' On 23-(sic)-1991 the petitioners filed a suit against the respondents. In the plaint it was stated the common ancestor of the petitioners and respondents Nos.1 to 6 was owner of 141 Kanals, 7 Marlas of land described in para.1 of the plaint. After the consolidation the said area was divided into two plots. The first plot measured 102 Kanals, 5 Marlas and inter alia included Khasra No,8 measuring 8 Kanals, 18 Marlas (in Square No,35). This plot vested in Sher Khan, the predecessor-in-interest of the petitioners and Lal Khan, the predecessor-in-interest of the respondents, alongwith others. The second plot measured 39 Kanals, 2 Marlas and vested in Sardar Khan. The petitioners complained that although the said Khasra No,8 in Square No,35 vested jointly in the parties, somehow or other Lal Khan managed to get himself recorded as the exclusive owner thereof in the Register Haqdaran Zamin for the year 1986-87. According to the petitioners they were in possession of the said Khasra No,8 as co-sharers and are liable to retain the same till partition. The respondents in their written statement admitted the said material facts as to the ownership of the land by the common ancestor and then the consolidation and the resulting configuration. Still they prayed for the dismissal of the suit. Following issues were framed:--
(1) Whether the plaintiff has no cause of action? OPD
(2) Whether the defendants are entitled to special costs under section 35-A of C.P.C.? OPD
(3) Whether the entries in the Record of Rights for the year 1986/87 in respect of Khasra No,8 measuring 8 Kanals, 18 Marais, Sq. No,35 of Chak No,81/R.B. Is illegal against the rights of the plaintiff and same entries are liable for rectification as prayed for? OPP.
(4) Relief.
' Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 18-4-1993. The first appeal filed by the petitioners was dismissed by a learned A.D.J., Sheikhupura, on 17-10-1996.
2. Learned counsel for the petitioners contends that the learned Courts below have failed to read the pleadings and then the evidence on record while passing the impugned judgments and decrees, which cannot be sustained. No one has turned up for the respondents Nos.1 to 6 who are represented by Ch. Muhammad Ashraf, Advocate, whose name stands duly listed in the cause list for today. No one has turned up despite repeated calls. They are proceeded against ex parte.
Respondent No,7, otherwise, a pro forma, has been issued notice for today but no one has turned up. The said respondent is also proceeded against ex parte.
3. I have gone through the copies of the records, with the assistance of the learned counsel. I have already reproduced above the respective pleadings of the parties. Now Muhammad Riaz defendant/ respondent No,2 appeared as D.W.2. In his cross-examination he was put the case as set up in the plaint by the petitioners. Following is his response:-- {{URDU TEXT}}
4. Now despite the said admitted position of the case, the learned A.D.J. Has insisted that since the order of confirmation of the schemes Exh.P.8 has not been produced, the said consolidation was not implemented and that the petitioners are challenging the consolidation proceedings and this cannot be done. The said finding is perverse. The petitioners had not challenged consolidation proceedings. Their case was that in the consolidation proceedings the said suit-land came to vest in the parties jointly but Lal Khan has managed to get him recorded as an exclusive owner. Riaz who is the son of said Lal Khan has admitted the entire case set up by the petitioners in their plaint.
The impugned judgments and decrees, therefore, squarely fall within the mischief of section 115, C.P.C. Both the learned Courts below have acted without jurisdiction for proceeding to dismiss the suit when the case stood admitted both in the pleadings as well as in the evidence. The civil revision accordingly is allowed. Both the impugned judgments and decrees accordingly are set aside and the suit of the petitioners is decreed as prayed. Since the respondents have not opted to appear and to contest the civil revision, no orders as to costs.