SAYED NAJAM-UL-HASSAN KAZMI, J.- This order shall dispose of Civil Revision No. 979 of 1991, calling in question, judgment and decree, dated 25-4-1991, dismissing the appeal of petitioners and affirming the judgment and decree, dated 18-9-1988, of the leamed Trial Court.
2. A suit for possession of land measuring 1 kanal 12 marl as in Khewat Khatuni No. 240/569 square No. 110, Khasra No. 29 through demolition of superstructure, was filed by that respondent, against Rehman and Mutalli. It was claimed, that respondent along with his brothers and sisters, were owners of land in issue, which devolved through consolidation and that late Rehman, had obtained a land for temporary residence from the previous owners. According to the respondent, after consolidation, the petitioners assured that the) would remove Malba and superstructure and deliver possession to him, as and when so desired and that despite the personal need of the respondent, petitioners had subsequently refused to remove, superstructure or deliver possession, ln this back-drop, the respondent claimed possession of the land through demolition of superstructure.
3. The suit was resisted, on the ground, that previously the respondent had filed a suit for declaration which w as unconditionally withdrawn and the same was dismissed as not pressed and in view thereof, the second suit was not maintainable. Further claimed that late Rehman, predecessor the petitioners, had originally purchased the land from Roshan and Muhammad sons of Raja, whereafter they raised construction after filling up the ditches. The petitioners, therefore, claimed to be in possession of the property as owners and in the alternative a plea of adverse possession was raised. The pleas of limitation, misjoinder or non-joinder of the parties and res judicata were also raised to contest the suit.
4. After issues and evidence, the leamed Trial Court decree the suit on 18-9-1988. The appeal filed by the petitioners was dismissed by the leamed Additional District Judge on 25-4-1991. In this revision petition, the two judgments of the leamed Courts below have been challenged.
5. Leamed counsel for the petitioner, argued with vehemence, that the suit was bad for non-joinder of necessary parties and being a suit for possession, it could not proceed in the absence of other co-sharers. He further argued, that the application under Order 41 Rule 27 of CPC filed before the leamed Appellate Court w as illegally rejected and that the suit was barred by the principle of res judicata and Order 2 Rule 2 of CPC as the earlier suit filed bv the respondent was dismissed as withdrawn without permission to file a fresh one. It was submitted, that the respondent had not appeared in affirmative evidence and only appeared in rebuttal, therefore, there being no affirmative statement, adverse inference should be drawn against the respondent and suit should have been dismissed for lack of proof. It was also argued, that the consolidation proceedings could be held in regard to agricultural land and not to the property which was residential hence, the total plea taken by the respondent was imaginary. It was argued, that the leamed Additional District Judge, made reference to the jamabandi to assume that the respondent was the owner. Ignoring the entries of possession of the petitioners in the same document. The petitioners having purchased the property from the co-sharer in the Shamlat, it was argued, that they could not be ejected therefrom as their status was not of an illegal occupant.
6. Leamed counsel for the respondent, after arguing the case for some time, found it difficult to justify the manner in which the suit had been decided by the two Courts below.
7. Admittedly, it was a suit for possession of land. In paragraph 1 of the plaint, as also in the statement of respondent it was stated that the land in question was owned by him along with his brothers and sisters. Meaning thereby, he claims the land to be joint property while he filed the suit himself without impleading the other co-sharer, either as plaintiffs or as defendants. Unlike eviction proceedings against the tenant, in a suit for possession of land, by the co-sharers, one of the co- sharer, cannot independently maintains the suit without joining the other co-sharers, either as plaintiffs or as defendants. Reference can be made to the rule laid in Khalique Ahmad v. Abdul Ghani and others (PLD 1973 SC 214), where it was ruled as follows:- "a suit for possession can be brought by all the co-owners jointly. It is open, however, to one of them also to sue for possession, but he must join the other co-owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only. Unlike, that a suit for ejectment can be filed by one of the co-owners without joining the others as defendants. This is the differences between an action for possession and an action for ejectment."
8. In this case, the respondent did not join, the other co-sharers as a party and in their absence, the suit could not proceed. The leamed Trial Court, did not advert to this aspect of the matter in true perspective and also in the light of the rule laid down by the Supreme Court. The Appellate Court did not examine this aspect of the matter nor it could receive attention of the first Appellate Court, with the result, that there was no lawful disposal of the suit for the appeal.
9. The leamed Additional District Judge, rejected the application under Order 41 Rule 27 of CPC, denying permission to adduce the copy of jamabandi, which was a part of public record and was admissible per se. Amazingly on the one hand, the leamed Additional District Judge rejected the application on assumption, that production of documents were intended to fill up gap and on other hand, he started, commenting on the merits, and started recording findings as to the ultimate effect of the document. The rule of denying permission to adduce additional evidence, to fill up gap, is no longer a valid ground, according to the Islamic Principle of dispensation of justice.
The Presiding Officer or the. Qazi is not supposed to wait for the errors of the parties and to strike the party when a default is committed. The objective should be, to do justice, refrain from adherence to technicalities permit the parties all possible evidence necessary for the determination of the case and to require the parties to produce additional evidence, if the existing evidence is not sufficient to decide the matter in issue effectively and efficaciously. A copy of the public record for which there was no challenge on the ground of forgery and fabrication, could mot be refused to be brought on record, if the entries therein would be of some relevance to assist the Court to appreciate the real issue and decided the rights of the parties in this case, the additional evidence was sought to show that the petitioners were in possession of the land which they had allegedly purchased from Roshan and Muhammad co-sharers, in the Shamlat. The production of this document could not be refused on hypothetical and erroneous considerations. The leamed Additional District Judge, therefore, committed a jurisdictional error in refusing to exercise jurisdiction in accordance with law.
10. In this case, the respondents were alleging that the possession was delivered on temporary basis by the previous owners and that position of the petitioners were that of a licensee while on the other hand, the respondents were claiming to be owners and purchasers, right from the inception. No specific issue was framed on the plea raised in the plaint nor on the defence as taken in the written statement, ln fact there should have been an issue on the plea that the petitioners were inducted as licensee by the previous owner. There should also be a issue on the plea that if the petitioner had purchased the land from the previous co- sharers in Shamlat Deh and were inducted as purchaser and not as licensee as alleged by the respondent, ln the absence of these two specific issues, the parties have been prejudiced as they could not lead evidence in proper perspective and if- support of their respective contentions. Even otherwise, the effect of the previous suit having been withdrawn, on the Tiling of the subsequent suit, has also not received the intention of the Courts below in the light of, rule bid down, by the Superior Courts. The question, as to whether the withdrawal of the previous suit would attract Order 23 Rule 1(2) of CPC or Section 11 will have any application, are also to be determined in accordance with law.
11. Since the leamed Courts below have not attended the legal questions arising in the suit in true perspective and have also proceeded in the absence of the necessary parties as also necessary issues, therefore, this case will have to be remanded to the leamed Trial Court for its fresh decision, in accordance with law.
12. For the reasons above, this revision petition is accepted, the two judgments of the leamed Courts below are set aside, with the result, that the suit filed by the respondent shall be deemed to be pending. The leamed Trial Court shall implead the other co-sharers, brothers and sisters of respondent as a party in the suit after obtaining their particulars from the respondent and by framing the proper issues, proceed to record evidenced and decide the suit on its own merits, in accordance with law and in the light of the observations recorded herein. The parties shall appear before the leamed Trial Court on 20-10-1997 who Will proceed in the matter day to day and positively dispose of the suit within two months, with intimation to the Deputy Registrar (Judl.) of this Court. Parties are made to share their own costs.