Respondent, claiming himself to be an owner of a house situated in the abadi of village Gharewala, Tehsil Chunian, District Kasur brought a suit for possession thereof by eviction of the petitioner who, he alleged, had been given this house sometime before for purposes of temporary residence and has refused to vacate it upon demand. The suit was contested by denying the averments contained in the plaint along with refuting his claim about ownership of the house which, he alleged, is continuing in his possession since the time of his ancestors. A number of technical objections were also raised in opposition of the suit which was, hence, set down to be tried on a total of six issues inclusive of that of the relief. Parties led their evidence in the course whereof plaintiff claimed title to be vesting in himself as one of the owners of estate and averred that one kanal of land in Shamlat-Deh had fallen to his share on account of its family partition among the proprietors but admitted that he did not have any document of title or instrument of partition with him. He did not produce any document to even prove his status as an owner of the estate and, for this purpose, relied on the oral testimony of his two witnesses. He produced a copy of Wajib-ul-Arz as Ex.P.2 to prove the custom with regard to right of evidence of non-proprietors who, it was claimed, the defendant happened to be. Defendant examined two witnesses in rebuttal and got the statement of Patwari recorded as D.W.3 for proving the extract of custom in Ex.D.h and got his own statement recorded as D.W.4 wherein he admitted that he is a non-proprietor and works as a moeen but denied having got the house or its site from the plaintiff only temporarily by simultaneously refusing to admit any title to be vesting in the plaintiff. He claimed the site of the house to be state-owned and also admitted it to be Shamlat-Deh but denied it to be of the plaintiff. Trial Judge thought that there may be no dispute with regard to the plaintiff being an owner of the estate but upon considering the evidence on the record he came to the conclusion that the plaintiff had not proved himself an owner of the estate and neither had the title in the particular property in suit been established to be inhering in the plaintiff nor had it even been proved to have been given by him to the defendant. He held that the plaintiff did not have any cause of action to file the suit. Defendant's plea about title maturing in him on account of adverse possession was also negatived due to absence of proof of any overt act. Ultimately, suit of the plaintiff was dismissed by the judgment dated 3-6-1987, upon answering against him the pivotal issues Nos. 1 and 2 relating respectively to title and cause of action.
2. Plaintiff's appeal there against was heard by Ch.Abdul Sattar, Additional District Judge who set aside the decree of the trial Court upon accepting the appeal by his judgment dated 20-12-87 and proceeded to direct the defendant to "remove the 'Malba' and deliver the possession to the plaintiff within four months" despite the fact that there was no prayer on the point made by the plaintiff either in his suit or even in his appeal and the appellate Judge himself had not reached any clear finding about the ownership of 'Malba'. Not only that, but also he did not formally provide for any consequence of the plaintiff's suit which had, in result of acceptance of the appeal, come to be denuded of the trial Court's decree and, hence it was necessary to clearly provide about the kind of decree which had to replace it but he did not make any provision thereabout. Appellate judgment was not supposed to stop at mere reversal of the decree passed below but by virtue of the requirement-clause (d) appearing in Rule 31 of Order XLI of the C.P.C., result of the suit had also to be clearly specified inasmuch as it could not be left in a state of mere suspension between the two ends of success and failure nor may the fate of suit have even been left to be imagined on the basis of above-reproduced direction which was not capable of becoming a lawful substitute of the requirement regarding relief. It is enjoined by Rule 7 of Order VII of the C.P.C. That the plaint shall specifically state the relief claimed and, no doubt, it can be suitably moulded by the Court yet it is well-- settled that it cannot be sweepingly substituted with an altogether different one, All the foregoing is only for the benefit of the appellate Judge because the defendant who has now come up to this Court on revision has not made any specific grievance with regard to the disposal of the appeal below and since the point has not been argued by either party, therefore, it need not be dwelt upon any further.
3. In support of the revision petition, it is argued that the appellate judgment does not qualify to be a lawful disposal of the matter inasmu ch as requirements of Rule 31 of Order XLI of the C.P.C. Have not been complied even to the name.
It is maintained that the trial Court's decree of dismissal of the plaintiff's suit has been reversed without either adverting to the relevant issues (not even reproduced in the appellate judgment) or attending to all the evidence existing on the record. The contention is formidable imasmuch as with the omission of mention of the issues in para. 3 of the judgment and failure to discuss the evidence existing on the record the conclusion is irresistible that the appeal has been superficially dealt with to reverse the trial Court's decree without even adverting to the reasons which prevailed with the Court below for non-suiting the plaintiff. Conclusion reached in para 6 of the appellate judgment in favour of the plaintiff with regard to entitlement for possession is only arbitrary because it does not follow from earlier narration so much so that there is no, rational link discoverable between the two and his prefix of the expression 'as such' does not fit in the context.
