2007 PLP 2983 (YLR)

MAULVI ANWARUL HAQ, J.'

This judgment shall also decide C.R. No.1591 of 1999 as common questions are involved.

2. On 3-11-1981 Maqbool Ahmad, the predecessor-in-interest of the petitioners, filed a suit against the respondent. According to him, he purchased land measuring one kanal, 2 marlas from Khasra No.1000/426 in village Nizamabad from Muhammad Ayub vide registered sale-deed dated 5-8-1981. The respondent encroached upon the said laird to the extent of six marlas. A demarcation was got conducted and encroachment was reported. A decree for possession was accordingly prayed for. The respondent in his written statement took the plea that he purchased khasra No.427 measuring 9 marlas from Muhammad Tufail -who delivered him the possession under agreement dated 17-2-1973. and he has raised construction on the same and that he has not encroached upon khasra No.426. It appeals that dispute arose between the respondent and the said vendor, namely, Muhammad Tufail. On 21-3-1985 the respondent filed a suit against the said Muhammad Tufail seeking a declaration that he has paid the consideration and the said land measuring 9 marlas in khasra No.427 was delivered to him by Muhammad Tufail. The said Muhammad Tufail denied the said fact. Somehow or the other, both the suits were consolidated. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed both the suits on 22-10-1987. The matter was, however, remanded back by the learned first Appellate Court. After remand, a referee was appointed and the suits were deeded in accordance with his report on 28-6-1992. This judgment and decree was also set aside by learned Additional District Judge Wazirabad, on 3-3-1990. Again, consolidated issued were framed acid evidence of the parties was recorded. The learned trial Court vide judgment and decree dated 2-4-1999 dismissed both the suits. First appeals were flied by the respondent as well as the petitioners. These were heard together by a learned Additional District Judge., Wazirabad, vide judgment and decree dated 24-6-1999 he allowed the appeal of the respondent by converting his suit into one for specific performance and decreeing the same but he dismissed the appeal tiled by the petitioners.

3. Learned counsel for the petitioners has taken me through the evidence and particularly the report of the Local Commissioner appointed by the Court (Exh.P.2) to urge that both the Courts below have failed to read the said documents while dismissing the suit of the petitioners. Learned counsel for the respondent has tried to support the impugned judgments and decrees dismissing the suit of the petitioners.

4. I have gone through the copies of the records, appended with both the civil revisions. I may state in the very beginning that so far as the, suit filed by the respondent against Tufail is concerned, the same was decided on the basis of the conceding written statement filed by the L. Rs. of Muhammad Tufail after his death. Despite the said concession, the suit was dismissed by the learned trial Court on the ground that a declaration cannot be granted on the basis of an-agreement. The learned Additional Session Judge, has very rightly converted the suit into a suit for specific performance and to have decreed the same. This decree has not been questioned by the L.Rs. of said Muhammad Tufail and, of course, by the present petitioners: So, that matter is past and closed.

5. Now as would be evident from the perusal of the pleadings, the material contents whereof have been reproduced by me above, the precise allegation of the petitioners was that they are owners in Khasra No.10001426 and the respondent has made an encroachment on the same. The case of the respondent was that he is an owner in Khasra No.10001427 and has raised constructions thereon and has not made any encroachment.

6. I have examined the report Exh.P.2 proved by Ghu1am Sarwar Cheema, Naib- Tehsildar, P.W.3 who was appointed by the Court to make the demarcation. This report clearly narrates that Muhammad Aslam respondent has encroached upon Khasra No.1000/426 to the extent of three marlas. The encroachment plan has also been prepared showing the details of the said encroachment.

7. It is rather shocking .that the learned trial Court while dealing with the relevant issue No.2 at page. 8 of its impugned judgment has observed that the demarcation report Exh.P.2 shows that the respondent never made any encroachment on khasra No.426 while the learned Additional District Judge, in his impugned judgment in para-12 has stated that Exh.P.2 does not report any encroachment on the land of Maqbool Ahmad.

8. The learned counsel of the petitioners has very rightly argued that both the learned Courts below have made the said observations without reading the said report. C.R. No.1590 of 1999 is accordingly allowed inasmuch as the suit filed by the petitioners/plaintiffs against Muhammad Aslam respondent(defendant is decreed and they are granted a decree for possession of three marlas as per report Exh.P.2 while C.R. No.1591/99 is dismissed and the decree passed in the suit filed by Muhammad Aslam against Muhammad Tufail (represented by his L.Rs.) in upheld. A decree sheet be prepared accordingly. No orders as to costs. M.H./M-436/L Revision allowed.