2006 PLP 2419 (YLR)

C.M. No.908-C of 2005 MUHAMMAD SAIR ALI, J.--This application for rejection of plaint under rule 11 of Order VII, C.P.C. has been tiled at the revisional stage by the revision petitioners who were defendants in the suit. Contesting reply thereto has been filed by the respondent-plaintiff.

2. The learned counsel for the petitioners contended that in the pleadings as contained in the plaint, the respondent-plaintiff claimed to be in physical possession of the suit-land as a shareholder. But in the prayer of the suit, she sought a decree for perpetual injunction for protection of her exclusive possession and that of her rights on the suit-land. He thus states that the suit was barred by law and also un-maintainable for the absence of cause of action.

3. At this stage, the learned counsel for the applicants/revision petitioners sought to withdraw this application with permission to raise all legal and factual grounds available to him to support his civil revision.

4. This application is accordingly dismissed as withdrawn. It goes without saying that the petitioners have the right to raise all legal and factual objections available to them under the law and in accordance with 'the case record and evidence in support of their civil revision. JUDGMENT MUHAMMAD SAIR ALI, J.--The learned counsel for the parties on fully arguing the case, arrived at the following consensus and accordingly made a joint request as under: (i) That in the impugned judgment and decree dated 24-10-2000, the learned Additional District Judge, Depalpur held the respondent plaintiff (Mst. Baigees Begum) to be in exclusive possession of the suit-land although being a joint owner, but while referring to Exh.P.1. (Register Haqdaran-e-Zamin for the year 1987-88) and Exh. P.2 (Registrar Khasra Girdawari from 1980 to 1992), he did not attend to the entries made in various columns of the said revenue record. And that the entries show the land to be "Banjar Qadeem". And also that the learned Additional District Judge by an oversight neglected to determine the effect of entries of "Banjar Qadeem" in various columns of Exh.P.1 and Exh.P.2, and (ii) That in the perspective of the above documentary evidence, even the depositions of P.Ws. and D.Ws. have not been properly and validly interpreted. And that the report of the learned Local Commissioner and the statement of the learned Local Commissioner also require re-scrutiny and re-examination for placing reliance thereupon. And the impugned judgment and decree dated 24-10-2000 passed by the learned Additional District Judge be set aside and the case be remitted for rehearing of the appeal to the learned first appellate Court.

2. Having heard the learned counsel for the parties and having examined their joint request, I find the request of the learned counsel for the parties reasonable. Though the learned Additional District Judge as the first appellate Court referred to Exhs.P.1 and P.2 but overlooked to examine the entries made in various columns of the said documents. The entries made therein have a direct bearing upon the findings on Issue No.1.

3. The learned counsel for the parties also state before this Court that the only relevant issue requiring re-adjudication by the learned first appellate Court is Issue No. 1 and both the learned counsel accept findings on Issues Nos.2, 2-A and 3 as final and request remand of the case to the learned first appellate Court for rehearing of the parties in appeal on Issue No. 1 only.

4. In view of the above, this civil revision is accepted. The impugned judgment and decree dated 24-10-2000 is set aside only to the extent of findings of the learned Additional District Judge on Issue No.1 and Issue No.4 i.e. the relief. The findings of the learned Additional District Judge on the other issues having become final are not open to any further controversy or adjudication. The case is remitted to the learned first appellate Court for rehearing of the appeal on Issue No. 1 only. The parties shall be granted full opportunity of hearing in accordance with the law and the appeal shall be re-decided within a period of four months from the first date of hearing to be fixed by the learned first appellate Court.

5. In view of the consensus between the parties, there shall be no order as to the costs.

6. Decided as above. F.B./F-14/L Order accordingly.