2007 PLP 692 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioner-defendant impugns the concurrent decrees of the learned trial Court, dated 25-1-2006 and of the learned appellate Court, dated 28-6-2006, whereby a suit filed by the respondent-plaintiff seeking possession of a house, built on 2 marlas 8 sirsahis, has been decreed.

2. Abdul Rahman, father of the petitioner-defendant, and Feroze Din, father of the respondent-plaintiff, were brothers, who respectively died in 1999 and 2000. The legal title in the suit property, admittedly, vested in Feroze Din. The suit of the respondent was filed on the basis of such title. It was alleged in the plaint that Abdul Rahman, father of the petitioner, was employed as a chaprasi in the Agriculture University and that when he retired in 1993, he requested the respondent's father Feroze Din to give him accommodation because he was homeless. According to the plaint, a tenant Muhammad Iqbal, who earlier was occupying the suit house and was paying rent of Rs.500 per month, was asked to leave and the house was handed over gratis to Abdul Rahman for his use.

3. The suit was resisted by the petitioner. His defence was, inter alia, that his father was never homeless. When he retired in 1987, his son Muhammad Ashraf (D.W.1) was allotted the same house which had previously been allotted to Abdul Rahman by the University and Abdul Rahman continued living in it. According to the written statement, the land measuring 2 marlas 8 sirsahis was actually purchased by Abdul Rahman from Feroze Din for a consideration of Rs.25,000, whereafter the petitioner himself raised construction on the same. A registered deed was not obtained because Abdul Rahman and Feroze Din were brothers and the need was not felt for a conveyance deed.

4. Learned counsel for the petitioner has, inter alia, argued that the petitioner produced D.W.2, namely, Muhammad Anwar, who is a mohallandar. He deposed that the construction had been raised by the petitioner and prior thereto, there was only one katcha kotha on the land. D.W.2 also denied that the property was previously rented to Muhammad Iqbal as a tenant. Learned counsel next contended that Muhammad Iqbal, who could have proved the version of events setout in the plaint, was not examined by the respondent and nor was any explanation given for this omission.

5. It was submitted that the learned Courts below had held against the petitioner because of a failure to apply recognized legal principles for appraisal of evidence in cases such as the present one. In particular, on preponderance of evidence, the petitioner's defence stood established. Even otherwise, if the oral evidence of the two parties was of equal weight, the respondent, being plaintiff, should have failed.

6. In addition to the above, learned counsel submitted that the retirement certificate (Mark `B'), which was tendered in evidence on behalf of the petitioner subject to the respondent's objection that it had not been formally proved. Mark `B' showed the date of retirement of Abdul Rahman and also indicated the allotment of a house to Muhammad Ashraf (D.W.1), son of .Abdul Rahman. Learned counsel for the petitioner argued that even if the certificate (Mark `B') was excluded from evidence, its contents stood established through the testimony of D.W.1. and the petitioner himself as D.W.3. In the circumstances, the contents of the plaint to the effect that Abdul Rahman retired in 1993 and was homeless, stood belied by the available evidence. The respondent-plaintiff did not produce any rebuttal evidence to substantiate the averments of the plaint, noted above. Moreover, no independent witness of the locality in which the suit property is situate,, was produced by the respondent-plaintiff to support the claim of the respondent. One Muhammad Saleem (P.W:1), was examined by the respondent-plaintiff in support of his case, but he is a resident of Warispura, where the respondent resides, and not of Chamanzad Colony, where the suit property is located.

7. The question, which arises in the present case, is as to which of the two parties is truthful and more credible. The legal title in the suit property is not the principal issue because, admittedly, no conveyance deed has been registered in favour of the petitioner or his late father Abdul Rahman. The circumstances, which have been noted above, coupled with the fact that the respondent has not produced any independent witness as to the alleged earlier tenancy in favour of Muhammad Iqbal or to prove that the disputed house was already in existence when the petitioner's father was inducted in it as a licensee, on balance, show that the respondent has not produced strong evidence to prove his case.

8. Learned counsel appearing for, the respondent was not in a position to controvert the above submissions. He merely argued that both sides were relying merely on oral testimony in support of their respective .pleas. According to him, the petitioner should be disbelieved because there is no sale-deed in his favour and nor has he been able to produce any receipt for the amount paid to the respondent's father. This contention is; however, misconceived in view of the circumstances noted above. Learned counsel for the respondent was asked to explain as to why the respondent did not produce the alleged tenant Muhammad Iqbal as a witness or any documents such as electricity and other utility bills to prove that there was a house in existence prior to 1993 which was rented out. He was not in a position to give .any satisfactory reply to this query.

9. In the foregoing said circumstances, I find that although the decrees of the learned Courts below are concurrent, they do not proceed on the basis of examining evidence as recognized by law. The impugned decrees, as such, are a result of material irregularity in the exercise of the jurisdiction of the learned Courts below. The said decrees are, therefore, set aside and the suit filed by the respondent-plaintiff is dismissed. The petitioner shall also be entitled to his costs throughout. F.B./I-2/L Petition allowed.