1999 PLP 1386 (MLD)

3. The suit was resisted on the ground that Sher Ahmad was in occupation for the last 30 years who allegedly raised the construction and that the suit having been filed after more than 12 years could not proceed. Alternatively adverse possession was claimed. It was further added that the father of the respondent had purchased 3 Kanals and 10 Marlas in Khasra No. 788 (Previous number) Khasra No.402 (present number) vide Mutation No.684 dated 8-5-1928 which was adjacent to the house in issue while the land underneath the house was claimed to be the part of Shamlat and Sher Ahmad claimed to be one of the co-owner in village. It was also admitted in para. 2 of the written statement that in land measuring 3 Kanals and 10 Marlas Sher Ahmad, predecessor of petitioners was a tenant of the respondent but, however, adverse possession was claimed regarding piece of land underneath the house in issue.

4. After issues and evidence, the learned Civil Judge decreed the suit on 8-12-1979. The plea of adverse possession did not find favour with the learned trial Court and it was concluded that the respondent was owner of the property which fact was proved by the sale-feed and oral evidence on record. Decree for possession was accordingly allowed.

5. Feeling aggrieved, Sher Ahmad predecessor-of-petitioners went on appeal which was dismissed on 5-2-1985. The learned Additional District Judge on reappraisal of oral as well as documentary evidence, concluded that the respondent Muhammad Din was the owner of the land including the house while Sher Ahmad was, a tenant in the land and could not prove adverse possession in the house.

6. In this revision, the two judgments of learned courts below have been called in question.

7. Learned counsel for the petitioners argued, that the learned Appellate Court ignored mutation Exh.D-9 which was brought on record by way of additional evidence in appeal. On this basis, he contended that Nawab had sold house to Ghaman and Fazal in 1902 and, therefore, he could not make a subsequent sale deed of the same property in favour of the father of respondent Learned counsel submitted that respondent or his father had no title and the predecessor-of-petitioners having possessory title could defend the same against all except the actual owner. It was maintained that the respondent was not entitled to a decree as he could not prove ownership.

8. On the other side, learned counsel for the respondent contended that the appellant did not raise this plea in the written statement nor ever led any evidence to the effect that Nawab had already sold any part of the property to Ghaman and Fazal, and, therefore, this plea cannot be urged at this stage. He added that even after producing additional evidence the pleadings were never amended and, therefore, any evidence departing from the pleading cannot be looked into. Learned counsel submitted that the petitioners having pleader adverse possession against the respondent cannot raise the plea that the land did not initially belonged to respondent.

9. The points raised at bar have been given due consideration in the light of evidence on record.

10. The perusal of pleadings and evidence led in the trial Court is indicative of the fact that the case of respondent was that Sher Ahmad was a tenant in the agricultural land, the land underneath house form part of the land purchased b the father of respondent through registered sale-deed, the construction was mad by respondents father for storing fodder, the house subsequently became part Abadi, the predecessor of the petitioners Sher Ahmad being tenant in the lap was granted permission of the user of the house and that the respondent w; entitled to the possession thereof. In defence, Sher Ahmad defendant, admitted purchase of land measuring 3 Kanals and 10 Marlas by the father of respondent admitted tenancy but added that his possession qua the land underneath house was adverse and that he allegedly raised construction. It was never his case this land had not been purchased by the father of respondent or had earlier bet sold by Nawab to Fazal and Ghaman. So much so, in the oral evidence this was not taken. On the contrary adverse possession was attempted to established which he could not prove. This being so, the plea of earlier sale Nawab in 1902, is extraneous to the pleading and evidence led by petitions predecessor in the trial Court. On the analysis of this evidence and taking view the oral and documentary evidence including sale-deed and Revenue Record, the learned Civil Judge concluded that the respondent was owner, the petitioners could not prove adverse possession and that the respondent was entitled to restoration of possession. In the grounds of appeal, this was not the case of petitioners that Nawab had sold the house in question to Fazal and Ghaman in 1902. Records indicates that during the pendency of appeal, Sher Ahmad filed application dated 26-3-1983 under order XLI Rule 27 of C.P.C. for permission to tender in evidence copies of Mutation No.342 dated 20-1-1902, 'Khasra Pemash' and 'Khasra Aks-Kishtwar' for 1860. The learned Additional District Judge, ceased of the appeal allowed the application on 22-5-1983 and in result, the Mutation Exh.D-9 was received in evidence. Even after tendering the mutation in evidence. the petitioners and their predecessor did not feel the necessity of amending grounds of appeal or the pleading in the suit. The document was tendered by way of additional evidence without laying foundation in the written statement or in the grounds, of appeal. Rather the plea, which the predecessor-of-petitioners would have been entitled to raise on the basis of additional evidence was extraneous to his earlier defence and would not ordinarily fit in, keeping in view the nature of the defence already taken. Reason being, that the suit was resisted on the plea of adverse possession which plea is raised against the real owner and not against a stranger. The fact, that hostilc title was claimed would be good enough to show that the predecessor-of petitioners had conceded ownership of the father of respondent and thereafter set up the plea of adverse possession. Be that as it may, the question would be as to whether such evidence could be looked into or considered particularly when there was no basis thereof in the written statement and when no such plea had been raised, either in the written statement or in the oral evidence led in the trial Court. It is a settled ruled, that the material facts forming defence or counter title, should specifically raised in the written statement. Unless and until a fact is specifically alleged or a plea is raised in the pleading, no evidence can be led and even if any evidence is brought on record, the same cannot be considered without amendment in pleadings.

