1998 PLP 2045 (SCMR)

ZIA MAHMOOD MIRZA, J.

This is a petition for leave to appeal against the judgment of Lahore High Court, Rawalpindi Bench dated 24-4-1995 whereby revision petition filed by the respondents herein was accepted and the judgments and decrees of the Courts below were set aside and suit of the present petitioners was dismissed with costs.

2. Facts giving rise to this petition, briefly stated, are that the petitioners herein brought a suit for declaration to the effect that they were the owners in possession of land measuring two Kanals and one Marla comprised in Khasra No.38, situate in village Kohali, Tehsil Sohawa, District Jhelum. The suit was contested by the respondents by filing joint written statement in which they, denied the ownership as also possession of the suit land by the plaintiffs/petitioners. Learned trial Court framed necessary issues arising from the pleadings of the parties whereafter, it appears, the parties consented to the appointment of a referee to determine their possession further stating that they would be bound by the report of the referee in regard to possession. The referee submitted his report on 12-6-1988. Learned trial Court after getting objections to the report of the referee decreed the suit of the petitioners to the extent of one Kanal seven Marlas and dismissed the same with respect to the remaining fourteen Marlas. The respondents feeling aggrieved preferred an appeal but with no better result as the same was dismissed by the learned Additional District Judge. They then invoked the revisional jurisdiction of the High Court with the result aforementioned. Learned Single Judge observed that according to the agreement of the parties, the referee was only to report in regard to the actual physical possession of the parties over the suit land and it was not for him to suggest that the decree be passed in favour of one party or the other. It was further observed by the learned Judge in the High Court that according to the report of the referee, the respondents were definitely found to be in possession of fourteen Marlas of the suit land on which they had constructed the rooms but as regards the remaining area of one Kanal, seven Marlas, the plaintiffs were not found to be in possession. The report, it was observed, rather showed that the defendants had placed their bricks though temporarily even on one Kanal seven Marlas. In the view of the learned Single Judge. both the Courts below have mis-read the report of the referee in holding that the plaintiffs were in possession of one Kanal seven Marlas of the suit land. It was observed that if the defendants were not in possession of one Kanal seven Marlas it did not prove that the plaintiffs were in possession thereof. It was accordingly held by the learned Judge that the suit of the plaintiffs in respect of one Kanal seven Marlas was wrongly decreed by the Courts below whose judgments and decrees were thus set aside and the plaintiffs' suit dismissed vide the impugned judgment.

3. We have heard the learned counsel for the petitioners and have also minutely gone through the report of the referee. We are satisfied on perusal of the report that the possession of the plaintiffs was not established on any part of the suit land while the defendants/respondents were found in actual physical possession of fourteen Marlas thereof. It has been rightly held by the learned judge in Chambers that the report of the referee was misread misconstrued by the Courts below. Since the petitioners were not found in possession of the suit land or any part thereof, their suit for declaration that they were owners in possession was not maintainable and same was, therefore, rightly dismissed by the learned Judge in the High Court. Petitioners may, if so advised, bring a suit for possession. With this observation, this petition is dismissed and the leave sought is refused. A.A./E-4/S Leave refused