1HSAN-UL-HAQ CHAUDHRY, J. -- The relevant facts for the decision of this civil revision are that the respondent No. 1 instituted a suit for possession of land measuring I marla, 207 sq.Ft. Comprising of khasra No.' 1260 situated in Revenue Estate,. Nawankot. The suit was resisted ,by the present petitioner. The learned Trial Court accordingly framed. following
(I) Whether the suit is mala fide? OPD.
(2) Whether the plaintiff has no cause of action. To bring this suit? OPD.
(3) Whether the suit is not maintainable in its present form?: OPD.
(4) Whether the suit has not been properly valued for 'the' purposes of Court-fee and jurisdiction'?.
OPD.
(5). Whether the suit is within time? OPP.
(6) Whether the plaintiff is entitled for the possession of plot described in the plaint, if so" with what effect? OPP.
(7) Relief and. After recording evidence of the parties and hearing the arguments proceeded to dismiss the suit vide judgment and decree dated 20.1.1993', which. Was assailed through an appeal, which was accepted by the First Appellate Court vide judgment and decree dated 16.1.1995. The result was that the suit of respondent No.. I was decreed. Now this 'revision, which was admited to hearing and notices were issued to the respondents, who have appeared and contested the revision.
2. The learned counsel for the petitioner argued that the petitioner purchased Plot . No. 524, Block- A, Gulshan-e-Ravi Scheme together with land measuring 1 marla, 207 Nil. The LDA, while granting exemption in respect of the land of Plot No. 524 made it clear that since-this area is out of .The Scheme, therefore, no exemption can he granted in respect of the. Same. It is added that the petitioner thereafter proceeded to construct house after getting the building plan sanctioned and started residing there. It is argued that it was clear from Ex.P-1 that the area did not form part of . The scheme and belonged to the vendors of the petitioner..
3. On the other hand, learned counsel for respondent No. 1 argued that suit land alongwith the other land was purchased on 24.5.1965. It is added that' the petitioner had encroached upon the land,- therefore;' respondent No. 1 was constrained to tile the shit for possession. It submitted that the land purchased by the petitioner and suit land fall within different km ru numbers.
4. I have given my anxious consideration to the arguments and gone through the record. The plaintiff had purchased the land earlier than even the framing and sanctioning of Gulshan-e-Ravi Scheme and in any case before the exemption of the Plot No. 524 and then the area was purchased by the petitioner. There is nothing on record to explain as to how the petitioner came into possession of the suit land. It is clear from letter Ex.P-1 appended as annexure 'E/1' that this land was not included in the Scheme, therefore, LDA did not exempt land in lieu thereof. This is not all .
The sale-deed Ex.D-I in favour of petitioner clearly evidenced that the petitioner had purchased Plot No. 524 alongwith the land measuring 1 marls, 207 %ft. The petitioner had, of course, obtained the possession after due demarcation by the LDA, therefore, it is not possible to assume that the petitioner has trespassed over the suit land. The learned Trial Court has dealt 'iith issues Nos. 3 and 6 together and with reference to the evidence on record concluded that the plaintiff was not entitled to decree. For possession. On the other hand, Addl. District Judge has reversed the finding on issue No. 3 by raising side winds. He observed that defendants Nos. 2 and 3 could not transfer land measuring 1 marla, 207 sq.Ft. To defendant No. 1. The same was illegally included in the sale- deed and proceeded to declare the sale-deed illegal. He failed to appreciate- that neither this was the prayer nor issue framed nor claim of the plaintiff as pleaded in the plaint. This is precisely the ground on which he was non-Suited. The judgment of the First Appellate Court, therefore, patently proceeds on wrong premises and liable to be set aside. It is not out of place to mention here that defendants Nos. .2 and 3 have all the way been claiming to be owner of Plot No. 524 plus land measuring 1 marla, 207 Nit as is clear from Ex.D-1 and Ex.P-1, the document produced by the plaintiff herself.
5. The upshot of the above discussion is that the impugned judgment and decree of the learned Addl. District Judge dated 16.1.1995 is set aside by accepting this revision. The result is that the judgment and decree dated 20.1.1993 of the Trial Court is restored.