11. In "Lala Hem Chand v. Lai Pearey Lai and others" (AIR 1942 Privy Council 64), it was observed that the procedure of allowing the parties to adduce evidence on points which arose on the evidence led by the parties by were not raised in the pleadings or issues was irregular and raises unnecessary issues. It was further observed that important facts forming the basis of a party's case should not be allowed to be brought on record in the course of evidence unless pleadings are emended and necessary issues are framed, for otherwise, the course of trial would become discursive, there would be surprises and decisions would become perfunctory. Reference can also be made to 'Haji Ghaffar-Haji Habib Janu v. Khawaja Wakil Ahmad" (PLD 1959 (W.P.) Karachi 611). 12. 1n "Saiyed Ali Amir v. Messrs Dalmia Cement Ltd." (PLD 1961 W . P.) Karachi 255). it was ruled that in the absence of any pleadings on the point the evidence cannot be looked into.

13. In "Muhammad Shaft v. Rehmat Ali" (1985 CLC LHR 432), it was ruled that in the absence of specific objection in the written statement no amount of evidence produced could be considered unless a fact was pleaded specifically.

14. In "Allah Ditta v. Mst. Rasulan Bibi and 7 others" (1976 SCMR 459), it was ruled by the Supreme Court that the decision cannot be turned on questions of fact which were not pleaded.

15. In "Ghulam Mustafa v. Haji Mian Muhammad and another" (PLD 1969 Peshawar 241), the rule laid down was that parties are bound to particularies all points, either of fact or of law in their pleadings and new point cannot be raised and considered unless fresh opportunity given to opposite-party to meet it by placing on record material relevant to the decision of such point.

16. In "Mst. Janat Bibi v. Sher Muhammad and others" (1988 SCMR 1696), it was ruled that a party cannot be permitted to deviate from his pleadings, nor can the Court set up a different plea for a party and decide the suit on that basis muchless at appellate stage.

17. From the rule laid in the case noted (supra), it is evident that all pints requiring investigation into facts shall be raised in pleadings and evidence on such point cannot be looked into nor the party can be permitted to succeed on a case which was not set up in the pleading. No evidence can be led on a plea which is not raised in the pleadings and if by inadvertence any such evidence comes on record the same cannot be considered as no party can be taken by surprise.

18. In the present case, the petitioners never set up a defence that Nawab, previous owner had already sold the house with an area of 9 Marlas in 1902 in favour of Ghaman and Fazal nor any such evidence was ever led in the trial Court. Instead the case set up in defence was that Sher Ahmad was in possession for more than 30 years and had become owner through adverse possession. Even at the appellate stage, when the additional document was brought on record, no attempt was made to amend the written statement or to take any such plea and, therefore, the petitioner could not sue the respondent, on the plea which was not there in the written statement. The document, could not, therefore, be relied upon or considered. Be that as it may, no capital can be derived from the document Exh.D-9. According to the petitioner, by this document, a house was mutated by Nawab in favour of Ghaman and Fazal before the sale-deed Exh.P-9 executed in favour of the father of respondent in the year 1940. In the first instance, Revenue Authorities had no jurisdiction to transfer any house, through mutation and, therefore, any entry to this effect was of no consequence. Secondly, the property being of value more than Rs.100 could not be transferred, except through registered instrument. There was no sale-deed or registered instrument effecting transfer of house by Nawab to Ghaman and Fazal. Thirdly, mutation does not convey any title. If somebody claims transfer of title by mutation, it is necessary, that the transaction should be independently proved by producing evidence. Reference can be made to "Muhammad Azam and others v. Muhammad Yar and others" (1988 CLC (Lah.) 2388), where it was ruled that mutation itself does not create title in property and if the factum of sale is in dispute such sale has to be proved by independent evidence.

19. Reference can also be made to the rule laid in "Hakim Khan v. Nazeer Ahmad Lughmani and 10 others" (1992 SCMR 1832), where it was ruled that mutation by itself does not create title and person deriving title thereunder has to prove that the transferor did part with ownership of the property, subject of mutation, in favour of transferee and that mutation was duly entered and attested.

20. If the present case is viewed in the light of evidence on record, one observes that the petitioners did not lead any evidence to prove sale in favour of Ghaman and Fazal. There is no evidence of transfer of title by Nawab, in respect of the house in favour of Ghaman and Fazal. By simply placing the mutation on record, the petitioners could not claim that the property stood already transferred. At the same time, it cannot be overlooked that petitioners does not claim that the house was transferred to them or to their predecessor. They tried to introduce the idea that it was transferred to Fazal and Ghaman. These two persons never claimed any title nor ever intervened in the proceedings of suit. On being asked, learned counsel for the petitioners did not deny that Fazal and Ghaman had never filed any suit to recover this property nor ever agitated any claim of title therein. This will be sufficient to show that they had never derived any right in the property and for this reason they have never aspired to have the same. Obviously the petitioners cannot act pro bono publico and for the alleged interest of the others. The plea raised by the petitioners is, therefore, without substance and is accordingly repelled. In this view of the matter, it is proved on the record, through registered. sale-deed and other oral evidence that the respondent was owner of the property and that the petitioners could not prove any defect therein. The two Courts below, relying on the registered sale and oral evidence, concluded that being owner respondent was entitled to get possession from the petitioners. Findings recorded by the two Courts below, do not suffer from any error of law or misreading and non-reading of the evidence.

21. For the reasons above, this revision is devoid of merit which is accordingly dismissed. H.B.T./F-54/L Revision dismissed.