MENT M. JAVED BUTTAR,J---This revision petition is directed against the judgment and decrees dated 25.1.1996 passed by the Additional District Judge, Mandi Bahauddin, whereby the petitioner's appeals were partly accepted to the extent of the costs imposed by the trial Court against the petitioner and the trial Court's decree of possession was modified and instead of a decree of actual physical possession, a decree of 'Qabza Malkana'- was passed in favour of respondents 1 to 7.
2. The facts, in brief, are that the petitioner and proforma respondent No. 9, Ijaz instituted a suit on 19.3.1988 in the Civil Court at Mandi Bahauddin for declaration to the effect that the land in dispute measuring 8 kanals comprising of Killa No. 15, Rectangle No. 314 pertaining to Jamabandi/Register Hakdaran 1983-84, situated in Village Bosal, Tehsil Phalia, District Mandi Bahauddin, was in possession of the plaintiffs as owners and the order dated 22.2.1988 (Ex.P-9), passed by the Collector, Mandi Bahauddin, was inoperative and ineffective against the rights of the plaintiffs.
Consequential relief of permanent injunction against defendant-Niaz Muhammad was also prayed for. Niaz Muhammad-defendant died during the pendency of the suit, his legal heirs/respondents Nos. I to 7 herein,, were duly impleaded as defendants to the. Suit. The deceased, Niaz Muhammad, also instituted a suit on 1.11.1988 for possession if the same property against the petitioner and respondent No. 9. Ejaz, and also against one Manak. Both the suits were consolidated. Out of the pleadings of the parties the trial Court framed the following consolidated issues;
(1) , Whether the plaintiff is owner of the suit property? OPP
(2) If issue No. 1 is proved, whether the plaintiff is entitled to recover possession of the suit property from the defendants? OPP
(3) Whether the suit is not maintainable vide P/0 No. Of the written statement ? OPD
(4) Whether the Civil Court has got no jurisdiction to try the present suit? OPD
(5) Whether the suit is not maintainable vide Order 2 Rule 2 of CPC? OPD.
(6) Whether the suit is false, frivolous and mule fide and the defendants are entitled to special costs? OPD.
(6-A). Whether the plaintiffs are owner in possession of the shit property? OPD.
(6-B) If issue No. I is proved whether the remand order by the Assistant Commissioner, dated 22.2.1988 is illegal and ineffective on the rights of the plaintiffs? OPD.
(6-C) Whether the suit is false and mule fide and the defendants are entitled to recover Rs. 5000/- as special costs from the plaintiff? OPP.
(7) Relief.
3. Respondent No. 8, Manak, who has now died, did not contest either of the suits.
4. Learned Trial Court after recording the evidence produced by the parties, in the respondents suit, vide its .Judgment and decrees dated 10.5.1992 dismissed the petitioner's suit with costs of Rs. 5000/- and decreed and respondents' suit for possession. The petitioner as well as respondent No. 9 challenged the judgment and decrees of the Trial Court through two separate appeals and the learned Appellate Court, as mentioned above, vide its judgment and decrees dated 25.1.1996 accepted the appeals partly and set-aside the order-of award of costs and modified the decree for possession passed in favour of respondents by awarding them decree for Qabza Malkana' instead of actual physical possession.
5. It is the case of the respondents that through registered sale deed dated 25.7.1981 (not produced) they purchased Killa No. 15, situated in Rectangle No.' 314 (the land in dispute) from the deceased-respondent Manak but by mistake the same was entered as Killa No.. 10 in the registered sale deed although this assertion is not set up in the plaint of their suit for possession and has been set-up only in evidence through the statement of Muhammad Tariq. On the other hand, the petitioner's case is that the respondents are owners of Killa NO. 10 of Rectangle No. 314 as incorporated in the so-called registered sale-deed executed in their favour and are not owners of Killa No. 15 and Manak never sold Killa No. 15 to respondents because the same is not proved through any evidence and furthermore, Manak was only owner of half share (4 kanals) in Killa No. 15 and was not owner of whole of the said Killa and he gifted his half share measuring 4 kanals in Killa No. 15 to respondents because the same is not proved through any evidence and furthermore, Manak was only owner of half share (4 kanals) in Killa No. 15 and was not owner of whole of the said Killa and he gifted his half share measuring 4 kanals in Killa No. .15 to respondent No. 9, Ejaz, vide Mutation No. 1326, dated 31.12.1985 and petitioner purchased the remaining 4 kanals from Mst. Rahia and Mst. Rasoolan through Mutation Nos. 1067, dated 24.12.1986 and 1403, dated 8.4.1986, two kanals each, and all these three mutations are incorporated in the revenue record as the same is evident in copy Jamahandi/Register Hakdaran for 1983/84 produced as Ex. D-2.
