1993 PLP 1957 (SCMR)

SALEEM AKHTAR, J.‑‑‑This appeal by the leave of this Court challenges the judgment of the learned Judge in Chamber of the Lahore High Court passed in revision application filed by the respondents whereby appellants' suit which was decreed by the Additional District Judge has been dismissed and the judgment and decree passed by the trial Court has been upheld. The facts leading to the litigation are noted in the leave granting order in the following manner:‑‑ "Mst Sughra Begum, predecessor‑in‑interest of the petitioners (appellants), filed a suit for possession of Haveli standing on a piece of land measuring 5 Marlas situate in village Bhaganian of Tehsil Pasrur. She stated that she had inherited the land from her father but had allowed one Chiragh Din to use it as her licensee. Chiragh Din constructed a Haveh thereon. Subsequently, Chiragh Din sold the Haveli to her by a registered deed. After the sale, the respondents forcibly took over the possession of the Haveli. The suit was resisted by the respondents. Their case was that the Haveli belonged to Chiragh Din and his brother Jalal in equal shares. After the death of Jalal, his share was inherited by his son Sharif. Subsequently, Sharif sold his share in their favour. After recording the evidence of the parties, the trial Court dismissed the suit. The petitioners filed an appeal before the Additional District Judge, Sialkot. After reappraising the evidence, the learned Additional District Judge decreed the suit. The respondents filed a revision petition in the High Court. A learned Single Judge accepted the revision petition, set aside the finding of the Additional District Judge and restored the judgment of the trial Court." Leave was granted to consider the question whether the Haveli belonged to Mst. Sughra Begum or not was one of fact and was it open to the High Court to interfere with the finding of the First Appellate Court in revisional jurisdiction. It was further to be considered that Mst. Sughra had examined Chiragh Din as her witness and the plea of the respondent that the Haveli belonged to his father and was inherited by him and his brother Jalal was not put to Chiragh Din in cross‑examination. Mr. Mian Abdul Rashid, the learned ASC for the appellants contended that the dispute was in respect of Haveli and not the land underneath and as there was sufficient evidence on record to substantiate the claim of ownership of Sughra Begum, the learned Judge in Chamber was not justified in setting aside the finding of the learned Additional District Judge. Mst. Sughran Begum predecessor‑in‑interest of the appellants had filed suit against the respondents for possession of the Haveli claiming to be its owner. From the evidence it seems that Sughra had permitted Chiragh Din to use and occupy the property on which he was residing and had constructed the Haveli. Under the registered sale‑deed dated 24‑1‑1967 he sold Haveli to Sughra Begum. The claim of the respondents was that the Haveli was the property of Chiragh Din and his nephew Sharif who had partitioned it in equal shares and a partition wall had also been erected. The eastern part of the Haveli fell in the share of Chiragh Din which he sold to Sughra Begum. The other part of the Haveli which was in possession of Shaiif was purchased by the respondents. Mst. Sughra Begum had filed suit in respect of Haveli constructed on land measuring 5 Marlas. In support of her claim Chiragh Din was examined to prove the agreement dated 24‑1‑1967 followed by a registered sale‑deed dated 17‑5‑1967 in her favour. The respondents' witnesses have deposed that the suit property is on 10 Marlas owned by Chiragh Din and Jalal Din which was partitioned and Chiragh Din had sold his share to Mst. Sughra Begum while Muhammad Sharif who inherited from Jalal Din sold his share to the respondents. This statement also supports the claim of Mst. Sughra Begum to the extent of 5 Marlas. It is to be noted that the respondents did not examine Sharif from whom they claimed to have purchased the property and further, there was no registered sale‑deed in their favour. The evidence on record does not support the claim of the respondents. In these circumstances, on appreciation of evidence, the learned Additional District Judge had correctly reached the conclusion and decreed the suit. The appellants will have the Haveli to the extent of five Marlas with the land underneath. The right of parties inter se in respect of land underneath the Haveli has been decided on the basis of evidence on record and will not affect the right of any third party claiming it. The appeal is allowed. Parties to bear their own costs. AA./Z‑152/S Appeal accepted.