' On 19-5-1980 the petitioners filed a suit against the respondents.
' In the plaint it was stated that the petitioners are owners of land measuring 3 Kanals, 11 Marlas bearing Khasra No,588; that Kamal Din. The predecessor-in-interest of the petitioners sold 3 Marlas of land to respondent No,1 in the year 1966 and delivered possession to him; that similarly the said Kanal Din sold the remaining land except 8 Marlas described in the plaint. It was complained that the respondents had taken possession of the said 8 Marlas and the possession was claimed. The respondents took the plea that the entire Khasra No,588 had been sold by the petitioners and that said 8 Marlas of land bears Khasra No,31/25/2 according to Khatuni Ishtimal and has been wrongly given to the petitioners. Following issues were framed:-- "(1) Whether the plaintiffs are owners of the suit-land as described in para. No,2 of the plaint, as such entitled for decree for possession? OPP
(2) Whether the suit is bad for misjoinder of parties? OPD.
(3) Whether this suit is time-barred? OPD.
(4) Whether this suit is deliberately wrongly valued for the purposes of court-fee? OPD.
(4-A) Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD.
(4-B) Whether the suit is not maintainable in its present form? OPD.
(4-C) Whether the defendants have become owners through adverse possession? OPD.
(5) Relief.
Evidence of the parties was recorded. The learned trial Court vide judgment and decree, dated 22- 11-1987 decreed the suit. A first appeal filed by the respondents was heard by the learned Additional District Judge, Daska who allowed the same and dismissed the suit on 5-4-1994.
2. Learned counsel for the petitioners contends that the learned Additional District Judge has proceeded to pass the impugned judgments and decree without caring to read the evidence on record. Further contends that the plaint was amended from time to time with the permission of the Court and once an amendment is allowed, then it cannot be said that the plea has not been raised. No one has turned up for the respondents who are represented by Mr. Muhammad Siddique Minhas, Advocate who was not turned up despite calls. They are proceeded against ex parte.
3. I have gone through the records, copies whereof are appended with this Civil Revision, with the assistance of the learned counsel. It is an admitted position that the petitioners were owners of erstwhile Khasra No,588 measuring 3 Kanals, 11 Marlas. This would be evident from copy of Misal-e- Haqiat for the year 1956-57 (Exh.P.8) and Khasra Girdawaris (Exhs.P.9 and P.10). Now the plea set up by the respondents was that the petitioner had sold away the said entire land. There is no evidence on record regarding the said plea of the respondent. Admittedly the revenue estate came under consideration and vide order dated 22-3-1981 (Exh.P.5) of Collector (Cons.) 8 Marlas comprising Khasra No,25/2 was given to Kamal Din. It may be noted that this area was given to Kamal Din alongwith other area after withdrawing 5 Kanals, 6 Marlas of Class I land from him. This order was challenged by the opposite-party and the Additional Commissioner (Cons.), Lahore Division remanded the case on 27-4-1982. Thereafter vide order, dated 9-1-1983 (Exh.P,6) Khasra No,31/25/2 measuring 8 Marlas was given to the petitioner party. During the settlement proceedings this was allocated No,459 as would be evident from Misl-e-Haqiat 1982-83 (Exh.P.17). This Khasra No,459 measuring 8 Marlas was in fact given No,2868/459 and was carved out of the Main No,469 (as per copy of Register Haqdaran Zamin for the year 1977-78 Exh.P.18). The learned Additional District Judge failed to note that the owners recorded in the said document Exh.P.18 were the opposite- party in the said consolidation order (Exhs.P.5 and P.6). It is indeed shocking that whereas the petitioners proved on record that 3 Marals sold by them to the respondent No,1 is in his possession, he proceeded to under the judgment of the learned trial Court and went miles out of the way to allow the appeal by observing that 8 Marlas of land was somewhere lying vacant and must have been taken over by the respondents. This observation is simply preposterous for the simple reason that the learned Additional District Judge had to bend his back in order to set aside not one but two orders made by Consolidation Officers in exercise of exclusive jurisdiction vesting in them allocating the said 8 Marais to the petitioners. Such a land could not have been held to be "res nullius" and presented to the respondents. The learned Additional District Judge while criticizing the multiple amendments in the plaint completely lost sight of the fact that in the initial written statement filed on 21-7-1981 I have already stated above that the suit was filed on 19-5-1980 took the objection that the Additional Commissioner has granted a status quo order against the order of the Collector (Cons.) and the suit be not proceeded with till such time that the Additional Commissioner decides the case. Exh.P.6 was passed on 9-1-1983 after the remand of the case by Additional Commissioner on 27-4-1982. This would show that the respondents were fully aware of the proceedings pending between the petitioners on the one hand and their opponents in the consolidation proceedings on the others, yet they opted not to join the same or to challenge the same. The learned Additional District Judge also lost sight of the fact that the amendment of the plaint vis-a-vis the description of the land was necessitated because of. The said orders passed by Consolidation Authorities and no malice could have been read into the said amendments.
4. The learned Additional District Judge has taken care of the case of the respondents by stating that the weakness in their case could not be made the basis for decreeing the suit. This is of course true but this proposition cannot at all be utilized to deliberately weaken the case of the successful party by exercising the jurisdiction by a Court not vesting in it. In the present case the learned Additional District Judge has proceeded to set aside the orders of the Consolidation Authorities to create a vacant unclaimed piece of land and to hand over the same to the respondents. Under no norms of law, equity and justice such a procedure is permissible to any Court. In this case the parties were on record with their pleadings. They had been given a chance to prove their respective case. They have led their evidence and the matter had to be decided on the basis of said evidence and not conjectures and surmises, particularly when the entire evidence on record led only to the one conclusion that 8 Marlas of land was relatable to the original ownership of the petitioners; there being no evidence in support of the plea of the respondent that the petitioners had sold away the entire land; no denial of the fact that only 3 Marlas were sold by the petitioners to the respondents, possession whereof was delivered to them and the consolidation proceedings and the orders passed therein which are immune from scrutiny in Civil Court, particularly when the respondents had not claimed any title in the said land. The only plea raised was of adverse possession which according to the learned Additional District Judge is against the Injunctions of Islam.
5. In view of he above discussion the impugned judgment and decree of the learned Additional District Judge cannot be sustained in this Civil Revision on the touchstone of section 115, C.P.C. This Civil Revision is accordingly allowed. The impugned judgment and decree dated 5-4-1994 of the learned Additional District Judge, Daska is set aside while that passed by the learned trial Court on 22-11-1987 is restored. No orders as to costs.