MUNIR A. SHEIKH J;- Through this judgment, I propose to dispose of R.SA. No. 68 of 1969 as also R.SA.
No. 69 of 1969 as common questions of facts and law are involved in both of them.
2. This is defendant's second appeal filed against judgment and decree dated 5.10.1968 passed by learned Additional District Judge Mianwali, dismissing his appeal from judgment and decree dated 3.10.1967 passed by learned trial Court decreeing the suit of the respondent for possession of disputed land.
3. The facts giving rise to this Second Appeal shortly stated are that respondent/plaintiff filed a suit against the appellant for recovery of possession of land in dispute in khasra number 1730 on the ground that he was the owner of the same and the appellant was in wrongful possession thereof.
The suit was contested. The learned trial Court reflected the controversy arising from the pleadings of the parties in the following issues framed by it.
1. Whether the plaintiff is the owner of the suit land? O.P.P.
2. Has the plaintiff been in possession within 12 years of the suit land? O.P.P.
3. Has the defendant been in adverse possession of the suit land for more than 12 years? O.P.D.
4. Relief.
4. The parties produced oral as well as documentary evidence. The learned trial Court after appraising the evidence produced by the parties decided all the issues in favour of the plaintiff and through judgment dated 3.10.1967 decreed the suit. The findings recorded by the learned trial Court on these issues were upheld by the learned lower appellate Court on appeal filed by the appellant which was dismissed through impugned judgment dated 5.10.1968.
5. The questions involved in this case for determination are whether the respondent was the owner of land in dispute and whether he had been in possession thereof within 12 years of the suit and the appellant was in adverse possession thereof for more than 12 years. All these questions are necessarily questions of facts on which concurrent findings have been recorded against the appellant by the two Courts below. The appellant could succeed in this second appeal only if the findings recorded by two Courts below had proceeded upon a mis-apprehension or were condemnable on the ground mentioned in section 100 C.P.C.
6. I have been taken through the oral as well as documentary evidence by learned counsel for the appellant who has not been able to persuade me that concurrent findings of facts recorded by both the Courts below against the appellant was based on mis-reading and mis-construction or non-reading of evidence or suffered from any illegality as envisaged by Section 100 C.P.C.
Jamabandi for the year 1963-64 was produced as Ext. P3 by the respondent who examined himself as his own witness as P.W.5. According to entries of this Jamabandi the respondent was recorded as owner of khasra number 1730. The part of this khasra number was tres-passed by the appellant which fact was proved through the report of Loca Commissioner who was appointed by the Court who produced his report in the evidence as Ext. Pl. Along with the said report there is also a sketch Ext. P2 prepared by the Local Commissioner. According to evidence of the Local Commissioner he went to the spot and after taking measurements he came to the conclusion that the appellant was in possession of 1 kanal out of khasra number 1730. The objections raised by the appellant against the report of Local Commissioner were rejected on cogent reasons. It was therefore, proved beyond doubt that the respondent was owner of land in dispute comprising khasra number 1730 on a part of which the appellant tres-passed.
7. The respondent examined seven witnesses including himself. It is in the evidence of P.W.1 Ghulam Sarwar Shah that the appellant took possession of the suit land about 2 years or 3 years prior to the filing of the suit. Previous to that it was in possession of the respondent. This witness is a person who jointly owed land with the parties in Chah Bahadurwala where the land in dispute is situated.
Ghulam Baqar Shah, P.W.2 and Atta Hussain Shah P.W.3 as also Ghulam Rasool Shah P.W.4 in their evidence stated that the appellant came in possession of the suit land about two years ago and before that the respondent was in continuance possession of the suit property. As against this evidence the defendant appellant examined six witnesses including himself is Raja Muhammad Iqbal Khan who was Naib Tehsildar Bhakkar, who proved his report Ex.Pl and Naqsha Tajawaz Ext.
P.2. The other witnesses in their evidence deposed that the appellant had been in possession of the suit land for the last 20/22 years. The evidence of the witnesses of the appellant was belied by the entries in the khasra girdawari which was produced as Ext. P4 according to which the respondent had been in exclusive possession of khasra number 1730 and disputed properly is part of this khasra number. Moreover, the witnesses produced by the respondent were residents of the same village whereas those examined by the appellant were resident of different villages therefore, it was rightly held by learned lower appellate Court that the witnesses of the respondent had the first knowledge of the possession of the suit property. The learned two Courts below on cogent reasons believed the evidence of the respondent as against the evidence produced by the appellant which has not been shown to have suffered from misreading.
8. In the connected appeal No. 69. of 1969 the disputed area is 9 Marlas out of khasra number 1734.
The evidence in both the cases is the same therefore, it need not be separatedly discussed.
9. No case has been made out for interference in the impugned judgments and decrees passed by both the Courts below under section 100 C.P.C. For the foregoing reasons, the appeal fails which is hereby dismissed with no order as to costs.