2003 PLP 497 (MLD)

Khan Zahid Hussain Khan for Petitioner. S.M. Masood for Respondent No.2. Nemo for the Remaining Respondents. Date of hearing: 19th April, 2001. On 21‑9‑1985 the petitioner filed a suit against the respondents. In the plaint it was stated that the suit plot measuring 6 Marlas and 27 sq. ft. was sold to him by respondent No.7 and he paid the settled price for the same, that he raised construction on the said plot after registration of sale‑deed, dated 17‑1‑1979; that the suit land measuring 1 Maria, 27 sq. ft. was allotted to be occupied by predecessor‑in‑interest of respondents Nos.2 to 6 and 8 on temporary basis. However, the said respondent refused to vacate the land and instead in collusion with respondent No. 1 started denying his title saying that the suit land in part of Plot No.416‑A. With these averments a prayer was made for a decree for possession. The private respondents in their written statement took the plea that the petitioner was illegal occupant of Plot No.417‑A whereon Quarter No.99/A had been constructed and his possession was accordingly regularized whereas the suit land is part of Plot No.416‑A. The precise plea was that only 5 Marlas plot was transferred to the petitioner. Respondent No. 7 took the plea that the area transferred to the petitioner was 5 Marlas and 50 sq.ft. was wrongly mentioned as 6 Marlas, 27 sq. ft in the sale‑deed. Issues were framed. Evidence of the parties was recorded. Learned trial Court decreed the suit of the petitioner vide a judgment and decree dated 31‑10‑1987.1 may note here that under Issue No.5 it was held by the learned trial Court that the plot with an area of 6 Marlas, 27 sq.ft. was in fact sold to the petitioner and he is the owner of the same. Respondents Nos.2 to 6 and 8 filed a first appeal which was heard by a learned Additional District, Judge Faisalabad. The learned Additional District Judge upheld the finding of learned trial Court on said No.5, holding that the petitioner is the owner of the suit land. However, he proceeded to non‑suit the petitioner on the ground that he had not led evidence that the suit land was given to predecessor‑in‑interest of the said respondents as licensee. With these observations he proceeded to allow the appeal and to dismiss the petitioner's suit on 3‑4‑1990.

2. Learned counsel for the petitioner contends that the learned Additional District Judge having found the petitioner to be owner of the suit land had acted with material irregularity in the exercise of his jurisdiction by refusing the relief of possession. Learned counsel for the private respondents on the other hand has tried to argue that the finding of the learned Courts below on Issue No.5 are incorrect.

3. I have gone through the copies of the record appended with this civil revision, with the assistance of the learned counsel for the parties. Admittedly the suit land was owned by the Provincial Government. It has been sold to the petitioner by means of a registered sale‑deed for consideration. In the presence of the said evidence it cannot be said that learned lower Courts have erred in deciding Issue No.5 in favour of the petitioner.

4. The petitioner having proved his title, was always entitled to fall back upon his title and there is no bar under any law against the grant of a decree for possession in favour of person who proves title against a person who has no title to the suit land. On the other hand it is duty of a Court that unless some insurmountable hurdle is there the person holding lawful title in the property must get its possession from the person occupying it without any title. I, therefore, agree with learned counsel for the petitioner that the learned Additional District Judge has acted with material irregularity in the exercise of his jurisdiction by refusing the grant of relief of possession to the petitioner. This civil revision is accordingly allowed. The impugned judgment and decree dated 3‑4‑1990 of learned Additional. District Judge, Faisalabad, is set aside while the judgment and decree dated 31‑10‑1987 passed by the learned trial Court decreeing the suit of the petitioner is restored. The parties, however, are left to bear their own cots. H.B.T./A‑666/L Revision allowed.