P L D 1987 Peshawar 156 (PLP)

Per mortgage deed the respondent herein, mortgaged the suit house with petitioner No.l herein for a period of three years against the sum of Rs.2,

200. The house had then one kotha. In the deed, it was stipulated that the petitioner may construct one more kotha the price of which will be determined through arbitrator and will be paid to the petitioner at the time of redemption of the suit house by‑the respondent. ‑ On the expiry, of mortgage period, the respondent approached the petitioner for the redemption of the suit house but he denied his title to 'the house saying that his father (Petitioner No.2) has purchased the suit house from one Taj Muhammad and he (the respondent was not the owner of the suit house. .In the circumstances, the respondent was obliged to bring the present suit for possession through redemption of the suit house. The petitioner contested the suit.

2. Upon the pleadings of the parties, the learned trial Judge framed various issues and recorded evidence of the parties. On examination of the 'evidence, he found that the respondent is the real owner of the suit house. He repelled the assertion of the petitioners that petitioner No.2 has purchased the suit house from one Ta.j Muhammad. The petitioners failed .to produce Taj Muhammad as witness in support of their assertion and also did not produce any documentary proof to show that Taj Muhammad was the owner of the suit house. The petitioners also claimed that they had constructed two Kothas in the suit house and are entitled to be compensated therefor by the respondent. The learned. trial Judge appointed a Commission in this behalf to visit the spot and assess the prices of each Kothas in the suit house. He found three Kothas in the suit house and the maximum value of one Kotha in the suit house was assessed by him as Rs.3,244:

50. As in the mortgage deed, petitioner No.1 was permitted to construct one Kotha in the suit house, the learned trial Judge granted compensation of Rs.3,244.50 for one Kotha to the petitioner. He accordingly passed a preliminary decree in favour of the respondent against the petitioner subject to payment of mortgage amount of Rs.2,200 and Rs.3,244.50 as costs of one Kotha, vide his judgment. dated 15‑2‑1984. By this judgment,, the petitioners were aggrieved, therefore, they went in appeal to the District Court. The appeal came up for disposal before a learned Additional District Judge. It would appear that before the learned Additional District Judge, the petitioners did not dispute the ownership of 'the suit house of the respondent and arguments on behalf of petitioner No.1 were confined to the costs of two Kothas to be paid to the said petitioner. The costs of the other Kotha had been assessed by the Commissioner as Rs.2,

222. The learned Additional District Judge also awarded compensation for the second Kotha, namely, Rs.2,222 to the petitioner and to that extent ‑he partially accepted the appeal, vide his judgment dated 29‑3‑1986. The petitioners are still not satisfied and have preferred this revision application to impugn the judgments of two Courts below with a prayer that the suit of the respondent may be dismissed.

3. The learned counsel for the parties heard and record perused. The attempt of the petitioners before this Court‑in revision is very curious. They are not the owners of the suit house. They admitted that the respondent had mortgaged that suit house with petitioner No.1. Their stand that petitioner No.2 has purchased the suit house from Taj Muhammad was just a bogey taken, by them. for assumption. Taj Muhammad was not produced in evidence nor any documentary proof was produced to show that Taj Muhammad was the owner of the suit‑house. It is unfortunate that they came forward to deny title of the respondent ‑to the suit house. Their claim is utterly false. They put the‑ respondent to the agony of litigation in this case for nothing. Petitioner No.1. should have honoured his promise reached by him in the mortgage deed. Both petitioners do not seem to be men of fair dealing and believe in usurpation. It is clear to me that their scheme was to deprive the respondent of his rightful ownership of the suit house through 'fraudulent means. It may be observed that the tendency on the part of litigants of such mentality must be depricated, as it is not only the cause of piling up of such frivolous cases in Court, but it also puts their opponents to bear the brunt of litigations for no fault on their part.

4. In the facts and circumstances of the case, the learned counsel for the petitioners conceded that his clients were not the owners of the suit house and their claim to deny title of the respondent was false so much that on no assumption whatever they could prove it. He, therefore, confined his arguments to the costs of two Kothas. A The learned trial Judge has awarded to the concerned petitioner compensation of one Kotha according to the terms of the mortgage deed. The learned Additional District Judge also further awarded to him compensation of the second Kotha, although he was not entitled to the same in terms of the mortgage deed. The learned counsel for the respondents submits that his clients are prepared to give compensation of the other Kotha if the petitioner accepts it. In the alternative, his submission is that if the petitioner wants to demolish the other Kotha to take its material, he may be directed to do so without .any loss of time, so that his client is able to occupy the suit house and no further hardship is caused to him at the hands of the petitioners. The learned counsel for the petitioner assured that his clients would vacate the suit house the moment the respondent deposits in Court the mortgage amount of Rs.2,200 plus the costs of two Kothas, viz. Rs.3,244.50 and Rs.2,

222. I am told that the respondent has deposited the mortgage amount of Rs.2,200 and Rs.3,244.50 as costs of one Kotha in the Executing Court. He has not deposited the costs of other Kotha, viz. Rs.2,222 which he would do. This revision application is accordingly dismissed in terms indicated above with no order as to costs. A.A/552/P Revision dismissed.