MUSHTAQ AHMED Versus MUHAMMAD AMEEN

ORDER

The respondent No.1 filed a suit against the petitioners and the remaining respondents on 16-6-1990. It was stated that he and the remaining respondents are the co-owners of the suit-land, mentioned in the plaint, whereas the petitioners are unauthorized occupants. The possession was accordingly sought. It was not at all denied in the written statement that the petitioners are not in possession of the land mentioned in the plaint. The suit was contested with the plea that they are in possession since 100 years and have matured title by prescription. The trial was conducted and the suit was decreed on 31-7-1991. A first appeal was filed by the petitioners which was allowed and remanded only on tjte point that the court-fee be got paid on the plaint. The needful was done and a decree was prepared on 13-7-1998. The first appeal filed by the petitioners was dismissed on 2-5-2000.

2. The decree was put into execution when on 6-5-2002 objections were filed that whereas the Khasra number is mentioned as 58/1/2 the petitioners are in possession of Khasra No.58/26 and the decree cannot be executed. The decree-holders replied that the description of the property and the fact that the petitioners are in possession was never denied in the course of the suit. Not only this during the pendency of the execution petition, they appeared and promised to vacate the land. The learned Executing Court while observing that the petitioners had promised to vacate the land on 24-5-2002, proceeded to hold that the decree will be executed only in respect of Khasra No.58/1/2. This was done on 24-3-2003. The petitioners then filed an application for amendment of the plaint and consequently, the decree. In the course of this application, a Local Commissioner was appointed who reported that Khasra No.58/1/2 as well as Khsara No.58/26 are owned by the decree-holder. However, the judgment-debtors are in possession of Khasra No.58/1/2 only to the extent of 11 Marlas and the remaining land in their possession is Khasra No.58/26. Vide order, dated 18-12-2004 the learned Executing Court held that it will execute the decree only to the extent of said 11 Marlas. Feeling aggrieved the decree-holder filed a first appeal which was allowed by a learned Additional District Judge, Muzaffargarh, on 31-3-2005. He proceeded to direct the learned Executing Court to execute the decree in accordance with the full description given in the plaint and the plan Exh..P.1.

3. Learned counsel for the petitioners contends that the decree being for Khasra No.58/1/2, notwithstanding the fact that Khasra No.58/26 is also owned by the decree-holder and further that his clients had promised to vacate the same, the decree cannot be executed beyond 11 Marlas in Khasra No.58/1/2.

4. I have examined the copies of the records. I may note here that the land is described in the plaint as well as in the decree under execution as follows:-- urdu 1695

It will be seen that the land is described not only with reference to Khasra number but also with reference to boundaries. No objection whatsoever has ever been raised to the said description of the land by the petitioners and that, in fact, they are in possession of the same. It is by now well-settled that if in the plaint or in any deed there is an inconsistency between the description by the boundaries or by the area, then that which is more certain and stable and least likely to have been mistaken and which sufficiently identifies the land should prevail. The true construction is that which will, as far as possible bring the several factors into harmony with the another and express most nearly the intention of the parties. A plain reading of Order VII, rule 3, C.P.C. Would show that the emphasis in the said rule is on the identification of the property and it c has never been the intention of law that a suit should fail on account of insufficient description. Reference be made to the cases of United Bank of India Ltd. v. Azirannisa Bewa alias Azizannessa Bewa PLD 1965 SC 274 and Fazal Hussain and another v. Abdul Hamid PLD 1971 Lah.

89. The draftsman of the plaint has further taken care apart from giving the said detailed description with reference to the number and boundaries to include the documentary evidence therein as well. One such piece of evidence is the plan Exh.P.1, the correctness whereof had never been questioned.

5. Apart from this there is no denial that on 24-5-2002, the parties agreed that the judgment-debtors shall vacate the suit-land within one months' time. Instead of complying with the said undertaking, the said E objections were filed on 5-6-2002. This civil revision is without any force and is accordingly dismissed in limine.

S.A.K./M-1134/L Revision dismissed.