6. It is contended by the learned counsel for the petitioner that the original sale-deed dated 25.7.1981, which is the basis and foundation of the respondents' case, was not produced by them either as plaintiffs in their suit or as defendants in the petitioner's suit and even the certified copy was not produced. Learned. Counsel has further contended that under Article 102 and 103 of the Qanoon-e-Shahadat, 1984, the oral evidence cannot be led to prove the contents of a document, especiall yvhen the same is a registered document and admittedly::in possession of the party relying on it. Rdiak:e in this regard is placed on Zakaullah Khan v. Muhammad Aslam and another (1991 SCM R 2126), Mirza Arif Baig v. Mubarik All (PLD 4992 Lah. 366) and Noor Samanad and others v.
Mst. Bibi Sain and others (PLD 1979 BJ 31). It is submitted next that the deceased-Manak was owner only of 4 kanals in Killa No. 15, and, therefore, the respondents case that they purchased whole of the said killa measuring 8 kanals from Manak is falsified from this fact alone. Leaned counsel has also contended that it is the case of the respondents that by mistake in the registered sale-deed executed in their favour (not produced) Killa No. 10 was entered whereas in fact they had purchased Killa No. 15 but the respondents never got the sale-deed corrected by the Registrar under the Registration Act if the sale-deed suffered from any clerical mistake and they also even got it corrected through any regular civil suit. It is submitted next that the Collector while passing the order dated 22.2.1988 (Ex.P-9) has wrongly assumed that the Civil Court in some proceedings had held that the respondents had purchased Killa No. 15 and not Killa No. 10, whereas no such order, judgment or decree has ever been passed by the Civil Court and no details of any such order of the Civil Court have, been given by the Collector and secondly, the Collector cannot go beyond the registered sale-deed. Learned counsel has also submitted that the Courts below have non-suited the petitioner and have decreed the respondents suit merely on the basis of an admission made by Rasoolan Bibi in her suit for possession through preemption to the effect that Manak sold Killa No. 15 to the respondents, whereas, the petitioner is not bound by any admission made by a third party in favour of the respondent in her pre-emption suit. Learned counsel next contended that the so-called suit for possession through pre-emption instituted by Mst. Rasoolan was never gotten proved through evidence because Mst. Rasoolan has appeared as DW. 1 and she was not confronted with the said suit, although the copy of the plaint is on record as Ex.P-1. Reliance in this regard is placed on Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25), Malik Muhammad Ishaque v. M/s. Erose Theatre and others (PLD 1977 SC 109), Allah Din (Deceased) represented by Bahawal Bakhsh and others v. Rehmat and others (PLD 1967 Lah. 1051 and Sikandar Hayat and 4' others v. Master Fazal Karim (PLD 1971 SC 730).
