1996 PLP 252 (MLD)

(2) Whether the suit is hit by the provisions of section 11 of the C.P.C.? OPD (3) Whether suit is properly value for the purposes of court‑fee? O.P.Parties? (4) Whether the defendant No.l is entitled to compensation costs under section 35‑A, C.P.C.? OPD (5) Whether the plaintiff is owner in possession of the disputed property on the basis of alleged Bainama dated 16‑4‑1963? OPP (6) Whether the predecessor of defendants Nos.2 to 11 sold his half share in the disputed property to the plaintiff? OPP (7) Whether the plaintiff has been occupying the disputed property as tenant under the defendants Nos.8 and 11 and they have been receiving the share of the produce from him? OPD (8) Whether the plaintiff is entitled to the decree as prayed for? OPP (9) Relief."

5. Petitioner-plaintiff's suit was dismissed by the learned trial Court mainly on the ground that the original Iqrarnama dated 16‑4‑1963 was not produced before the Court; that the petitioner‑plaintiff was only shown as a tenant in the Revenue Record; that the petitioner‑plaintiff's earlier suit qua the same land was dismissed as withdrawn and that the documentary evidence produced by the defendants proved beyond a shadow of doubt that the petitioner‑plaintiff was never owner in possession of the suit land. The appeal filed by the petitioner‑plaintiff was also dismissed and the learned appellate Court held that the findings of the learned Court below on all the issues referred to above were unassailable.

6. Pre‑admission notice was used to the respondents to consider the points which have been raised in this petition. Only respondent No.l has appeared and the respondents Nos.2 to 11 refused to accept notices. Notices were, therefore, duly, affixed on the outer door of their residences. Respondents Nos.2 to 11 are, therefore, proceeded ex parte.

7. The learned counsel for the petitioner submits that the suit land is in possession of the petitioner pursuant to the sale‑deed dated 16‑4‑1963 that even if the sale is not proved, the learned Courts below ought to have attended to the alternate plea of the petitioner i.e. a decree for specific performance of the contract in question.

8. Respondent No.1 appearing in person submits that the so‑called Iqrarnama dated 16‑4‑1963 was not produced in Court; that the petitioner‑plaintiff got prepared a fictitious agreement to sell and that earlier the plaintiff?-petitioner filed a suit in which they claimed the suit land on the basis of "Adhlapi" agreement and the said suit was withdrawn on 12‑7‑1990.

9. I have heard the learned counsel for the petitioner as also respondent No.l (in person). .

10. It is not denied that at no stage the original agreement dated 16‑4‑1963 on the basis of which the petitioner‑plaintiff was claiming ownership of the suit land was produced. The petitioner‑plaintiff produced Shaukat Ali Wahid (P.W.1) to prove copy of "Intikhab" and the register of petition writer copy of which is Exh.Pl. A perusal of Exh.Pl purports to be an agreement to sell whereby respondent No.l agreed to sell 57 Kanals, 3 Marlas of land to Pehalwan, brother of the petitioner, for a consideration of Rs.6,

200. No description of land was given in the register. When asked as to why the description of the land is missing, P.W.1 replied that the same is given in the original stamp paper which was never produced in Court. This ownership of Pehalwan from whom the petitioner‑plaintiff attempted to derive title could not be proved.

11. The petitioner‑plaintiff admittedly brought suit for a declaration claiming ownership of the suit land on the basis of an "Adlilapi". Copy of the plaint was brought on record as Exh.Dl and this suit was withdrawn by the plaintiff on 12‑7‑1990. Just after a month of the withdrawal of the said suit, the A, petitioner‑plaintiff filed yet another suit which has given rise to the present civil revision and in this suit he has taken an entirely different plea qua the suit land. This contradictory stance taken by the petitioner‑plaintiff reflects badly on the bona fides of the petitioner‑plaintiff, 12. there is nothing on record to indicate that Pehalwan predecessor‑in?-interest of defendant‑respondents Nos.2 to 11 had sold out his share in the suit land in favour of the petitioner‑plaintiff. How could he do that when his own ownership was doubtful. So far as the alternative plea of specific performance of contract is concerned, I am afraid, the same has no substance as how could the petitioner press for such plea when the agreement/contract has not been proved.

13. The petitioner has challenged findings of the two Courts below in the revisional jurisdiction of this Court. No material irregularity, misreading or non‑reading of evidence has been pointed out to warrant interference. The findings of the learned Courts below are not against the weight of evidence on record. There is, therefore, no merit in this civil revision which is hereby dismissed. AA./M‑2612/L??????????????????????????????????????????????????????????????????????????????????? Revision dismissed.