' This Civil Revision challenges the impugned judgment and decree, dated 17-2-1994 passed by the learned District Judge, Bhakkar while reversing the judgment and decree, dated 3-2-1991 passed by the learned trial Court.
2. The contention of the learned counsel for the petitioner is that the impugned judgment suffers from infirmity of law as it is not based on any issuewise finding as prescribed under Order XX, Rule 5, C.P.C. He has relied on Ali Muhammad v. Muhammad Hayat and others 1982 SCM R 816 where it is held that the trial Judge not giving reasons for his decision on each issue separately and disposing of first five issues by simply observing that these issues have no substantive force in view of findings given under issue No,6, High Court holding such decision to be not in accordance with law, laid down in Order XX, Rule 5, C.P.C. Setting aside the impugned judgments and decrees of the trial Court as well as of District Court and remanding the case to the trial Court for rewriting judgment after hearing the parties as that the trial Court having disregarded mandatory provisions of Order XX, Rule 5, C.P.C., acted with material irregularity. Learned counsel for the petitioner has further submitted that the learned trial Court has not applied his conscious mind to the findings of the learned trial Court on issues Nos.3 and 4 particularly on the question of limitation. He has further submitted that the learned District Judge has failed to appreciate the point that the jurisdiction of the Civil Court in the matters falling within the purview of Land Revenue Act is barred. The impugned judgment and decree is without any legal foundation and that the impugned judgment and decree is based on incorrect reasoning on point of possession.
3. The learned counsel for the respondent has pointed out that the instant Civil Revision is barred by limitation as the order of the learned District Judge, Bhakkar is dated 17-2-1994 and the Civil Revision is filed on 22-10-1994. Thus, barred by law of limitation, as in the application for condonation of delay filed on 25-7-1994 the petitioner has not been able to put any reasoning and sufficient good ground for not filing the instant Revision in time. He relied on Pakistan through Secretary, Ministry of Defence v. Messrs Azhar Brothers Limited 1990 SCM R 1059 where it is held that appeal barred by 46 days, filed before the High Court alongwith the application for condonation of delay, but without specifying period of delay and without giving any particular reason for such delay, was dismissed by the High Court on ground of limitation Government cannot be treated differently from a private litigant on question of limitation under section 5 of the Limitation Act.
Therefore, High Court rightly dismissed appeal on ground of limitation. He has further submitted that the learned District Judge has given issue wise finding and has decided the point of limitation and also the point of possession in paragraph 6 of the judgment. He has further submitted that in fact the learned trial Court while deciding issue No,6 has given a concrete finding that the suit land was allotted to the plaintiff/respondent vide RL-II No,16, dated 3-11-1970 but the plaintiff has never been in possession of the land as its owner. So, the learned trial Court held the plaintiff/respondent as allottee/owner of the suit land but not in occupation of the land, therefore, that issue was disposed of accordingly. On issue No,4 the learned trial Court held that under Article 120 of the Limitation Act the suit could be instituted within six years and the right to sue had accrued to the plaintiff when the allotment order in his favour was made vide RL-H No,16. So, the period of limitation had started from 3-11-1970 when the impugned allotment was made in his favour. The learned Appellate Court held from the appraisal of the evidence that the property had been confirmed in the name of the appellant and there was no dispute between the ownership of the respondent/appellant. The learned trial Court ousted the respondent/appellant for the reasons that he was not in physical possession of the property and was not justified under the circumstances that Register Haqdaran Exh.P.2 shows that the entire property was Ghair Mumkin Darya and Khasra Girdawari Exh.P.3 shows that the land was Banjar Qadeem and lying barren when the ownership has been established and none is in actual physical possession of the disputed property. The possession shall follow the ownership. Therefore, there was no question of running the limitation.
