This revision petition by the plaintiffs is directed against the judgment and order of District Judge, Mardan dated 28-3-1685 whereby he dis--missed appeal against the judgment and decree of Civil Judge, Mardan dated 19-7-1983 dismissing his suit.
2. Facts of the case briefly stated are that Lalzada and Nawabzada minor sons of Muhammad Jalil through their father (next friend) Muhammad Jalil instituted the present suit against Gur Bakhsh Singh and fifteen others in the Court of Senior Civil Judge seeking declaration to the effect that they are the owners in possession of land measuring 13 Marlas (constructed area) out of one Kanal 2 Marlas bearing Khasra Nos. 1207/1/1, 1207/1/3 comprising in Khata No. 391/747 according to Jamabandi of the year 1971-72 situated in Moza Kot Jhongara, Tehsil Mardan through Mutations No. 3025 attested on 1-6-1966. That the subsequent transfer of this area by defendants 6 to R in favour of defendant No. 9 was wrong and ineffective on their rights. The subsequent transfer made by defendant No. 9 in favour of defendants Nos. 10 to 15 was also challenged to be collusive and fraudulent. Further, transfer by defendant No. 12 in favour of defendant No. 16 and the mutation attested thereof was also challenged to be ineffective on their rights. Alternate prayer has been made for possession of the said area. The case set up in their plaint by the plaintiff: is that Muhammad Jalil father of the plaintiffs purchased an-area measuring one Kanal 2 Marlas out of Khasra Nos. 1206, 1207 through three registered sale-deeds from defendants Nos. 1 to 5 before their migration to India and got possession under it. These deeds were duly incorporated in the Revenue record through Mutations Nos. 1605, 1606, and 1607 attested on 17-9-1947 and thereafter raised considerable Abadi over it. That though in the aforesaid mutations no Tatimmas were prepared and sale was made in column of cultivation out of both the Khasra numbers, subsequently through Mutation No. 2670 attested on 28-1-1963 the Revenue Officer entered the constructed area of the plaintiffs in the name of defendants Nos. 1 to 5 by preparing a Tatimma. The plaintiffs filed an appeal against it which was accepted and the case was sent back to the Revenue Officer for considering the objection raised by the appellants before him. The acquisition of the aforementioned land by the plaintiffs was duly confirmed by the Deputy Custodian in Suits Nos. 1/13 and 2/13. Decided on 8-5-1950, The Revenue Officer collusively disregarding the plaintiffs' possession on the land made an entry in favour of defendants Nos. 1 to 5 and thereafter treating it evacuee property mutated it in the name of Central Government and subsequently allotted in favour of defendant No. 9 and the transferee from her. Plaintiffs claimed to be the owners in possession of a portion of the suit Khasra number under the sale made in their favour and thereafter having raised construction over it, the defendants are not entitled to interfere with that specific portion of the Khasra number till regular partition takes place among the co-sharers of the joint property.
3. In the written statement the defendants resisted the plaintiffs' suit on various legal and factual pleas. Defendants 12 to 13 and 16 stated that the suit land has been validly transferred in their favour and that they have also become its owners by adverse possession. They also denied the plaintiffs' entitlement, of the suit land. The L. Rs. Of defendant No. 9 in resisting the plaintiffs' suit apart from showing their ignorance about the plaintiffs' entitlement in the suit land further denied the sale made in favour of defendants 10 to 15 and challenged it to be fraudulent, collusive and without consideration. Defendants 6 to 8 also contested the suit on somewhat similar pleas.
4. After framing as many as fifteen issues arising out of the pleadings of the parties, the learned Trial Judge examined Sardar Ali Patwari who placed on file the relevant Revenue record while Haji Muhammad Jalil appeared as P. W. 2 and closed evidence for the plaintiffs, Fazal Mola D. W. 1 was examined as attorney for defendants 11, 13 to 15 and closed their evidence. In the light of the evidence of the parties the merits of the case were discussed under Issues Nos. 10 to 13 wherein it was held that plaintiffs are not the owners in possession of the suit Khasra numbers, that the land in question was properly allotted to defendant No. 9 on behalf of the Central Government, that the transfer by defendant No. 9 in favour of defendants Nos. 10 to 15 and 16 is valid and with consideration. In view of the finding on Issue No. 14 pertaining to the plaintiffs' entitlement in the suit' land and then to the decree prayed for, plaintiffs were held to have get no cause of action, hence dismissed the suit.
5. The learned counsel for the petitioners while challenging the findings on the aforementioned issues referred to the registered sale-deeds which are exhibited as Exh. P. W. 2/1 to Exh. P.. W. 2/3 on the file wherein the plaintiffs' predecessor is shown to have become owner by purchase of an area measuring 1 Kanal 2 Marlas out of total land measuring 15 Kanals 1 Marla bearing Khasra Nos. 1206 and 1207. These deeds were executed pan 20-5-1947 and 17-6-1947 and were subsequently declared valid by the Deputy Custodian to be genuine and valid and correctly incorporated in the Revenue record. Their possession was further recorded in column of cultivation while Farid Khan and others have been recorded co-sharers with the predecesser-in-interest of the vendors in the column of ownership. Till the filing of the suit no regular partition had taken place of the joint holding. That Khasra No: 1207 which measured 6 Kanals 18 Marlas has been split up into several Khasra numbers without the consent of the recorded owners and the persons in possession.
