1989 PLP 2283 (CLC)

‑‑‑O.XX‑‑Judgment‑‑No effective judgment can be given without the relevant record being exhibited on the file. S. Zafar Abbas Zaidi for Petitioner. Zar Wali, General Attorney for Respondent No.5. Date of hearing: 3rd July, 1989. Abdul Hayee, plaintiff‑petitioner filed a suit for declaration to the effect that he and Mir Ahmad, defendant No.26 are owners of the‑ suit land on account of time‑barred mortgage; that the rights of the other defendants, respondents Nos.l to 25 herein, have been extinguished. The suit was contested by some of the defendants by filing their written statement wherein they denied the allegations of the plaintiff in toto and additionally averred that there had been novation of the contract of mortgage. Necessary issues in the case were framed and the parties led evidence thereon. The learned trial Judge, on the appraisal of. the evidence produced before him, came to the conclusion that the predecessor in interest of the plaintiff, namely Daman, had been paying additional amount as mortgage money to the mortgagors which amounted to the novation of the contract and also that the plaintiff did not remain in possession of the suit property and thereby made himself disentitled to the declaration prayed for, in view of the dictum laid down by this Court in the case of Ayub Khan v. Haqdad Khan and 9 others PLD 1979 Pesh. 87 and, consequently, the suit of the plaintiff was dismissed vide his judgment and decree dated 19‑11‑1984. The plaintiff felt aggrieved against the judgment and decree of the learned trial Judge and challenged the same in appeal before the learned Additional District Judge, Bannu, at Lakki, who vide his judgment and decree dated 1‑9‑1987 maintained the same and dismissed the appeal. Hence the instant revision petition challenging the aforesaid judgments and decrees of the learned lower forums.

2. In this Court too, the other respondents except respondents 5, 7 and the L.Rs. of deceased‑respondent No.26, have not appeared and were, therefore, proceeded against ex parte.

3. The present parties wanted to enter into a compromise but in the absence of the other respondents who were necessary parties in the case, the compromise could not be allowed and, as such, arguments of the learned counsel for the petitioner were heard, the present respondents being un represented.

4. In this suit, the plaintiff/petitioner seeks a declaration of title on the ground that he has been in possession as a mortgagor of the suit land for more than sixty years thereby acquiring title on the basis of time‑barred mortgage and that the ownership rights of the original mortgagors and rights of the original mortgagees have extinguished by the lapse of time. Strangely enough neither the copy of the original mortgage mutation nor those of the subsequent mutations whereby sale of mortgagees rights or sub‑mortgage was affected m respect of the suit land have been brought on the record. The true copies of the Jamabandis showing detailed reference to the said mutations have not been placed and exhibited on the file in spite of the fact that Patwari Halqa and the A.D.K. were examined as P.Ws. in the case. No doubt Goshwara of mutations has been placed on the file, but according to law, mere production of such extract without placing the copies of the Jamabandis or the relevant mutations on the file cannot be safely considered. .The said Goshwara also does not contain reference to the original mutation of mortgage to show when the mortgage was created, what was the amount of mortgage and whether any period of mortgage was fixed or not, to determine from which day the period of sixty years was to commence. The Goshwara, EX.P.W.1/3, on the face of it, appears to be incomplete inasmuch as, vide Mutation No.l attested somewhere in the year 1906 the sale of mortgagees' rights took place on behalf of Behari Lal in favour of Atma Ram for a sum of Rs.955. The subsequent entry thereafter refers to Mutation No.198 whereby the said Behari Lal is again shown to have sold his mortgagees' rights in favour of Samandar and others pertaining to the original Khasra No.1583 mentioned against Mutation No.l as well, for the sum of Rs.955. This being the situation, no effective judgment can be given in the instant case without the relevant record being exhibited on the file. The learned lower forums have failed to base their conclusions on the unauthentic record produced before them. I am, thus, left with no option but to remit the case back to the trial Judge for trial afresh after serving the defendants again in accordance with law.

5. For the reasons aforesaid, I accept this revision petition, set aside the impugned judgments and decrees of both the learned Courts below and remand the case to the learned trial Judge for decision afresh in the light of the observations made above. No order as to costs. A.A./805/P Case remanded.