2010 PLP 1533 (MLD)

EJAZ AFZAL KHAN, J.

Petitioner through the instant petition has assailed the judgment and decree dated 23-6-2005 of the learned Additional District Judge-III, Swabi whereby he dismissed the appeal filed by the petitioner and upheld the judgment and decree dated 9-4-2004 of the learned Civil Judge, Swabi.

2. The main argument of the learned counsel for the petitioner was that where in the first round of litigation a direction was given by the learned Appellate Court in its judgment, dated 18-12-1999 that the matter be decided afresh after recording further evidence and appointment of local commissioner, the trial Court could not have proceeded ahead without doing the needful.

3. As against that, the learned counsel appearing on behalf of the respondents contended that where entries in the name of the predecessor in interest of the petitioner have not been made in the revenue papers in accordance with law, they cannot be given any weight, therefore, they were rightly ignored by the Courts below. Question of possession, he added, will not require any inquiry through local commissioner when the entries in khasra girdawari prove that respondents are in possession of the property in dispute through their tenant.

4. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.

5. No doubt, mere entries in the revenue papers in favour of a party will not create a right unless they have been made in accordance with law. But where a P.W. appearing on behalf of the respondents, admitted that one Gulzada is in possession of the property in dispute as a tenant on behalf of the petitioners and he refused to pay the produce, it was rather imperative to examine him to prove on whose behalf he was cultivating the property. If in any case, his examination in the Court was not desirable, then the direction of the learned appellate Court given in the first round of litigation for ascertaining the factum of possession through commissioner should have been complied with. Where neither was done, I am afraid, the impugned finding cannot be maintained.

6. For the reasons discussed above, this petition is allowed, the impugned judgment and decree are set aside and the case is sent to the learned District Judge, Swabi for decision afresh in accordance with law after examining the tenant or making inquiry about the factum of possession through commissioner as directed earlier. The parties are directed to appear before the learned District Judge on 15-7-2006. As it is an old case, it be decided within three months. H.B.T./187/P?????????????????????????????????????????????????????????????????????????????????????? Case remanded.