FAIZ AHMAD Versus AHMAD KHAN

ABDUL SATTAR ASGHAR, J. ---This Civil Revision under Section 115 of Civil Procedure Code, 1908 is directed against the judgment and decree dated 8-6-1993 passed by learned Additional District Judge Gujrat whereby respondents' appeal was allowed and their suit for possession was decreed while setting aside the judgment and decree dated 25-4-1975 passed by learned Civil Judge Gujrat.

2. Succinctly facts leading to this Civil Revision are that Bahadur (since died and represented by respondents Nos.1 to 5), Ilyas/respondent No.6 and Barkat Ali (since died and represented by respondents Nos.7 to 9) lodged a suit for possession on 2-6-1972 in the court of Civil Judge Gujrat against the petitioners Faiz Ahmad and others pertaining to the suit land measuring 140 Kanals 6 Marlas situated at Mauza Thatha Paur Tehsil and District Gujrat alleging that owners of the suit land are numerous and it is not possible to implead all the owners as plaintiffs therefore suit was filed by the said respondents in representative capacity in the interest of all the owners supported by a list of all the owners and application under Order I, Rule 8, C.P.C. besides seeking permission to file the suit in representative capacity. It was also averred in the plaint that petitioners are in use and possession of the suit land with the permission of the owners (respondents) and that now owners intend to cultivate the suit land themselves but the petitioners have refused to vacate the possession, hence the suit. The suit was resisted by the petitioners by filing contesting written statement raising preliminary objections that the same was not maintainable in its present form, bad for non-joinder of the parties, that the respondents lack cause of action and that the petitioners have become owners of the suit land on the basis of adverse possession for more than 12 years. Following issues were framed by the learned trial court out of the divergent pleadings of the parties:--

ISSUES:

(1) Whether plaintiffs are owners of the suit land? OPP

(2) Whether suit is not maintainable in its present form? OPD

(3) Whether defendants are in adverse possession of the suit property for a period more than 12 years? OPD

(4) Whether suit is properly valued? OPP

(5) Whether suit is bad for non-joinder of necessary parties? OPD

(6) Whether plaintiffs have no cause of action? OPD

(7) Relief

After recording of evidence of the parties learned trial court decided issues Nos. 1 to 4 in favour of the respondents whereas issues Nos.5 & 6 were decided in favour of the petitioners and the suit was dismissed by the learned trial court vide judgment and decree dated 25-4-1975. Respondents being dissatisfied with the dismissal of the suit assailed the judgment and decree of the learned Civil Judge dated 25-4-1975 through appeal which was allowed by the learned Additional District Judge vide impugned judgment and decree dated 8-6-1993 and the suit was decreed in favour of the respondents. Petitioners have assailed the judgment and decree passed by learned Additional District Judge through this Civil Revision.

3. It is argued by learned counsel for the petitioners that the learned appellate court fell in grave error while allowing the appeal and decreeing the suit on wrong premises of law and facts; that the impugned judgment and decree dated 8-6-1993 passed by learned first appellate court is based on misreading and non-reading of evidence; that the material evidence produced by the petitioners has been ignored by the learned first appellate court causing serious miscarriage of justice; that the suit for possession is not maintainable; that although the petitioners have not filed cross-objections against the findings of the learned trial court on issues Nos.1 & 2 however the first appellate court had ample powers under Order XLI, Rule 33 of Civil Procedure Code, 1908 to consider the material question of law and facts before passing decree in favour of the respondents against the petitioners; that the respondents are not owners of the suit land; that the impugned judgment and decree suffering from factual and legal infirmities is untenable in law and liable to set aside.

4. On the other hand it is resisted by the learned counsel for the respondents with the contentions that petitioners' plea of adverse possession is not maintainable having been declared repugnant to the injunctions of Islam by the Hon'ble Supreme Court of Pakistan in the case of: Maqbool Ahmad v. Government of Pakistan (1991 SCMR 2063) that the respondents have furnished the list of all the owners with an application under Order I, Rule 8, C.P.C. along with the plaint and it was the duty of the court to issue notice to all the co- sharers as well as to pass an order granting permission to the respondents to file the suit in representative capacity and that failure of the court in doing so being an act or omission of the court and even an irregularity does not effect the merits of the case and respondents could not be non-suited on this ground; that the bare reading of the plaint transpires a good cause of action in favour of the respondents therefore learned trial court had fallen in grave error while dismissing the respondents' suit while recording findings on issues Nos.5 & 6 against the respondents; that the learned first appellate court while appreciating the facts and material available on the record has rightly granted the appeal and decreed the suit in favour of the respondents in accordance with the law; that the petitioners have no case to invoke the revisional jurisdiction of this Court therefore this revision petition is liable to be dismissed.

