nos.2 and 3 in their suit claimed possession from the Khasra No.52/40 and not from Khasra No.52/41. They were not entitled to get possession from Khasra No.52/41.
20. Respondent No.1 failed to establish on record his lawful entitlement and possession over the suit property. Neither any title deed is present in his favour nor he proved on record that how he got the possession.
21. The upshot of above discussion is that, learned Courts below completely mis-read and non- read the evidence available on record in its true perspective. Impugned judgments and decrees are result of misreading/non-reading of evidence which warrant interference of this Court in revisional jurisdiction.
22. Epitome of above discussion is that this revision petition is allowed. Consequently, impugned judgments and decrees of the Courts below dated 21.04.2004 and 14.10.2004 are set aside and suit instituted by the plaintiffs is decreed in their favour. Learned Executing Court after properly demarcating the Khasra No.52/41 and Khasra No.52/40 shall deliver the possession from Khasra No.52/41 to the petitioners, keeping in view the surrounding details provided in the sale deed No.1771 (Exh.P.17) and sale deed No. 1772 (Exh.P.18) dated 15.10.1984. No order as to cost.