2015 PLP 470 (MLD)

SARDAR ABDUL HAMEED KHAN, J.

This appeal has been filed against the judgment and decree passed by the learned Additional District Judge, Kahuta Haveli camp Dhirkot dated 29-5-2002 whereby judgment and decree passed by the learned Civil Judge, Dhirkot on 30-9-2000 has been recalled. Precise facts of the captioned appeal are that Dahawar Khan, predecessor of appellants, herein, filed a suit on 17-8-1987 that land measuring 10 kanal 3 marlas situated in Village Chirian is in his ownership. It is claimed that they are in possession of the land from their forefathers. The suit was contested by the other side by filing written statement. The learned trial Court framed issues in light of the pleadings of the parties and the parties were allowed to lead evidence pro and contra. At the conclusion of the proceedings, the learned Civil Judge, Dhirkot decreed the suit in favour of Dahawar Khan. Saif Ali Khan and others defendants/respondents, herein felt aggrieved from the judgment recorded by the Civil Judge, Dhirkot and filed an appeal before the Additional District Judge, Dhirkot. After hearing the parties, the learned Additional District Judge vide judgment and decree dated 29-5-2002 dismissed the suit of the appellants and granted decree in favour of Saif Ali Khan and other respondents, hence, this second appeal. Sardar Atta Elahi Abbasi, the learned Advocate appearing for the appellants argued that the Civil Judge passed a decree of adverse possession in favour of appellants, herein vide his order dated 30-9-2000 whereas the learned Additional District Judge, set aside the judgment of the learned Civil Judge and passed the decree for possession in favour of respondents, herein. The learned counsel contended that the impugned judgment of the learned Additional District Judge has not been passed in accordance with Order XX Rule 5 of Civil Procedure Code because the Court was bound to resolve every issue, therefore, the case may be remanded to him for decision on merit. The learned Advocate submitted that the resolution of learned Additional District Judge that the Court was bound to resolve other issues in light of issue No.5 in favour of appellants as all other issues have been proved by cogent evidence which was properly and legally appreciated by the trial Court. In this regard, the learned counsel referred to the statements of plaintiff's witnesses Sher Afzal, Muhammad Saddique and Moazam Khan and pointed out that these witnesses were not cross-examined on the important points. He further pointed out that one of the defendants Muhammad Farid who appears before the Court as witness is of much significance. The overall crux of the statement of this witness supported the version of the plaintiffs/appellants which was properly appreciated by the trial Court. It was further argued by the learned counsel that in civil cases the preponderance of the evidence has to be appreciated and not like witnesses in criminal cases, as has been done by the learned Additional District Judge in this case. He further contended that evidence has not been produced by the respondents in accordance with law and mere entry in the revenue record which is not supported by the other evidence has no value. It was next argued by the learned counsel that suit of the respondents was hit by Order II Rule 2, C.P.C. because a suit was instituted in 1989 B.K. for adverse possession in Dogra Regime on which a compromise was affected between the parties and decree in light of that compromise was issued. The proposition that "Suit was not maintainable to the extent of remaining land" has been misconceived by the learned Additional District Judge. In support of his submissions, the learned counsel placed reliance on the following case law:-- 1. [2003 SCR 861(sic)]; 2. [PLD 1986 SC(AJ&K) 56]; 3. [1992 SCMR 816]; and 4. [2004 CLC 1328]. While controverting the arguments raised on behalf of the appellants, Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for the respondents, contended that according to the statements of the witnesses, it is proved that Saif Ali Khan and others, respondents, herein, are owners of the land. The learned Advocate argued that the learned Additional District Judge has rightly awarded the decree in favour of the respondents, herein, therefore, appeal having no merits may be dismissed. On the point of land revenue the learned counsel for the appellants agitated that Saif Ali Khan, Lambardar is another person who is not Saif Ali Khan, respondents herein. The learned counsel for the respondents while confronting with the situation stated that he has no knowledge about this fact. I have heard the learned counsel for the parties, perused the record and gone through the statements of the witnesses pointed out by the learned counsel for the parties. The claim of the appellants is that they are owner of the land measuring 10 kanal 3 marlas situated in Village Chirian Tehsil Dhirkot. The conclusion reached by the Additional District Judge is based on surmises and conjectures. It will not be in the interest of justice to give opinion on the impugned order as it may prejudice the case either of the parties. As I have decided to remand the case to the first appellate Court for fresh decision after appreciating the evidence of the parties issue wise. In view of what has been stated above, by accepting the appeal of appellants the impugned order of Additional District Judge is hereby set aside and the case is remanded to the learned Additional District Judge Dhirkot to decide the controversy afresh in the terms indicated above. No orders as to costs. AG/7/HC(AJ&K) Appeal accepted.