2016 PLP 1621 (CLC)

AMIN-UD-DIN KHAN, J.

Through this appeal the appellants/defendants have challenged the judgment and decree dated 03.2010 passed by the learned Additional District Judge, Muzaffargarh, whereby the appeal filed by them was dismissed, and the judgment and decree dated 11.10.2006 passed by the learned Senior Civil Judge, Muzaffargarh, whereby the suit for possession filed by the respondent/plaintiff was decreed.

2. Briefly, the facts as leading to this appeal are that on 28.05.2004 the plaintiff/respondent filed a suit for possession of house measuring 18-marlas situated in Ward No. 8, 18/103 share of Khata No.9 fully described in the head note of the plaint and compensation for use of house has also been claimed. The written statement was filed and suit was contested. Learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 11.10.2006 suit was decreed by the learned trial Court. Feeling aggrieved thereby, an appeal was preferred by the defendants/appellants before the learned first appellate Court, which was dismissed vide judgment and decree dated 20.03.2010. Hence, this second appeal.

3. Learned counsel for the appellants argues that previously a suit for possession was filed by the plaintiff-respondent in the year 1999, which remained pending for 2/3 years and thereafter plaintiff withdrew that suit and as per plaintiff/respondent, as stated in his cross-examination, when he appeared as PW-1, that permission was granted to file a fresh suit on payment of Rs.500/- as fine and thereafter he filed an ejectment petition without depositing amount of fine; argues that then ejectment petition was filed against the predecessor of appellants/ defendants, which was dismissed by the learned Rent Controller, an appeal was preferred which was accepted and ultimately matter came up before this Court in shape of Writ Petition No.1559 of 2003 filed by the predecessor of appellants/defendants, which was accepted on 19.04.2004 and the ejectment petition was dismissed, thereafter the plaintiff/ respondent filed suit subject matter of this appeal. Argues that ejectment petition was filed with regard to Khata No.6/4/5 for an area of 8-marlas, whereas the present suit is for 18-marlas; that both the courts below have recorded the findings that claim of the plaintiff/respondent to the extent of construction of house etc is false, therefore, a decree for cost of construction has been passed in favour of appellants, which was challenged through cross objections before the learned first appellate Court and cross objections were also dismissed and the plaintiff/ respondent opted to file RSA No.88 of 2010 against dismissal of cross objections, which has been withdrawn on 10.09.2015 and as such the findings to that extent have become final. It has been further argued that actually the land under the suit house is owned by the provincial government, which is adjacent to the Police Station and predecessor of appellants was Washer-man and working with the Police Station, therefore, after construction of house he was enjoying the suit house and the plaintiff/respondent dishonestly started litigation, as he is a political person, remained Councillor of the area twice and when his first suit was withdrawn as stated by him while appearing as PW-1 that the cost has not been paid, therefore, this second suit is not competent; that in the ejectment petition contrary stance was taken by the respondent/plaintiff. Argues that the plaintiff failed to establish that the house in question is constructed upon the property owned by him; that as the plaintiff claims to be the owner of 5-kanals 3-marlas of land situated in Khata No.9 and admittedly he has sold in shape of specific plots of various sizes to 10/11 persons, now his remaining land is under the streets etc. and dishonestly he is claiming the ownership of house of the appellants/defendants; that no proper issues have been framed in order to cover all the legal objections raised by the appellants/defendants in the written statement, therefore, prays for acceptance of this appeal or in the alternate prays that case be remanded for framing of proper issues and decision afresh.

4. On the other hand, learned counsel for the respondent-plaintiff argues that first suit was withdrawn in order to file an ejectment petition and the same was filed but unfortunately the decision of this Court recorded in Writ Petition No.1559 of 2003 was against the respondent/ plaintiff, therefore, he was forced to file the present suit which is subject matter of this appeal; admits that the fine imposed at the time of withdrawal of first suit has not been deposited in the Court, states as an ejectment petition was filed after withdrawal of first suit, therefore, there was no need to deposit the fine; that when it is admitted that the appellants-defendants never claimed ownership of suit property, therefore, the concurrent findings recorded by both the courts below are in accordance with law and this Court cannot set aside the same on the basis of minor discrepancies highlighted by the learned counsel for the appellants. Argues that in this area there is a custom that without sanction of construction plan people construct their houses and start living therein, therefore, if no plan was got sanctioned by the plaintiff/respondent, it makes no difference. Argues that if issues have not been framed and at proper time the correction of same or additional issues were not claimed, it makes no difference. Relies upon "2012 SCMR 212 (Abdul Karim v. Haji Noor Badshah)". Prays for dismissal of the appeal.

5. I have heard the learned counsel for the parties at full length and also gone through the record minutely as well as the findings recorded by two courts below.

6. While going through the findings recorded by both the learned courts below I have noticed that the courts below failed to take into consideration real question in controversy between the parties. It is not denied that the plaintiff is owner of property mentioned in the revenue record, as he has produced the revenue record in his evidence. It is also an admitted position that the original defendant/appellant or his legal heirs are not owner of the property or the suit house. Their case is that the property under their constructed house is owned by the provincial government. When the findings of both the courts below are that the plaintiff-respondent failed to establish that he has constructed the house and gave the same to the defendant/predecessor of appellants on rent or for residing therein, the only question determinable before the Court was that whether the plaintiff remained successful to prove that suit house is situated upon the land owned by him. I have minutely gone through the evidence led by the plaintiff to prove the legal objections and their response by the appellants will be discussed in the later part of the judgment.

