DIL MUHAMMAD AND 2 Others vs IQBAL MUHAMMAD AND 2 Other

ORDER

1. MUHAMMAD YAQUB ALI, J.-The respondents 1 to 3 filed a suit against the appellants on the 18th March 1969, under section 9 of the Specific Relief Act for possession of an Ihata in Chak 54/R-4, District Bahawalnagar, on the allegation that the appellants had forcibly dispossessed them from it on the 26th February 1961. The Civil Judge dismissed the suit on 5-1-1970 on the finding that the plaintiffs had failed to prove their actual physical possession.

2. The respondents thereupon filed a revision petition in which a learned Judge found that the trial Judge had misconstrued the evidence and admitted on the back of the plaintiffs into evidence copy of the judgment in a criminal case between the parties after the trial had concluded and final arguments addressed by the parties' counsel. On a proper examination of the evidence which consisted of a number of documents including the entries from the revenue records and the oral testimony led by the parties, the learned Judge concluded that Iqbal Mohammad, respondent No. 1, was in possession of a portion of the 1hata and Mst. Rahim Bibi, P. W. 4, was in possession of the other portion as a tenant under the respondents. The appellants having no right or title in the 1hata, the revision petition was accepted and the suit for possession decreed on 25-9-1970 in favour of the respondent No. 1 alone.

3. Leave to appeal was granted to consider the plea that a finding of fact could not be varied in a revision petition under section 115, C. P. C. It was also contended that there was no misreading of the evidence.

4. We have examined the record and agree with the High Court that the trial Judge had misconstrued the evidence given by (i) Nazir Ahmad, village Patwari; (ii) Mst. Rahim Bibi; and (iii) Mohammad Iqbal, respondent No. 1. He also ignored material documentary evidence and acted illegally in the exercise of his jurisdiction in admitting into evidence on the back of the plaintiffs a copy of the judgment delivered by a criminal Court between the parties.

5. The daily report (Exh. P. 3) copy of the order of the Revenue Officer (Exh. P. 4), and the report of the Patwari (Exh. P. 5) proved beyond doubt that the Ihata was allotted to the plaintiffs and its possession delivered to them. The trial Judge ruled out this weighty evidence on the view that the Patwari had attempted to favour the plaintiffs by preparing incorrect copies. Reference was made to certain entries which bad been deleted from the original records, but were not included in the copies prepared by the Patwari. Little thought was given to the original entries which showed that the 1hata, in dispute, was allotted to the plaintiffs by the Revenue Officer and the Patwari had delivered its possession to them as per entry in the daily diary and the report submitted by the Patwari to his superior officers.

6. The appellants claimed that they had purchased the 1hata from one Mehr Din and were in possession Since long. Copies of Jamabandk produced by the Patwari, however, indicated that the Ihata belonged to a Sikh at the time of Partition and on his migration to India it became evacuee property. The Ihata originally belonged to one Mehr Din, but he exchanged it with another Ihata with the approval of the Collector on the plea that the locality in which the Ihata was situated was exclusively populated by Sikhs. According to entries in the revenue records this exchange had taken place as far back as 1940. Copy of the order permitting the exchange and the subsequent ownership of the Ihata by the Sikh were placed on record but the trial Judge completely ignored them from consideration. In similar fashion the trial Judge grossly miscons--trued the testimony of Iqbal Mohammad and Mst. Rahim Bibi in all material respects. There is a detailed discussion on this point in the judgment delivered by the High Court and we will not burden this order with its repetition.

7. The use of the judgment delivered by a criminal Court to' discredit the testimony of the Patwari in the present case being wholly unwarranted by the Code, the trial Judge did act illegally in the exercise of his jurisdiction as provided in clause (c) of section 115. The High Court had, therefore, the jurisdiction under this clause to set aside the judgment and decree passed by the trial Judge.

8. On merits we concur with the findings by the High Court that the respondent No. 1 was in possession of the Ihata when the appellants forcibly took its possession. Suit for possession under section 9 of the Specific Relief Act was, therefore competent. The appeal is dismissed with costs.