P L D 1993 Lahore 60 (PLP)

This revision-petition by Muhammad Riaz has been maintained against the decree passed by two Courts below concurrently in favour of two plaintiffs, viz., Mst. Sakina Bibi and her minor child Allah Ditta, son of Muhammad Ranizan (deceased), through whom the porperty had devolved upon them. In consequence of the plaintiffs being obstructed in the effective use of the property admitted to have been purchased by their predecessor, Muhammad son of Shian; they were obliged to file a suit for permanent injunction against the petitioner who is a real brother of the lady and is admittedly not possessed of any right or title in the property, beyond his -mere occupation thereof, possibly due to his relationship with the plaintiffs.

2. Claim of the plaintiffs with regard to title in the suit property'-having been derived from the registered sale-deed made in favour of the "said predecessor Muhammad., was admitted by the defendant "in his -,written statement (second paragraph of preliminary objections) but in the first paragraph on merits he went on to even say that plaintiffs do not have any concern therewith, to also assert in the very next paragraph that the plaintiffs are in possession of 10 Marlas thereof, alongwith Muhammad Ismail. Paragraph No.3 of the plaint, which propounds the pedigree-table of the plaintiffs and their family (wherein the defendant does not figure anywhere), was cleverly omitted to be answered. The same is, hence, to be taken td have been admitted under Rule 5 of Order VIII, C.P.C. Actually, the written-statement did not raise any point of controversy between the parties and in that state of the pleadings, the plaintiffs were entitled to have their suit decreed straightaway. Trial Court's proceedings with regard to an undefined reference made to a Referee and Commission for site-inspection were wholly out of place. Such proceeding cannot possibly furnish any cause of grievance to the defendant -petitioner had not claimed any title in himself and had not even set up a plea oil adverse possession. Trial Court decreed the suit on 4-2-1992 and the petitioner had the audacity to file an appeal there against which came up for hearing before a learned Additional District Judge who dismissed it by his judgment dated 3-10-092 and being not satisfied that element of bona fides could be involved therein, he proceeded to also award Rs.850 as costs having to be paid to the plaintiff-respondents for the reason that they had been wholly unjustifiably dragged to the appellate Court where, as per the decree-sheet, they had engaged Mr. Muhammad Afzal Sial, Advocate.

3. Not leaving the matter there, defendant has deemed it proper to invoke revisional jurisdiction of this Court wholly frivolously. Counsel has urged that there was no issue framed by the trial Court and no evidence was taken before decreeing the suit, as were the requirements of Orders XIV and XVI of the C.P.C. Out merely of interest, I have asked him to suggest as to what issue could arise in that state of the written-statement because under Rule 1 of the first-mentioned Order, some material proposition of fact or law affirmed by one party and denied by the other could give rise to issue. All that he was able to suggest is that an issue with regard to the defendant-petitioner being in possession of a part of the property should have been framed as also about the effect thereof. That does not happen to be a disputed question of fact between the parties inasmuch as admission about the possession of the defendant-petitioner is contained in para. 5 of the plaint which suggests that therein he has taken undue advantage of his relationship with the plaintiffs. As regards the other limb of the contention, relating to effect of defendant's possession, counsel believes that favourable verdict could have been returned about adverse possession.

4. What he is out to very conveniently overlook is that the defendant did not at all plead adverse-possession and his claim of being in possession since more than 50 years was simply inconsequential against the title vested in the B plaintiffs. Adverse nature of an existing or admitted possession has its own significance and implications and due to special nature of such possession, it is necessary to specifically plead it. There is abundant case-law available to the effect that question of adverse possession cannot be taken up or noticed without the plea thereabout having been unambiguously taken in the pleadings. This cannot admit of any doubt that a question of fact which is not pleaded cannot become capable of being proved through evidence. Hence, the contention is neither here nor there and being unsustainable on the record, it is repelled. There is not shown to be involved any mistake of law or error of jurisdiction in the suit being decreed and the decree being upheld in the Court below.

5. There is not any other contention raised for my consideration. Award of costs of Rs.850 at the appellate stage has not been questioned on behalf of the petitioner. I feel, that in the circumstances of this case, the defendant was quite justifiably burdened therewith in exercise -of inherent power of the Court.

6. This revision petition is altogether frivolous and there is no substance at all in it, not even to the name. It is accordingly dismissed in limine. H.B.T./M-656/L Revision dismissed