Reference was made to the Jamabandi of year 194748 (Exh. P. W. 1/6) wherein for the first time Khasra No. 1207 has been sub-divided into Khasra No. 1207 measuring 4 Kanals 18 Marlas and Khasra No. 1207/1 measuring 2 Kanals. This entry has been repeated in the Jamabandi of the year 1950=51- (Exh. P. W. 1/7). Muhammad Jalil the predecessor-in-interest of the plaintiffs was shown in possession of 1 Kanal 2 Marlas in Khasra No. 1207 in the said Jamabandi while rest of the area was shown in possession of the Government of Pakistan. Khasra No. 1207/1 was shown in possession of one Rahim Gul. Khasra No. 1207 measuring 4 Kanals 18 Marlas was further sub-divided into Khasra Nos. 1207/1/1 and 1207/1/3, which interfered with the possessory right of the plaintiffs by preparation of Tatimmas without making any verification on the spot. It was next contended that the plaintiffs are not aggrieved of the entries made in the name of the Central Government of evacuee interest in the joint Khata and its allotment to the claimants but they are aggrieved of transfer of specific portion without regular partition which has disturbed their Hissadari possession.
6. The learned counsel for the respondents, however, argued that the revision petition is against the concurrent findings of the two Courts below which are based on proper appraisal of the oral as well as documentary evidence, hence is unmaintainable. The Courts below having held that the plaintiffs are neither the owners nor in possession of Khasra Nos. 1207/1/1 and 1207/1/3 rightly dismissed their suit. It was further argued that even from the evidence of the plaintiffs and the documents on which they placed reliance they are shown having purchased one Kanal 2 Marlas out of an area measuring 15 Kanals 1 Marla comprising in Khasra Nos. 1206 and 1207 but in the instant case they have omitted Khasra No. 1206 altogether and have confined their prayer to parts of Khasra No. 1207. In the circumstances, the Courts below were justified in dismissing their suit.
7. After hearing the learned counsel for the parties and perusal of the record of the case 1 am convinced that the plaint in the present form is defective and does not reflect the correct position on which foundation could be laid for the relief claimed in it. Admittedly the Khata is still joint and Khasra Nos. 1206 and 1207 form part of it. The land is recorded in the joint ownership of t7arid Khan and others including Gur Bakhsh Singh and others, evacuees shown at Mad Nos. 5 and 6 respectively. The former namely, Gur Bakhsh Singh of 44 shares and the latter Chaman Lal of 42 shares out of 176 shares in the Jamabandi of the year 1940-41. Out A of Khasra No. 1207/1 Gur Bakhsh Singh ; Hissadar, transferred an area measuring 2 Kanals `Ghair Mumkin Abadi' through sale in favour of Rahim Gul which was shown by Khasra No. 1207/1 in the column of cultivation of the Jamabanda of the year 1947-48 (Exh. P. W. 1/6) keeping intact the entries -in column of ownership..
Further, transfers were made from time to time through various mutations in column of cultivation out of the same Khasra number. These too, in the column of cultivation splitting up the said Khasra number into various parts by preparing Tatimmas unilaterally which created great confusion giving rise to the present litigation. The fact is that the plaintiffs are the owners by purchase of an area measuring 1 Kanal 2 Marlas out of Khasra Nos. 1206 and 1207 and their title has been confirmed by the Deputy Custodian and given effect to in the Revenue record further stands established in the evidence. The plaintiffs are further shown in possession of such area for the first time in Khasra No. 1207 in the Jamabandi of the year 1951-52 (Copy Exh. P. W. 1/7). By the dismissal of their suit plaintiffs have been deprived of their interest in the property for the formal defect that they omitted to include Khasra No. 1206 in the suit and the other parts of Khasra No. 1207.
Furthermore, they failed to form a solid basis for the relief which they have prayed for in their suit.
No doubt, plaintiffs are not to be deprived of their rights or interest in the property on technicality if they are otherwise found entitled to on the evidence available on the record, however, in the instant case justice cannot be done to tire parties unless the plaint is amended and the entire land measuring 15 Kanals 1 Maria previous Nos. 1206 and 1207 is brought out in the picture and foundation is laid down for the relief claimed in the plaint that before actual partition of the joint Khata, their Hissadari possession cannot be disturbed. There is also neither satisfactory evidence on the file that the Tatimmas were carved out after verification on the spot and in the presence of the parties nor there is a copy of the field book showing the correct measurement of the Tatimmas so prepared. In this view of the matter, the learned counsel for the plaintiffs/petitioners requested that the plaintiffs be allowed to amend the plaint to remove the formal defect. The learned counsel for the respondents though objected to the amendment at such a belated stage, in the interest o justice and for proper adjudication of the rights and entitlement of the parties once for all and to avoid further litigation the request is granted. The plaintiffs are allowed to amend their plaint in the light of the observations made in the judgment on payment of Rs. 200 as costs and in consequence thereof this revision petition is accepted, the judgment and decree of both the Courts below are set aside. The case is sent back to the trial Court where after filing an amended plaint the Court is to proceed in the matter in accordance with law. Costs to follow the events.