Malik Tilla Muhammad and others, petitioners herein and Sadiq Hussain respondent No.1 herein alongwith others, were co-sharers in the joint property including the disputed Kothas and the petitioners filed a suit for possession through partition of their 21/40th share therein. A preliminary decree for partition of the said share was passed in their favour vide Suit No.6/1 of 1965 decided on 26-10-1965. They applied for final decree and during the course of the proceedings for final decree Mr. Justice (Rtd.) Shah Zaman Khan then Advocate Peshawar was appointed a local Commissioner to effect partition of the joint property through metes and bound in terms of the preliminary decree.
He visited the spot in the presence of the parties, their counsel and Mughal Baz Khan Overseer and submitted his detailed report on 24-3-1966, copy Ex.PW3/4 alongwith the necessary plans showing the entire joint property and the respective areas earmarked for the respective parties. The learned trial Court passed the final decree in terms of the report of the local Commissioner vide its order dated 9-2-1967. The petitioners/decree-holders applied for the execution of the decree vide execution file No.32/10 of 1969 and according to the report of Azizur Rehman's Bailiff possession in terms of the decree was delivered to them, the copy of his report is EX.P.1/1 and the order of the Executing Court dated 23-1-1970, whereby the execution proceedings were filed, is Ex.PW 3/3. The case of the petitioners is that the suit property consisting of eight kothas and vacant site described in the heading of the plaint is part of the area allotted to them as part of their exclusive ownership by the local Commissioner later incorporated in the final decree and that since the same was in possession of the tenants (respondents Nos.2 to 9 herein), the possession thereof was given to the petitioners symbolically because the tenants were not parties to the partition proceedings and the Bailiff, entrusted with the task of the delivery of possession, could not execute the decree against the persons who were not parties to the original proceedings. Accordingly they filed application for their eviction before the Rent Controller where they (respondents Nos.2 to 9) denied the relationship of landlord and tenant and in consequence their, eviction was declined by the Rent Controller and the appeal filed before the appellate Court was also dismissed and hence the necessity to file the suit for possession of the suit property arose. Sadiq Hussain defendant No.1 alone contested the suit and in his written statement alleged that the suit property was the exclusive ownership of Mst. Chano Bi, his mother which devolved upon him on her death and that the same was neither part of the joint property nor was the subject-matter of the partition proceedings. He also raised the plea of adverse possession for more than 12 years. Necessary issues in the case were framed, evidence led pro and contra thereon, recorded and the learned Lady trial Judge vide her judgment and decree dated 26-2-1981 dismissed the suit of the plaintiffs/petitioners. The petitioners filed appeal before the learned Additional District Judge who too vide his judgment and decree dated 20-6-1981 maintained the finding of the learned trial Judge and dismissed the appeal. Hence the instant revision petitiion calling in question the judgments and decrees of both the learned lower forums.
2. I have heard Haji Z. Mafooz Khan, Advocate for the petitioners and Sheikh Wazir Muhammad, Advocate for the respondents and have perused the record of the present litigation as well as the record pertaining to the proceedings for final decree containing the report of Mr. Shah Zaman Khan Baber, Local Commissioner in the case and the plans prepared by him.
3. There is no denying the fact that the petitioners and defendant No.1 were joint owners of considerable valuable residential property situated on the G.T. Road opposite Government High School No.1, Peshawar and on application of the petitioners, partition thereof was finalised.
Unfortunately the parties, their counsel and even the learned lower two forums have not cared to attend to the real controversy between the parties. The case set up by the petitioners in the present case is that the suit property was allotted to them in t16---partition whereas the version of defendant/respondent No.1 herein was that the same was never the subject-matter of the partition proceedings between the parties but the same was the exclusive ownership of his mother and on her death exclusively came to his ownership. Strangely enough neither the plaintiffs/petitioners brought any evidence on record to conclusively establish that the suit property was included in the suit property in the previous litigation or was part of the area earmarked for them in the partition proceedings nor the respondent No.1 cared to lead any evidence, muchless convincing, that the suit property was his exclusive ownership on account of inheritance from his mother The boundaries described in the heading of the plaint, however, suggest that it is part of the land allotted to the petitioners in the partition as towards its north is shown as the property of respondent No.1 and not the other three sides, the property of the petitioners and is presumably included in the southern part of `A shown in the blue print as K.L.F.E 3. The respondent No.1 rest contented with hi; solitary statement as D.W.1 wherein he did not even assert that the suit property was not sub judice in the previous partition suit. Qazi Mughal Baz Khan P.W. And the Bailiff (P.W.1) who had delivered possession in the execution proceedings, were not questioned as to whether the property, now in suit, was part of the proceedings for final decree and the execution proceedings or not. In consequence the learned lower forums failed to give any definite finding on this important factual aspect of the case. They simply based their conclusions main on technical quibbling. I have gone through the Rulings relied upon in the judgment of the learned appellate Court but am sorry to point out that they were not relevant to the controversy in issue.
