1992 PLP 1518 (CLC)

(b) Limitation Act (IX of 15108)‑‑‑ ‑‑‑‑Art.: 144 & S.28‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Revisional jurisdiction, exercise of‑‑‑Suit for adverse possession‑‑‑Act of Court below in proceeding to decree suit for adverse possession, was contrary to all canons of justice and rules of fair play‑‑‑Court below also disregarded requirements of procedural law‑‑‑High Court in exercise of revisional jurisdiction, declared order of Court below illegal. Rab Nawaz Khan Niazi for Petitioner. Nemo for Respondents. Date of hearing: 29th June, 1991. Civil Revision arises out of a civil suit instituted by plaintiff Usman, against Hameed Ullah Khan Zia, to have it found that he was owner‑in possession of 12 Marlas Abadi land, on account of holding it adversely for the past 25 years, and, the defendant to the suit must not cause interference with his possession on it. Upon being served defendant Hameedullah Khan Zia appeared in Court, and, submitted his written statement. It was stated in defence that the property in suit was purchased by Piao Khan from father of the plaintiff on 18‑10‑1942 and ever‑since that time, he was in its actual possession. On the basis of the written statement submitted by the sole defendant to the suit, the trial Court rejected the plaint, under Order VII, Rule 11, Civil P.C. on 4‑12‑1977. Rejection of the plaint was appealed from, in the Court, learned District Judge, Mianwali. However, the appeal came to be heard by an Additional District Judge in that District. It appears that in the appeal filed, Piao Khan was added as respondent No.2. notice issued to the said respondent was not served. Nonetheless on the statement of the counsel for the defendant dated 4‑12‑1977, Additional District Judge accepted the appeal and decreed the suit against the defendant, who had admitted the claim of the plaintiff, Against his judgment a revision was filed in this Court. It was admitted to hearing on 13‑6‑1978 and has come up for hearing today. Though the respondent was represented, yet neither he nor his Advocate has turned up to oppose. Without allowing an opportunity of defence to Piao Khan, who claimed to be in possession of the property in dispute, no decree declaring the plaintiff to be owner‑in‑possession of the property on account of holding it adversely for requisite number of years could have been passed. The act of the lower appellate Court in proceeding to decree the suit was contrary to all the canons of justice and rules of fair play. The Court below seems to have disregarded the requirements of procedural law also. Therefore, I do not see my way to uphold such a judgment, which on the face of it was illegal and could not be blessed with sanctity. In view of the aforesaid, I allow the revision petition, set aside the impugned decisions rendered in the lower Courts and direct trial on merits by the trial Court after allowing reasonable opportunity of defence both to Hameedullah Khan Zia, and Piao Khan. Since the plaintiff in the suit did not appear to oppose, 1 shall make no order as to costs of this revision. Records be returned. H.B.T./P‑157/L Revision allowed.