1998 PLP 2030 (CLC)

(3) Whether the plaintiff has not affixed the proper court‑fee on the suit, if so, its effect? O.P.D. (4) Whether the plaintiff has no cause of action and locus standi? O.P.D. (5) Whether the suit is bad for misjoinder of parties? O. P. D. (6) Whether the suit is not maintainable in its present form? O. P. D (7) Whether the defendant entered into the possession of the suit property as lessee of Muhammad Musa deceased predecessor of the vendor? O. P. D. (8) Whether the plaintiff purchased the suit property from Muhammad Shafiq Raja, the real owner? O.P.D. (9) Whether the plaintiff is entitled to the possession of the suit property after removal of the superstructure? O.P.P. (10) Whether the plaintiff is entitled to recover the disputed sum from the defendant as use and occupation of the suit property at the rate of Rs.10 per month? O.P.P. (11) Relief.

5. In support of his contention respondent/plaintiff examined P.W.1 Muhammad Ali, Patwari, P.W.2 Javed Anwar, P.W.3 Abdul Shakoor, P..W.4 Muhammad Latif, P.W.5 Arif Hussain Record Clerk and appeared himself as P.W.6. He also produced documents Exhs.P.3 and P.4 and thereafter closed his affirmative evidence on 8‑9‑1992. In rebuttal petitioner/defendant examined D.W. l Amanullah, Patwari and appeared himself as D.W.2. His learned counsel produced documents Exh.D.4 and thereafter closed his evidence.

6. After going through the evidence produced by the parties the trial Court dismissed the suit of the respondent/plaintiff vide judgment and decree, dated 25‑6‑1995 who felt aggrieved and filed an appeal which was accepted' by the learned Additional District Judge, Lahore vide judgment, dated 30‑11‑1996. The petitioner/defendant felt aggrieved of the said judgment and decree and. has filed this revision petition.

7. Arguments have been heard and record perused

8. The only point which requires determination is, if the respondent/plaintiff has proved from the evidence adduced on record that he had purchased the property which is in possession of petitioner/defendant. In order to discharge this onus a perusal of evidence adduced by the respondent/plaintiff is necessary.

9. The stand of respondent/plaintiff is that he had purchased 3 Marlas of land out of Khasra No. 1464‑min which originally belonged to Haji Muhammad Musa and upon his death it devolved upon his legal heirs including Shafique Raja who is the vendor of the respondent/plaintiff. To prove this fact he has examined P.W.1 Muhammad Ali, Patwari who has admitted in cross-examination that Khasra No.1464‑min has been sub‑divided in 3 parts bearing Khasra No.2904/1464 measuring 1 Kanal 18 Marlas 24 sq. feet, Khasra No.2905/1464 measuring 3 Marlas 199 feet and Khasra No.2906/1464 measuring 1 Kanal 0 Marlas 144 feet. He further admits that owners of said Khasra numbers Muhammad Rafique, Muhammad Shafique, Saeed Akhtar, Waheed Akhtar, Javed Akhtar, Parvez Akhtar and their sisters. He further admits that Khasra No.1464‑min has not so far been partitioned. Admittedly sale‑deed in favour of respondent/plaintiff shows that he had purchased the said land out of Khasra No. 1464‑min. As per admission of P. W. 1 Muhammad Ali, Patwari, petitioner/defendant is in possession of a portion of Khasra No.2906/1464 and 2904/1464. He has further admitted that he could not disclose as to how much area of Khasra numbers referred above is in possession of Raunaq Ali out of the area purchased by him. This admission on the part of respondent/plaintiff clearly shows that he was never sold any specific area measuring 3 Marlas out of Khasra No. 1464‑min. Even a perusal of sale‑deed Exh.P.2 clearly shows that respondent/plaintiff had purchased land measuring 3 Marlas out of a joint property owned by the vendor Shafique Raja as well as his other brothers and sisters and he was not sold any specific area exclusively in possession of the vendor. The recital of sale‑deed stands confirmed from the statement of P.W.1 Muhammad Ali, Patwari who has admitted that Khasra No. 1464 has not so far been partitioned.

10. Since the respondent/plaintiff purchased land owned jointly by Shafique Raja and his brothers and sisters so he could not file a suit for possession unless and until getting the area purchased by him demarcated from a Court of competent jurisdiction and having determined as to in whose possession the area purchased by him was lying. This has not been done by the respondent/plaintiff.

11. The upshot of above discussion is that Appellate Court has not exercised jurisdiction vested in it in accordance with law in accepting tile appeal and setting aside the judgment and decree of the lower Court. Consequently, revision petition is accepted and judgment and decree under revision is set aside. With the acceptance of this revision petition, the suit filed by the respondent/plaintiff stands dismissed. A.A./R‑66/L Revision accepted