1986 PLP 716 (MLD)

‑‑‑S. 12‑‑Court‑fee‑‑Question of‑‑A matter between Court and plaintiff‑‑Once a finding has been given by Trial Court that would be final between parties. Riaz Kayani for Petitioners. This is a petition against a decree of the learned District Judge, Sheikhupura, dated 17‑1‑1979.

2. It appears that an area of 4 Kanals 9 Marlas in Khasra No. 584 was transferred by Karam Din in favour of Zafar Ullah since the former claimed to be a co‑owner of that much area in Khata No. 21 and also claimed to be in Hassadari possession of this Khasra. The respondents challenged not only the quantum of ownership of Karam Din but also his possession over Khasra No. 584 and, therefore, filed a suit. They alleged that Karam Din was owner of only two Kanals three Marlas and not of four Kanals nine Marlas. He was in possession of Khasra No. 677 measuring four Kanals and not of Khasra No.

584. Both these points were decided in favour of the plaintiffs by the learned trial Court which passed a decree in their favour on 29‑5‑1978.

3. In appeal the learned District Judge allowed production of some additional evidence under Order XLI, rule 27, C.P. C. He found on the basis of the said evidence that Karam Din was owner in the joint Khata of 5 Kanffls 18 Marlas being 1/24th share. He, therefore, set aside the decree to the extent that petitioner No.2 was found entitled to 1 Kanal 3 Marlas only and validated the transfer deed so far as the area of 4 Kanals 9 Marlas was concerned. However, he found as a fact that none of the petitioners had been in possession of Khasra No. 584 which was in possession of the plaintiffs. He, therefore, modified the decree and while dismissing the suit of the plaintiffs in regard to the share of the defendant‑petitioners issued a permanent injunction against the latter restraining them from interfering with the possession of plaintiff No.1 over the land in Khasra No. 584.

4. The learned counsel argued that by a finding given by the learned District Judge in the last sentence of para. No.5 he has deprived petitioner No.2 of his right of possession over Khasra No. 677 also, which was admittedly occupied by him. The sentence is to the following effect:‑ "He will be eligible to the physical possession of the land when partition takes place or it is so otherwise agreed to by the co‑owners in actual possession of the land."

5. He also argued that since there were other persons also in possession of Khasra No. 584 a decree could not have been passed in favour of the plaintiffs in the absence of those persons. Lastly, he submitted that the court‑fee in this case was deficient and the suit was not properly valued.

6. So far as the last two points are concerned, they are without force. The question raised by the plaintiffs is only to the effect that so far as defendants are concerned, they are not in possession of any portion of Khasra No.

584. Once it is held that the plaintiffs or any of them was in possession of the said Khasra No. and the defendant were found not to be in possession thereof, it was not necessary to implead other persons and an injunction as issued by the learned District Judge could have been issued against the defendants‑ petitioners. The question of court‑fee does not appear to have been urged before the learned District Judge but in any case this is a matter which is inter‑Court and the plaintiffs. So far as the parties are concerned once finding has been given by the learned trial Court that would be final under section 12 of the Court Fees Act between the parties. In this case, however, I find that the issue about valuation was not pressed.

7. I have seen the judgment of the learned District Judge as well as the copy of the plaint. It appears that the dispute between the parties was about the measurement of the area owned by petitioner No.1 and possession of Khasra No.584. No other Khasra No. was in dispute. In these circumstances the sentence to which exception has been taken by the learned counsel should be treated to refer to only Khasra No. 584 and not Khasra No.

677. With this clarification, this petition is dismissed in limine. M. Y. H. Petition dismissed.