2012 PLP 651 (MLD)

KHALID MEHMOOD KHAN, J.

The petitioner though this petition challenged judgment/decree dated 10-7-2007 passed by learned Additional District Judge-II, Lakki Marwat vide which the appeal of the petitioner was dismissed and judgment/decree dated 16-1-2006 passed by learned Civil Judge-I, Lakki Marwat vide which the suit of petitioner was dismissed.

2. Shorts facts of the instant revision are that petitioner/plaintiff filed suit for possession of the suit land bearing khata No.255, Khasra No.2/2511 presently Khasra Nos.505, 506, 507, 503/1 measuring 1 kanal 17 marlas situated in Mauza Ghazni Khel Tehsil and District Lakki Marwat against the respondent No.1 with the plea that the petitioner/ plaintiff and pro forma respondents are owners in possession of the suit land respondent No.1 without any right or title has taken the possession of suit land in his absence and has also raised construction therein. In Para "Bey" the petitioner/plaintiff prayed for permanent and mandatory injunctions for restraining the defendant from raising construction or any interference in suit property. In alternate if the defendant has raised any construction the same be directed to demolish on his own cost.

3. Respondent/defendant No.1 contested the suit and filed, his written statement. The learned trial court after framing issues, directed the parties to produce their respective pro and contra evidence, which they did accordingly. The learned trials Court after hearing the arguments from both sides dismissed the suit of the petitioner/plaintiff vide judgment/decree dated 16-1-2006.

4. The petitioner/plaintiff impugned the judgment/decree of the trial Court before the learned District Judge, Lakki Marwat, who entrusted the same to the Court of learned Additional District Judge-II, Lakki Marwat. The learned Additional District Judge-II, Lakki Marwat after hearing arguments of both the sides dismissed appeal of petitioner vide judgment/order dated 10-7-2007, hence the instant revision petition.

5. Learned counsel for the petitioner argued that the petitioner is owner of the suit property which is not disputed and possession with the respondent without any entitlement is also not disputed. He contended that during taking possession of the property by respondent, the petitioner was in Kuwait and the same has also been admitted by respondent himself. He submitted that as per Khasra Girdawari the possession has been shown with the respondent in the year 1992 whereas the suit has been filed on 12-7-2001. He further argued that every fresh jamabandi creates fresh cause of action even on this score too the suit has been filed quite within time. He urged that being trespasser the respondent is not entitled for any compensation.

6. On other hand, learned counsel for the respondent argued that the suit property is in the possession of respondent from the date of attestation of mutation and had constructed abadi in the shape of hotel on the suit Khasra without any objection on the other side. He contended that vendor Aslam Khan after attestation of mutation has handed over the possession of the suit property and no one from any side even objected regarding peaceful possession and construction therein. He submitted that not only the suit of the petitioner is barred by time but also stopped due to his own conduct.

7. Arguments heard and record perused, in the light of which my finding is as under.

8. The petitioner has been non-suited only on the ground of latches. The learned lower Appellate Court has held that on the basis of entries in jamabandi of 1992-1993 for the first time the cause of action has been accrued to the petitioner, hence the suit has been hit by the limitation.

9. The second ground for the dismissal of the suit was that the petitioner has not affixed a proper court-fee as per value of the suit property. The lower Appellate Court has directed the petitioner to affix the court-fee within one month as per value of the suit property. Regarding affixation of the court-fee the petitioner as per direction of the Court has affixed the same and from the other side did not raise any objection regarding the affixation of court-fee, therefore, the only point for resolving the controversy between the parties is limitation.

10. So far the question of limitation is concerned it is settled law that every fresh jamabandi creates fresh cause of action. In this regard wisdom can be drawn from law laid down by the apex Court in 2000 SCMR 1574. According to revenue record respondent has purchased the land measuring 1 kanal 18 marlas through Mutation No.7552 attested on 23-9-1982 from one Aslam Khan vendor. The said sale mutation was regarding Khasra Nos.2519 and 2593 which after settlement have been converted into two Khasra Nos.2595 and 2596. Whereas the petitioner is owner of Khasra Nos. 505, 506, 507, 503/1 and as per new settlement the area of the said Khasra numbers is measuring 1 kanal 17 marlas. In the said Khasra No. Aslam Khan vendor was neither owner as per column of ownership nor in column of cultivation having possessory right. It is also admitted fact that the petitioner was abroad when the possession was handed over to the respondent by Aslam Khan vendor. It is also admitted fact that after returning from abroad, the petitioner approached the respondent for handing over the possession of the suit property and after fruitless efforts the present suit has been filed in the year 2001. The learned lower Court in the impugned judgment had admitted the fact that limitation had started after settlement of the year 1992-1993. But it was ignored by the learned lower Court that after new settlement jamabandies for the year 1995-96 Exh.P.W.1/10 and 1999-2000 Exh.P.W.1/11 were also prepared, whereas suit was filed in 2001 after fresh jamabandi, hence cause of action accrued to the petitioner in 1999, therefore, under Article 142 of the Limitation Act the suit of the petitioner is well within time. The possession of the respondent is without any title or justification, hence respondent is trespasser. Moreover, the claim of respondent is contradictory because Aslam Khan vendor was neither owner nor in possession of the suit property at the time of executing of sale mutation, hence cannot transfer better title which he did not have, therefore, the delivery of possession in favour of respondent is illegal. As per jamabandi the name of petitioner is entered as tenant at will, therefore, the petitioner cannot claim any title on the basis of said entry. In the prevailing circumstances, the respondent is blowing cold and hot in the same breath, hence respondent is not entitled for any compensation regarding the abadi constructed on the suit property being without lawful authority and without permission of the petitioner being so reliance can be made on 1985 CLC 2020 and 1989 CLC 2066. As per Shajra Kistwar the property purchased by the respondent and that of the suit property intervened by two roads and is away from each other.

11. In view of above discussion, the petitioner has proved that the impugned judgments/decrees of the lower Courts are not in accordance with law, resultantly, I accept the instant revision petition and set aside the impugned judgments/decrees of the learned lower courts. Respondent is directed to remove the constructed abadi on his own costs. S.A.K./335/P Revision accepted.