1993 PLP 2398 (CLC)

Nemo for Respondent No. 4 . Date of hearing: 10th April, 1993. In this revision petition judgment and decree dated 4‑2‑1980 passed by the learned District Judge, Gujrat, through which petitioner's appeal against judgment and decree dated 26‑6‑1979 passed by the trial Court by which his suit for permanent injunction regarding land measuring 2 Kanals 2 Marlas comprising Khasra No. 838 was dismissed has been challenged.

2. The case of the petitioner in 'the plaint was that the land comprising Khasra No.838 measuring 2 Kanals 2 Marlas was part of Shamlat Deh and he being the proprietor in the village was also joint owner of the land in Shamlat Deh and being in exclusive possession of it, as such, the other co‑owners i.e. the defendants could not interfere in his possession without getting the same partitioned.

2. Both the Courts below after considering the documentary evidence such as copies of Revenue Record came to the conclusion that the land was Banjar Qadeem and in the later Jamabandi it was shown as `Ghair Mumkin Chappri', therefore, the same was deemed to be in possession of all the owners of Shamlat Deh land, therefore, petitioner could not maintain the suit to keep possession of the same exclusively with him. 3. 1 have examined the documentary evidence produced in this case Jamabandi for the year 1951‑52 (Exh.P.7) shows that Khasra No. 838 being part of Shamlat Deh was in possession of all the owners in the village. However, in the Jambandi for the year 1952‑53 (Exh.P.2) Muhammad Din the present petitioner has been recorded as person in possession of this Khasra number as `Kashatkar'. None of the defendants have been shown in possession of this Khasra number with him. In the Jamabandi for the year 1957‑58 (Exh.P.3) the petitioner's name appears as a person in possession of this Khasra number as `Kashatkar. In the Jamabandi for the year 1961‑62 (E~xh.P.4) land comprising Khasra No. 838 has been shown in possession of the petitioner and has been recorded as Banjar Qadeem.

4. The two Courts below have taken note of the fact that the case made out by the petitioner in the evidence was that the land in dispute was given to his father in partition during consolidation proceedings was contrary to the case made out in the plaint. If that be so, the case as made out in the plaint was fully established through the said copies of the Revenue Record, therefore, he could not be non‑suited merely because a case of partition was made out because in that case too the assertion of the. petitioner was that he was in possession of the land in dispute. Merely because in subsequent Jamabandi the land was shown as Chappri that too in possession of the petitioner would not detract from the stand of the petitioner that he was in possession of this Khasra number exclusively which was part of Shamlat Deh and it was a case of co?owner in exclusive possession of a specific piece of land comprising a particular Khasra number as joint owner, therefore, the other said owners could not interfere in his possession except by filing a suit for partition of the same.

5. It may be observed that it was admitted by D.W.1 a witness examined by the respondent that the adjoining land was owned by the petitioner, therefore, there were sufficient grounds to hold that after 1951‑52 the petitioner came into possession of the land and was in its possession exclusively till the filing of the suit and continues to be so even today.

6. The judgments and decrees passed by the two Courts below are based on misreading and non‑reading of the evidence, therefore, the Courts below A have committed material irregularity and illegality in exercise of jurisdiction vested in them under the law. This revision petition is accepted. The judgments and decrees passed by both the Courts below are set aside and the suit of the petitioner is decreed. All or any Of the joint owners may seek remedy if an available under the law as pointed out above. There will be no order as to costs. H.B.T/G‑146/L??????????????????????????????????????????????????????????????????????? ??????????? Petition accepted.