2005 PLP 1341 (CLC)

Suit No.11/1 was instituted by Qadeem Shah and his two brothers sons of Tawab Shah of Zarin Abad, Tehsil and District Charsadda against Yaseen, Islam Gul and others for declaration, permanent injunction and possession of a house mentioned in the heading H of the plaint. This suit was instituted on 20-3-2001, was amended with the permission of the Court in order to include other defendants Nos.3 to 39, and was decided on 30-7-2004. The suit was contested by defendants Nos.1 and 2 who claimed that the suit house was given to the predecessor of defendant No.1 by the owners of the area as gift due to his services to them and defendant No. 2 was living with defendant No.1 as his tenant is The newly-added defendants contested the suit on the ground that their ancestors had gifted that house to the grandfather of defendant No.1 in lieu of his services. Issues were framed on the basis of the pleadings o ther parties.

2. The plaintiffs examined Fazalur Rahman son of Mir Rahman as P.W.1 who produced a Register of Petition Writer, Muhammad Aslam, deceased for the years 1936 to 1939 and exhibited a copy of the dower deed, as Exh.P.W.1/1, which appeared at Serial No.249 of the said Register. It was so exhibited subject to objection of the counsel for the defendants. He also exhibited the copy of the original deed on the file as Exh.P.W.1/2. On cross-examination he stated that Muhammad Aslam, Deed Writer had died in 1965, and had left the Register with his son, namely, Yousaf Jan, who also died about 3 years ago and left the record in possession of P.W.1. He was cross-examined in detail regarding the said deed and the Register. Muhammad Azam, Registration Muharrir, Office of the Sub-Registrar, Peshawar, was examined as P.W.2 who produced the original register regarding deed Register vide No. 175 dated 13-3-1907. The copy of the said deed was exhibited as Exh.P.W.2/1. He was also cross-examined on behalf of defendants Nos.3 to 12 and 17 as well as on behalf of defendants Nos. 1 and 2.

3. Qadeem Shah, as P.W.3, appeared for himself and as special attorney of the other two plaintiffs. He stated that the suit house had come to the share of Waqiullah from whom it got transferred to his son Habibullah who transferred the same to his wife. Mst. Zewara, in lieu of dower. He referred to the dower deed EXh.P.W.I/1. This witness further stated that out of 10 Marlas of the said house, 5 Marla s were directly sold by Mst. Zewara to Tawab Shah, father of the plaintiffs, while the remaining 5 Marlas were sold to Buzurg Shah, uncle of the plaintiffs; vide deed copy of Exh.P.3/3. These documents .were also exhibited subject to objection of counsel for the defendants. This witness further stated that the 5 Marlas share of Buzurg Shah was given to Tawab Shah g as a result of family partition. Qadeern Shah stated that defendants Nos.1 and 2 were members of "Hajjam" Qaum, were residing in the suit house as "Hamsaya" of the plaintiffs, were paying "Torah" and Khakshora" to the plaintiffs but later on refused to pay the same and claimed the ownership of the house, hence the suit. P.W.3 also produced a document copy Exh.P.W.3/4 in order to show that Abdul Matin, grandfather of defendant No. 1, had accepted the ancestors of the plaintiffs as his landlords regarding the house in-question. Zafar Shah, aged about 90 years, examined as P.W.4, stated that Abdul Matin was "Kasabgar" and the ancestors of the plaintiffs had given the suit house to Abdul Matin, grandfather of defendant No.1, for residence as "Hamsaya" in his presence, and that the defendants Nos. 1 and 2 have been paying "Torah" B and "Khakshora" to the plaintiffs. Abdullah Shah son of Tawab Shah appeared as P.W.5; and stated that the house in question was given to his brothers, the plaintiffs, by family partition, and then the evidence of the plaintiffs was closed.

4. Sher Akbar, Clerk of Excise and Taxation Office, Charsadda, appeared as D.W.1 who produced the record of his office regarding the suit house which shows that Yaseen son of Said Muhammad was residing in the suit house and the documents of his office were in the name of Yaseen. He also stated that they used to just ask the resident of the house about the ownership of such house for preparing the record of their office regarding the tax. Rozi Akbar, D.W.2, of the office of the Revenue Officer, PESCO, Charsadda, produced record to the effect that the electricity bill and the meter were in the name of Yaseen. He could not show that when the meter was installed and whether his record was regarding the house in-question or not. Inayat Khan, aged about 80 years, appeared as D.W.3, and stated that the suit house was given to Abdul Matin by his ancestor because the ancestor of the defendants was their "Kasabgar" and was performing services, to them. He stated that the defendants Nos.1 and 2 had given "Dheran" to him many times which he had taken to his own lands. He claimed that defendants Nos.1 and 2 were their "Hamsaya". He also stated that other houses, besides the house in question were given to the ancestors of the plaintiffs by the ancestors of the witness which were sold by the plaintiffs. Fazal Rabbi also appeared as D.W.4 in support of defendants Nos.1 and 2 and stated, like D.W.3, that the suit house was given by their ancestors to the ancestor of defendants Nos.1 and 2, free of costs. He, however, stated that they have never taken "Torah, Khakshora and Dheran" from the defendants Nos. 1 and 2.

5. Yaseen, defendant No.1, appears as D.W.5 and stated that the suit house was given to his ancestor by the owners of Kandi Mamakhel as "Hibba", that they had constructed the boundary and gate as well as 3. rooms in the suit house; that they have never paid any Torah, Khakshora or Dheran to the plaintiffs or their ancestors and that the electricity and water connection to the suit house were installed at the instance of the said defendants and the said house was entered in the office of Excise and Taxation as the property under their ownership. He further stated that he was "Hajjam" by profession and that defendant No.2 was his nephew (sister's son). He stated that he had no deed in his possession regarding