1996 PLP 1770 (SCMR)

MUKHTAR AHMED JUNEJO, J.

This appeal with leave of the Curt is directed against the judgment dated 12-9-1988 of the Lahore High Court dismissing Civil Revision No.785/89.

2. The respondents who are legal heirs of deceased Ghulam Muhammad filed Suit No.617 of 1981 against appellants Nos.1 to 6 who are heirs of Khaira and Jalal for a declaration that they were occupying the suit property as owners. They also sought injunction against the defendants restraining them from taking forcible possession of the suit land. The suit land was specifically mentioned in para.2 of the plaint to be bearing Khasia Nos.873 to 876, 878, 879, 917 and 918 with Khewat No.73 and Khatuni No.344, which initially belonged to Boota and Gauhra, Boota and Gauhra were said to have mortgaged the suit land with possession in favour of deceased Ghulam Muhammad in 1908. This position continued till 30-7-1981 viz., the date on which the civil suit was filed.

3. The suit was contested by appellants Akbar Ali, Muhammad Sharif and Abdul Ghani sons of Khaira, who, in their written statement, denied all the averments and claimed being owners of the suit land. They also claimed being in possession of the same. They raised legal issues that - the suit was not maintainable and was bad for misjoinder and non joinder of parties. The learned Trial Court, after framing necessary issues, decided the suit which in appeal was remanded by the Additional District Judge, who added two more issues. Subsequently under a judgment and decree dated 15-12-1987, the learned Trial Judge dismissed the suit on the only ground that the suit was not maintainable because it was barred .by sections 67 to 77 of the Transfer of Property Act besides section 34 of the Civil Procedure Code. On merits the Trial Court found that the respondents were in possession of the suit land since creation of the mortgage in favour of their predecessor Ghulam Muhammad.

4. In appeal the learned Additional District Judge reversed the judgment and decree passed by the Trial Court and decreed the suit of the respondents after taking view that Transfer of Property Act was not applicable in the Province of Punjab and the suit filed by the respondents was maintainable under section 42 of the Specific Relief Act. The judgment of the learned Additional District Judge was maintained by the learned Single Judge of the Lahore High Court under the impugned judgment. Hence this appeal with leave of the Court.

5. Ch. Mushtaq Ahmed Khan, learned counsel for the appellants argued that the property in respect of which the respondents filed the suit was different from the one mentioned in the suit.

6. Unfortunately, no such plea was taken by the appellants in the written statement filed in the suit. The learned counsel for the appellants conceded that a defendant in a suit must deal specifically with each allegation of fact of which he does not admit the truth. Such provision exists in Order VIII, Rule 3 of the Code of Civil Procedure. He was, however, of the view that since the respondents had come to the Court, hence onus was on them to identify the property which was subject-matter- of their suit. One may refer to Article 113 of the Qanun-e Shahadat which reads as below:-- "

113. No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions." One may again go to Order VIII, Rule 5 of the Code of Civil Procedure which reads as below:-- "

5. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission." It may be added that P.W.. Muhammad Akram, Record Keeper of the office of Saddar Qanungo, Sialkot was examined in respect of the suit property and it was not suggested to him on behalf of the appellants that the land in respect of which he had given evidence was different from the land covered by the suit.

7. We also subscribe to the view that Transfer of Property Act was not 1 applicable to the Province of Punjab and the view taken by the learned Additional District Judge and the learned Judge in Chamber does not require correction.

8. No ground is made out for interference and this appeal stands dismissed. A.A./A-1344/S Appeal dismissed