1. ' As the above civil revisions arise out of similar judgments and decrees of both the Courts below, therefore, I propose to dispose of all the above revisions by this common judgment.
2. ' The above revision applications have been filed against the impugned judgment and decree, dated 24-2-1994, passed by the learned Additional District Judge Nushero Feroze in Civil Appeal No,56 of 1992. The applicants above named have prayed for setting aside the impugned judgment and decree with a prayer that judgment and decree dated 26-5-1992 and 10-6-1992 respectively passed by the learned Senior Civil Judge, Naushero Feroze in Civil Suit No,336 of 1982 be restored.
3. ' The brief facts of the case as per plaint are as follows: ' The respondents/plaintiffs Nos.1 to 13 claiming ownership over the agricultural land below alongwith 27 acres from the Deh Debro and Burira:-- {{TABLE}} SURVEY NO. AREA TOTAL (in acres) (in acres)
4. 476 9-14 9-14 477 7-22 7-22 478 9-34 9-34 479 8-18 8-18 480 7-1 7-1 Total = 42-9 {{TABLE}} ' It is further contended that claim of the respondents/plaintiffs 1 to 13 over the suit land is due to private partition which took place about 24 years back and the said respondents/plaintiffs are claiming to be legal heirs of Umar son of Senior Jumo, who purchased the above suit land from Barrage Department during the lifetime of his father Senior Jumo. It is also urged that Senior Jumo possess 300 acres land in Deh Bhabro, Larik, Daliand Bhiria Taluka Kandiaro. Senior Jumo left 5 sons, namely, Umar Allanditto, Shah Ali, Mir Muhammad and Yakoob as his legal heirs.
5. ' It is the case of respondents/plaintiffs that the above said land actually was the property of Umar father of the plaintiffs, but, however, he in order to accommodate his brother made them shareholder in the suit land mentionedabove and record of rights were mutated in their names and after the death of Senior Jumo his sons named above made private partition of the entire land belonging to Senior Jumo and in private partition Umar the father of the respondents/plaintiffs received the suit-land and 27 acres form deh Debhro and Burira and the said Umar remained in cultivation possession openly and the petitioners/defendants never disturbed his possession or ever claimed any share and hence the respondents/plaintiffs became owners by way of adverse possession.
6. ' It is also contended that as the relations between the parties were cordial and the respondents/plaintiffs did not care of record of rights but suddenly due to matrimonial dispute the present petitioners/defendants issued threats to dispossess the respondents/plaintiffs and plaintiffs also approached Mukhtiarkar Naushero Feroze for correction of record of right in their favour, who refused and hence the respondents/plaintiffs tiled F.C. Suit No,336 of 1982 in the Court of Senior Civil Judge Naushero Feroze for declaration and permanent injunction and had prayed for following relief:-- "(i) To declare that in view of partition made between Umar and his brother about 24 years back, the plaintiffs are owners of 27 acres land in Deh Dabhro and Burira and also of the suit-land or it to be declared that due to continuous, undisturbed, openly and publicity possession and enjoyment of plaintiffs of suit-land proclaiming as owners to the knowledge of defendants for more than 12 years, the plaintiffs have become owners of suit-land by adverse possession
(ii) That defendants Nos.16 and 17 be directed to correct and mutate the record of rights in favour of plaintiffs.
(iii) That defendants permanently be restrained from disturbing possession of plaintiffs on suit- land or any part thereof by themselves, associates and agents in any manner.
(iv) That any other relict' which this Hon'ble Court deems fit be awarded to the plaintiffs."
7. ' After service of the notice the petitioners/respondents filed their written statement denying the exclusive ownership of the plaintiffs/ respondents by private partition or by adverse possession. It was averred in the written statement that private partition never took place as alleged and the petitioners/defendants are co-owners and co-sharers in the suit-land as they inherited the same from Senior Jumo and that they have been enjoying the produce, paying the land revenue of the suit-land jointly and the respondents/plaintiffs never remained in adverse possession as alleged.
8. ' It was further stated in the written statement that after the death of Muhammad the elder brother of plaintiff Umar started having dishonest intention in his mind and he wanted to deprive the co- sharers from their due share of the produce. On this account, the co-sharers asserted their right of produce and that the plaintiffs/defendants are entitled as co-owners, co-sharers in the suit-land being their ancestral property. The plaintiffs/defendants filed their separate suits for declaration, possession, mesne profits and injunction in the Court of Senior Civil Judge, Naushero Feroze against the respondents/ plaintiffs. The defendants/respondents 14 and 15 filed their written statement admitted the case of the plaintiffs who are sons of Yakoob son of Senior Jumo as they were in collusion with the plaintiffs/respondents Nos.1 to 13 as their father had already sold out the share from the suit-land to Muhammad through registered sale-deed.
