1994 PLP 1419 (CLC)

Mian Sher Alam for Petitioners. Sh. Naveed Shehryar for Respondent. Date of hearing: 23rd October, 1993. Rehmat son of ZuIfiqar instituted a civil suit for declaration that he was owner in possession of a piece of land measuring 1 Kanal, 9 Marks bearing Khasra No. 2367, situate in revenue estate Thimka of Tehsd and District Gujrat and the defendants, namely, Lai Khan son of Ahmad Khan and Muhammad Hussain son of Rehmat Khan be restrained from causing interference with his user of it. Suit was instituted on 30‑6‑1975 in the Civil Court at Gujrat. Defendants resisted the suit and contested plaintiffs possession on the land. It was averred that they were in actual possession of the land since long time past and the plaintiff had in collusion with the revenue staff managed a false entry of possession in his favour which was corrected by mutation of Tanazia Kasht, on 19‑11‑1975. The trial Court settled issues in verancular but recorded evidence of witnesses in English, though they gave it in Urdu. Upon review of evidence, the trial Court decreed the suit in favour of plaintiff, on 23‑2‑1976. On appeal by the defendants, the decree passed by the trial Court was maintained. Hence, this Civil Revision by them. Upon consideration of merits, this Civil Revision was bound to succeed. Learned Appellate Court took a one‑sided view of plaintiff's evidence. It completely overlooked and excluded from its view the parole evidence of the defendants given on their actual possession of the land. Girdawar's testimony and report were totally shut out from consideration. Mutation Tanazia‑Kasht was not given proper weight. The approach was lop‑sided and the judgment was unevenly balanced. The land in dispute was part of a Shamilat Deh. Prior to recording of Rehmat's possession on it, its classification was shown as `Ghair Mumkin Chhapri' in possession of residents of village (Bashindgan‑i‑Deh). Suddenly, possession of Rehmat was entered as co‑sharer. There were no mutation attested for it. In Crops‑Kharif 1973 to Rabi 1975, previous classification of the land was repeated. Nature of entry regarding possession of Rehmat in the revenue record required a deeper probe and inquiry for giving a decision on question of possession on the land in dispute. Since I propose to set aside the judgment and decrees of the learned lower appellate Court for reconsideration of the appeal on merits by it, I shall say little on merits of the judgment and decree of the trial Court by leaving it to the care of learned lower appellate Court. It shall, of course, receive due treatment by it. It may usefully be observed that for proper and satisfactory decision of the point at issue relating to possession on the land in dispute, the learned lower appellate Court may also keep in view the propriety of appointment of a local Commissioner for an inquiry and report for its own assistance. The effect of Order XVIII, rule 6 of Civil P.C. for recording of evidence in the language different from the language in which it was given by the witnesses shall also be examined by the lower appellate Court. In this view, I was unable to uphold the impugned judgment given in appeal. Having regard to the aforesaid, Civil Revision is allowed; impugned judgment and decree dated 16‑11‑1977 of learned District Judge, Gujrat are set aside and the case is remanded to him for decision of the appeal afresh in accordance with law. Parties shall bear their own costs in this Court. It shall be open to learned District Judge to hear the appeal himself or entrust its hearing to any of the learned Additional District Judges in the district. Record be returned. H.B.T./L‑61/L Revision allowed.