On the previous date, respondent Noor Muhammad was ordered to be served for today. The report of the Process-Server is that Noor Muhammad has refused to accept service. He is, therefore, deemed to have been served. None has appeared on his behalf. He is, therefore, proceeded against ex parte.
2. This revision petition filed by the petitioners/defendants assails the concurrent findings of the learned trial Court dated 25-11-1987 and of the learned lower Appellate Court dated 25-5-1989, whereby the suit filed by the respondent/plaintiff seeking declaration of title and possession was decreed.
3. The facts of the case are straightforward. The respondent/plaintiff claimed to be owner in possession of land measuring 16 Marlas comprised in Khasra Nos.6584/3069/1 in Mauza Mangat, Tehsil Phalia. Subsequently, an amended plaint was filed in which it was asserted that during the pendency of the suit, the respondent/plaintiff had been dispossessed by the petitioners/defendants. As a consequence, the relief by way of possession was also added in the amended plaint.
4. The case of the petitioners/ defendants, on the other hand, was that they were occupying the land in their possession from time in immemorial and further that the land in their possession was not comprised in the above-referred Khasra number. The learned trial Court framed Issues but no issue was framed as to the identity of the land in occupation of the petitioners/defendants and as to whether the same was comprised in the Khasra number, mentioned above.
5. Both parties led evidence. The Courts below have come to the conclusion that the respondent/plaintiff was indeed, owner of land measuring. 16 Marlas comprised in Khasra Nos.6584/3069/1. While coming to this conclusion, the Courts below have relied on the documentary evidence comprising of the Revenue Record, which was produced before the trial Court on behalf of the respondent/plaintiff.
6. No local commission was appointed by the trial Court nor was any appointment of such commission sought by the respondent/plaintiff with the object of inspecting the site and to ascertain if the land in occupation Of the petitioners/defendants was, indeed, comprised in Khasra No.6584/3069/1. In these circumstances, learned counsel for the petitioners contends that the mere determination by the Courts below that title in Khasra No. 6584/3069/1 was vested in the respondent/plaintiff, was not sufficient to decree the suit of the respondent/plaintiff for possession of the land occupied by the petitioners/defendants.
7. The contention of learned counsel for the petitioners is well-founded. Without there being anything on record to show that the land possessed by the petitioners/defendants was comprised in Khasra No.6584/3069/1, there was no basis for passing a decree directing possession of the said land to be delivered to the respondent/plaintiff. Since the onus of proving that the land in possession of the petitioners was, in fact, comprised in Khasra No.6584/3069/1 was on the respondent/plaintiff, it was incumbent upon him to discharge the said onus in order to succeed in the case. Since no proof has been led by the respondent/plaintiff in this behalf, it is clear that the two Courts below have committed material illegality by decreeing the suit filed by the respondent/plaintiff. As a consequence, the judgments and decrees of the two Courts below dated 25-11-1987 and dated 25-5-1989 are set aside. Resultantly, the suit of the plaintiff stands dismissed.
H.B.T./R-266/L