ABDUL KARIM Versus ABDUL HAMID
The facts necessary for the disposal of this Civil Revision are that the respondents‑plaintiffs filed a suit for possession of land described in the plaint claiming to be its owners and alleging that the petitioners‑defendants had illegally and unauthorisedly constructed residential house thereon. The petitioners‑defendants contested the suit and on the pleadings of the parties the following issues were framed: ‑
(1) Whether the suit is incompetent in its present form? OPD.
(1. A) Does this Court lack jurisdiction to try this suit?
(2) Is the suit correctly valued for purposes of court‑fee?
(3) Is the suit bad for non‑joinder of the necessary party?
(4) Whether the plaintiffs have no locus standi to bring this suit?
(5) Whether the plaintiffs are entitled to the decree prayed for?
(6) Relief .
The suit was decreed vide judgment and decree dated 12‑2‑1974 by the then learned trial Court and the petitioners‑defendants were directed to remove the debris of their houses within a period of two months from the date of judgment otherwise the same would be got removed by the Court through execution proceedings.
2. On appeal the learned appellate Court held that since in pare 2 of the written statement the petitioners‑defendants had contended that they were in possession of the suit land ever since the creation of‑Pakistan, it was essential to frame an issue reflecting this aspect of the case. Consequently another additional issue as under was framed:‑
Whether the suit is within time? The learned trial Court was directed to record the evidence of the parties and remit the case to the appellate Court after recording its finding on the additional issue. The parties appeared before the learned trial Court. The respondents‑plaintiffs placed on record Khasra Girdawari respecting the land in dispute, Exh.P.2, and a copy of jamabandi for the year 1964‑65, Exh.P.3. The petitioners‑defendants also produced Khasra Girdawari Exh. D. I. comprising 3 pages pertaining to the crops from Kharif 1966 to Rabi 1976. The parties also entered the witness‑box. On the basis of this evidence the finding returned by the learned trial Court was that the property became of sakni nature only in Kharif 1968 and prior to this it was agricultural land and was in the occupation of predecessor‑in‑interest of the respondents‑plaintiffs. It was further observed that the contention of the petitioners‑defendants that they were in possession of the disputed premises ever since the creation of Pakistan thus stood falsified by these two documents (Exh.P.2 and Exh.P.3) and that the suit having been filed on 12‑10‑1971 was, therefore, held to be within time. The record alongwith the finding returned was _ resubmitted to the appellate Court which after hearing the parties dismissed the appeal vide judgment and decree dated 10‑12‑1981. Hence this revision petition.
3. I have heard the learned counsel for the parties. Learned counsel for the petitioners‑defendants argued that as the petitioners defendants were in possession of the separate houses constructed by them individually, one joint suit filed against them was bad on account of multifariousness and was liable to be dismissed on this short ground alone. It was next contended that the suit was barred by limitation as the petitioners‑defendants were in possession since 1947‑48 and that on account of construction of residential houses since 1947‑48 the land ceased to be agricultural land and as such the same could not have been allotted to the predecessor‑in‑interest of the respondents‑plaintiffs and under the operation of law the land underneath the houses of the petitioners‑defendants stood transferred to them under Settlement Scheme VII since 1‑1‑1961 the date of enforcement of the said scheme. There is no merit in either of these submissions. The objection that the suit was bad for multifariousnessl was neither raised in the written statement nor in the first appeal. The objection taken in the written statement was of non‑joinder of other persons who had also allegedly built houses on the suit land like the petitioners‑defendants. In the first appeal the objection was of misjoinder. It was, however, conceded that even if separate suits had been filed against the petitioners‑defendants the same question of law would have arisen in all these suits. It was further added by the learned counsel that the factual position as regards the date of possession in case of each of the petitioners‑defendants may be different. Even if the date of possession of the petitioners‑defendants is different still no prejudice has admittedly accrued to the petitioners defendants. Moreover, the objection of multifariousness cannot be raised for the first time in the revision petition. See Janki Rai and others v. Maharaja Bahadur Ram Ran Bijaya Prasad Singh AIR 1940 Pat. 145 wherein the objection was not held to be irrelevant at the stage of execution observing that if the suit is allowed to proceed and it results in decree the defect of multifariousness is considered to have been waived.
4. Coming to the question of limitation the finding of the learned trial Court that the possession of the petitioners‑defendants on the suit land did not extend beyond 1967‑68 is well founded. The petitioners‑defendants themselves produced Khasra Girdawari Exh.D.l This document shows that for the first time in Kharif 1968 entry of Ghar Mumkin was recorded against Khasra numbers in question and earlier to that the land of said khasra numbers was being cultivated. The same position stands recorded in the Khasra Girdawari Exh.P.2 and Jamabandi Exh.P.3 produced by the respondents‑plaintiffs. The learned Courts below, were, therefore, right in holding that the suit was within limitation. In any case the adverse possession could not be claimed either against the Custodian in whom the property vested so long as it was evacuee property and then against the Chief Settlement Commissioner for the period when the land formed part of the compensation pool. Abdul Hamid one of the plaintiffs appeared as P.W.2 and stated that the land in question was allotted to him in the year 1965‑66. The suit was filed on 12‑10‑1971. Assuming that the petitioners‑defendants were in possession before the allotment of the land to the respondents‑plaintiffs still the suit for possession filed was within limitation.
5. The next plea that the land underneath the houses vested in the petitioners‑defendants by virtue of Settlement Scheme VII since 1‑1‑1961 is also without merit. The petitioners‑defendants have not been able to show that they were in possession of the land in question on the date of enforcement of the Scheme or that as a matter of fact they were recognized as the transferees of the said land under Settlement Scheme VII. The findings of fact recorded by both the learned Courts below were that they were not in possession of the land since before Kharif 1968. This being the position they cannot claim any right under Settlement Scheme VII. The plea that on account of multifariousness the question of applicability of the' Settlement Scheme VII could not be appreciated properly in view of the above finding is also not available.
6. No other point was urged. For the reasons given above there is no merit in this civil revision and the same is dismissed with costs.
7. At this stage learned counsel for the petitioners‑defendants states that reasonable time be allowed to the petitioners‑defendants to remove the Malba and to deliver vacant possession of the land in question to the respondents‑plaintiffs. Learned counsel for the respondents‑plaintiffs has no objection to the acceptance of the above request if the petitioners‑defendants undertake to deliver the vacant possession voluntarily and without raising any further objection. This is acceptable to the learned counsel for the petitioners‑defendants. They are accordingly hereby allowed to remove the Malba and to deliver voluntarily the vacant possession of the land to the respondents‑plaintiffs by 30th of April, 1988.
M . Y. H . /A‑339/ L Petition dismissed.