P L D 1994 Peshawar 209 (PLP)

‑‑‑‑S. 41‑‑‑Entitlement to protection under provisions of S. 41, Transfer of Property Act, 1882‑‑‑Plea of such protection seemed to be improper for such plea was never taken in written statement and it was even not known to defendant as to in which year and from whom he made alleged bona fide purchase‑‑‑Plea of protection under provision of S. 41, Transfer of Property Act, 1882, was thus, not available to defendant for his possession. (e) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 35‑‑‑Costs of improvements‑‑‑Improvements on land in question, were made by defendant within knowledge of plaintiff‑‑‑Plaintiffs acquiescence justifiably entitled defendant to the costs of improvements. Nasir Mahfooz for Petitioner. Mumtaz Khan for Respondents. Date of hearing: 18th December 1993. Mira Khan son of Mashal of Sawal Dher Mardan brought a suit for produce regarding 6 Kanals 12 Marlas of land detailed in plaint, before the Revenue Court where Abdul Ghawas son of Ibrahim etc. claimed title to the suit land and hence the same was asked to be proved in Civil Court. Within the same year 1983 Mira Khan brought a suit for possession based on title which was decreed by Mr. Farooq Sarwar Khan, the then Additional Civil Judge‑I, Mardan on 14‑1‑1988 against which the appeal before the Additional D1strict Judge, Mardan was also dismissed by Malik Mujtaba Ahmad on 26‑6‑1989 with modification that the appellants before him were entitled to the payment of Rs.39,920.22 as compensation for the improvements qua the sinking of a Tubewell. Both, Mira Khan and Abdul Ghawas have challenged such decision in two separate revisions. Thus Civil Revision No. 400/89 of Abdul Ghawas shall also be decided through this single order.

2. The suit of Mira Khan based on title was proved from the revenue record on file wherein Abdul Ghawas etc. the respondents/defendants were entered as tenants‑at‑will but in the column of Lagan the entry appeared to be that of "Bila Lagan Bawaja‑e‑Baih". There is not an iota of evidence regarding such sale and even otherwise when the entries in the column of rent differ from the entries in the column of possession, those in the column of possession are to prevail.

3. It is a settled principle of law that in a civil case the parties succeed or fail on the basis of their pleadings which are to be primarily kept in view at the time of leading evidence. In written statement in hand Abdul Ghawas, the contesting‑defendant has claimed title to the suit land without disclosing as to how he happened to derive such title. He simply alleged that he was owner in possession of his "Hissa‑e‑Rassadi", the possible translation whereof can only be the "mutted share". Such basis of mutation were neither alleged nor proved. At the same time the defendants/respondents pleaded adverse possession as well but not a word of evidence was adduced in support thereof, keeping strictly in view all the necessary ingredients of such possession. One Khaliq Dad was produced as defendants' witness who happened to state that the defendants had purchased property, not from him but his brothers. Neither such brothers nor the successors‑in‑interest thereof were produced as primary witnesses nor such purchase was ever pleaded in the written statement. The witness alleged the sale to be twenty years old while Abdul Ghawas alleged the same to be thirty years. In these circumstances, I hold that the two Courts below had correctly appreciated the evidence and the instant one has never been a case of misreading or non reading of evidence so as to afford an opportunity for this Court to interfere.

4. The plea of protection under section 41 of the Transfer of Property Act seems also to be improper, because it was never taken in the written statement and it is even not known to the defendant, as to in which year and from when had he made the so‑called bona fide purchase.

5. Coming to the question of improvements against which Mira Khan has come up in revision, it is apparent from record that the tubewell was sunk within the knowledge of Mira Khan and hence his acquiescence justifiably entitles the other party to the costs of improvements that Lave rightly been granted by the first Appellate Court.

6. As a sequel to my above discussion I find no merit in either of the revision petitions which both are hereby dismissed. Parties are, however, directed to bear their own costs. A.A./1566/P Revision dismissed.