' This revision petition filed by the petitioners, who were defendants in the trial Court, assails the appellate judgment and decree dated 5-4-1989 passed by the learned Additional District Judge, Gujrat. By means of the appellate decree, the judgment and decree of the learned trial Court dated 19-1-1988 dismissing the suit filed by the L.Rs. Of Karim Bukhsh plaintiff, was set aside. As a result, the suit of the said L.Rs. Of Karim Bukhsh was decreed.
2. The case set up by Karim Bukhsh was that he was owner in possession of land measuring 18 Marlas in Khasra No.53/2 in Mauza Tibbi Shahpur Gangaram, Kharian. The present petitioners, who are the L.Rs. Of Jannat Bibi, one of the defendants in this suit, however, claim that Karim Bukhsh did not have any title in the suit-land, which, as noted above, was comprised in Khasra No.53/2. The learned trial Court initially framed 7 issues including that of relief but thereafter added Issue No.7-A.
The said issues were framed as follows:--
(1) Whether suit does not lie? OPD.
(2) Whether suit is not maintainable in its present form? OPD.
(3) Whether plaintiff has no locus standi to sue? OPD.
(4) Whether suit is bad for misjoinder and non-joinder of necessary parties? OPD.
(5) Whether suit is bad for multifariousness of causes of action? OPD.
(6) Whether the plaintiff is entitled to relief claimed on the basis of grounds alleged in para No.4 of the plaint? OPD.
(7) Relief.
(7-A) Whether report of Local Commission is liable to be set aside? OPP.
2. Issue No.6 represents the principal area of contention between the parties. The learned trial Court while dismissing the suit of Karim Bukhsh, held that Karim Bukhsh was not in possession of a major portion of the suit-land and, as such, the suit was liable to be dismissed on the score that he had not prayed for possession by way of consequential relief. However, the documentary evidence, which is voluminous, was not considered by the learned trial Court in order to reach a conclusion as to the ownership asserted by Karim Bukhsh in the suit property. The learned lower Appellate Court also did not take into account the said evidence while accepting the appeal filed by the L.Rs.
Of Karim Bukhsh. It is in these circumstances that I have examined the evidence on record with the assistance of both learned counsel even though this: is a revision petition. This has been done with the concurrence of both learned counsel because the other alternative of remanding the case would have caused undue hardship to the parties, which are in litigation which was commenced in the year, 1981.
3. Learned counsel for the petitioners/defendants has, firstly, drawn the attention of the Court to Exh.P.11, which is a sale-deed dated 12-3-1957 executed by one Rashida Begum in favour of Karim Bukhsh, the predecessor-ininterest of the respondents Nos.1 to 11. The conveyance recorded in the said sale-deed was subsequently entered in the Revenue Record vide Mutation No.637 which is Exh.P.12 on record. From these documents, learned counsel for the petitioners/defendants has argued that Karim Bukhsh did not acquire any title in Khasra No.53/2, and was, therefore, not entitled to any decree or other relief in respect of the said Khasra number.
4. Learned counsel for the contesting respondents was therefore, asked to show from the record any document to establish that Karim Bukhsh was vested with title in the suit land. Learned counsel for the respondents acknowledged that the sale-deed Exh.P.11 and the mutation Exh.P.12 did not convey any title by the previous owner namely, Rashida Begum in favour of Karim Bukhsh. In view of this acknowledgement it is difficult to see how the contesting respondents could have succeeded in obtaining a decree in their favour. At this point, it is important to note that the land in dispute was clearly described by the respondent-plaintiff as falling within Khasra No.53/2. The relief claimed by them was also based on the assertion of their title in Khasra No.53/2. The said respondents being plaintiffs in the case were, therefore, obliged to prove their title in Khasra No.53/2 in order to succeed. I am not left in any doubt that.They have not been able to establish any right or title in Khasra No.53/2.
5. Learned counsel for the respondents/plaintiffs attempted to rely on the report of a Local Commission (Exh.P.W.1/1) to show that the respondents-plaintiffs had title in Khasra No.53/2. The report of the Local Commission cannot belie the fact that the document whereby Karim Bukhsh claims title i.e. Exh.P.11 does not convey title in favour of Karim Bukhsh in Khasra No.53/2. The report of the Local Commission (Exh.P.W.1/1) is, therefore, of no relevance. Learned counsel for the respondents-plaintiffs also drew the attention of the Court to the Khasra Gardawari Exh.P.4. I have seen this document. It does not in any manner establish the title of Karim Bukhsh in the disputed land.
6. Having failed to establish title of the respondents in Khasra No.53/2, learned counsel argued that even if the respondents had no title in the said Khasra, they were nonetheless owners in the joint Khata which included Khasra No.53/2. On this basis it was contended that the respondents were co-owners of the entire Khata and it was for the petitioners to file a suit for partition of the joint Khata in order to have/retain possession of any area in Khasra No.53/2. He also relied on the cases titled Inayat Khan and another v. Muhammad Saleem Khan and 15 others PLD 1993 SC (AJ&K) 4 and Muhammad Muzaffar Khan v. Muhammad Yousaf Khan PLD 1959 SC 9 in support of his contention. I have considered this argument of learned counsel for the respondedts and have also gone through the precedents cited by him. I find that the same do not advance the case of the respondents-plaintiffs. The precedent cases do not deal with situations, such as the present one, where title in a specific Khasra number comprised in a joint Khata was never conveyed to and thus does not at all vest in the claimant. In fact the ratio in the case of Muhammad Muzaffar Khan v.
Muhammad Yousaf Khan, cited by learned counsel for the respondents, goes against the argument advanced on behalf of the respondents.
7. For the foregoing reasons, the impugned appellate decree dated 5-4-1989 is set aside. As a result, the judgment and decree of the trial Court dated 19-1-1988 stands restored.