2001 PLP 3234 (YLR)

Briefly the facts are; that petitioner filed a suit for recovery of Rs.1,20,000 in the Court of Senior Civil Judge‑I, Quetta on 29‑3‑1997. It was averred in the plaint, that petitioner is owner of agricultural land, measuring 35 acres, situated in Mahal Mouza Khaushkaba, Saadat, Halqa Shadenzai, Circle Shadonzai, Tehsil and District Quetta. The said land was given to (sic) No. 1, or Ijara for a period of three years i.e. from 1994 to 1996. It was further averred that the Ijara amount for the years 1994, 1995 and 1996 was Rs.30,

000. Rs.40,000 and Rs.50,000 respectively. However, despite repeated approaches and demands the respondent has failed to make payment of the said amount. On 6‑5‑1997, respondents filed their written statement, contesting the suit on legal and factual grounds. It was their stand, that entire Ijara amount was paid in advance to petitioner and rather the respondents have planted 2,00,000 trees on the land in question, for which petitioner is liable to pay an amount of Rs.30,

000. Out of the pleadings of parties, following Issues were framed for determination:‑‑‑ (1)??????? Whether the suit is not maintainable under P.Os ' C' & ' D' raised in W/S? (2)??????? Whether the hnia money for the years 1994, 1995 and 1996 i.e. Rs.30,000 Rs.40,000 and Rs.50,000 has not been paid to the plaintiff by the defendants? (3)??????? Whether the plaintiff is entitled for the relief claimed for? (4)??????? Relief? In support of his case, petitioner got examined P.Ws. Abdul Kabir, Syed Abdul Hamid, Amanullah, Abdul Ghaffar, Shah Nawaz, Muhammad Ismail and Ghulam Jan. Thereafter, he also got recorded his own statement. Whereas in rebuttal, respondents produced two D.Ws. Mitha Khan and Muhammad Hashim, besides recording their own statements. On completion of evidence, learned trial Court heard arguments and vide judgment, dated 5‑4‑1999, decreed the suit of petitioner, holding that petitioner is entitled for a sum of Rs.1,20,

000. Being aggrieved from the said judgment and decree, the respondents filed an appeal before the District Judge, Quetta, which came up for disposal, on the file of Additional District Judge‑II, Quetta, who after hearing the parties, modified the decree of trial Court, by only allowing Rs.30,000 instead of Rs.1,20,000 to petitioner, vide judgment and decree, dated 30‑9‑1999. Hence this petition. Mr. Azizullah Kakar, learned counsel for petitioner contended, that learned Additional District Judge‑II, Quetta, has erroneously modified the decree of trial Court, by relying on another judgment and decree, dated 15‑6‑1999, passed by learned Senior Civil Judge‑II, Quetta, pertaining to litigation between petitioner and one Mitha Khan, wherein it was the case of Mitha Khan that the property in dispute, has been sold to him by petitioner and in this behalf, duly Sale Agreement was also executed between the parties. According to learned counsel, the decree of trial Court has been modified on the grounds, which was neither set up nor taken in appeal, before the Appellate Court. Learned counsel further pointed out, that said judgment and decree has been challenged before this Court in appeal, therefore, without final adjudication by this Court, reliance could have not been placed on the same. Learned counsel also urged that petitioner had independently proved, that he has not received the amount of 1jara, thus the Appellate Court fell in error in modifying the decree of Trial Court. On the other hand, Mr.Mumtaz Hanfi Baqri, learned counsel for respondents, supported the judgment and decree of Appellate Court and stated that the learned Appellate Court had rightly modified the decree, as during the period of Ijara, possession of the land was taken away from the respondents. I have heard the learned counsel for parties and also minutely perused the record of case. It may be noted that the plea of petitioner, before the trial Court was, that an amount of Rs.1,20,000 was outstanding against the respondents, being the Ijara amount of the property in dispute, break‑up whereof has been given hereinabove. It was his case that vide Agreement (Exh.P/1‑A) the land in question was given on Ijara to respondents. The said Agreement has, been duly proved by P.W.6 Muhammad Ismail, the Petition Writer, who is the scribe‑of said agreement. Even otherwise the respondents have not denied the execution of said Agreement. As regards the non‑payment of the outstanding amount, the witnesses produced by petitioner have categorically, in un‑ambiguous terms, deposed that amount for the years, 1994 to 1996 i.e. three years, was not paid by respondent No. 1 they alongwith respondent No.1, went to the house of petitioner and requested him .for some time, which time was duly extended by petitioner but despite extension of time, the amount was not paid by respondent. It may be observed that, it was the case of respondents, that in‑between the intervening period i.e. in the year 1995, petitioner sold the land in question to one Mitha Khan by means of Sale Agreement and pursuant to such Agreement, possession of the land was also delivered to said Mitha Khan but it has come on record, that possession of the land was never handed over to said Mitha Khan and for specific performance of Sale Agreement. Mitha Khan filed a suit before the Court of Senior Civil Judge‑II, Quetta, which was decreed in his favour and now the said matter is pending in appeal before this Court. Thus, it is pre?mature to determine; whether the land in question was actually sold, or the possession was given to said Mitha Khan or otherwise? As such, observations made in the judgment and Decree, dated 15‑6‑1999, pertaining to suit for specific performance, filed by Mitha Khan, will have no bearing, on the merits of case in hand and as far as the case in hand is concerned, the petitioner, through convincing evidence has proved, that he has not received the Ijara amount. Now reverting to the stand of respondents; it may be observed that, in sub‑para. (e) of (para. 1) of written statement filed by respondents, it is mentioned, that amount of Rs.1,20,000 was paid in advance to petitioner, at the time of taking the land in question on Injara. But the respondent No. l has failed to prove the said plea, because on the contrary, his evidence is in contradiction with the stand taken in written statement D.W.1 Mitha Khan, who allegedly has entered into an Agreement of sale with the petitioner, stated that the land in question, was sold to him and under the instructions of petitioner, he paid a sum of Rs.40,000 to respondent No.