7. As I have noted supra that no cavil that the plaintiff is owner of land in that area, as revenue record has been produced to establish his ownership but the missing link is that the plaintiff failed to prove that the suit house is constructed upon the property owned by him. When his claim of construction of house and his claim that after construction of house he has given it to the predecessor of appellants on rent have been repelled not only before the appellate Court but also before this Court while deciding Writ Petition No.1559 of 2003 vide judgment dated 19.04.2004. In a suit for possession of immovable property the plaintiff was required to plead in accordance with Order, VII Rule 3 of the C.P.C., the complete specification of property along with site plan which was to be annexed with the plaint, so that the property be identified. When the other side has denied that suit house is constructed upon the property owned by the plaintiff/respondent, he was required to connect that suit house is constructed upon the property owned by him. This connecting evidence is missing. If the plaintiff/respondent is owner of property in Khata No.9 as mentioned in the plaint and if defendant is not owner of property in that area, it does not mean that blindly a decree be granted in favour of plaintiff for possession of the house under the possession of defendants. It is now established law that a civil dispute is to be decided by the civil Court by preponderance of evidence, therefore, the evidence available on the file is considered in civil matters and the status of both the parties as relevance. The plaintiff-respondent admitted that he remained Councilor twice in that area and defendant was a poor Washer-man. It is also considered that when his first suit was filed and withdrawn or the ejectment petition was filed, his claim was for 8-marlas of land and now in this suit the claim is for 18-marlas of land as pleaded by the plaintiff that during the litigation defendant forcibly took the possession of 10-marlas from adjacent plot owned by the plaintiff. This statement is not easily acceptable.

8. While going through the record I have perused Ex.P-6 the previous suit for partition filed by the plaintiff against shareholders of the Khata. During the proceedings of suit learned Civil Judge appointed Naib Tehsildar Jatoi, Revenue Officer Halqa Shehr Sultan as Local Commission for submission of report, part of his report is Ex.P-7 which has been produced by the plaintiff himself, though it was received in evidence under objection but plaintiff is bound by this report, the letter of Local Commission for extension of time for submission of report which is reproduced as under: which clearly shows that the area where the suit property situated is thickly populated area and the Local Commission could not found 'Aks-Masavi' for determination of specific khasra numbers and his report Ex.P-9 shows that he has only given report with regard to share of joint owners of khata and has not specifically through process of partition separated the ownership of every joint shareholder and subsequently on the basis of statement recorded by the learned counsel for the parties to that suit, the suit was got decreed on the basis of report of Local Commission, which does not show that it is a preliminary decree or a final decree. The decree sheet is Ex.P-11. The further important fact is that in Ex.P-9 Karam Din has been shown as illegal occupant upon 8-marlas of land, this Ex.P-9 is dated 12.04.1999. The scrutiny of these documents which have been produced by the plaintiff of present suit himself lead to the conclusion that even in the year 1999 due to the fact that the area is thickly populated and constructed and there was no 'Aks-Masavi' available. The determination cannot be made that house in question is constructed upon which khasra number and the land owned by the provincial government or claimed by the plaintiff. Another fact that the plaintiff stated that he never got installed the electricity meter, whereas admittedly electricity meter is installed in the name of Karam Din, when the electricity bills in shape of Ex.D-1 and Ex.D-2 have been produced. The argument advanced by the learned counsel for the appellant has weight that the appellant has sold portions of his property to 10/11 persons in shape of small plots. Certainly if property is sold through small plots, the owner has to earmark some land for thoroughfare and streets and utility plots etc. All these facts lead that the findings recorded by both the learned courts below are against the evidence available on the file.

9. So far as the argument of learned counsel for the appellants/ defendants that no proper issues were framed is concerned, I am clear in my mind in the light of judgment referred supra by the learned counsel for the respondent-plaintiff that framing or non-framing of issues is not a ground to set aside the judgments and decrees and remand the case because in my considered view pleading of a party is ever in its view and a party produces evidence in accordance with its pleadings unless a party proves that by non-framing an issue it was prejudiced, only then this objection can be considered, otherwise ordinarily it makes no difference if any specific issue could not be framed and further it is the duty of a party to raise objection at the first instance and not at this second appellate stage, therefore, this contention of learned counsel for the appellants/defendants is not considerable.

10. So far as the objection that previous suit was withdrawn as admitted by the plaintiff/respondent with the permission to file a fresh suit, though the order of permission to withdraw the suit is not on the file but the plaintiff when appeared as PW-1 has admitted in his statement when he was being cross-examined that he has not deposited cost of Rs.500/- as ordered by the trial Court, the explanation is that after withdrawal of suit as he filed ejectment petition, therefore, he has not deposited the amount of fine. When the second suit even after ultimate dismissal of ejectment petition has been filed and admittedly plaintiff has not deposited the amount of fine against which a permission to file another suit on the same cause of action was granted, it is a hurdle against the plaintiff when he has not fulfilled the condition of permission. It means that permission is no more in the field and admittedly on the same cause of action the second suit is barred under Order XXIII Rule, 1 of the C.P.C. In this view of the matter, both the learned courts below fell in error while ignoring these legal aspects of the case. Therefore, the findings recorded by both the courts below whereby a decree for possession has been granted in favour of plaintiff is nullity in the eye of law.

11. In the light of what has been discussed above, this appeal is allowed and the impugned judgments and decrees passed by both the courts below are set aside. The result would be the suit of the respondent/plaintiff for possession shall stand dismissed with costs throughout. ZC/T-1/L Second appeal allowed.