2007 PLP 2562 (YLR)

MAULVI ANWARUL HAQ, J.

This judgment shall decide Civil Revision No.1746 of 2001 and Civil Revision 1754 of 2001 as these .proceed against a consolidated judgment of the learned first appellate Court.

2. On 14-12-1991 the petitioners filed a suit against the respondents. In the plaint, it was stated that they are in possession of Khasra No.1556/11/1 as owners. The private respondents in connivance with the respondent-Town Committee have got a plan sanctioned in respect of 9 Marlas of land out of the said Khasra No.1556/11 and started raising construction. A demarcation was also got effected and the encroachment by the private respondents was reported. The private respondents promised to vacate the encroachment but instead of doing so they got a plan sanctioned from the respondent No.1 Committee. They accordingly sought a declaration that the plan sanctioned is illegal and void and fictitious and is ineffective upon the rights of the petitioners. The private respondents in their written statement stated that the suit-land which is stated to be owned and possessed by the petitioners is, in fact, owned and possessed by them wherein they have raised a house and a boundary wall. Later on 6-7-1992 the petitioners filed a suit for possession of the said 9 Marlas of land in Khasra No.1556/1. Whereas in reply to the earlier suit, they had admitted to be in possession of the land claimed to be owned by the petitioners. In this suit they took the plea that they are not in possession of Khasra No.1556/11. However, their plea was that the land is part of joint Khata and as such the suit is not competent. Both the suits were consolidated and following issues were framed by the learned trial Court:- (1) Whether the plaintiffs have got no cause of action in both the suits? OPD (2) Whether suits are not maintainable'? OPD (3) Whether suits are bad for non-joinder of necessary parties? OPD (4) Whether suits are time-barred'? OPD (5) Whether suits are correctly valued for the purposes of court-fee and jurisdiction? If not what is correct valuation? OPP (6) Whether report of demarcation is illegal, against facts and ineffective on rights of defendants'? OPD (7) Whether plaintiffs are estopped to file these suits by their act and conduct? OPD (8) Whether site-plan sanctioned by the M.C. for construction is collusive, forged, illegal and against law and ineffective on rights of plaintiffs`? OPP (9) Whether the plaintiffs are owner of the suit property'? OPP (10) Whether the defendants had matured their title by way of adverse possession? OPD (11) Whether the defendants are entitled to special cost'? If so, to what amount`? OPD (12) Relief. Evidence of the parties was recorded. The learned trial Court decreed both the suits vide judgment and decree dated 12-5-1996. First appeals filed by the private respondents were heard together by a learned A.D.J., Mianwali who allowed the same and dismissed the suits on 20-3-2001. 2-A. Learned counsel for the petitioners contends that in view of the admission on record that the respondents are in possession of the suit-land claimed by the petitioners and further finding that they are the owners of the said land. Even if the demarcation report was not found to be correct, the same could not have been made a ground for setting aside the decree passed by the learned trial Court. According to the learned counsel, even the demarcation report has been set aside for no rhyme or reason. Learned counsel for private respondents, on the other hand, supports the impugned judgment and decree of the learned ADJ with the contention that the demarcation report was not proper and was rightly set aside by him and consequently the dismissal of the suits cannot be interfered with in this civil revision. The officer present for the Town Committee has stated that the Committee has do interest in this litigation.

3. I have gone through the copies of the records of the consolidated proceedings, with the assistance of the learned counsel for the parties. I have already noted above the material contents of the pleadings. The dispute is regarding 9 Marlas of land comprising Khasra No.1556/11. As noted by me above, the private respondents without any demur admitted that they are in possession of the land being claimed by the petitioners to be owned by them. I deem it appropriate to reproduce here the reply on merits by the private respondents to para 2 of the plaint wherein it was categorically stated that the respondents have encroached upon 9 Marlas of land out of Khasra No.1556/11 depicted in encroachment plan as 1556/11/2. The copy of this plan was referred in this para and was annexed with the plaint:-- In response to the second plaint, the private respondents took three different pleas. The first was that the land forms a part of the joint holding and the suit is not competent, the second was a denial of encroachment on the land of the petitioner and thirdly it was pleaded that they have become owners by adverse possession of the said land. To my mind the fact that the private respondents are in possession of the said 9 Marlas land in Khasra No.1556/11 stands admitted in the said pleadings. In the written statement in the, first suit they claimed that they are owners of 'the said land. In reply to the second suit they ultimately ended up claiming themselves to be in adverse possession.

5. Both the written statements and the entire evidence led by the private respondents is silent as to which is that -land which is in their possession if not the suit-land owned by the petitioners and claimed by them as such.

6. The learned trial Court have answered Issue No.9 in favour of the petitioners holding them to be the owners of the said land. Before the learned ADJ, the said findings were not all questioned. He only dealt with the said demarcation report under Issue No.6 and proceeded to set aside and consequently the judgment of the learned trial Court. The finding has not even been questioned before me by the learned for the respondents. Otherwise I find that the findings is fully supported by the evidence on record.

7. I may here refer to the oral evidence. P. W .7 Allah Nawaz Shah is the general attorney of the petitioners. He categorically stated that the petitioners owned land in Khasra No.1556/11 in village Isa Khel whereupon the respondents started encroachment and then he refers to the demarcation proceedings, etc. The very first suggestion given to this witness and denied by him is that the suit-land which, of course is none other than the one in Khasra No.1556/11 is owned and possessed by the private respondents since 1977.

8. On the other hand, Jamal Ahsan Khan; a son of the private respondents and also a defendant in one of the suits appeared as D.W.1 as special attorney of his parents. He proceeded to state that the suit-land was gifted to his mother by Khaliq Dad Khan Nizami and others. In his cross-examinations, he expressed ignorance that Khasra No.1556/11 is owned by the petitioners. He was unable to tell the Khasra numbers of the land owned by his parents or his mother. Khaliq Dad Khan Nizami appeared as D.W.2 to state that the suit-land was gifted to Mst. Khudija Begum respondent by him and his co-heirs in the year 1977 and they delivered the possession. In' his cross-examination, he was unable to state the Khasra numbers of the suit-land or the land that was gifted. There is nothing on record to show that the said Khaliq Dad Khan Nizami or his co-heirs or their predecessor-in-interest was the owner of Khasra No.1556/11.

9. Having, thus, examined the records, I do find that the learned ADJ has acted without jurisdiction while passing the impugned consolidated judgment and decree. The determination report was not at all relevant in view of the pleadings of the respondents whereby they have claimed title in the suit-land, which was admittedly in their possession, in the pleadings, by adverse possession and in the course of evidence by means of a gift which pleas were not proved on record. The consolidated impugned judgment and decree passed by the learned ADJ on 20-3-2001 is set aside. The suit filed by the plaintiffs/petitioners for possession of 9 Marlas of land in Khasra No.1556/ 11 is decreed. So far as the suit regarding the plan sanctioned by the respondent No.1 is concerned, it is partly decreed inasmuch as the plan and its sanction are declared to be ineffective upon the rights of the petitioners vis-a-vis the said 9 Marlas of land. No orders as to costs. M.H./5-99/L Revision allowed