5. Arguments heard. Record perused.

6. Perusal of the record transpires that respondents in support of their plea of ownership in the suit land have placed on record copy of Record of Rights for the years 1923-24 (Exh.P-1). Column No.3 thereof pertains to "Names of owners with particulars" reads as "Shamlaat Harseh Patti Hassab Rassad Khewat". Admittedly owners in the estate comprised three "Patties" namely "Patti Gegi" "Patti Kathana" and "Patti Kisana". It is therefore obvious that the suit land is not owned by owners in the estate in their independent or joint capacity rather it is "Shamlaat Deh" i.e. a common land reserved for all the three "Patties" in accordance with their respective shares in the Khewat. This is verified through copy of "Missal Haqiyat" Mauza Paur Tehsil Gujrat for the years 1868 (Exh.D-2). Column No.5 thereof pertains to "Names of the owners with particulars" reads as "Shamlaat Patti Kisana, Gegi and Kathana". Admittedly it was a suit for possession of the disputed land. In paragraph No.1 & 2 of the plaint as well as in the statement of Muhammad Ilyas (P.W.2)/resppndent No.6 it was stated that the disputed land was owned by him along with other co-owners. Meaning thereby claiming the disputed land a joint property he filed the suit in representative capacity.

7. It may be expedient to note that column No.6 of "Missal Haqiyat" for the years 1868 (Ex.D-2) pertaining to "Names and particulars of the cultivators" reads as under:--

The conditions (Shiraet) mentioned above have been detailed in column Nos.4, 5 & 6 which read as follows:--

8. Bare reading of the above referred entries of "Missal Haqiyat" for the year 1868 (Exh.D-2) makes it crystal clear that the suit land was reserved as "Charagah Meal Maveshi Maa Qaabzaan" and owners in the estate were not empowered to evict the occupants up-till existence of the "Abadi Deh". Conditions envisaged in "Missal Haqiyat" (Exh.D-2) further reveals that the owners in the estate were given a right to the trees standing at the time of preparation of "Missal Haqiyat" and was not extended to the trees to be planted by the occupiers thereafter or to the extent of self grown trees rather right of occupiers was extended to the trees planted by them as well as to the self grown trees thereafter. Needless to say that at the time of settlement of lands the object was to protect the rights of all the inhabitants and dwellers in the estate besides the owners including menials dwelling in the estate in order to provide different services to the owners.

9. At this juncture it is pertinent to notice that petitioners have produced a copy of Mutation No.2223 dated 30-6-1971 (Exh.D-4) pertaining to dispute of cultivation over the land between the owners in the estate and the occupiers. Relevant extract of the order of the Assistant Collector-I Gujrat on the said mutation is re-produced hereunder for ready reference:--

10. At this stage it is expedient to take guidance from the dictum laid down by the Hon'ble Supreme Court in the case titled: "Khalique Ahmad v. Abdul Ghani and others PLD 1973 SC 214)" wherein it was held as under:- "a suit for possession can be brought by all the co- owners jointly. It is open, however, to one of them also to sue for possession, but he must join the other co-owners as defendants and the decree will be for joint possession and not in favour of the plaintiff only. Unlike, that a suit for ejectment can be filed by one of the co-owners without joining the others as defendants. This is the difference between an action for possession and an action for ejectment."

11. It is evident on the record that suit land is 'Shamlaat Deh' and not a joint Khata of the owners. Respondents being co-owners in the estate not impleading all the co-sharers as party and without seeking partition of Shamlaat cannot file a suit for possession against the petitioners and certainly no decree for possession could be passed in favour of the respondents only. Therefore the impugned judgment and decree passed in favour of the respondents being illegal is untenable and liable to be set aside.

12. For the above discussion and reasons, 1 am of the considered view that findings of the learned trial court on issues Nos.1 and 2 are against law and facts and untenable and therefore reversed. The observation of learned appellate court that the same could not be interfered due to non-filing of cross-objections by the petitioners are also exceptionable for the simple reason that learned first appellate court had ample jurisdiction under Order XLI, Rule 33 of Civil Procedure Code, 1908 to look into all the dimensions of law and facts to resolve the real matter in controversy and to do complete justice. Needless to say that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. It is also pertinent to mention that an appeal being a continuation of the original suit an appellate court can pass any order that can be made by a trial court in the interest of justice. Order XLI, Rule 33 of Civil Procedure Code, 1908 therefore confers unlettered discretion which should not be limited or restricted and must be used to adjust the rights of the parties in accordance with law, justice, equity and good conscience. It is settled principle of law that where the courts below have committed any omission or refused to exercise its discretion to make a proper order in accordance with the law and facts such omission can be corrected by this Court in exercise of revisional jurisdiction. The impugned judgment and decree of the first appellate court therefore having been passed on wrong premises of law and facts and based on misreading and non-reading of evidence is untenable and liable to set aside.

13. For the above reasons this Civil Revision is accepted. The impugned judgment and decree dated 8-6-1993 passed by learned Additional District Judge Gujart is set aside. The judgment and decree dated 25-4-1975 passed by learned Civil Judge Gujrat is maintained with modification to the extent that findings on issues Nos.1 & 2 are reversed in favour of the petitioners.

SAK/F-7/L Revision accepted.