P L D 1954 Peshawar 106 (PLP)

MUHAMMAD SHAFI, J.‑Sherdil Khan and. Purdil Khan, sons of Mehrdil Khan and Mst. Durrani, the widow of Rahmdil Khan, of Charsadda, instituted a suit on the 8th of June, 1949, against Mst. Shamsha (Shamshia) for the recovery of Rs. 40 as the price of the Khakshora, which the defendant was liable to give to the plaintiffs during the two years, starting from 1st June 1947, and ending with the end of June 1949, on account of her being in occupation of their house situated in Charsadda. Mst. Shamsha denied the plaintiffs' claim. The original Court decreed the suit, but it was dismissed by the learned Senior Sub‑Judge by his order dated 21st November 1950. A revision petition against this order was dismissed by Hon'ble the Judicial Commissioner on 13th April 1951. It was held that the plaintiffs had hopelessly failed to prove the relationship of landlord and tenant between them and the defendant. The plaintiffs in that case have now instituted a suit for the possession of the same house. It is again very hotly contested by Mst. Shamsha. The learned trial Court framed nine issues in the case. They were to the following effect.‑‑ (1) Whether the suit is within time ? (2) Whether defendant has become owner of the suit house by virtue of adverse possession ? (3) Is the suit barred by the' rule of res judicata? (4) Is the suit incompetent in its present form? (5) Whether plaintiffs are estopped from bringing the present suit? (6) Whether Said Ahmad etc. were the owners of the house in dispute? (7) If issue No. 6 is proved in the affirmative, then did the plaintiffs validly acquire the suit house from the owners? (8) Whether plaintiffs have got any cause of action? (9) Relief. The plaintiffs' suit was dismissed, because the learned trial Court found issues Nos. 3, 4 and 5 in favour of the plaintiffs and the rest of the issues against them. An appeal Against this decree was accepted by the Senior Sub‑Judge Peshawar by his order dated 27th April 1953. Mst. Shamsha has come up in revision to this Court. The history of the house as told by the plaintiffs is that it originally belonged half to Noor Ahmad and Fazal Ahmad, and the other half to Jang Baz. It had fallen to their fathers' share .in the village partition, which took place in 1881, and was accepted by the Revenue Officer on 24th January 1889. By an unregistered deed dated 19th July 1912, Fazal Ahmad sold his share in the house in favour of Sherdil Khan plaintiff No. 1 in the case, for Rs. 12‑

8. Noor Ahmad then followed suit, and disposed of his share by a similar deed dated 7th January 1913, executed in favour of Rehmdil Khan, the husband of plaintiff No. 3, and Sherdil Khan and Purdil Khan plaintiffs Nos. 1 and

2. Jang Baz had already sold his half share in the property in dispute by an unregistered deed dated 26th March 1889 in favour of one Abdus Samad This Abdus Samad then by an unregistered deed dated 6th November 1917, passed on this half to Rehmdil Khan the husband of plaintiff No. 3, in lieu of Rs.

50. It is thus that the plaintiffs allege that 'they became the full owners of the property in dispute. On the other hand, the defendant claimed that this house was given to her at the time of her marriage by her father‑in‑law Pir Badshah, and that the plaintiffs were not the, owners of this house, nor was she living in it, as their tenant or with their permission. The main question for determination, thus, is, whether the plaintiffs are the owners of the property in dispute or not? So far as the question whether this house was the one which had been allotted in the partition of 1889 to the fathers of Noor Ahmad, Fazal Ahmad and fang Baz is concerned, the plaintiffs have placed upon this record Khasra Taqsim‑i- Mianajat of Kandi Khudadad. They contend that the house in dispute is shown in this Khasra at serial No.

