This revision petition is directed against the judgment and decree dated 4-5-1983 passed by the learned District Judge, Bhakkar, dismissing the appeal of the petitioner from judgment and decree dated 17-10-1978 passed by the learned trial Court through which the suit filed by the respondent for declaration was decreed.
2. Learned counsel for the petitioner in support of this revision petition argued that the respondent/plaintiff claimed ownership rights in the land whereas there is no material on the record to establish his ownership as such the judgments of both the Courts below are based on mis-reading and misconstruction of the record. He maintained that Shera was the original owner of the land and the present petitioner being his son was the owner of the land inherited by him from Shera and the respondent/plaintiff could not claim ownership of this land.
3. I have examined the record carefully with the assistance of learned counsel for both the parties.
In the plaint it was pleaded that the plaintiff alongwith defendant i.e. The present petitioner was owner of land in Khata Nos. 352 and 353 in dispute and in implementation of decree obtained by the defendant in a suit filed by him against one Mst. Allah Wasai, wife of Shera and Sardara son of Kora which was passed on 9-2-1967, the Revenue Authorities sanctioned three Mutations No. 4646, 4647 and 4648 on 15-7-1969 due to which the land to the extent of 133 kanals 17 marlas from the ownership of the plaintiff in these khatas was reduced. The suit was contested by the defendant by filing written statement. In the written statement ownership of the plaintiff was not specifically or by implication denied. The only plea raised was that the area in the ownership of the plaintiff was reduced on account of consolidation proceedings and not due to implementation of the said decree through the said mutations. Regarding plea of the plaintiff that he was not party in the said suit in which the said decree was passed, it was stated that this assertion was wrong and that the plaintiff was party in the said suit. On the pleadings of the parties the learned trial Court framed various issues out of which issue No. 8 which is directly relevant for disposal of this revision is as under:- "Whether the plaintiff is the owner of the property in dispute? OPP"
4. Learned counsel for the petitioner challenged the findings of the Courts below only on issue No. 8 as also on issues Nos. 6 and 7. Issue No. 6 is to the effect as to whether decree dated 9-2-1967 passed in Suit No. 40 had no effect on the rights of the plaintiff and issue No. 7 is to the effect whether Mutations Nos. 4646 to 4648 dated 15-7-1969 are illegal and void for the reasons stated in the plaint. The parties produced mostly the documentary evidence. Apart from documents Patwari Ishtimal was examined as CW.2. This witness stated that the area of the plaintiff was reduced on account of Mutations Nos. 4646 to 4648, which were sanctioned during the consolidation proceedings.
5. Q The main burden of argument presented on behalf of the learned counsel for the petitioner was that under issue No. 8 it was imperative for the plaintiff to have produced on the record the evidence not only regarding the factum of reduction in his land on account of these mutations but also the evidence regarding ownership without which he could not have been granted decree that he was owner of the land. He maintained that the respondent did not bring on record sufficient material to establish his ownership over the land in dispute and the findings of the two Courts below on issue No. 8 are based on no evidence.
6. I have examined the record to appreciate the arguments. The respondent/plaintiff produced a certified copy of judgment dated 4-1-1945 Ex. P.10 which was passed in a suit filed by the respondent against one Faiz in which Ghulam Rasul the present petitioner and Mst. Allah Wasai widow of Shera were defendants. In this judgment the respondent/plaintiff has been declared to be owner of land including the land in dispute except Khasra No. 1264/5/2 measuring 9 marlas. In pursuance to the said judgment and decree mutations were sanctioned in implementation of the said decree in the Revenue record which have been produced on record. The judgment passed in Suit No. 40 of 1966 dated 9-2-1967 has been produced in evidence as Ex. D.1. The decree sheet prepared on the basis of this judgment is Ex. P.2. It is manifest from these documents that the respondent/plaintiff was not a party in the said suit, therefore, the said judgment and decree and any finding recorded therein in favour of the present petitioner is not binding on the respondent/plaintiff and did not operate as res judicata qua the present suit filed by him. As has been noticed above the plaintiff was declared to be the owner of land through judgment dated 4- 1-1945 (Ex. P.10) which was fully given effect to in the Revenue record, therefore, no part of the said land owned by the plaintiff could have been taken away from hire on the basis of decree dated 9- 2-1967 passed in Suit No. 40 of 1906 for the foregoing reasons viz. The plaintiff was not party in the said suit and it did not affect his rights. It is clear from the statement of CW.2 Patwari Consolidation that it was only on account of Mutations Nos. 4646 to 4648 which were produced as Ex. P.3 to Ex. P.5 that the land in the ownership of the plaintiff was reduced. The Collector, Bhakkar, on appeal set aside these mutations through orders placed on the record as Ex. P.7 to P.9 and in spite of these orders the original entries in the Revenue record existing before sanctioning the said mutations in favour of the plaintiff were not restored. I have compared the description of land given in judgment (Ex. P.10) through which the plaintiff was declared as owner of land with the new khasra numbers given to the land in the certified copies of the Revenue record placed on the record and find that the plaintiff/respondent established beyond any doubt that he was owner of land except Khasra No. 1264/5/2 measuring 9 marlas. Learned counsel for the respondent could not justify the decree to-the extent of only this Khasra number. The judgments and decrees of both the Courts below do not suffer from any mis reading or mis--construction of the record except Khasra No. 1264/5/2 measuring 9 marlas in respect of which there is no evidence that the plaintiff was owner of this Khasra number also. In view of the clear documentary evidence on the record I find that the Courts below have not committed any material irregularity and illegality in decreeing the suit of the plaintiff to the other entire land subject-matter of the suit except the land bearing Khasra No.1264/5/2 measuring 9 marlas. This revision petition partly succeeds. It is hereby accepted to the extent that judgments and decrees of both the Courts below regarding Khasra No.1264/5/2 measuring 9 marlas are hereby set aside and the suit of the plaintiff to the extent of this Khasra number is hereby dismissed and decree in respect of remaining land is maintained.
The revision petition in respect of decree qua the remaining land passed in favour of the plaintiff fails which is dismissed to that extent. There will however, be no order as to costs.