' Through this revision petition, petitioner has challenged judgments and decrees respectively passed by learned Civil Judge, and learned Additional District Judge, Multan.
2. Respondent filed a suit for recovery of possession, mesne profit and perpetual injunction on 1-9- 1984 claiming that petitioner-defendant being an encroacher and illegal occupant has made unauthorised constructions. Petitioner filed his written statement contesting the suit on a number of grounds including limitation and misdescription of property etc. The petitioner-defendant claimed that according to plaint three Marlas of land underneath respondent-plaintiff's house was allegedly located in Khasra No,148 of Chah Ariwala, Mauza Qutab Pur, Tehsil and District, Multan, whereas petitioner-defendant's property was located in Zakariya Colony, Chah Salehwala, Mauza Qutab Pur, Tehsil and District, Multan. Following 9 issues were framed:--
(1) Whether the suit is time-barred?
(2) Whether the valuation of suit is incorrect for the purposes of court-fee and jurisdiction?
(3) Whether the description of the property is incorrect, if so, what is the correct description?
(4) Whether the suit is bad for non-joinder of necessary parties?
(5) Whether the defendant is entitled to get the special costs under section 35-A, C. P. C ?
(6) Whether the plaintiff is entitled to get the possession of the suit property?
(7) Whether the plaintiff is entitled to get the mesne profits i,e, Rs,3,240 from the defendant?
(8) Whether the plaintiff is entitled to get the decree for mandatory injunction?
(9) Relief.
' Parties lead their evidence in support of their respective cases. The learned Civil Judge, vide his impugned judgment and decree decided issues Nos.6, 7 and 8 in favour of the respondent-plaintiff and against the petitioner-defendant but did not decide issues Nos.1 to 5 for absence of evidence thereupon. Petitioner-defendant's appeal was also dismissed by the learned Additional District Judge on the basis of decision on Issues Nos.6, 7 and 8 only.
3. Learned counsel for the petitioner-defendant has contended that evidence was specifically led on issues Nos.1 to 5 by the petitioner-defendant, wherefor, learned Courts below failed to exercise jurisdiction vesting in them by refusing to decide the said issues on merits. It was also contended that the learned Courts below neither applied their mind nor at all discussed the evidence presented by the petitioner in support of his written statement on Issues Nos.6 to 8. Failure of respondent-plaintiff to produce any evidence of his title to the suit land was also overlooked by the Courts below in deciding the question of respondent-plaintiff's title to the suit land, and Issues Nos.6, 7 and 8 have been decided by the learned Courts in favour of the plaintiff-respondent and impugned judgments and decrees were rendered only on the basis of photocopy of "Register Haqdaran-e-Zamin" (Exh.P.1), report of demarcation proceedings (Exh.P.2) and Naqsha demarcation (Exh.P.3) produced by respondent No,1 in evidence. It is contended that these documents were wrongly exhibited by the learned Civil Judge and petitioner's objection thereto as recorded but not decided by the learned Courts below and that these documents were neither documents of titled nor were the same admissible in evidence or could become basis of impugned judgments and decrees. According to the learned counsel for the petitioner Exh.P.1 was a photocopy and Exh.P.2 and Exh.P.3 i,e, demarcation proceedings and Naqsha thereof prepared by Revenue Officer remained unproved as author of this report and Naqsha was not produced and even otherwise demarcation proceedings were illegal and void qua the petitioner for having been prepared without notice to him and without his participation contrary to the provisions of law.
4. Contrarily, learned counsel for the respondents claimed that the land in question was properly described and petitioner was in illegal occupation and further that the impugned judgments and decrees had been properly passed.
5. Having considered the arguments and the record, I am of the opinion that the learned Courts below have not only failed to exercise jurisdiction vesting in them but have also exceeded their jurisdiction in passing the impugned judgments and decrees totally on the basis of the above said (Exh.P.l) copy of the Register Haqdaran-e-Zamin", (Exh.P.2), report of demarcation proceedings and (Exh.P.3) Naqsha demarcation. These exhibits cannot be termed as title documents proving ownership of respondent-plaintiff on the suit land. Furthermore, it has not been denied by the learned counsel for the respondent that Exh.P.1 being a photocopy and was erroneoulsy exhibited by the learned Civil Judge and the same was inadmissible in evidence. I find considerble force in contentions of the learned counsel for the petitioner that demarcation report and Naqsha having been prepared at the back of the petitioner and without notice to him were ineffective documents qua the rights of the petitioner and contents of Exh.P.2 and Exh.P.3 could not at all be relied upon for decision of the controversy of title as well as description of the suit property between the parties.