Actually, the appellate Judge has based his judgment on some inconsequential admissions made by two witnesses of the defendant in their testimonies which cannot be equated in law with admissions to assume any governing, importance for the dispute under Section 17 of the Evidence Act and those following it. Such statements are nothing more than evidence available on the record and had to be considered along with the other evidence, which has, however, been completely left out of consideration in deciding the appeal. 1n addition thereto, he has referred to some statement of the defendant alleged to have made before a Local Commissioner; without its having been proved in any manner because it only finds mention in the report but neither was its author examined in the Court to depose to such a statement having been made before him. Local Commissioner was appointed for inspection of site and not for recording any statement. Hence, even if such a statement may have been proved to be made, it could not be used as a legal evidence which was the Court's own duty to record. Furthermore, without the attention of the witness being drawn to the previous statement under the provisions of Section 145 of the Evidence Act and taking his explanation thereabout, it could not be used for contradicting him and much less could it determine the fate of the case. Thus, neither of those statements could lawfully provide any basis for determination of the case.
Judge in the appeal below was wrong even in thinking that Jama-bandi could not be relevant for the purpose of this suit which raised dispute with regard to a site in Abadi-Deb, commonly known as the area falling in 'Laal-Lakeer'. He was also in error to be of view that there may be no record available with the Revenue Department about the areas falling within the thus called, 'red-line', namely, Abadi-Dch. For his benefit, it may be pointed out that there are the records bearing the names, 'Shajra-Abadi' and 'Khasra-Abadi' carefully prepared during the course of Settlement operations with regard to the areas lying within the Abadis of villages in the Province of Punjab.
Khasra Abadi contains accurate account of all the units in a village Abadi, detailing their different shapes along with full measurements of all the straight or angular sides of each unit. In Shajra- Abadi are entered full particulars of the owners and occupants of various units as also the nature of construction if any existing thereon, with reference to the Khasra numbers mentioned in the other record. Combined reading of the two provides complete data about the properties which forms infallible basis for identification of each one of the units m Abadi through measurements carried out at the spot. During the last about one and a quarter century at least three, and at places even four, regular settlements have taken place in the Punjab and therein these records are also revised to be brought upto-date like those of the agricultural lands. They are usually called the Settlement of 1865; 1892 and 1909--15. The above mentioned records were prepared under Section 31 of the Punjab Land Revenue Act of 1887 which now stands replaced by a pari materia enactment of Section 39 in the new Act XVII of 1967 and they have also got. Presumption of correctness attached to them. It is quite astonishing as to how has the Judge below made a categorical statement about non-existence of record in respect of village Abadis.
4. The Additional. District Judge could not comprehend even the trial Court's observation with regard to the plaintiff's failure to produce copy of Jamabandi and he brushed the same aside with the mere remark that the area in dispute is in the abadi of a Deh. No doubt, it is so located but a copy of Jamabandi was necessary to be produced by the plaintiff for proving that he is one of the proprietary-body of the village entitled to claim a share in the Shamlat the learned Judge trying the suit because that status was not capable of being assumed to be vesting in the plaintiff on the basis of mere verbal assertions. This failure of the plaintiff to satisfactorily prove his status as one of the owners of the estate went to the very root of his clam inasmuch as issues No.l and 2 became incapable of being answered in his favour and were rightly so decided against him by the trial Court.
5. With the above conclusion, this appeal becomes entitled to be accepted by reversing the appellate decree into dismissing the suit of the respondent but there is still one more aspect of the case necessary to be considered. The appellate Judge has not adverted his attention to the documentary evidence led in the suit. Both parties have relied upon the custom regarding rights and liabilities of non-owners in the estate, incorporated in Shariat Wajib-ul-Arz and have respectively produced Exhs P.2 and D.1 wherein right of residence stands unmistakably conceded to the non-owners. This happens to be a contract between the proprietary body of the village on one side and the non-proprietors on the other. It has a binding force qua the defendant-petitioner who is not liable to be evicted from the property in absence of proof of infringement by him of the conditions embodied in the said document. For the binding nature and effect of such a guarantee, reference may be advantageously made to Piara Singh v. l Jawahar Singh 112 IC 402. Whether or not the plaintiff-respondent may be one of the proprietary body of the estate, his claim for eviction of the defendant is only ill-conceived to be thus sued out.
6. In result of the foregoing, it is held that the appellate Judge has clearly acted illegally in the exercise of his jurisdiction to thus reverse the trial Court's decree. This revision petition succeeds in bringing home the grievances. Appellate judgment and decree are, hence, set aside by restoring the trial Court's decree of dismissal of the respondent's suit with costs all along.