' Despite service of notices issued by the office to the respondents, respondents Nos.2 and 3 failed to enter appearance. The report of the process-server, dated 13-7-1992 reveals that service of respondent Nos.2 and 3 was affected but respondents Nos.2 and 3 refused to receive notice.
Thereafter, office sent various notices to the respondents but the respondents refused to receive notices as is evident from the last report of the process-server, dated 21-3-2001. It is pertinent to mention here that reports of the process server are duly verified by the learned Civil Judge.
Respondent No,3 has entered appearance on 31-10-1992 and - got adjournment to engage a counsel. Respondent No,1 failed to engage a counsel till date. In this view of the matter I am constrained by the aforesaid circumstances to decide the revision petition ex parte against the respondents. In the interest of justice and fair play Mr. Akhtar Hussain Awan, Additional Advocate- General who is present in Court in connection with another case is requested to appear in this case.
2. The brief facts out of which the present revision petition arises are that the petitioner filed a suit for possession against the respondents before the Civil Judge, Bakhar on 12-6-1982. The contents of the plaint reveal that the petitioner claims himself to be the owner of disputed land. The plaint further reveals that the respondents had got no connection whatsoever with the land in question.
Enterics made in the column relating to Jamabandi showing respondent No,1 in possession of the disputed land and respondents Nos.2 and 3 as illegal cultivators under respondent No,1 are void, against facts without any lawful authority and ineffective upon the rights of the petitioner. The plaint further reveals that on the basis of wrong entry in the jamabandi respondent No,1 threatened to dispose of the disputed property through auction although it has got no legal authority whatsoever to do so. The respondents were repeatedly asked to hand over possession of the disputed land to the petitioner but without any result. The respondents filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties the following issues were framed:--
(1) Whether the suit is time-barred? OPD
(2) Whether the suit has been wrongly valued for the purposes of court-fee if so, what is the correct valuation? OPD.
(3) Whether the suit is not maintainable in its present form? OPP.
(4) Whether the suit is bad for non-joinder of necessary party? OPD.
(5) Whether the plaintiff is the owner in possession of the suit land? OPP.
(6) Whether defendant No,1 has become owner of suit land due to his adverse possession for more than 12 years? OPD I.
(7) Relief.
' The trial Court dismissed the suit vide judgment and decree, dated 13-5-1986. The petitioner being aggrieved filed appeal before the first appelate Court who dismissed the same vide judgment and decree, dated 3-3-1990, hence the present revision.
3. The learned counsel for the petitioner submits that admission relied upon by the Courts below was against facts, therefore, could not constitute basis for holding that the suit was time-barred.
4. He further submits that both the Courts below have totally ignored from considering the evidence on record and that the respondent No,3 had claimed entry into possession of the land referable to a lawful title. He further submits that both the Courts below wrongly considered the reply of the petitioner in cross-examination as admission of the petitioner. He further submits that documents placed on record by both the parties did not reveal that respondents had possession of the land in question continuously for twelve years. He further submits that documentary evidence did not support the cause of the respondents. He further submits that trial Court had given finding against the respondents qua the ownership of the land in question and found petitioner is the owner of the land in question while deciding Issue No,5. The finding of Issue No,5 was not reversed by the first appelate Court. He further submits that Issue No,6 was also decided by the trial Court in favour of the petitioner but the same was not reversed by the first appellate Court.
