P L D 1998 Lahore 338 (PLP)

8 Kanals and 9 Marlas including the existing construction against Allah Jewaya and others claiming ownership on the basis of a registered sale-deed dated 14-4-1976 executed in his favour by the original owner Ghulam Muhammad vendor (defendant No.3) for a consideration of Rs.8,

800. He also claimed mesne profits amounting to Rs.3,700 Q Rs.100 from October, 1976 to October, 1979. He also alleged that he constructed a room and the boundary wall on the suit land but Allah Jewaya and Muhammad Siddique (defendants Nos.l and 2) illegally occupied the suit property in his absence. He took possession on the intervention of the neighbours, but the said defendants dispossessed him with the blessing of the police regarding which he got a case registered and initiated proceedings against the said defendants under section 145, Cr.P.C. The defendants also filed a criminal complaint against him. All the said cases were, however, rejected. He then obtained demarcation through the revenue authorities and finally instituted the abovementioned suit. The defendants No. l and 2 controverted the allegations levelled in the plaint and inter alia contended that the suit was barred by limitation; that the description of the suit property was vague and that they had become owners of the suit property being in possession for a period of 40 years.

2. As many as 6 issues were framed and finally the learned Civil Judge Ist Class, Bahawalpur vide his judgment and decree dated 16-9-1985 decreed the suit, leaving the parties to bear their own costs. The defendants Nos. l and 2 unsuccessfully appealed against the said judgment. On 9-12-1986, their appeal was dismissed with costs throughout by the learned Additional District Judge Bahawalpur. Hence, this revision petition against both the said judgments.

3. The learned counsel for the petitioners vehemently contended that respondent No. l/plaintiff had failed to establish his title to the suit property inasmuch as he had not been able to prove that the sale-deed in his favour pertained to the property in possession of the petitioners-defendants. He further contended that even Ghulam Muhammad vendor had no title to the disputed property and he could not pass a better title to the plaintiff. According to him, it was incumbent upon the plaintiff to prove the title of the vendor, which he had failed to prove. He pointed out some discrepancies about the description of the suit property in old Revenue Record. He relied upon the case of Inayat Ali v. Mst. Saeeda Begum and 8 others 1987 CLC 445 in this regard.

4. The learned counsel for the petitioners. next contended that the petitioners had become owners by way of adverse possession and as they were in continuous possession for about 40 years, the suit was barred by limitation. Reliance was placed on the case of Mst.Shah Sultana and others v. Abdul Khaliq and another 1987 SCMR 1791 and Abdul Hamid Khan and 5 others v. Inayat Khan and 2 others PLD 1958 (W.P.) Lah. 99.

5. It was finally contended that the petitioners had filed objections on the report of the local Commissioner, who had demarcated the land in dispute in compliance to the order of this Court dated 23-2-1993, but the petitioners were not afforded any opportunity to adduce evidence to prove the objections and, thus, their case was prejudiced. He prayed that the said report of the local Commissioner be discarded. 6.,, The learned counsel for the contesting respondents, on the other hand, referred to copies of mutations Exh. P.2, and Exh.P.10, copies of Register Haqdaran Arazi 1937-38, Exh.P.9, Register Haqdaran Arazi 1965-66 Exh.P.ll, copies of Khatooni Ishtamal-e-Arazi Exh.P.14 and Exh.D.l to show that the disputed land was owned by Major Shamas-ud-Din whose heirs sold it to Ghulam Muhammad vendor (defendant No.3). The learned counsel also referred to the demarcation report Mark-A to show that the property mentioned in saledeed Exh.P.l pertained to the disputed property in possession of the petitionersdefendants Nos. l and

2. The learned counsel for the contesting defendants submitted that there was absolutely no evidence that the petitioners were in adverse possession of the suit property. He relied upon the cases of Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and Fazal Din v. Muhammad Hussain 1994 CLC 1475 (Lahore) and submitted that the suit for possession having been filed within the prescribed period of limitation was rightly decreed by the learned Civil Judge Bahawalpur and his finding in this regard were rightly maintained in appeal.

7. As to the objections on the report of the local Commissioner, he submitted that the objections were frivolous and baseless. he pointed out that the local Commissioner had inspected the spot and the demarcation was made under his supervision in the presence of the parties. He finally relied upon the case of Muhammad Zaheer Khan and another v. Muhammad Zamir Khan 1987 SCMR 1144 and submitted that the revision petition was not maintainable against the concurrent findings of facts of both the Courts below.

8. The title of the respondent No.l-plaintiff to the disputed property is fully established from the documentary as well as oral evidence referred above. The demarcation report and the sale-deed proved that the property in possession of the petitioners is the same which was purchased by the plaintiff from Ghulam Muhammad, the transferee from the heirs of the original owner Major Sahmasud-Din. The defendant Allah Jewaya as D.W.2 clearly admitted that he had not purchased the disputed land from anyone and he also did not know its owner. He further admitted that he was not recorded as owner in the Revenue Record. This evidence is more than sufficient to prove the title of the plaintiff to the disputed property.

9. The objection of the learned counsel for the petitioners regarding limitation is baseless. In fact, the petitioners-defendants Nos.l and 2 never claimed to be in adverse possession of the disputed property. In preliminary objection No.4 of the written statement they simply alleged to have become owners because of 40 years old possession. Such a possession is never adverse against the true owner. The period of limitation in this case began to run from the date of dispossession of the plaintiff and at the most when he purchased the suit property on 14-7-1976. The suit having been filed in the year 1979 is well within time. The rulings referred by the learned counsel for the petitioners are not applicable to the facts of the case in hand.

10. The local Commissioner appointed by this Court demarcated the disputed property in the presence of the parties and found the petitio$ers in possession of the land purchased by Muhammad Bakhsh plaintiff from Ghulam Muhammad through sale-deed dated 23-4-1976. A site plan was also prepared and attached with the said report. The petitioners mainly objected to the report on the ground that they were not afforded any opportunity to cross-examine the maker of the report and to adduce evidence in support of the objections. Under Order 26, Rule 10(2), C.P.C. the right to examine the Commissioner personally in Court is available to the parties only with the permission of the Court. The local Commissioner was appointed by this Court in view of the contention raised on behalf of the petitioners at the time of admission of revision petition that there should have been local investigation. His appointment was for a limited purpose and particularly for further satisfaction of judicial mind as to the proper identification of the disputed property. I feel that the report of the local Commissioner when read in the light of the evidence on record does not require his examination in Court. The objections are prima facie frivolous and without any basis.

11. It is well-settled law that the High Court cannot interfere in exercise of revisional jurisdiction with the concurrent findings of facts unless there is any material irregularity or illegality affecting the decision of the Courts below. Even erroneous decisions on facts are not revisable except as mentioned above. The Supreme Court of Pakistan in the cases of Abdul Hameed v. Ghulam Muhammad 1987 SCMR 1005; Haji Muhammad Zaman v. Zafar Ali Khan and others PLD 1986 SC 88 and Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53, held the same law.

12. There are concurrent findings of facts in this case and no material irregularity or illegality affecting the decision of the Courts below has been pointed out. The revision petition is not maintainable and is dismissed, leaving the parties to bear their own costs. A.A./A-219/L Revision dismissed