4. Section 47 of the C.P.C. Was not a bar to the institution of the preson suit because the petitioners had not only gone for execution of the decree but had in fact been delivered possession by the executing agency of the property exclusively made their ownership according to the report of the Local Commissioner and the final decree. It is admitted by Sadiq Hussain responder No.1 that the suit property is in possession of the tenants since prior to the filing of the partition suit. It is equally established on the record that the tenants were not parties to the partition proceedings and as such there is much force in the argument of the learned counsel for the petitioners that the delivery of possession of the suit property to the petitioners was only symbolical. The report of the Bailiff referred to above also supported this contention. Obviously the result of the partition would be that after the final decree the tenants were either to deliver possession to the new owners or to attorn to them as tenants. It is clear from the statement of Sadiq Hussain respondent No.1 (D.W.1) that he had been receiving rent from the tenants (respondents Nos. 2 to 9 herein) which per se leads to the conclusion that the tenants did not attorn to the new owners the petitioners and their possession became that of trespassers thereafter. They also denied the relationship of landlord and tenant before the Special Forum of Rent Controller too and the only remedy which the petitioners herein could resort to under the law was a suit for possession on the basis of title. As stated in the earlier part of the judgment the final decree was passed on 9-2-1967 and the execution I proceedings were finalised on 23-1-1970. The present suit for possession, having been instituted on 30-7-1975 within 12 years, was well within time under Article 142 as well as 144 of the Limitation Act. The learned trial Judge in her finding on issue No.4 has also negatived the plea of adverse possession raised by respondent C No.1. In the circumstances explained above there was no legal hinderance in the way of the plaintiffs/petitioners for claiming possession of the suit property from respondents Nos.1 to 9 provided they could satisfy the Court below that the suit property did form part of the area given to them in the final decree.
5.It was strenuously argued by the learned counsel for the respondents that the failure of the plaintiffs petitioners to establish their case affirmatively, disentitled them to any relief from this Court. Be that as it may, the respondents were equally negligent to prove their counter-version that the suit property exclusively belonged to Mst. Chano Bi, the mother of respondent No.1. The petitioners can justifiably argue that there is no rebuttal of the claim of the petitioners that the suit property was the subject-matter of the partition suit. Since valuable rights in residential immovable property are involved, I consider it just and proper that the controversy between the parties may be freshly investigated by the trial Court through availing the service of an experienced Local Commissioner who shall visit the spot in the presence of the parties D alongwith the original case file for proceedings of final decree No.17/1 decided on 9-2-1967 containing the report of the earlier Local Commissioner, the blue print bearing the marks made by the Local commissioner therein and the other plans prepared by him and thereafter submit report whether the disputed eight kothas and the vacant site as per boundaries mentioned in the heading of the plaint is situated within the boundaries earmarked by the Local Commissioner of the earlier suit for the petitioners or not.
6.Resultantly I accept this revision petition, set aside the impugned judgments and decrees of the learned lower two forums and remand the case to the learned Senior Civil Judge Peshawar, being an experienced judicial Office for decision afresh in the light of the observations made above.
However, the petitioners shall pay Rs.2,000 (Rupees two thousand only) as cost to Sad Hussain defendant/respondent No.1 who alone has contested the present case. This being an old case the learned Senior Civil Judge, is expected to dispose the same on priority basis. The office is directed to forward the record of the case to the learned Senior Civil Judge, Peshawar immediately. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.