1. It is not known, as to for what purpose, said amount was paid to respondent No.

1. Such statement of D.W. Mitha Khan, belies the stand of respondent, regarding payment of entire amount of Ijara in advance to petitioner. Similarly D.W.2 Muhammad Hashim has also not supported the stand of respondents, relating to payment of Ijara amount in advance, as he deposed that Mitha Khan purchased the land in question in 1995 and possession was handed over to him. On the contrary, respondents in their written statement had stated that Ijara amount i.e. Rs.1,20,000 has been paid in advance to petitioner, but no receipt in this behalf, was placed on record. Thus, from the evidence of respondents, their stand, that Ijara amou‑:.t was paid 'in advance to petitioner, has not been proved and the learned trial Court, after proper appreciation of entire evidence, held that amount of Rs.1,20,000 is outstanding against respondent No. 1, which was rightly so. Whereas the learned Appellate Court has modified the decree, only on the ground that since the possession of land in question was handed over to Mitha Khan in the year 1994, therefore, the petitioner is not entitled for Ijara amount, for the years 1995 and 1996. Such conclusion drawn by Appellate Court, is not supported by any evidence. The contention of learned counsel Mr. Azizullah Kakar, has substance, that neither it was the case of respondents in their written statement nor the said plea was taken before the Appellate Court, that during the years 1995 and 1996, petitioner was out of possession. Thus, the findings arrived at, by the learned Appellate Court, being erroneous are not sustainable. It is a well‑settled principle of law, that if the Appellate Court has reversed the well-reasoned findings of trial Court, without giving any cogent and substantial reasons, then this Court in its revisional jurisdiction would be well within its powers to set aside such judgment based on surmises and conjectures, and restore well‑reasoned Judgment of trial Court. Reliance in this behalf can be placed on 1995 MLD

45. As a result of above discussion, the impugned judgment and decree, dated 3‑9‑1999, passed by learned Additional District Judge‑II, Quetta, is set aside and judgment and decree, dated 5‑4‑1999, passed by learned Senior Civil Judge‑I, Quetta, is' up‑held. The petitioner shall also be entitled for the costs throughout. H.B.T./110/Q ????????????????????????????????????????????????????????????????????????????????????? Order accordingly.