2006 PLP 682 (MLD)

JAWWAD S. KHAWAJA, J.

This revision petition impugns the concurrent findings of' the learned trial Court dated 2-2-2000 and of the learned Appellate Court dated 26-2-2001.

2. The facts of the case have been duly noted in the impugned judgments and need not, therefore, be reproduced in extenso.

3. Learned counsel for the petitioner stressed the fact that although extensive oral and documentary evidence had been led by the petition/plaintiff, the same had not even been considered by the learned Courts below. Although this submission appears to have some merit, the impugned decrees advance the ends of justice and, for reasons discussed below, do not require interference in the exercise or revisional jurisdiction.

4. The dispute between the parties relates to property comprising of land measuring 8 Marlas and house thereon, which, admittedly, was in the possession of Noor Ahmad respondent/defendant (now represented by this L.Rs.). The petitioner, in his plaint, averred that he was the owner of the suit property and before him, his ancestors were owners thereof. He relied on a PT-1 form issued by the Excise and Taxation Department and copy of the jamabandi and Khasra girdwari. In para 2 of the plaint, the petitioner averred that Noor Ahmed respondent was an acquaintance and since he was poor, the petitioner had given him the suit property for residence 8/9 years prior to the filing of the suit. Based on these submissions, the petitioner sought possession of the suit property.

5. The suit was resisted by the respondent/defendant, who claimed that for the previous many generations, the respondent Noor Ahmad and his ancestors had been in possession of the property and that they were owners of record in the Excise and Taxation Department. Furthermore, the electricity and gas connections were also in the name of the respondent/defendant.

6. The petitioner, while appearing as P.W.1, gave testimony which is in total conflict with the averments of the plaint, noted above. At the very beginning of his statement, he deposed that the suit, property was owned by his grandfather Dost Muhammad, who. had inducted one Khaki, further of the respondent/defendant, as his workman. Later on, in his testimony, he reiterated that the suit property was given by the petitioner's grandfather to the aforesaid Khaki. This testimony is in total conflict with the contents of the plaint.

7. The petitioner acknowledged that the name of Noor Ahmed respondent/defendant was appearing owner of the suit property in the records of the Excise and Taxation Department but subsequently, the ownership had been mutated in his name on his application. The testimony of Haji Zakauddin (D.W.5) is to the effect that the petitioner had forged the signatures of the respondent/defendant Noor Ahmad on the summons issued by the Excise and Taxation Department with the object of obtaining an order in his favour without the knowledge of the respondent.

8. The circumstances, discussed above, leave me in no manner of doubt that the petitioner/plaintiff is not a credible witness and his testimony, therefore, cannot be relied upon. Even Ali Muhammad (P.W.2), produced by the petitioner, belied the contents of the plaint. He clearly stated in his cross-examination that the respondent/defendant was in occupation of the suit property since very long and not for .the relatively short period of 8/9 years, mentioned in the plaint.

9. The petitioner, being plaintiff, was obliged to prove his case. The testimony of his witnesses is sufficient to show that he had not been able to discharge the onus of proof placed on him. In addition, learned counsel for the petitioner himself admitted that since the property was part of abadi deh, the petitioner alone was not entitled to exclusive possession of the same and, therefore, could not have been granted the prayer for exclusive possession made in the plaint.

10. Considering the above circumstances, the petitioner's suit cannot be decreed.

11. Learned counsel for the petitioner then contended that the learned Courts below had imposed costs on the petitioner beyond the prayer made by the respondent/defendant. Learned counsel for the respondent conceded that a sum of Rs.5000 had been sought as special costs in the written statement. He further submitted that the respondent would be satisfied if costs of Rs.5000 are awarded to him. The impugned decrees are modified to this extent only that the special costs payable by the petitioner shall be Rs.5000. Subject to this modification, this petition is dismissed with costs throughout. H.B.T./S-436/L??????????????????????????????????????????????????????????????????????????????????? Revision dismissed.