4. The learned Additional Advocate-General submits that both the Courts below have given concurrent finding of fact against the petitioner. He further submits that revision petition is liable to be dismissed as the petitioner did not file suit within the prescribed period under the law. He further submits that both the Courts below rightly relied upon the admission of the petitioner. He further submits that revision petition is liable to be dismissed as the learned counsel of the petitioner failed to point out any irregularity or illegality committed by both the Courts below.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that trial Court had given findings in favour of the petitioner qua Issues Nos.5 and 6. It is also admitted fact that trial Court decided the case ex parte against respondent No,2 who did not file any appeal or joined the proceedings before the first appellate Court. It is better and appropriate to reproduce the operative admission of the petitioner in cross-examination to resolve the controversy between the parties: ' The afore said aforesaid admission must read with the documentary evidence on record and the statement of D.W.2 (respondent No,3) respondent No,3/defendant No,3 admitted in cross- examination as follows:-- {{URDU TEXT}} ' Exh.P. I /D4 Register Haqdaran for the year 1979-80 qua the land in question which is situated in Khasra No,1310 reveals that petitioner is owner of the property in question which is under unlawful possession of respondents Nos.2 and 3. The land in question is consisting of two categories i,e, eleven Kanals 'Banjar Jadeed' and nineteen Kanals 'Banjar Qadeem'. ExhP.2/D.1 khasra girdawari for the years 1980-82 qua the land in question which is situated in khasra No,1310 reveals that petitioner is owner of the property in question which is under the possession of respondent No,2 as tenant. The land consists of two categories. Eleven Kanals cultivated and remaining nineteen Kanals Banjar Qadeem'. Exh.D.2/D.3 is jamabadni for the year 1946-47 which reveals that land in question was of Mehra Ram as tenant at will. Exh.D.5 is jamabandis for the different years. 1969-73 reveals that khasra No,1310 does not contain name of the respondents Jamabandis for the years 1973-77 contain the name of Mst. Bashiran as owner whereas the name of respondent No,2 appeared as tenant in column No,2 Jamahandis for the years 1977-80 contained the similar entry.
Jamabandis for the years 1980 to 1982 contain the similar entry. Jamabandis for the years 1973-74 contain the name of Mst. Bashiran as owner and first time appeared name of respondent No,3 in column No,2 with the remarks temporary allottee against Khasra Nos.160 and 164. Jamabandis for the years 1974-75, 1976-77 contain the aforesaid entries against the aforesaid Khasra number.
Jamabandis for the years 1969-70 and 1970-71 against khasra Nos.160, 164 contain the aforesaid entry. Jamabandis for the years 1977-78, 1978-79, 1979-80 against Khasra No,164 contained the aforesaid entry in Jamabandi for the year 1980-81 of. Khasra No,179 name of the petitioner is mentioned as in the column of ownership whereas respondent No,3 is mentioned as tenant. In case the aforesaid entires are put in juxta position then it brings the case in the area that both the Courts below misread the whole record and decided the case against the petitioner without adverting to the aforesaid documents. The names of respondents Nos.2 and 3 did not appear in any column qua to khasra No,1310 in which the land in question is situated. The controversy between the parties was with regard to this Khasra number but this fact was not noted and considered by both the Courts below. In this view of the matter admission of the petitioner in cross- examination is not qualified admission, therefore, admission was wrong factually therefore, both the Courts below were erred in law to consider the same as admission on the part of the petitioner.
The same is also not in accordance with law laid down by the superior Courts. In arriving to this conclusion I am fortified by the following judgments:-- ' PLD 1989 SC 749 Khudayar v. Muhammad Razzaq and PLD 1975 SC 311 Ahmad Khan v. Rasool Shah.
The respondents failed to prove on record that respondents were in possession of the land in question as owners but this fact was not considered by both the Courts below. Even otherwise the ground of adverse possession is not available to the respondents factually as well as legally. In arriving to this conclusion I am fortified by the following judgment:- ' 1991 SCM R 2063 Maqbool Ahmad v. Government of Pakistan.
' Both the Courts Below have wrongly decided Issue No,1 against the petitioner relying upon section 1144 of Limitation Act as the case of the petitioner does not fall in the said section. The case of the petitioner is fully covered under section 142 of the Limitation Act and both the Courts below did not.
Advert to this aspect of the case and the suit of the petitioner is not time barred as per law laid down by the Hon'ble Supreme Court in the following Judgments 1987 SCMR 453 Khuda Yar's case PLD 1994 SC 462 Mool Chand and 9 others v. Muhammad Yousaf.
In view of what has been discussed above this revision petition is accepted and judgments of both the Courts below are set aside with no order as to costs.