2003 PLP 962 (CLC)

The petitioners through this revision petition have assailed the orders of the First Appellate Court dated 24-1-1996 by virtue of which the judgment and decree of the trial Court dated 9-7-1987 dismissing the suit of Mst. Riaz Fatima and others, present respondents, was set aside and their suit for possession was decreed in their favour.

2. Briefly stated the facts of the case are that Mst. Riaz Fatima -and others brought a suit for possession of the property measuring 1 Kanal and 19 Marlas situated in Khasra No.1876/238/2 with the averments that defendant No.2 Mrs. Khudija Ijaz is also owner of the property alongwith the plaintiffs but she has not joined the plaintiffs, hence she is impleaded as defendant. It was alleged that Lal Din, had died and the present petitioners are his successors-in-interest, defendant had prepared a forged and fictitious registered sale-deed of transfer of the property in his favour, got necessary map, and permission from the. Municipal Committee for the purpose of raising of construction arid had raised construction over it. It was alleged that defendant No.l is an encroacher and is in illegal possession of the suit property, hence a decree for possession of the property be passed directing defendant No.l to deliver the possession of the property and also to remove tire superstructure raised thereupon. The defendant No. l contested the suit with the averments that he has purchased this property through two different sale-deeds dated 5-9-1967 and 27-9-1967 from one-Amanat Ali and also brought a suit for this purpose titled `Lal Din v.. Yasin etc.' Defendant No. l has raised construction by spending a huge amount. The trial Court, on the divergent pleadings of. the parties, framed following issues:

(1) Whether the plaintiff has no cause of action? OPD (2) Whether the plaintiff has not come with clean hands? OPD' (3) Whether the plaintiff is estopped to bring this suit by his own conduct? OPD (4) Whether the suit is not maintainable in its present form? (5) Whether suit is time-barred? OPD (6) Whether suit has become infructuous? OPD (7) Whether plaintiff is entitled to decree for possession? (8) Rrelif. The trial court after recording the evidence of the parties and hearing arguments proceeded to dismiss the suit vide judgment and decree dated 9-7-1987. The plaintiffs being - aggrieved of the judgment of the trial Court filed an appeal before the First Appellate Court from where the appeal was allowed and the judgment and decree in question was set aside and their suit for possession of the property was decreed in their favour and against the defendants/ present petitioners. The present petitioners feeling themselves aggrieved have filed the present revision petition.

3. I have heard the learned counsel for the parties and perused the material made available before this Court. The main submission of the learned counsel for the petitioners is that the original owner of this property was, Amanat from whom the, predecessor-in-interest of present petitioners purchased this property through two registered sale-deeds dated 5-9-1967 and 28-9-1967, which have been placed on record as EXhS.D.1 and

2. It is also submitted that the property purchased by their predecessor is located in Khasra No.1876/238/2 and they are in possession of the property, The plaintiff before getting demarcation of the property had a report of 'Tajaviz' filed the present suit. It is also submitted that a Local Commissioner was appointed in this case on their request while having litigation on the reported that the defendant has made no encroachment over the suit property and in this context the judgment of the trial Court was correct and the First Appellate Court has mis read and non-read the evidence on record and is liable to be set aside. 4.- Learned counsel .for the respondent has supported the judgment and decree of the First Appellate Court and .has asserted that on the Revenue side there was litigation in between the parties and the matter was finally disposed of by the Additional Commissioner in their favour over which the parties had litigation up to the Member, Board of Revenue and also of a writ petition but of no avail.

5. After giving due consideration to the submissions of both the parties and perusing the material made available before this Court, although there was litigation in between both the parties on the Revenue side but in the civil suit titled Rafique and others v. Muhammad Hussain and others' in which Rafique Ahmad etc. (successor of Lal Din) did challenge the orders of the Revenue Authorities through a suit for declaration and permanent injunction in which the predecessor-in-interest of the present plaintiff Muhammad Hussain was a party and in which the matter was compromised with the result that the suit of the plaintiffs i.e. Muhammad Rafique etc., the successors-in-interest of Lal Din was decreed in their favour and against the predecessor-in-interest of the present plaintiff on 2-11-1991. It is also established on record that the Local Commissioner, who dealt with the matter of demarcation of the property did report on 16-1-1986 that no encroachment over the suit property to have been made by the present defendant. Even otherwise the report of the Tehsildar, available at page 72 of the judicial file, dated 14-9-1980 also gives no finding of any encroachment of land to have been made by the defendant. The property claimed by the plaintiffs is situated in Khasra No.1876/278/2 whereas the defendants allege to have purchased the property situated in Khasra E No.1876/238/3 and it was the duty of the plaintiffs who had approached the Court to establish that they are owners of the suit property over which encroachment has been made by the defendants and they are entitled to have the restoration of the possession from the defendants after removal of the encroachment. In view of .that above, there is no cogent evidence available in support of their plea, as such the First Appellate Court has misread the evidence on record and its judgment suffers from illegality and material irregularity, therefore, the judgment of the First Appellate Court is liable to be set aside and the trial Court is to be maintained.

6. In view of the above discussion, the present revision petition is allowed, the judgment and decree dated 24-1-1996 by the First Appellate Court is set aside and the- judgment and decree, dated 9-7-1987 of the'-trial Court is restored. Resultantly the suit filed by Mst. Riaz Fatima etc. is dismissed. There is no order-as to costs. H.B.T./M-1736/L Revision allowed.