Haji Gharibullah plaintiff/petitioner herein filed suit for declaration and in alternative for possession against Mst. Arbab Begum and others, on the grounds that he is owner of the suit property mentioned in the heading of the plaint on account of "Inam" and gift on behalf of Gulam Habib and Ghulam Sarwar predecessors-in-interest of defendants Nos.1 to 6 and in the alternative on the basis of adverse possession for more than 12 years. Defendants No.1 to 6 who are the successors- in-interest of Ghulam Sarwar and are recorded as owners of 1/2 share in the suit khasra numbers, confessed judgment through Abdul Ghaffar their special attorney who is the husband of Mst. Arbab Begum defendant No.1, since dead and the father of defendants Nos.2 to 6 as well. The learned Civil Judge, as a matter of abundant precaution, also recorded the statement of Haji Abdul Ghaffar on SA on the back of the written statement, confessing judgment, wherein he testified to the correctness of the written statement, admitted the claim of the plaintiff/petitioner and agreed to the passing of the decree as prayed for against defendants No.1 to 6 in favour of the plaintiff/petitioner and obtained his signature thereon. The other defendants Nos.7 to 17 contested the suit and in their written statement denied the allegations of the plaintiff/petitioner in toto.
Necessary issues in the case were framed; evidence led pro and contra thereon recorded and the learned Civil Judge, Peshawar vide his judgment and decree dated 30-7-1980 dismissed the suit of the plaintiff/petitioner. Dissatisfied with the same, he preferred appeal before the Additional District Judge-II, Peshawar before whom an application for the amendment of the plaint and in the alternative for withdrawal of the suit with permission to file a fresh one on the same cause of action was also submitted. The learned appellate Court after obtaining reply to the application for amendment of plaint and hearing the learned counsel for the parties on the application as well as on the main appeal, vide its judgment and decree dated 19-3-1983 dismissed the application as well as the appeal. Hence the instant revision petition.
2.I have heard learned counsel for the parties and have perused the record of the case with their assistance.
3. - Order VIII of the Civil Procedure Code provides for filing of the written statement to accept or deny the allegations of facts made in the plaint and rule 5 thereof provides that if any allegation of fact is not denied specifically or by necessary implication, it shall be taken to be admitted. Under Order IX rule 8 which entails the dismissal of the suit on account of the absence of the plaintiff, a decree has to be passed against the defendants who have admitted the claim of the plaintiff.
Under Order XII rule 6 the Courts are empowered to pass judgments against some of the defendants on the strength of the admission made by them without waiting for the determination of any other question between the parties. Order XV rule 1 provides that where the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment. Rule 2 thereof makes the provisions for the eventualities where some of the defendants are not at issue with the plaintiff and according to it if any of the defendants is not at issue with the plaintiff on any question of law or of fact, the Court may at once pronounce judgment against the same defendants and allow the suit to proceed against the other defendants.
4. The aforesaid resume of mandatory provisions of law makes it abundantly clear that the trial Court was bound to pass a decree on the admission made by the defendants/respondents Nos.1 to 6 in their written statement g coupled with the statement of their attorney recorded by the trial Court on the back thereof. The trial Court obviously committed illegality and material irregularity in refusing to grant the relief prayed for by the plaintiffs/petitioners so far as the interest of defendants Nos.1 to 6 (equal to half of the suit land) was concerned. He also failed to exercise jurisdiction vested in him under the law to this extent. The judgment and decree of the learned appellate Court in dismissing the appeal, also suffer from the same legal and jurisdictional error.
Consequently I have no option but to accept this revision petition, set aside the judgments and decrees of the learned lower two forums so far as the half share of the suit land recorded in the name of defendants Nos.1 to b is concerned and pass the decree prayed for in favour of the plaintiff/petitioner against defendant No.1, since dead and defendants Nos.2 to 6 (represented by respondents Nos.1 to 5 and 24 herein).
5. As regards the other half of the suit land recorded in the names of the other defendants Nos.7 to 17 (respondents Nos.6 to 23 and 26 to 31 herein), the perusal of the Revenue Record on the file shows that Gharibullah plaintiff/petitioner herein was shown consistently as occupancy tenant right from jambandi 1929-30 till the jamabandi 1965-66, copies EX.PW1/1 to EX.PW1/5, EX.PW1/7 to EX.PW1/10 excepting the solitary jamabandi for the year 1948-49 (EX.P.1/6) wherein he is shown as tenant-at-will on payment of half batai. The plaintiff/petitioner had prayed in his application for amendment of plaint that in case amendment is not granted, he may be allowed to withdraw from the suit with permission to file a fresh one on the same cause of action. The grounds mentioned in the petition are that he possessed land as occupancy tenant and was entitled to claim ownership on the basis thereof as well and that he had inadvertently not agitated this plea in his plaint. The learned appellate Court refused the permission to him to amend the plaint as according to it, it would change the nature of the suit. Be that as it may, the appellate Court omitted to consider the prayer of the plaintiff/petitioner for withdrawal of the suit with permission to file a fresh one and thereby failed to exercise jurisdiction vested in it, entitling the plaintiff to approach this Court for the exercise of its revisional jurisdiction under section 115 C.P.C., 6.On the enforcement of the N: W.F.P. Tenancy Act, 1950, the occupancy rights were altogether abolished under section 3 thereof. With regard to the rights of the persons holding occupancy rights at the commencement of the Act, provisions were made for the conversion of their occupancy tenancy in ownership -according to the provisions of section 4 (a) of the Act ibid. Section 4 (a) provides that any occupancy tenant who at the commencement of this Act occupies any land as such paying no rent thereof beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, shall become full owner of such land without payment of any compensation. No doubt the plaintiff/petitioner based his title in the present suit on the basis of `Imam' and gift on behalf of the predecessor-in-interest of the defendants Nos. l to 17 but the same plea is not inconsistent with the plea of his occupancy tenancy which can be availed of by him as an alternative to claim title on the basis of conversion of 1 his occupancy rights into ownership rights under section 4 (a) of the N.W.F.P. Tenancy Act and to this extent I find formal defect in the frame of the suit likely to deprive the plaintiff/petitioner of valuable rights in immovable property. It is, therefore, considered just and equitable to allow the plaintiff/petitioner to withdraw his suit so far as the half of the property recorded in the names of defendants Nos. 7 to 17 is concerned and to allow him to institute a fresh suit with respect thereof on payment of Rs.2,000 as costs payable to the contesting defendants Nos.7 to 17. In consequence this Revision Petition is accepted regarding the other half of the suit land as well, judgments and decrees of the lower two forums to that extent are set -aside. The application of the plaintiff/petitioner for the withdrawal of the suit submitted before the appellate Court regarding one-half of the suit land recorded in the names of the defendants Nos.7 to 17 is accepted and his suit with respect thereto is dismissed as withdrawn with permission to him to file a fresh one on the same cause of action on payment of Rs.2,000 as costs.