1998 PLP 613 (MLD)

(3) Whether defendants are entitled to compensatory cost, if so to what extent? OPD. (4) Whether the defendants have been in possession of suit land as owner (Bashara Malikan or adverse possession) and plaintiffs have no concern with the suit land? OPD. (5) Whether the plaintiff No. 1 is not authorised to bring this suit on behalf of the other co-plaintiffs, if so its effects? OPD. (6) Whether plaintiffs are owners of the suit land and defendants are in illegal possession of it? OPP. (7) Whether plaintiffs are entitled to the decree for possession as prayed by them? OPP. (8) Relief.

2. The learned Civil Judge after going through the evidence proceeded to decide Issues Nos. 1 to 5 in favour of the petitioners. However, on Issues Nos.6 and 7 finding was recorded that though the petitioners were owners of the suit land yet it could not be proved that the respondents were in illegal possession and therefore no decree for possession could be passed. It was held that the respondent being in occupation as tenant, suit was not competent before the Civil Court and the petitioners should approach the Revenue Court. This finding was affirmed by the learned Additional District Judge on appeal by the petitioners vide judgment dated 2-3-1994.

3. It is contended by learned counsel for the petitioners that the respondents, in their written statement, did not set up the case of tenancy inter se between the parties. Not only that, they did not lead any evidence in this behalf. According to the learned counsel the evidence, if any, recorded on this point, was liable to be ignored. He has referred to Mst. Jannat Bibi v. Sher Muhammad and others (1988 SCMR 1696 at page 1701) to contend that no party is permitted lo deviate from his or her pleadings, nor can the Court set up such a plea and decide the same on that basis.

4. Perusal of the record shows that it is Ghulam Mahboob P.W.3, a witness produced by the petitioners who in cross-examination deposed that respondents Nos. 13 to 17 were in occupation of the suit land as tenants. It is urged that this statement was based on mis-apprehension of the factual position and, in any case, there being no issue with regard to the alleged tenancy between the parties, no finding could be recorded to this effect and thus the petitioners could not be non-suited.

5. It is well settled that, in such a situation, jurisdiction of Civil Court could be ousted only if it was agreed position between the parties that relationship of landlord and tenant existed between them. Since this question was not agitated before the Civil Court in the written statement and no evidence was led by the respondents in support thereof, the question of ouster of jurisdiction of Civil Court could hardly arise. See Muhammad Malik v. Muhammad Hussain (PLD 1990 Lah. 386).

6. For what has been stated above, the finding of the two learned Courts below regarding absence of jurisdiction of Civil Court is not sustainable. The same is set aside.

7. The other issues having already been found in favour of the petitioners, they are entitled to the grant of relief as prayed for. Therefore, after setting aside the judgments and decrees of both the learned Courts below, this revision petition is accepted and the suit is decreed, as prayed for. Since none has turned up to contest this revision petition, the petitioners are not entitled to any cost. C.M.S./G-44/L??????????????????????????????????????????????????????????????????????????????????? Revision accepted.