On 8-1-1973 the respondents filed a suit against Muhammad Khan, appellant (now deceased and represented by his L.Rs,). , In the plaint it was contended that Khasra No:651 measuring 184 Kanals, 16 Marlas was owned by Non-Muslim Evacuees; that out of the said land, suit-land measuring 53 Kanals bearing Khasra No,3144/651 was transferred to one Zakir Hussain. At the time of allotment of Tatima was carved out and Khasra No,651/1 was allotted to the said land while the remaining area of 131 Kanals, 15 Marlas was given Khasra No,651/2; that Zakir Hussain sold away the suit-land vide Mutation No,5658 attested on 12-10-1971 in favour of the respondents and delivered possession to them; that the remaining land was transferred to some other claimants and was ultimately sold to the defendants in the suit i,e, the appellant and Fateh Khan son of Sultan and they are in possession of the same; that the said defendants in collusion with the. Revenue Officials have got prepared a new Tatima attached with Jamabandi for the year 1963-64, whereby the land of the respondents has been shown in the North of the said Khasra number. With these averments it was prayed that the said Tatima with Jamabandi for the year 1963-64 be declared to be illegal and void and the defendants in the suit be restrained from interfering with the possession of the respondents. The suit was contested only by the appellant who filed a written statement and contended that Zakir Hussain was transferred the Northern portion and not the Southern portion and that the Tatima with Jamabandi for the year 1963-64 is correct. Issues were framed, relevant being Issues Nos,3 and 4 which are being reproduced here:--
(3) Whether the plaintiffs are owners-in- possession of the suit-land described in the headnote of the plaint?
(4) Whether the Tatima Shajra attached with Jamabandi for the year 196364, is void, illegal, against facts, without lawful authority and is ineffective upon the rights of the plaintiffs?
Evidence of the parties was recorded. The learned Trial Court found issue No,3 in favour of the respondents and proceeded to decide issue No,4 in their favour on the basis of said finding. The suit was decreed vide judgment and decree dated 30-6-1976. A first appeal was filed by the appellant wherein the said Fateh Khan defendant was impleaded as respondent No,4. This first appeal was heard by a learned Additional District Judge, Sargodha who dismissed the same on 15- 6-1977.
2. Learned counsel for the, appellants contends that the learned Courts below have wrongly relied upon the Tatima and report Exh.P.i. According to the learned counsel the overall effect of the evidence on record was that the land purchased by the respondents was in the Northern portion of the main Khasra No,651.
3. Leaned counsel for respondents Nos,1 to 3, on the other hand, supports the impugned judgments and decrees of the learned Courts below.
4. I must state in the very beginning that the record in, this case appears to have been lost and was re-constructed by the learned trial Court. The appeal has been heard with reference to the said - re-constructed record as also the documents present in the respective briefs of the learned counsel.
5. The present R.S.A. and the suit wherefrom it has arisen do not involve any question of title. The learned Court below have rightly understood the controversy which is regarding the location of the land purchased by the respondents vis-a-vis the main Khasra No,651. The contention of the respondent is that the said 53 Kanals of land is located in the Southern portion of the main Khasra No,651 while the appellant contends that it is in the North. It is also an admitted position on record that the Tatima was prepared at the time the land was allotted to Zakir Hussain on the RL-II. Now the said Tatima is not forthcoming. The respondents did not make any effort to produce the Register RL-II to ascertain the said fact as to what were the contents of the Tatima which was prepared and attached to the RL-II as alleged in para. 4 of the plaint. P.W.2 Ghulam Hussain, Patwari has stated that he has not brought along the said RL-II. On the other hand, Muhammad Aslam, Patwari has been produced as D.W.2 by the appellant. He has stated that Exh.D.1 is the copy of RL-II of Khata No,7 (of Zakir Hussain). There is no entry of any Tatima in the said Khata which was entered by Fateh Muhammad, Patwari that the classification of 53 Kanals of land is Ghair Mumkin; that on Khata No,10 land measuring 59 Kanals bearing Khasra No,651/2/1 was allotted and out of this land 28 Kanals is Naledar and 31 Kanals is Ghair Mumkin Nala; that the Partal was made by the Girdawar on 22-11-1960 and Tehsildar made a preliminary proposal on 28-1-1961 and on the same date he ordered that the Tatima be prepared and filed; that he prepared the Tatima and made a note on the RL-II; that the Tatima is not present in the RL-II; that according to the said lost Tatima the area of the appellant was in the South.
6. D.W.3 is Muhammad Hussain, Patwari who states that he had entered Mutation No,5234 to incorporate Khata No,10 which is of RL-II, in the Jamabandi and at that time the Tatima was present in the RL-II and the mutation was entered in accordance with the same and incorporated in the Jamabandi.
5. I therefore, find that it is the case of both the parties that at the time the allotments were made the Tatima were prepared and were attached to the Khatas with the RL-II but none of the said Tatima is forthcoming. Both the parties claim that the land allotted to their respective vendor is located in the South of the main Khasra No,651. This leaves us with the Tatima prepared by Ghulam Hussain, Patwari P.W.2 and Muhammad Hussain, Patwari, D.W.3 as Exhs.P.1 and F.4. 1 find that the learned Additional District Judge has preferred Tatima Exh.P.l upon a comparison with Aks Shajra Exh.P.11. He has opined that since Khasra No,657 allotted to Zakir Hussain is adjacent to Khasra No,651 on its Southern side and Zakir Hussain Could not have accepted the allotment of land which was Garanda (Ghair Mumkin) and not adjacent to his land. To my mind this is pure conjecture. A perusal of Exh.P.11, shown to me by the learned counsel for the appellant from his brief and correctness not contested by the learned counsel for the respondents, shows that Khasra No,651 is more towards the West of Khasra No,651 than towards its South and as such stands separated from the said Khasrs number.
8. In the above state of evidence I am of the opinion that the evidence on record does not support the concurrent findings recorded be the learned Courts below. This was a case where the learned trial Court or for that matter the learned Additional District Judge ought to have exercised powers vested in them under section 75 read with Order XXVII, C.P.C. and to have ordered local investigation. I, therefore, allow this R.S.A., set aside the judgment and decree passed by the learned Additional District Judge and remand back the first appeal to him. He shall appoint a senior local Revenue Officer as a Local Commissioner who shall conduct proceedings on the spot in presence of the parties and to ascertain as to whether the land mentioned in the plaint measuring 53 Kanals as transferred to Zakir Hussain and then sold to the appellant is located in the Southern or the Northern part of the main Khasra No,651 and of course the location of the land admittedly sold to the appellant measuring 59 Kanals and as to whether the Tatima appended with Jamabandi for the year 1963-64 is correct or not. He shall file his report with the learned Additional District Judge and he shall then proceed further in the matter and decide the appeal filed by the appellant on its merits in the light of the report so received and of course other evidence on record. The reconstructed record be immediately remitted back to the Court of learned District Judge, Sargodha where the parties shall appear on 23-11-2000 for further directions. No orders as to costs.