' This civil revision impugns the judgment and decree, dated 13-5-1991 passed by the learned Additional District Judge, Faisalabad, dismissing the appeal of the petitioner against the judgment and decree dated 30-5-1989 of the learned Civil Judge, whereby he decreed the suit for possession filed by the plaintiffs/respondents.
2. Brief facts of the case are that the respondents filed a suit for possession of Ihata situated in Chak No,232/RB, Faisalabad on the basis of ownership. It was alleged in the plaint that the plot/Ihata in dispute was owned by Mst. Sardaran widow of Ghulam Muhammad and after her death, the plaintiffs being legal representatives, were entitled to take possession on the basis of title. It was further alleged that Abdul Ghani petitioner/defendant had dispossessed them illegally.
3. The petitioner/defendant resisted the suit by filing the written statement. It was contended that the plaintiffs have no cause of action and the earlier suit was dismissed as withdrawn subject to payment of costs; costs has not been paid, therefore, the plaintiffs are not entitled to file the present suit. It was also contended that the petitioner/defendant was in possession of the disputed Ihata since 1947 as owner of the same.
4. From the divergent pleadings of the parties, the following issues were framed by the trial Court:-- ' ISSUES:
(1) Whether the suit is bad due to non-joinder of necessary party? OPD.
(2) Whether the defendant is entitled to special costs? OPD.
(3) Whether the plaint is deficiently stamped? OPD.
(4) Whether the plaintiffs are entitled to the possession of the disputed Ihata? OPP.
(5) Relief.
5. The respondents/plaintiffs produced Shah Muhammad and Abdul Ghafoor (one of the plaintiffs) as P.W.1 and P.W.2. Copies of record of right from the years 1956-57 up to 1984-85 were produced as Exh.P.1 to Exh.P.7. On the other side, Abdul Ghani petitioner/defendant appeared as D. W.1. Case of the plaintiffs was that the suit Ihata was owned by ,Mst. Sardaran widow of Ghulam Muhammad.
After the death of Ghulam Muhammad, Mst. Sardaran remarried with Abdul Ghafoor respondent No,l.
6. The learned Civil Judge on the basis of Jamabadis for the years 1956-57 up to 1968-69, Exh.P.1 to Exh.P.4, observed that the suit Ihata, Delongs to Ghulam Muhammad son of Noor Elahi and thereafter, in the Jamabandis for the years 1972-73, 1980-81 and 1984-85, Mst. Sardaran widow of Ghulam Muhammad was entered as owner in possession of the suit Ihata and since the plaintiffs/respondents claimed to be legal heirs of deceased Mst. Sardaran, which fact has been controverted by the petitioner/defendant, therefore, he recorded the finding that respondents/plaintiffs being legal heirs of deceased Mst. Sardaran have stepped in her shoes being owner of the suit land and are entitled to get the possession of the same. Further the learned Civil Judge observed that cost was paid, therefore, there was no bar in filing the suit. Suit of the respondents/plaintiffs was decreed vide judgment and decree dated 30-5-1989. Appeal filed by the petitioner/defendant was also dismissed by the learned Additional District Judge on 13-5-1991.
The learned Additional District Judge endorsed the findings on Issue No,4 recorded by the learned Civil Judge and observed that the plaintiffs were entitled to possession of the disputed Ihata.
7. Learned counsel for the petitioner contends that mere fact that at any stage of time, the predecessor-in-interest of the respondents was in possession of the d4uted Ihata, has not authorized the Courts below to pass the decree for possession in favour of the respondents as there is no title in favour of the respondents. He relied on the report of Local Commissioner to contend that it favours tne petitioner's contention that he is in possession of the suit Ihata since 1948. Finally it has been argued that judgments of the learned two Courts below are result of misreading of evidence. Further contends that the disputed Ihata was owned by Abdul Ghani petitioner. He argued that on the death of Mst. Sardaran Bibi widow of Ghulam Muhammad, the property will revert to Abdul Ghani being brother of Ghulam Muhammad asGhulam Muhammad died issueless, therefore, Mst. Sardaran will get 1/2 share and the suit for possession was riot.
Maintainable. Reliance has been placed on case reported as. Syed .Mohsin Raza Bukhari and 4 others v. Syed Azra Zeneb Bukhari (1993 CLC 31). To Contend that Paramount title has to be challenged before filing the suit for possession.
8. Admitted facts in the case are that the suit Ihata was in possession of Ghulam Muhammad. On the death of Ghulam Muhammad, his widow Mst. Sardaran re-married with Abdul Ghafoor. It is also admitted fact that Ghulam Muhammad died issueless. Mst. Sardaran being widow inherited 1/2 share in the property and the rest 1/2 share was to go to Abdul Ghani petitioner. Both Mst. Sardaran Bibi and Abdul Ghani were owners to the extent of 1/2 share each. Pararnount title vested in Abdul Ghani. In this view of the matter, simple suit on the basis of section 8 of the Specific Relief Act. Was not maintainable as held in case of Syed Mohsin Raza Bukhari and 4 others v. Syed Zenab Bokhari (1993 CLC 31). In which, this Court as rule observed as follows:-- "The unity of title and unity of possession must exist between the parties impleaded in the suit for partition qua the property sought to the partitioned. If any one impleaded in the suit claims a paramount title in the property. Obviously he is negating unity of title and as such plea fell outside the scope of the partition suit."
' Since Ghulam Muhammad and Abdul Ghani were the sons of Bhour Ali. Therefore, after the death of' Ghulam Muhammad Mst. Sardaran could have inherited 1/2 share. Merely on the basis of possession entered in the Jamabandis. Suit could have not been decreed. The learned Civil Judge as well as learned Additional District Judge have misread the Jamabandis for the years 1956-57 up to 1984-85. Exh.P.1 to Exh.P.7 and misinterpreted the law and thus committed material irregularity and illegality in passing the decree against the petitioner.
9. For what has been discussed above, this revision petition is allowed. The judgments and decrees dated 30-5-1989 of the learned Civil Judge and dated 13-5-1991 of the learned Additional District Judge, are set aside. Suit of the respondents/plaintiffs is dismissed. However, there is no bar in filing the suit for partition. Parties to bear their own costs.