Even rule 67-A of Land Revenue Rules relating to demarcation of land specifically provides in sub- rule (4)(c) that the Revenue Officer concerned shall cause a notice in Form 33-B to be issued to the parties to the application as well as to any other person whose presence is considered necessary or expedient by the said Revenue Officer and under sub-rule (5) of the above-said rule 67-A, service of such was made compulsory. For proper perspective the relevant provisions of rule 67-A of West Pakistan Land Revenue Rules, 1968 are reproduced hereunder:- "67-A. Demarcation of land.---An application under section 177 for defining the limits of an estate, a holding, a field or any portion thereof, shall contain the following particulars:--
(1) (a)
(b) --------------
(c) --------------
(d) --------------
(e) -------------- (f)
(g) --------------
(2) (a) --------------
(b) --------------
(3) (a) --------------
(b) --------------
(4) The Revenue Officer concerned shall:
(a) (b) -----------------------
(c) cause a notice if Form XXXIII-B to be issued in duplicate to--
(i) the parties to the application;
(ii) Lambardar of the village in which the land mentioned in the application is situated;
(iii) Field Kanungo of the Circle;
(iv) Revenue Patwari of the village if the notice is to be served through him; and
(v) any other person whose presence at the time of demarcation of boundaries is considered necessary or expedient by the Revenue Officer.
(5) The notice issued under clause (c) of the preceding sub-rule shall be served on the person mentioned therein, in the following modes, at least one week before the date fixed for demarcation of land:--
(a) By delivering a copy thereof to the person mentioned therein and obtaining his signature or thumb-impression on duplicate copy in token of his having received the same;
(b) In case of refusal to receive the notice or absence of such person, by affixing a copy thereof on the outer-door of his house of place of residence, in the presence of at least one witness and also by beat of drum at the expense of the applicant;
(c) If any person to be served is residing at a place, other than the village in which the land is situated, notice shall be served on him, by means of registered post 'Acknowledgement due', or by any other means as the Revenue Officer deems fit. The expense for such service shall be brone by the applicant.
(6) At the time and on the date fixed for demarcation of boundaries, the Revenue Officer shall, in the presence of the parties and other persons mentioned in clause (c) of sub-rule (4) as may be present in response to the notice served on them, cause the measurement of the land to be taken under his personal supervision, strictly in accordance with the instructions and standing orders on the subject issued by the Financial Commissioner and the Board of Revenue from time to time.
(7)(a).
(i)..
(ii).
(iii)
(iv).
(v)..
(b)..
(c)
The petitioner failed to produce in evidence application for demarcation to show parties thereto, notices duly served upon the petitioner to prove his participation in demarcation proceedings, or to summon the relevant Revenue Officer or the record from the Revenue Officer to prove due compliance with the mandatory provisions of the above quoted Rules. It is, therefore, held that Exh.P.2 i,e, demarcation and Exh.P.3 i,e, Naqsha demarcation are not legally binding and valid documents qua the rights of the petitioner for the purposes of deciding Issues Nos.5, 6 and 7 between the parties to the suit. The only other evidence presented by the respondent in support of his case was his own statement as P.W.1. After making the general statement in examination-in- chief, the respondent in cross-examination denied knowledge of each and every fact put to him including the description of property, its boundaries, modalities of demarcation, service of notice, petitioner's alleged occupation and identity of suit property. As such the statement of respondent was also inadequate in resolution of questions of identity, title possession of suit land and period of such occupation for said issues.
6. It is also noteworthy that the learned Courts below for decision upon said issues had neither attended to nor considered oral and documentary evidence presented by the petitioner in support of his case, wherefor impugned judgments and decrees cannot be survived.
7. A cursory examination of the evidence also supports the contention of learned counsel for the petitioner that there was adequate material and evidence on record to give judgment on Issues Nos.1 to 5 or at least some of them but the Courts below failed to apply their mind to the same. The learned Additional District Judge also overlooked the specific grounds raised in appeal seeking a decision upon the said issues. As such, the learned Courts below have failed to comply with the mandatory provisions of rule 5 of Order XX, C.P.C.
8. As a result thereof his revision petition is accepted, the impugned judgments and decrees passed by the Courts below are set aside. The case is remanded to the learned Civil Judge, Multan for re-decision in accordance with law within a period of three months. The parties are left to bear their own costs.