The petitioner through this revision petition has assailed the legality and propriety of the judgment and decree of the First Appellate Court by virtue of which the appeal filed by the respondent, defendant in a suit for permanent injunction, which was decided by the trial Court against hint, was accepted and the judgment of the trial Court was set aside. The result was that the suit of the present appellant for permanent injunction restraining the respondent for interfering in her possession was dismissed.
2. Briefly stated the facts are that the petitioner, Mst. Amina Bibi, claiming herself to be the owner in possession of the property, partly by way of a gift executed in her favour by Miraj Din (her father) and partly by way of sale from Gillani Bukhsh, the predecessor-in-interest of the present respondent and the paternal uncle and also father-in-law of the present petitioner. The gift-deed was dated 9-6-1980 and the sale-deed dated 20-9-1980. It was alleged that the respondents wanted to interfere in her possession for which they have got no rights and prior to the tiling of the present suit the respondents did make certain attempts to take possession of the property from her in an illegal manner and the petitioner submitted an application to the S.P., Gujrat on 26-7-1980 in this behalf but of no avail. The defendants contested the suit on various grounds including the ground that the parties are in possession of their respective portions by way of a family partition.
On the pleadings of the parties, the trial Court framed following issues:
(1) Whether the plaintiff has got no locus standi and cause of action to file this suit? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the plaintiff is estopped by his words and conduct to institute the present suit? OPD,
(4) Whether the suit is bad for non-joinder of necessary parties? OPD
(5) Whether the plaintiff is entitled to the decree as claimed for in the main suit? OPP.
(6) Relief.
The trial Court after recording the evidence of the parties came to the conclusion that the suit of the present petitioner was liable to be decreed and decreed it accordingly on 3-11-1987. The respondents before this Court challenged this judgment and decree of the trial Court. before the First Appellate Court from where his appeal was allowed and the judgment and decree of the trial Court was set aside and the suit of the present petitioner, plaintiff before the trial Court was dismissed. The petitioner feeling herself aggrieved has filed the present revision petition.
3. Learned counsel for the petitioner has submitted that the respondents, who have no rights with regard to the suit property either as owners or otherwise, are threatening to interfere in the possession of the present petitioner who is owner of the property by way of gift as well as by way of sale as above stated.
4. On the other hand, learned counsel for the respondents submitted that the First Appellate Court has made appointment of a Local Commissioner i.e. Ahlmad of his Court who was sent to ascertain the possession over the suit property and that the Ahlmad submitted the report in favour of the present respondents. The present petitioner has not filed that report of the Local Commissioner and the orders of the First Appellate Court with regard to the appointment of his Ahlmad as Local Commissioner alongwith this petition, as such the revision petition on this score is liable to be dismissed.
5. Learned counsel for the petitioner ' while summing up the arguments has submitted that an official of one's own Court cannot be appointed as Local Commissioner and this practice is not appreciated too by the superior Courts.
6. After having heard the learned counsel for both parties and perusing the material available before this Court, the fact which emerges that although it was necessary for the present petitioner to have placed on record of this revision petition the orders of the First Appellate Court by virtue of which appointment of Ahmad of that Court was made as Local Commissioner and copy of the report submitted by him before the First Appellate Court. Learned counsel for the petitioner has frankly admitted that he has not done so. There is nothing on \ record that whether the report of that Local Commissioner was ever made part of the record after giving opportunity to both the sides to submit their objections and whether statement of Local Commissioner was ever recorded by the First Appellate Court. There is nothing on record in this regard and the learned counsel for the respondents has not placed any material with regard to this aspect of the matter. The matter, which requires determination is the ownership of the plaintiff and claiming possession over the suit property by her and her assertion that her possession is being threatened to be disturbed by the respondents. P.W.1, who is a material witness being relative of both the Parties, has stated specifically that the petitioner is owner in possession of the suit property and the respondents have no right with regard to this property. The respondents claimed family partition of this property and in this claim of the respondents it was mandatory for the respondents to have placed that proceedings of family partition upon record but no such family partition is available on record. In view of the above discussion, the petitioner being owner of the property partly by way of gift deed dated 9-6-1980 and partly by way of sale in her favour dated 20-9-1980 is the owner in possession of the property and has the right to protect her possession and the respondents have no right to interfere in her possession. The trial Court has rightly decided in her favour and the findings of the Trial Court are liable to be maintained. The conclusions arrived at by the First Appellate Court are not supported from the record, hence are liable to be set aside:
7. In view of the above discussion, the revision petition is accepted. The impugned judgment and decree of the First Appellate Court is set aside and the judgment and decree of the trial Court is maintained. The result is that the suit of the present petitioner for permanent before the trial Court stands decreed in her favour. No order as to costs.