2002 PLP 3253 (YLR)

(2) Whether the suit is barred by limitation? OPD (3) Whether the suit has been correctly valued for the purposes of court‑fee and jurisdiction? OPD (4) If issue No.3, is not proved, then what is its correct valuation for both the purposes? OPD (5) Whether the plaintiff is owner of the suit property? OPD (6) Relief. Evidence of the parties was recorded. The suit was dismissed vide judgment and decree dated 20‑10‑1987. A first appeal was filed by the petitioners. It came up for hearing before a learned Additional District Judge, Sialkot who vide order dated 18‑4‑1993 framed the following additional issues:‑‑ (5‑A) Whether the plaintiff is e stopped, to file this suit by his word and conduct? OPD (5‑B) Whether defendant No.1, has perfected his title over the suit house due to adverse possession for a continuous period of 12 years? OPD. and remanded the case to the learned trial Court under Order XLI, rule 25, C.P.C. for recording findings thereon. The learned trial Court recorded its findings on the said issues on 29‑6‑1993 and submitted the file to the learned Additional District Judge. Both the issues were found against the defendants. After receipt of the report of the learned trial Court the learned Additional District Judge heard the appeal and proceeded to dismiss the same on 3‑4‑1994.

2. Learned counsel for the petitioners argues that it had been proved that the petitioner is the owner of the suit property and since a case of adverse possession was not made out, the learned Courts below had acted with material irregularity in the exercise of their jurisdiction while passing the impugned judgments and decrees. Learned counsel for the respondents, on the other hand, supports the impugned judgments and decrees.

3. I have gone through the copies of the records appended with this civil revision, with the assistance of the learned counsel for the parties. Exh.P.2 is the Jamabandi for the year 1965‑66 and according to it the petitioner and his brother Muhammad Sharif are owners in possession. There is a note that in Settlement for the year 1971‑72 this Khasra number has been included in the village Abadi bearing Khasra No.226. According to the copy of Khasra Girdawari till Kharif, 1971 (i.e. the time when the land was included in the Abadi) the petitioner and his brother alongwith him continue to be in possession as owners of the said land.

4. Both the learned Courts have insisted that since the land has been included in the Abadi, the petitioner has lost title. To my mind this is not to be Reference be made to the case of Aya Singh v. Latif (AIR 1934 Lahore 529). Now what has happened in this case is that the petitioner did get the land demarcated with reference to the old Khasra number but somehow or the other the original file containing the demarcation proceedings was not available and consequently the relevant officers who were in fact produced by the petitioner were unable to make any statement in the absence of the said record.

5. To my mind, the controversy in this case which alleged encroachment by respondents upon land owned by the petitioner could not have been resolved without demarcation. Even if for some reason the demarcation report could not be proved, the learned Courts below were bound to appoint a Local Commissioner to get the land demarcated. This they have failed to do and as such the impugned judgments and decrees do suffer from an error of jurisdiction inasmuch as the learned Courts below being oblivious of the mode of exercise of their respective jurisdiction in the facts and circumstances of this case have failed to exercise the same.

6. This civil revision is accordingly allowed. Both the judgments and decrees of the learned Courts below are set aside. The result would be that the suit filed by the petitioner shall deemed to be pending in the Court of learned Senior Civil Judge, Sialkot, where the parties shall appear on 28‑2‑2002. The learned Senior Civil Judge shall then either proceed with the matter himself or entrust the case to another competent learned Civil Judge who shall requisition the records and proceed to appoint a Local Commissioner (preferably a local Revenue Officer) with directions to inspect the site in presence of the parties and to conduct demarcation of the land with reference to its old Khasra number and to report as to whether or not the respondents are in possession of the said land. In case the respondents are found to be in possession of the said land they shall be directed by the Court to deliver possession to the petitioner No orders as to costs. Q.M.H./A‑417/L. Revision allowed.