4. I have heard the learned counsel for the parties and have carefully perused the record.
5. The following issues were framed by the learned trial Court on the pleadings of the parties:--
(1) Whether this Court has got no jurisdiction to entertain and try this suit? OPD
(2) Whether the plaintiff is estopped by his own conduct to institute the present suit? OPD
(3) Whether the suit is maintainable in its present form? OPP
(4) Whether the suit is within limitation? OPP
(5) Whether the suit has been incorrectly valued for the purpose of court-fee and jurisdiction? If so then what is the correct valuation of the suit for both the purposes? OPD
(6) Whether the plaintiff is the owner in possession of the disputed land? OPP
(7) Whether the impugned order, dated 23-7-1984 is illegal, against facts, void and ineffective upon the right of the plaintiff? OPP
(8) Relief.
6. The finding on issue No,1 whether the Civil Court had jurisdiction was answered in favour of the plaintiff/respondent and issue No,2 about estoppel was also decided against the defendant and issue No,5 regarding the suit being incorrectly valued was also decided against the defendant.
Issue No,6 was partially decided in favour of the plaintiff in respect of ownership and it was decided against him in respect of possession. Issue No,7 about incorporation of the entries of RL-II in the Revenue Record was decided against the plaintiff/ respondent. Issue No,3 which is co-related with issue No,6 was also decided against the plaintiff, that the suit was not maintainable as no prayer of possession had been made by the petitioner. On the issues which were recorded against the defendant, the present petitioner/defendant had not filed any cross-objections. The learned Appellate Court has decided issues Nos.3, 4 and 6 about limitation. Therefore, the point raised by the learned counsel for the petitioner that it was not an issuewise finding is not tenable. The material issue in this case was issue No,6 and evidence which is available on record is about P.W.1 Noor Muhammad, Moharrir Record. He stated that he brought Register RL-H, Exh. P.1 is the certified copy of original RL-II and it is correct according to his record. The disputed property stands confirmed in the name of the plaintiff on 3-11-1970 and it is not cancelled. He was cross-examined by the learned counsel for the defendant. P.W.2 is the statement of the plaintiff who has stated that he is immigrant from Zila Karnaal, India. His claim was accepted in the year 1971 and the disputed property was given to him in lieu of the claim and the possession of the property was given to him in the year 1970. He gave an application for incorporation of RL-II in the Revenue Record but this application was dismissed and he filed a suit in the Civil Court. He is in possession of the land and the RL-II still subsists in his favour and it is not cancelled. He was cross-examined and he produced copy of Register Haqdaran Exh.P.2, copy of Khasra Girdawri Exh.P,3, copy of order, dated 23-1-1994 Exh.4 copy of order of District Collector, dated 23-7-1984 Exh.P.5 and copy of Register Haqdaran Exh.P.6. No evidence in rebuttal is present on record. Therefore, the learned Appellate Court has rightly considered the respondent as rightful owner in the property.
7. I have perused the Register Haqdaran and the Khasra Girdawri. The land is Banjar Qadeem and Gher Mumkin Darya and seems lying vacant not under cultivation of any cultivator. If the property is not in possession of anyone then the rightful owner can claim the possession of the said property as the possession shall follow the title.
Therefore, I find no infirmity in the finding on issue No,6 arrived at by the learned Appellate Court.
The civil suit is for declaration. Anybody whose ownership or possessory rights are interfered or threatened, may come to the Civil Court at any time when his possession or rights stand threatened. Therefore, no question of limitation arises in such cases and the learned Appellate Court has rightly decided the point of limitation. Reliance is placed on Mohib Ali (Mahboob Ali) v.
Amanullah Khan and 3 others 1981 CLC 251 where it is held that property not capable of physical possession or otherwise not in possession of anyone---Rightful owner to be presumed in possession of such property. Possession of vacant site or land goes with title of rightful owner.
Possession in case of doubt follows title. Therefore, it is well-established that in case of land which for one reason or the other is not occupied by anyone, the legal possession must be supported to be that of the actual owner.
8. The learned counsel for the petitioner has not been able to show good ground why the revision petition was not filed in time and what was the period of delay. The only reason which is assigned in the C.M. Is that there were some complicated questions for the Department due to frequent misplacement of relevant files and papers delay has occurred in filing the Revision Petition. Since the application for condonation of delay does not show a sufficient ground and the explanation for the period of delay, therefore, it is also dismissed. The judgment of the learned Appellate Court is held unexceptionable and the instant Civil Revision is dismissed.
9. No order as to costs.