2001 PLP 2007 (YLR)

(1) Whether the plaintiff has no locus standi to file the suit? (2) Whether the plaintiff is in possession of the suit land and the suit for a declaration is competent? (3) Whether the plaintiff is estopped to file the present suit? . (4) Whether the plaintiff is owner of the suit land and Mutation No.857, dated 27‑4‑1967 is bogus, without consideration, void and in operative against the rights of the plaintiff? (5) Whether the defendant is entitled to , compensatory costs under section 35‑A, C.P.C.? (6) Relief.

4. The evidence produced on behalf of the plaintiffs comprised of statement of P.W.1 Noor Ahmad respondent, P.W.2 Mehr Khan and P.W.3 Ghulam Farid. Exh. P.1 is the copy of the impugned mutation while Exh.P.2 and Exh.P.3 are Jamanbandies for the year, 1964‑65 and 1972‑73 respectively. On behalf of the defendant D.W.1 Yousaf Ali, D.W.2 Sardar Elahi Bakhsh, D.W.3 Shahroo Khan and D.W.4 defendant as his own witness was examined.

5. The learned trial Court vide judgment and decree, dated 30‑11‑1982 dismissed the suit of the plaintiff. On issue No.2, the trial Court held that as the plaintiff was out of possession, the suit for declaration alone without possession was not maintainable. Upon Issue No.3 also it held that as the plaintiff has herself alienated the land by sale, she was estoped to file the suit. Upon Issue No.4, the learned trial Court came to the conclusion that the plaintiff did sell the land in question and therefore, she could not be declared to be the owner of the same.

6. An appeal was filed by the respondent/plaintiffs against the judgment and decree, dated 30‑11‑1982 of the trial Court which was accepted vide the impugned judgment and decree of the learned District Judge, Rahimyarkhan, dated 18‑3‑1984.

7. In this civil revision, the learned counsel for the petitioners have challenged the judgment and decree in appeal inter alia on the ground that the learned‑ appellate Court has failed to give any findings on Issues Nos.2 and

3. After going through the said judgment, it is found that there is force in the contention of the learned counsel for the petitioner. The entire discussion by the learned District Judge has been focused upon Issue No.4, upon which, the learned Appellate Court differed with the conclusion of the learned trial Court and held that there was no independent evidence to prove the transaction between Mst. Ghulam Sakina and the defendants. Issue No.2 was a very material issue under which the trial Court had found the plaintiffs/respondents to be out of possession with the result that it was held that the suit itself for declaration alone without possession was not competent. It was incumbent upon the learned appellate Court to have rendered a definite finding upon Issue No.2 without which it was not possible to decree the suit of the plaintiffs/respondents. Similarly, the learned Appellate Court has erred in not returning any finding on Issue No.3. The learned Counsel for the petitioner has also submitted that even the findings on Issue No.4 of the Appellate Court was not correct as he has not correctly read the evidence of P.W.1 and P.W.3. According to the learned counsel, the said P.Ws. themselves had vouch safed the truthfulness of the witnesses who are said to have identified the plaintiff. In this view of the matter, there was no reason, according to the learned counsel for disbelieving the witnesses who had identified Mst. Ghulam Sakina Bibi at the time of mutation.

8. On the other hand, the learned counsel for the respondents strongly defended the judgment of the learned Appellate Court.

9. Arguments heard, Record perused.

10. It is obvious from the perusal of the judgment of the Appellate Court that no finding has been given on Issues Nos.2 and

3. Issue No.2 was a very vital issue, upon which, the very maintainability of the suit depended. In order to pass a decree in favour of the plaintiffs, it was incumbent upon the learned Appellate Court to first hold whether or not the suit itself was maintainable or whether it is hit by section 42 of the Specific Relief Act. Upon Issue No.4 also the judgment of the learned Appellate Court suffers from non‑reading of material evidence such as the statement of P.W.1 and P.W.3.

11. As a result, the judgment and decree of the learned Appellate Court impugned in this civil revision suffers from exercise of jurisdiction with material irregularity. The civil revision is accepted and after setting aside the judgment and decree, dated 18‑3‑1984, the case is remanded to the learned Appellate Court for decision afresh on all the issues. The parties to bear their own costs. H.B.T./A‑285/L Order accordingly.