0 A.I (NLR 1993 Civil 46). Learned counsel has further contended that the Courts below have wrongly relied on the statement of Manak (Ex.P-7) allegedly made by him in a suit for pre-emption because the petitioner is not hound by any admission/concession made by Manak in any previous suit, and even that admission cannot he relied upon because Manak was not produced as a witness and he was not confronted with the said admission. In the last, it is submitted that even if the respondents are held to he the owners in the Khata' on the basis of a registered sale-deed which was never produced by them, the suit for possession instituted by them in the present form is not maintainable and they could, at the most, only tile a suit for partition of a joint khata'. Reliance in this regard is placed on Muhammad Amin and others v. Karam Dad and others (AIR 1924 Lab. 293), and Fazil etc. v. Manzoor Hussain etc. (PLD 1979 Note 9). Learned counsel has also relied on Hoshiar A.I Khan v. Ghulam Sahir and others (1993 SCM R 2122), Tariq Adress v. Syed Rizwan Hussain Bokhari (1992 CLC 1731) and Messrs Central Cotton Mills Ltd. And another v. Gulzar Ahmed and 8 others (PLD 1992 Karachi 29), to contended that a single revision petition under Section 115 CPC is competent to challenge two decrees passed in two consolidated suits.
7. On the other hand; while vehemently opposing this petition, learned counsel for respondents 1 to 7 has submitted that copy of plaint (Ex.P.I) of the pre-emption suit instituted by Rasoolan Bibi against Niaz Muhammad, the predecessor of the above said respondents, shows that Rasoolan Bibi admitted Manak to he the owner of whole of Killa No. 15 and in the said suit Manak appeared as a witness and stated (Ex.P-7) that he was owner of whole of Killa No. 15 and had sold the same to Niaz Muhammad. It may, however, he noted here that the suit was dismissed and the copy of the judgment has not been brought on the record of this petition. It is submitted next that Rasoolan's aforesaid suit also shims that she was not an owner in Killa No. 15 and that is why she had filed preemption suit in regard to the same killa and, therefore, she could not have sold any share from the same killa to the petitioner. Learned counsel has further contended that Ex.D-2, copy Register Hakdaran for the year 198384 produced in evidence by the petitioner shows that Manak could not have sold Killa No, 10 to Niaz Muhammad, the predecessor of respondents 1 to 7 because the said killa is in the ownership of Mutali etc. And not of Manak.
Learned counsel has also referred to Ex.D-2 and Ex.D-3 (copy of Khasra Girdawari for the period from Kharif 84 to Kharif 87) shows that the whole of Killa No. 15 was in Hissadari possession of Manak and he was competent to sell the same to Niaz Muhammad.
8. The above-mentioned shows that the land in dispute i.e. Killa No. 15, detailed above, was owner by the deceased respondent No. 8, Manak and by Mst. RasooIan and Mst. Rahia, daughters of Khanu. Manak owned half of this killa/acre (4 kanals) and Rasoolan and Rabia owned the other half (2 kanals each). The record also shows that through Mutation No. 1326, dated 31.12.1985, Manak gifted his share of 4 kanals to plaintiff No. 2/respondent No. 9, Ejaz, and the rest of 4 kanals of the disputed killa was purchased by plaintiff No. 1/petitioner, A.I Muhammad, from Mst. Rahia through Mutation Nos. 1067 and 1403). The record thus shows the petitioner, A.I Muhammad and respondent No. 9 (the plaintiffs), to he the owners of the land in dispute. The respondents 1 to 7 have miserably failed to the their ownership over the land in dispute. Their case that Killa No. 15 was purchased by their predecessor from Manak has not been proved. Similarly their case that in the registered sale- deed in their favour killa No. 10 has been entered by mistake has not been proved. The plea of mistake is merely an oral assertion. Even the registered sale-deed in their favour has not been produced in evidence. The facts and circumstances also go against respondents 1 to 7 because Manak was not the owner of the entire land in dispute as he was owner of only one-half of it and, therefore, he could not have sold the land in dispute to respondents I to 7 or their predecessor. The contentions of the learned counsel for the petitioner recorded in paragraph No. 6 above have force of law and for the same reasons (they need not he repeated again), I am of the view that the Courts below have acted illegally in dismissing the suit of the petitioner and respondent No. 9 and in decreeing the suit of respondents 1- to 7.
9. In view of the above discussion, the present revision petition is accepted, the impugned judgments and decrees of the Courts below are set-aside, the suit of respondents .1 to 7 is dismissed and the suit of petitioner and respondent No. 9 is decreed as prayed their with no orders as to costs.