' This FA.O. Is directed against the order, dated 4-12-1982, by which a learned Additional District Judge at Faisalabad in an appeal filed by Rahmat Khan, predecessor of the present respondents, after setting aside the judgment and decree of the trial Court, dated 29-5-1980, had remanded the case, with the directions that the learned trial Court should receive the amended plaint and the written statement and reframing further issues, decide the case afresh after recording the further evidence of the parties, if necessary.
2. Rehmat Khan, the predecessor of the present respondents, had brought a suit against Umar Din appellant for a declaration to the effect that the land measuring 17 Kanals 7 Marlas comprised in Qila No,5-6, Square No,36 situated in the area of Chak No,213/RB, Dharam Shal Wala, Tehsil and District Faisalabad, was in his possession as ownership and the entries of Khasra Girdawari, showing the possession of the defendant-appellant, were incorrect. He also requested for perpetual injunction, seeking to restrain his opponent from interfering in his possession.
3. The defendant-appellant contested the suit and in his written statement objected to the form of the suit on the ground that he was in actual physical possession of the disputed land and the suit in its present form was not maintainable. He alleged that vide order, dated 21-8-1962, the disputed area had been reserved for graveyard and the same was being used as such. He also asserted that his opponent was neither an allottee nor resident of Chak No,213-GB and he had no connection with the disputed land. According to him, the entries in the ownership column of Jamabandi were incorrect. He further clarified that the plaintiff-respondent had sold his units to him at the rate of Rs,5 per unit and these units were utilised for the purchase of disputed land for the sake of graveyard for the use of the villagers. He also pleaded estoppel. On the pleadings of the parties the trial Court framed the following issues:--
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the plaintiff has no cause of action and locus standi to bring the suit? OPD.
(3) Whether the plaintiff is owner in possession of the land in dispute and the defendant has nothing to do with it? OPP.
(4) Relief.
4. After recording the evidence of the parties and hearing their counsel, the learned trial Judge decided issue No,1 in favour of the defendant after holding that the suit was not maintainable in the form of a declaration and the plaintiff should have brought a suit for possession. Consequently he decided issue No,2 for the plaintiff. However, he decided issue No,3 against him and dismissed his suit. Aggrieved by these findings, the plaintiff went up in appeal before the learned Additional District Judge, who, vide his judgment dated 4-12-1982, accepted the appeal, set aside the judgment and decree of the trial Court and remanded the case in the manner aforesaid.
Aggrieved by this order the defendant filed this appeal.
5. It is argued on behalf of the appellant that, vide order dated 21-8-1962, passed by the Additional Settlement and Rehabilitation Commissioner, Lyallpur, the disputed land had been reserved for the village graveyard and since then it has been in the possession of the appellant on behalf of the entire village community and is being utilized as such. It is contended that the respondent has never been its allottee or owner nor he has ever been in possession thereof nor the appellant has been its tenant or lessee under him. In this connection the learned counsel also refers to the entry of RL.II copy of which he has now brought on the record of this Court without seeking permission for additional evidence. It is contended that the remand order was unjustified because on issue No,3 the suit stood decided on merits and since the respondent had nothing to do with the suit land, the appeal should have been dismissed.
6. On the other hand, it is urged on behalf of the respondent that he, as per entry of Jamabandi of 1976-77, was owner of the suit land and the appellant was in possession thereof as a tenant under him. According to the learned counsel, when the land was allotted to the respondent, there were a few graves spreading over an area of about ten Marlas thereof but he, out of respect, earmarked 2 Kanals area therefor and separated it from the rest of the suit land which he gave to the appellant for cultivation as a tenant or lessee and he went on paying share of produce to him and when he (appellant) refused to give him (respondent) share of produce, the latter brought the suit. He submits that the order of Additional Settlement and Rehabilitation Commissioner was conditional, and there was no proof that the appellant purchased tints from the respondent and the disputed land became graveyard. He contends that the appellant, exploiting the name of village community, wants to usurp the land and his position is no better than that of a trespasser for whose eviction the appellant was rightly directed in the remand order to bring a suit for possession.
7. The perusal of the order, dated 21-8-1962, passed by the Additional Settlement Commissioner and Rehabilitation Commissioner, Lyallpur, shows that the disputed land was reserved for graveyard for Chak No,213-RB subject to the condition that the villagers surrendered units to satisfy the area so reserved and it was not to go to the offerers of the units nor to any individual or Anjuman; rather, it was to be managed by the Union Council concerned and if the villagers had failed to produce the required number of units on the condition specified above, then the area or portion thereof was to revert to Rana Tanseef Ali Khan, a respondent in the civil revision. None of these conditions seems to have been satisfied by the inhabitants of Chak No,213-RB. Umar Din appellant, who had represented the village community before the Additional Settlement and Rehabilitation Commissioner, himself happened to occupy a major portion of the disputed land, and continues to cultivate it either himself or through his sons because only 2 Kanals thereof is covered by the graveyard and the rest is a cultivable area. Irrespective of the fact whether the disputed land is graveyard or not, the appellant has no right to occupy it.
8. So far as Rehmat Ali respondent (who is now dead) was concerned, his name figured as owner or allottee in the ownership column of Jamabandi of 1976-77 (Exh.P.1). There is nothing on the record to show as to how he became owner of the disputed land when on the failure to satisfy the conditions spelt out in the aforesaid order of the Additional Settlement and Rehabilitation Commissioner, the disputed land was to revert to Rana Tauseef Ali Khan respondent. This aspect of the matter needs to be further probed into and in view of the fact that the respondent, as per Revenue Record, is owner of the suit land but is out of possession due to the denial of his title by his opponent, he had to bring a suit for possession but erroneously brought a suit for declaration, which was not maintainable. The Courts below, before throwing out his claim on the defective form of the suit, were bound to afford him an opportunity to rectify the form and this is what was done by the learned Additional District Judge. No fault, therefore, can be found with the impugned order and the appeal is dismissed.
9. Before parting with this order, it may be mentioned here that the appellant shall be at liberty to bring on the record the copy of the RL-II which he sought to produce in this Court but it may be observed that the order, dated 21-8-1962, of the Additional Settlement and Rehabilitation Commissioner mentioned therein has not been fully reproduced nor it is ascertainable as who had written the order dated 29-7-1963 and on what authority the suit land shall remain in possession of the Muslim Community. Thus if this document is brought, on the record after the remand, its entries shall be properly scrutinised.