9. ' On pleading of the parties the trial Court has framed the following issues:-- "(1) Whether the suit is not maintainable in law?
(2) Whether the suit is not in proper form?
(3) Whether the suit is bad for non-joinder of necessary parties? If yes, necessary parties are not joined in absence of whom no effective decree can be passed?
(4) Whether the suit-land was purchased by Umar?
(5) Whether there was a private partition and suit land 27 acres land of Deh Dabhro Deh Burira came in share of Umar about 24 years back?
(6) Whether the remained in exclusive possession of the suit-land, if so since when?
(7) Whether the plaintiffs can claim an adverse possession? If yes, whether the plaintiffs have completed title by adverse possession?
(8) Whether the plaintiffs are entitled to relief claimed?
(9) What should the decree be?"
10. ' On the basis of issues the respondents/plaintiffs examined Muhammad Umar plaintiff No,7 and his deposition is already on the record, other witness Paroo and Muhammad Sharif were also examined and thereafter, the side was closed by filing a statement on behalf of the respondents/ plaintiffs.
11. ' On the other hand the petitioners/ defendants examined D.W. Tapedar Hidayatullah, D.W. Tapedar Ali Nawaz, D.W.Tapedar Noor Muhammad, Allah Ditto and Pandhi Khan and thereafter the defendants/petitioner's counsel closed the side.
12. ' In view of the evidence recorded by the learned Senior Civil Judge, Naushero Feroze the suit of the plaintiffs/respondents was dismissed by judgment dated 18-5-1987. The plaintiffs/respondents preferred an appeal before the learned District Judge Nawabshah wherefrom it was transferred to the District Judge Naushero Feroze due to creation of new district and thereafter it was transferred to the Court of the learned Additional District Judge, who set aside the judgment and decree of lower Court and remand back to the trial Court for fresh trial and Issue No,4-A was recasted and thereafter judgment was announced on 6-11-1991 by remanding the case for recasting Issue No,4-A and it was further observed that Barrage Mukhtiarkar be examined as Court witness subject to right of rebuttal to the parties.
13. ' In pursuance of the direction, the trial Court examined Allah Bux, Barrage Mukhtiarkar, as Court witness on 20-3-1992 and after closing the side by way of statement the learned trial Court again dismissed the suit on 26-5-1992. The plaintiffs/respondents being aggrieved with the said judgment preferred an appeal before the learned District Judge Naushero Feroze and the same was transferred to Additional District Judge Naushero Feroze who after hearing the parties allowed the appeal and set aside the judgment and decree passed by the trial Court. Hence, this petitioners have preferred the present revision before this Court against the judgment and decree of the appellate Court.
14. ' The learned counsel for the petitioners has contended that the respondents/plaintiffs in para. No,2 of the plaint has not described the proper schedule of the agricultural land situated in Deh Dabhro and in para.No,18 of the plaint the plaintiffs stated that partition was made about 24 years back, therefore, the plaintiffs are the owner of 27 acres of land in Deh Dhabro and Burira and also of the suit-land. It is also contended by the learned counsel that provision of Order 7, rule 3, C.P.C. Has not complied by the plaintiffs as the requirement of the said provisions is mandatory. Rule 3 of the Order 7, C.P.C. Reads under:-- ' Rule 3: Where the subject-matter of the suit is immovable property.---Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement of survey, the plaint shall specify such boundaries or numbers."
15. ' It is also contended by the learned counsel that the plaintiffs/respondents have not complied with the requirement of rule 3 of Order 7, C.P.C. The trial Court has rightly rejected/dismissed that suit. It is further urged that the necessary parties have been left by the plaintiffs so impleaded them in the said suit. It is further argued that the appellate Court has not discussed the document of a registered sale-deed, dated 1-9-1961 (Exh.212 at page 151). It is further contended tfiat the appellate Court has not discussed the evidence of P.W. Allah Ditto whereas the evidence of Mukhtiarkar is perverse and the said question has been misinterpreted by the appellate Court.
