1988 PLP 615 (CLC)

This second appeal was directed against the judgment dated 11‑10‑1965 of the learned District Judge, Sialkot, whereby the judgment dated 12‑3‑1965 of the learned trial Court decreeing the suit was reversed, the appeal of the respondents was accepted and suit was dismissed.

2. The relevant facts briefly stated are that the appellant had filed a suit` for possession of a shop described in the plaint and delineated in the plan and for rendition of accounts regarding the joint business of stationery, books, cigarettes and betel etc. being run in the said shop. The appellant‑plaintiff is the real brother of the respondents‑defendants. It was averred by the appellant‑plaintiff that he was allottee of the shop and joint business was being run but neither he was being delivered his share nor the respondents defendants were accepting the title as allottee of the appellant /plaintiff over the shop in question.

3. The suit was resisted by the respondents‑defendants inter alia, on the grounds that the business being run in the shop in question is not joint and as such the suit for rendition of accounts is not maintainable and that the appellant‑plaintiff is their eldest brother and for that reason the shop was got allotted in his name from the Rehabilitation Department on behalf of all of them.

4. The learned trial Court after framing necessary issues and recording evidence of the parties decreed the suit for possession. He was, however, found not entitled to rendition of account regarding the business. This led to the filing of an appeal and on appeal the learned District Judge observed that the allotment chit Ex.P4 pertains to Shop No. 183 owned by Bheem Sen evacuee whereas in the site plan Ex.P6 the shop was described as Shop No. 29 owned by Mallu Ram and Chuni Lai evacuees. It was inferred that there are in fact two shops which were in possession of Atish Brothers in Shakargarh, one belonging to Mallu Ram and Chuni Lai and the other belonging to Bheem Sen. The learned District Judge also concluded that the chit Ex.P4 was issued in favour of the appellant‑plaintiff on behalf of all the brothers. The inference that Atish Brothers are in possession of the two shops could not legally be drawn in the facts and circumstances of the case as in the pleadings originally filed it was not the case of the respondents‑defendants that the appellant‑plaintiff or they were allottees/owners in possession of any other shop except the one which is the subject matter of litigation. Belatedly the respondents‑defendants sought to raise the plea that the allotment chit pertains to another shop by seeking amendment of the written statement but that permission was refused. Even in their evidence they had not stated that the appellant‑plaintiff was in possession of any other shop or had received allotment of any other shop. In cases pertaining to evacuee properties the description of the property number or its owner is not given any importance if the parties were in fact litigating in respect of one and same property. In this case there is no dispute as to the property' which was in dispute between the parties. In these circumstances the number of the property or name of the evacuee owner was not of any importance. It was not the case of the respondents‑defendants that the appellant‑plaintiff had also been allotted any other shop in Shakargarh Town. This being the position the description wrongly given in the site plan submitted by the appellant‑plaintiff as well as the document Ex.P3 is of not much importance. Coming to the inference that the allotment was to enure for the benefit of all the brothers it is pertinent to note that the respondents‑defendants themselves admitted that they were locals. The appellant‑plaintiff had migrated from India and was thus a refugee or a displaced person. In these circumstances it was the refugee in whose name the allotment was made and obtained. The respondents‑defendants cannot say that the appellant‑plaintiff being head of the family and they having migrated with him the allotment was to enure for the benefit of all the members of the family. In the aforenoted circumstances of the case, this inference also was not available. Had the learned District Judge noticed these facts emerging from the evidence of the respondents‑defendants themselves the aforenoted inference could not have been drawn. The impugned judgment is premised on the aforesaid inferences which as shown above could not reasonably be drawn. For the reasons given above the impugned judgment of the learned District Judge is set aside and that of the trial Court is restored. The appeal is accepted. The parties are, however, left to bear their own costs. H.B.T./M‑478/L????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.