' This R.SA. Is directed against the judgment and decree , dated 31-10-1967, by which a learned Additional District Judge at Gujrat, accepting the appeal of Rehma plaintiff-respondent (who, after his death; is represented by his legal representatives), decreed his suit with costs against Ghulam All and Ali, defendants-respondents and Fajja defendant-appellants, after setting aside the judgment and decree, dated 20-11-1961, whereby a learned Civil Judge had dismissed his suit with costs.
2. Rehma plaintiff-respondent had brought a suit against his opponents for possession of a piece of land measuring 1 Kanal 6 Marlas situated in the area of Chak Basawa, Tehsil Phalia, District Gujrat, alleging therein that he had given this property to Shahu, the father of Ghulam All defendant-respondent, and Ali, the defendant-respondent himself, for residential purposes about 8-9 years ago as they were cobblers or Moeen of the village. According to him, they constructed their houses and started residing therein. A pathway leading to his house as also to their newly- constructed house remained common and they went on using it jointly for a number of years as it had existed even before the settlement operation of 1891-92. He alleged that, according to the local custom, Shahu and All aforesaid were entitled to use the disputed land and the house constructed thereon for residential purposes but they could not alienate it except to the extent of the structure raised by them. Some time prior to the institution of the suit, Ghulam All defendant-respondent, who had succeeded on the death of his father Shahu, sold the land underneath his residential house to Fajja defendant-appellant where he started adding further construction and even obstructed the common pathway by raising a boundary wall across it. Since the cobblers, according to him had only residential rights and permissive possession of the suit land, without having a right to alienate it and they violated the condition of their occupation of the disputed property, hence the suit.
3. The suit was resisted by all the three defendants. In their pleadings they took up the position that the suit land was Shamlat Deh, and it was not ownership of their opponent. They alleged that Fajja defendant-appellant had rightly been transferred a portion of the disputed property as he was one of the co-owners of Shamlat. They denied the claims of the plaintiff-respondent regarding easement of the pathway which he claimed in the plaint alternatively.
4. On the pleadings of the parties the trial Court framed the following issues:-
(1) Whether the suit land belongs to the plaintiff and he gave it to All son of Muhammad and Shahu son of Dullah for residence?
(2) If issue No,1 is proved whether the plaintiff is entitled to have right of way by way of easement?
(3) Whether the plaintiff is entitled to get possession of the suit property?
(4) Relief.
' The learned trial Judge, after recording the evidence of the parties and hearing their counsel, vide his judgment dated 20-11-1961, dismissed the suit of the plaintiff after deciding issues Nos.1 to 3 against him. Aggrieved by these findings, he filed an appeal which was accepted by the learned first appellate Court, vide its judgment dated 31-10-1%7, after reversing the findings of the trial Court on issue No,1, and decreed his suit. Dissatisfied with these findings Fajja, the defendant, came up to this Court in second appeal.
5. The learned counsel for the defendant-appellant calls in question the findings of the learned 'Additional District Judge on issue No,l. He submits that in the plaint the plaintiff-respondent had not given the Khasra number of the disputed land and the learned trial Judge on the request of the defendants, had appointed a Local Commissioner who, vide report Exh.C.I, had found that it was situated in Khasras Nos.742 and 745, both of which were Shamlat According To the learned counsel, the report of the local commissioner was upheld by the learned trial Judge after examining him but the learned Additional District Judge discarded it for no valid reason and, referring to an old decision having no relevancy, held that the land in dispute belonged to the plaintiff-respondent and without further holding that it was given by him to Shahu, the father of Ghulam Ali defendant-respondent, for residential purposes, proceeded to decree the said suit erroneously.
6. The learned counsel for the plaintiff-respondent has tried to support the findings of the learned Additional District Judge on issue No,1 and the impugned judgment.
7.It was obligatory for the plaintiff-respondent to have given full description of the disputed land and then to lead reliable evidence that it belonged to him and he had given it to Ali defendant- respondent and Shahu, the predecessor of Ghulam Ali defendant-respondent, as `Moeens' for residential purposes and under the local customs they could only use it and could not sell it. If he could not prove that assertion, then on issue No,2 he could lead evidence to prove that he had a right of way over the disputed land by prescription. On both the issues he led no reliable evidence.
The defendants had taken up the position that the disputed land was gut of Shamlat Deh and on their request the learned trial Judge appointed a local commissioner, who, on demarcation carried out with the help of Revenue record, vide his report Exh.C.I, came to the conclusion that it was a part of Shamlat Deh bearing Khasra Nos. 742 and 745. This report was upheld after the rejection of objections filed against it by the plaintiff-respondent.
8. Though the plaintiff-respondent gave no Khasra number of the suit land in the plaint, yet after the report of local commissioner specifying its exact location, he tried to develop his stand that it bore Khasra No,588 of the Settlement record of 1891-92 and it had devolved on him by the process of inheritance and subsequently through the private partition with his brother. He tried to establish its identity with reference to an old litigation with a non-Muslim and ultimate purchase of the decree in respect thereof by his brother but the entire endeavour was far-fetched and conjectural.
No evidence was led to prove that the suit land, even if it belonged to him, was given to Ghulam Ali and Ali defendants by him for residential purposes as Moeens, nor did he prove the local custom, which he could prove by bringing on the record copy of Wajb-ul-arz prepared during any settlement operation. Ghulam Ali and Ali being shoe-makers by profession may not have any right to occupy Shamlat Deh or the land forming part of village Abadi but they alienated the suit land to Fajja defendant-appellant, who being a co-owner in Shamlat land, had equal rights as such as the plaintiff-respondent had therein. The learned trial Judge, therefore, rightly decided issue No,1 against the plaintiff-respondent and the findings of the learned Additional District Judge, who decided it in his favour, are reversed and those of the trial Court restored.
9. As a result, the appeal is accepted, the judgment and decree of the learned Additional District Judge are set aside and those of the trial Court, dismissing the suit of the plaintiff-respondent, are restored.