Rafiullah Sultani, Advocate for appellants.

Raja Javed Akhter, Advocate for respondents.

JUDGMENT

Main Arif Hussain, J:—Supra titled appeal has been addressed against the Judgment and decree Additional District Judge Kotli dated 07.06.2018, whereby, the learned Additional District Judge while dealing with the appeal of respondents herein accepted the same and setting aside the judgment and decree recorded and passed by the Civil Judge Charoi dated 31.08.2012 has dismissed the suit of plaintiffs-appellants herein.

Succinctly, the facts giving rise to the appeal in hand are that plaintiffs-appellants herein filed a suit of perpetual injunction in the Court of civil Judge Charhoi claiming therein that a piece of land measuring 07 marla falling in survey No.1287 (min) situate at village Charhoi is within ownership and possession of plaintiffs and proforma defendants but defendants, who have no concern with the said piece of land, are bent upon to occupy the suit land forcibly, hence, defendants be restrained to do so and decree of perpetual injunction be issued in favour of plaintiff as prayed for.

Defendants-respondents herein resisted the suit and while filing written statement refuted the claim of the plaintiffs in toto on legal and factual grounds as well.

Out of pleadings of the parties, the civil judge seized with the lis framed as many as 05 issues and after recording evidence of the parties and hearing the counsel for the parties while recording his issue wise findings decreed the suit of plaintiff-appellant herein vide judgment and decree dated 31.08.2012.

Dissatisfied from the said judgment and decree, defendants- respondents herein preferred an appeal before the District Judge Kotli from where the same was entrusted to Additional District Judge Kotli, who after hearing the counsel for the parties disagreed with the findings recorded by the trial Court and while setting aside the judgment and decree of the civil Judge dismissed the suit of the appellant herein vide judgment and decree impugned herein with the observation that “neither plaintiffs have succeeded to prove their possession over the suit land nor interference of the defendants in the disputed land has been established”.

Dissatisfied from the aforesaid judgment and decree recorded by the District Judge, plaintiffs-appellants herein have assailed the same through filing instant appeal.

Arguments heard.

The learned counsel representing the appellants herein after narration of the facts of the case at some length argued with vehemence that in order to prove their stance, appellants herein produced documentary and verbal evidence as well and learned trial Judge in the light of evidence of the parties rightly decreed the suit but the learned Additional district Judge while entertaining the appeal without examining the evidence has recorded inconsistant findings on the basis of surmises and conjectures. It is argued that no party can be non-sued merely on the basis of ambiguity in the pleadings as the same can be removed through asking better statement but in the matter in hand suit of perpetual injunction was regarding particular and independent piece of land which in the light of documentary and oral evidence is within possession of the plaintiff, hence, there was no ambiguity in ascertaining the identity of the suit land. The learned counsel lastly craved for quashment of judgment and decree of Additional District Judge impugned herein and relied upon a case law reported as 2009 SCR 237, wherein, it is held that “suit cannot be dismissed or rejected on the ground that there is an ambiguity in description of property”.

Conversely, the learned counsel for respondents while defending the judgment and decree impugned herein submitted that plaintiff failed to establish the identity of the piece of land for which they claimed a decree for perpetual injunction, hence, the learned Additional District Judge while allowing the appeal has justifiably dismissed the suit of the appellants, herein. The learned counsel in support of his view point referred to and relied upon a case law reported as PLJ 2005 SC AJK 26, wherein it is observed that “plaint was vague and no specification was given regarding suit land, hence, the suit was rightly dismissed by the High Court”.

Having heard the arguments of the learned counsel for both side, I have also gone through the record available at the file. The case law referred to has also been examined.

Admittedly, the appellants, herein, filed a suit for perpetual injunction regarding a piece of land measuring seven marlas comprising survey No.1287 min situate of village Charhoi. In order to prove their stance, the plaintiffs produced documentary and verbal evidence as well and the learned trial Judge seized with the lis decreed the suit as claimed for but the learned Additional District Judge while disagreeing with the findings of the trial Court is of the view that the plaintiffs have failed to establish the description of the suit land, hence, they could not award the relief claimed for.

Keeping in view the inconsistent findings of the Courts below, the main question which needs consideration is as to whether the plaintiff’s have succeeded to prove their stance raised in the plaint or not and due to non-description of the suit land no effective decree of perpetual injunction could be granted?

From the perusal of Jamabandi of the year 1997-98 Exhibited as “PA” it depicts that in the column of cultivation, the possession of the plaintiffs and proforma defendants as a purchaser regarding a piece of land measuring 7 marlas falling in survey No. 1287 is recorded. The said survey number has an independent and separate identity. Similarly, in “PB” Register Girdawari, the said situation is available. So far as the question of names of “Karam Dad” and others appear to be recorded in the said column, they, admittedly appear as a seller as co-sharer in the khewat but so far as question of possession is concerned, the said documents speak volume that plaintiffs and proforma defendants are sole possessor of said survey numbers as purchaser-vendees and said position is also admitted by one of the defendant, who deposes as under:-

“Jamroz Khan has purchased a piece of land measuring 7 marlas and it is correct to suggest that plaintiffs have purchased a piece of land from survey No.1287 and it is correct to suggest that the plaintiffs have purchased the said piece of land prior to the purchase of defendants.”

Moreover, the other witnesses of the parties also corroborate the said version of the plaintiffs.

A perusal of documentary and verbal evidence reveals that the plaintiff-appellants’ claim is regarding survey No.1287 min measuring 07 marlas which has separate and independent identity and over the said piece of land plaintiffs’ possession is independently recorded, no possession of defendants is recorded in the said survey number, hence, there exists no question of any ambiguity. Moreover, admittedly, defendants are claimant that they have also purchased the suit land from disputed khewat, so, the question of apprehension of interference, in light of the evidence of could not be ruled out.

From the above situation, it can safely be observed that the learned trial Judge while evaluating the evidence of the parties, rightly decreed the suit of the plaintiffs whereas the learned Additional District Judge fell in grave error while evaluating the evidence, resultantly, judgment and decree recorded by the learned Additional District Judge being based on erroneous view and result of misreading and non reading of evidence is not sustainable in the eye of law.

The epitome of the above discussion is that appeal in hand is accepted and judgment and decree of learned Additional District Judge, impugned herein, is hereby set-aside. Resultantly, the judgment and decree recorded and passed by Civil Judge Charhoi, dated 31.08.2012 is hereby, restored.

The appeal in hand is disposed of accordingly with no order as to costs.

Appeal allowed