16. ' It is also urged by the learned counsel that the evidence of D.W. Hidayatullah, Ali Nawaz, Noor Muhammad, Allah Ditta and Paroo has not been discussed by the learned appellate Court in its judgment. It is further urged by the learned counsel that issue No,4 was framed by the trial Court and it was answered in the judgment by the trial Court but in appeal the learned Additional District Judge, Naushero Feroze directed for re-framing and re-casting the abovementioned issues with direction to examine Barrage Mukhtiarkar as Court witness, which has been answered properly by the learned trial Court. In support of his contention, the learned counsel for the petitioner has relied upon the followingcitation:- PLD 1977 Kar. 480; PLD 1993 Kar. 369; PLD 1954 Lahore 480; PLD 1992 Kar. 104; PLD 1993 Kar. 369; PLD 1996 Lah. 764; 1991 SCMR 2063, and PLD 1994 SC 462.
17. ' The learned counsel for the petitioners/defendants prayed that the judgment and decree dated 24-2-1994 respectively passed by the learned Additional District Judge, Naushero Feroze be set aside and the judgment and decree of the trial Court, dated 26-5-1992 and 10-6-1992 respectively may be maintained/restored.
18. ' Mr. Ghulam Mustafa M. Buriro, learned counsel for the respondents, has opposed the above submission made by the learned counsel for the petitioners and submits that the order passed by the learned Additional District Judge, Naushero Feroze is proper and may be maintained. It is further contended by the learned counsel for respondents that Jumo had filed written statement in the trial Cpurt which was adopted by the respondents 6 and 7 and during the course of recording of evidence Hidyatullah, Ali Nawaz, Noor Muhammad, Allah Ditta and Paroo were examined whereas the evidence of Allah Ditta was rejected in the trial Court and his stand was not considered by the learned Civil Judge.
19. ' It is further urged by the learned counsel for the respondents that suit-land was the property of Barrage Department which was granted to Umar (grandfather of respondents) and documentary evidence was produced by the respondents. It is further stated by the learned counsel that Issue No,4 was properly answered by the learned appellate Court. In support of contention the learned counsel for the respondents has cited the following authorities:--
(I) PLD 1975 Lahore 1349 (Allah Bakhsh and others v. Ghulam Hussain);
(2) PLD 1971 SC 252 (Mian Rafiuddin and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others);
(3) PLD 1992 Lahore 366 (Mirza Arif Baig v. Muharik Ali);
(4) PLD 1984 Peshawar 111 (Mst. Karim Jan and 3 others v. Anwar Khan and another);
(5) PLD 1973 Azad J&K 38 (Niaz Ali v. Lehrasap Khan and others) and
(6) PLD 1973 Kar. 522 (Malik Muhammad Ishaque and 11 others v. M/s. Erose Theatre, Karachi and 26 others.)
20. ' I have gone through the impugned judgment and decree as well as judgment and decree of trial Court and the evidence part and also examined the other material placed on record by the learned counsel for the respective parties. It is advantageous to reproduce re-casted Issue No,4, which reads as under:-- "Issue No,4.
21. ' Whether the suit-land was purchased by timer?"
22. ' It is pertinent to mention that the appellate Court had allowed the appeal on contrary to evidence available on record and the appellate Court has not properly applied its mind to the case and has not properly appreciated the evidence of Allah Ditto in respect of non-joinder of necessary party. It is further observed that the appellate Court has not applied its mind on the evidence of Barrage Mukhtiarkar and the documentary evidence of registered sale-deed and misinterpreted the evidence. It is clear that the appellate Court has based his judgment and decree on presumptions.
23. The appellate Court has also been erred in believing the findings of S.D.M. In his order under section 145, Cr.P.C. The appellate Court has also committed an error in believing the claim of respondents on adverse possession which is not only misread but based on misreading and presumption. The appellate Court has also erred to believe in private partition on flimsy ground and utterly failed to appreciate the evidence on record which was adduced by the parties and the said evidence was ignored and real aspect of the case was also ignored. There is evidence of Allah Ditto and D.W.
24. Paroo in respect of the enjoyment of produce of suit-land and the finding of the lower Court is well- founded on such evidence available on record. The revisional Court in exercise of its power can interfere with the findings. If the findings are based on misreading of evidence or are perverse. The evidence so adduced before the trial Court by the respondents/plaintiffs was not shattered in the cross-examination and there is no reasons to disbelieve such evidence.
25. ' The case-law cited by the learned counsel for the respondents has no relevancy in the particular case as the appellate Court has misread and misinterpreted the evidence and the same is based on presumption without any reasoning, therefore, the impugned judgments and decrees passed by the learned appellate Court are set aside and the judgments and the decrees of the trial Court are maintained. Consequently, the above Civil Revisions are accepted/allowed, but with no order as to costs.