17. The plaintiffs have not adduced any evidence on this record to show that the house in dispute is the same as shown at No. 17 in this list. The learned lower appellate Court, has, however, come to the conclusion that it is the same house, on the only ground that the defendant in her written statement did not specifically deny the plaintiffs' claim in the plaint that this house was the same as the house in dispute, and had oily said that she had no knowledge about it, which did not amount to the denial of the fact, and did not consequently have the effect of putting the fact in issue. The learned lower appellate Court has referred to the Commentary at page 1689 of the Civil Procedure Code Volume II, by V. V. Chitaley, 4th Edition, in support of its above finding. Order 8, R. 5, C. P. C. runs as under :‑ "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." Now a fact can be within ‑ the knowledge of a certain person or not, and if a certain fact keeping in view the circumstances of the case must be within the knowledge of that person arid he denies the knowledge of it, then it will logically follow that the denial of knowledge of that fact is not a denial of the fact, and, therefore, has not the effect of putting the fact in issue. But where the fact alleged in the plaint may not be within the knowledge of the defendant, then, in my view, when the defendant says that he has no knowledge of it, his denial of the knowledge of that particular fact is a denial of the fact, if not specifically at least by necessary implications, and has the effect of putting the fact A in issue. In the case under discussion since the defendant or her father‑in‑law was no party to the partition proceedings, she or her predecessor‑in‑interest could not be saddled with the knowledge as to what happened in the partition proceedings, and all that she could honestly say was that she had absolu tely no knowledge of what happened in those proceedings. Surely she could not be expected to specifically say in her written statement that house No, 17 was or was not the house involved in the partition proceedings or that it had or had not fallen to the share of the alleged vendors in this case. Apart from that, in spite of a certain implied admission in the written statement, the Court still has got the discretion to require a certain fact to be proved independently of such admission, under the proviso to the above provision of law. This course apparently was adopted by the learned trial judge when he framed issue‑No. 6 in this case. The learned lower appellate Court was, therefore, wrong in holding that since the defendant had not specifically denied the correctness of para. No. 1 of the plaint, it should be taken to have been proved that house No. 17 was the same house as the house in dispute, and that it had fallen to the share of the plaintiffs' vendors' fathers. Except the above so‑called admission there is no other ‑evidence worth the name on this record to prove the fact mentioned above. The next point which requires to be considered is, whether the house in dispute has in fact been sold by three deeds dated 19th July 1918, 7th January 1913 and 6th November 1917, in favour of the plaintiffs These three deeds no doubt purport to be thirty years old, and, therefore, it is open to the Court, although not imperative, to raise a presumption that the signature and every other art of such document, which pur ports to be in the handwriting of any particular person is in that person's handwriting, and that it was duly executed and attested by the persons by whom it purports to be executed and attested, under section 90 of the Evidence Act. But then this presumption must "be applied with considerable care and caution, because forgery and fraud cannot reasonably be said to be of rare occurrence. In order to prove the deeds dated 19th July 1912, and 7th January ' 1913, the plaintiffs put into the witness‑box one Adbur Rashid. This gentleman claims to have written these two deeds, but then he admits that he is not the proper, deed‑writer, and consequently the fact that he wrote the two deeds more than 20 years ago is extremely doubtful. So far as the third deed dated 6th November 1917, is concerned Muhammad Saeed Khan has been produced into the witness- box to say that he is its marginal witness. This' Muhammad Saeed Khan is a very close relation of one of the plaintiffs, and, therefore, he cannot be said to be an independent man. Be that as it may, the deeds themselves have not been connected with the house in dispute at all. In the deed dated 19th July 1912, there are no boundaries of the house given, and all that is stated is that a share of house No. 17, which was occupied by Nadar Din, was being sold in favour of Sherdil. If house No. 17 is not proved to be the same house as the house in dispute, and it has already been held by me that the plaintiffs have failed to prove this fact on this record, then this deed is worthless. As regards the second deed, it does give the boundaries and also mentions the fact that the house was being occupied by Pir Nadar Din. In this deed the house to the north is said to be that of Muhammad, while in the boundaries given in the plaint the house towards the north belongs to Ahmad. The plaintiffs have failed to connect Ahmad with Muhammad. Again, to the east there is shown in the deed as situated the house of one 'Sharif, while in the boundaries given in the plaint it is stated that the house of Nazir etc. is situated in this direction. The plaintiffs have not on this record shown as to how is Sharif related to Nazif and others. The third deed, if read along with the' deed dated 26th March 1889, does not give the boundaries at all, although it does give the number of the house, and the same remarks would apply to it as have been made with regard to the first deed. It is thus, obvious that the plaintiffs have not been able to satisfactorily prove that these three deeds relate to the house in dispute. If these three documents are excluded from consideration then the entire bottom is knocked out of the plaintiffs' case. The learned lower appellate Court has then taken the statement of Mian Mir Ahmad (P. W. 6), the son of Noor Ahmad, into consideration, who stated in Court that his father had sold his share in the house in dispute in favour of Sherdil Khan and others. A peculiar and amazing thing about this witness is that he was able to identify the thumb-impression on this deed as that of his father, a fact which even an expert cannot give without the aid of his instruments. His evidence is not worth reliance at all. The last circumstance which made the learned lower appellate Court give its decision in, favour of the plaintiffs, was the area of the suit‑house, which is the same as the area of House No. 17 given in the House Enumeration List. There is nothing on this record to show that the area of the house in dispute is 13 Marlas but even if it is, two houses can have the same area, and it cannot be said that simply because of that fact, the two houses are one and the same property. With regard to the nature of defendants possession the learned lower appellate judge has attached very great importance to the fact that Shad Muhammad, the defendant's witness had admitted in his evidence, that when the defendant used to‑throw the Khakshora out in the street, it was taken away by the plaintiff. From this he has concluded that the defendant was in fact giving Khakshora to the plaintiffs, and was consequently there as their tenant. I have neither been able to understand nor appreciate this argument. The plaintiffs led no evidence to prove that the defendant gave them Any Khakshora; I am unable to understand how can the picking up of the Khakshora from the street make the plaintiffs the landlord of the defendant. Their suit for the recovery of the price of the Khakshora has already been dismis sed, and that decision has been upheld by the highest Court of law in this province. So it must in view of that judgment be found that the defendant did not give any Khakshora to the plaintiffs arid she was, therefore, hot their‑tenant. Taking into consideration all the facts brought upon this record. I am driven to the irresistible conclusion that the plaintiffs must fail in their case. I consequently accept this revision petition, set aside the judgment and. decree of the learned lower appellate Court, and restore those of the learned trial Court with costs throughout. A. H. Petition accepted.