1995SCMR88 (PLP)

FAZAL ILAHI KHAN, J.‑‑‑Leave to appeal is prayed for in this petition against the judgment of Peshawar High Court, Circuit Bench, D.I. Khan, dated 12th February, 1994 whereby Civil Revision No. 8 of 1993 was dismissed. Respondents sued the appellant for possession of a house measuring about 1 Kanal 14 Marlas situated in Khata No. 104, Mauza Maryal, Tehsil Dera Ismail Khan. It was in the plaint that the parties were on friendly terms, therefore, respondent/plaintiff handed over possession of the suit house to the appellant for his residence on the condition to vacate the same when required. That when requested the appellant refused to vacate the‑ house and claimed title to it. Petitioner resisted the suit denying the allegation and stated that respondent never remained in possession of the suit house and that the petitioner being a co‑sharer in the Khata is the owner in possession of the suit house. After framing of issues and recording the parties' evidence the learned trial Judge held that the petitioner was owner of 18 Marlas of land while his possession at present is on an area measuring 1 Kanal 14 Marlas at which the house has been constructed. He is, therefore, entitled to retain possession to be declared owner to that extent. It was further held that respondent failed to prove his possession over the suit house and handing over its possession to the petitioner on the condition stated above; hence on such finding dismissed the respondent's suit. Learned Additional District Judge set aside the finding and decreed the respondent's suit as prayed for in the plaint which was maintained in revision. It was contended by the learned counsel that the suit Khata measuring 15 Kanals 7 Marlas per Jamabandi for the year 1969‑70 in which Khasra No. 458 measuring 1 Kanal 9 Marlas is shown in Hissadari possession of BAKHAT WADA, while Khasra Nos. 460 and 470 measuring 12 Kanals 9 Marlas is shown Maqbooza Bashindgan Abadi Deh in the column of cultivation. In the column of ownership a large number of persons are recorded as its owner and several mutations have been attested regarding sale made by recorded co‑sharers. According to statement of Patwari both the parties are co‑owners in the suit Khata by purchase. In absence of any evidence that respondent was in exclusive possession of the house in dispute and the fact that the petitioner is in continuous possession of the property, the learned Additional District Judge was wrong in holding that suit house belongs to the respondent. Approach of the High Court in this respect was also not based on proper appraisal of evidence. The contention raised requires consideration. Leave to appeal is granted and the status quo order already passed on 2‑5‑1992 shall continue. AA./M‑2166/S Leave granted.