1998 PLP 330 (CLC)

(2) Whether the plaintiffs have no cause of action or locus standi? OPD (3) Whether the plan attached is incorrect? It so, its effect? OPD (4) Whether the correct demarcation by Settlement Department was necessary and has not been made? If so, its effect? OPD (5) Whether the Plot No.51‑K was validly transferred to the plaintiffs by Settlement Department? OPD (6) Whether the defendants are separately in possession of the property in dispute, if so, its effect? OPD (7) Whether the Court has no jurisdiction to adjudicate upon the suit? OPD (8) Whether no notice was served upon the defendants under section 30, D.P. Act? OPD. If so, its effect.? (9) What is the effect of ejectment petition of the plaintiff? OPD (10) Whether the plaintiffs are entitled to get possession of the plot in dispute as prayed for? OPD (11) Relief.

3. In their evidence the appellants produced copy of P.T.D. issued to the respondents as Exh. P.1, Akas Shajra Exh. P.2, copy of Survey Register Exh.P.3, copy of PTO Exh.P.4, copy of P.T.D. issued to them Exh.P.5, copy of demarcation report of DSC Exh.P.6, copy of notice issued by the appellants under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as Exh.P.7, Postal receipt Exh.P.8 and acknowledgement receipt Exh.P.9. On the other hand the respondents/defendants produced copy of P.T.D. Exh.D 1 and a map which Noora got sanctioned from the Municipal Committee as Exh.D.

2. The learned Trial Court after appraising the evidence of the parties decided all the issues against the respondents/defendants and proceed to pass decree in favour of the plaintiffs. The defendants filed appeal which has been accepted through judgment dated 26‑9‑1984. It has been held by the learned lower Appellate Court that the transferees of the property in dispute were the defendants.

4. I have heard learned counsel for both the parties. It is manifest from the relevant documentary evidence produced by the plaintiffs as mentioned above that the plaintiffs were the tranferees of Plot No.51‑K. The description of the property transferred to the defendants through Exb.D. 1 has been recorded as Plot No.51 /52 and not Plots Nos.51 and 52 as was attempted to be argued by the learned counsel for the respondents. The DSC it appears made demarcation report which was produced in evidence as Exh. P.6 alongwith which Aks Shajra was appended which was produced in evidence as Exh.P.2. From Exh.P.2 it is manifest that the house of Noor Muhammad was shown on Plot No.52 whereas Plot No.51 was shown in the middle and on the other side Plot No.50 was shown which was owned by one Abdul Hameed. On plot No.51 no construction has been shown. After comparing the document of titles of both the parties it is also apparently clear that the transfer in favour of the plaintiff was much more prior in time. The question was whether Property No.51‑K as shown in PTD Exh. P.5 was the same which was shown in Aks Shajra Exh.P.2 as No.51. The appellants have also moved an application for production of certain documents as additional evidence. One of which is copy of Bid‑sheet of Property No. 52‑K which was auctioned in favour of one Rehmat Bibi. It .was stated that this property is the same which the defendant was transferred through surrendered by Rehmat Bibi. There is nothing on the record to this effect. If Property Nos.51 and 51‑K is one and the same property then it was a case of demarcation of the properties of both the parties in order to ascertain with metes and bounds the properties transferred to the parties. The learned lower Appellate Court has proceeded on the assumption that the two Properties No.51 and 52 had been transferred to the respondents. After appraising the evidence in detail I am of the view that it is a case where the demarcation should have been got done through Local Commissioner to be appointed by the Court from the revenue side so that the correct position could be ascertained about the location of the two properties.

5. The evidence produced by both the parties is not sufficient to deliver judgment or to adjudicate upon the respective rights of the parties. In these circumstances I am constrained to allow the application of the appellants seeking permission to produce additional evidence. The respondents shall also be given opportunity to produce evidence in rebuttal. As a matter of fact it would be appropriate if the respondents who according to their P.T.D. were transferred property by the Additional Settlement Commissioner in the year 1966 much after the transfer made in favour of the appellants or required to produce the judicial order on the basis of which PTD (Exh.D.l.) in their favour was issued so that it could be ascertained as to on what basis the transfer in their favour took place. It may be mentioned here that if it is found that the properties transferred to the parties are overlapping then the question shall have to be decided as to which out of two parties was transferred the property earlier because after transfer of property in favour of a party the same could not be available thereafter to transfer to somebody else.

6. For the foregoing reasons this appeal is accepted. The judgments and decrees of both the Courts below are set aside and the case is remanded to the learned Trial Court for recording further evidence of both the parties regarding description and identification of two properties. The learned Trial Court is directed to appoint Local Commissioner from revenue side to demarcate both the parties from which it would be ascertainable whether both the parties are over lapping or not and if so to what extent and then decide the case in accordance with law. There will be no order as to costs. A. A. /N‑70/L Appeal accepted.