1995 PLP 416 (CLC)

‑‑‑‑Arts. 142 & 144‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Suit for possession and suit for declaration of ownership on basis of prescriptive title relating to land in question were filed by petitioners and respondent respectively and same were consolidated‑‑‑Both suits were dismissed after recording of evidence and such findings were affirmed by Appellate Court‑‑‑Validity‑‑‑Petitioners' suit being of possession and respondent having not been able to show his right to remain in possession, their suit had to be decreed‑‑‑Courts below had misread relevant Jamabandis which showed petitioners to be the owners of land in question‑‑‑Judgments and decrees of Courts below were set aside and petitioners' suit was decreed in circumstances. Ghulam Murtaza Bhalli for Petitioners. Muhammad Ashraf Azeem for Respondent. Date of hearing: 7th May, 1994, This revision was directed against the judgment and decree dated 18‑7‑1985 of learned Additional District Judge, whereby the appeal of the petitioners was dismissed and the judgment and decree dated 1‑4‑1985 of the learned Civil Judge was maintained.

2. The necessary facts are that Sanatta and other petitioners filed a suit for possession against Ahmed‑respondent seeking possession of an are:; measuring 30 x 12 described as Shop No. 12/30 situated. in Kila No. 12/2 o? Square No. 32, Chack No. 283/GB, Tehsil Jaranwala, District Faisalabad. Ahmed had also filed a suit for declaration of ownership on the basis o: prescriptive title with the assertions that he being in adverse possession for a period of 12 years, has completed his prescriptive title over the land in question. Learned Civil Judge after consolidating both the suits, framed necessary issues and after recording evidence dismissed both the suits. Ahmed did not file any appeal and as such accepted the verdict of the trial Court. Sanatta and others filed appeal against the judgment and decree dismissing their suit. The learned Additional District Judge it appears observed that most important issue No. 9 in the suit was not discussed properly by the learned trial. Court. He, therefore, proceeded to examine the said issue himself and on the basis of Jamabandi Exhs. Dl and D3 and Khasra Girdawari Exh. D/8 recorded the conclusion that the tenancy of Ahmed had not been established.

3. I have heard the learned counsel for the parties and have also gone through the record with their assistance. The learned appellate Court has ignored Jamabandi Exh. Pl and has misread the Jamabandies Exhs. D/1 and D/3. Jamabandi Exh. P/1 shows Sanatta and others petitioners‑plaintiffs as owners. The column No. 9 does not contain the entry that persons other than Sanatta were in possession. The Jamabandi Exhs. Dl and Exh. D3 wherein column No. 9 contains the entry that persons other than Sanatta were shown as owners on account of purchase, do not pertain to Ahmed and as such the entry in column No. 9 cannot be applied to Ahmed. Again Khasra Girdawari Exh. D/8 does not support Ahmed respondent‑defendant. The fact that he has not been mentioned as a tenant does not defeat the right of the plaintiffs to receive possession as they have been shown and established to be the owners of the land in question. Even if the plaintiffs have not been able to establish the tenancy, Ahmed has‑ also not established his right to remain in possession of the property owned by plaintiffs. Ahmed has also not established his alleged prescriptive title. The suit being of possession and Ahmed having not been able to show his right to remain in possession, suit of the plaintiffs had to be decreed. The approach of the learned Courts below to the suit of the plaintiffs was erroneous in law and as such the judgment passed is not sustainable. The impugned judgments and decrees are, therefore, set aside. The suit as such to the extent of recovery of possession as against Ahmed respondent/defendant, is decreed. The other issues were not pressed by the learned counsel for the petitioners‑plaintiffs. The learned counsel for the petitioners states that petitioners will have no objection to the removal of the `Malba' by Ahmed. In view of the above Ahmed will be entitled to remove `Malba' within two months from today. The petition is, therefore, accepted with no order as to costs. AA./S‑524/L??????????????????????????????????????????????????????????????? Revision accepted.