2004 PLP 1348 (CLC)

Rehmanullah for Respondent. Date of hearing: 12th May, 2004. Sher Bahadar and another petitioners/plaintiffs filed suit against Mir Akbar and others respondents/defendants in the Court of learned senior Civil Judge, Swabi seeking possession of the house alongwith land underneath measuring 6 Marlas, 1 Sarsai, more particularly described in the heading of the plaint. Perpetual injunction restraining the respondents/defendants to make improvements in the suit property was also sought as consequential relief. The said suit was resisted by the respondents/defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties, dismissed the suit vide judgment and decree, dated 9-2-1991. .Being not satisfied with the said judgment and decree, the petitioners/ plaintiffs filed Appeal No.71/13 in the Court of learned Additional District Judge, Swabi but their appeal was also dismissed vide judgment and decree, dated 30-9-1996. Being not contented with the judgments and decrees passed by the Courts below', the petitioners/plaintiffs have filed the revision petition in hand.

2. Mr. Javed Gohar, the learned counsel representing the petitioners argued that the respondents/defendants had earlier filed written statement on 15-6-1983 in which they raised defence that they had become owners of the suit house due to adverse possession. As a second thought, they filed an application for grant of permission to amend the written statement which was allowed and they filed amended written statement on 6-12-1983 in which they in addition to old plea, took up the stance that they had purchased the suit house through unregistered sale-deed in the year, 1902.

3. It was also argued that the petitioners have proved their case that their predecessor had purchased the suit property through registered sale deed dated 4-1-1929 (Exh.P.W.2/2) and in order to prove the said deed, they examined Islam Gut Registration Clerk, Mardan as P.W.2 who placed on record copy of sale-deed but this witness was not cross-examined.

4. It was also argued that the petitioners have placed reliance on the unregistered sale-deed dated 6-4-1902 (Exh.D.W.2/1) through which they had purchased "Sufaid Daga" and not the house but the Courts below failed to appreciate the same.

5. On the other hand, Mr. Rehmanullah Khan, the learned counsel representing respondent No.1, argued that the respondents/defendants had purchased the suit house through unregistered sale-deed dated 6-4-1902 (Exh.D.W.2/A) which they proved in accordance with law.

6. It was also argued that the respondents were in possession of the suit house since its purchase and their possession was admitted by Sher Bahadar (P.W.3) and Munjawar (P.W.4) also.

7. It was also argued that there was no evidence available on record that the respondents were inducted as tenants in the suit house by the petitioners or their predecessor since they were occupying the suit house being its purchasers on the basis of unregistered sale-deed which did not require registration because the valuation of the house was fixed at Rs.99 only, -therefore, their said deed which was prior in time was rightly accepted by the Courts below. Reliance in this regard was placed on Muhammad Nazeef and others v. Mst. Mumtaz Begum 2002 CLC 1517.

8. It was further argued that there are concurrent findings of the Courts of competent jurisdiction which need no interference by this Court in its revisional jurisdiction.

9. I have heard the arguments of the learned counsel for the parties at length and perused the record of the case.

10. The claim of the petitioners/plaintiffs is that they had purchased the suit house through registered sale-deed dated 4-1-1929 (Exh.P.W.2/2). In order to prove their case, they examined Islam Gut Registration Clerk, Mardan as P. W .2 who placed on record copy of registered sale-deed dated 4-1-1929 (Exh.P.W.2/2).This witness was not cross-examined. It is by now settled law that if a witness is not cross-examined on a fact and his statement remained unrebutted and unquestioned, such statement can be taken as correct. Reliance in this regard was:--. (2) Mst. Noor Jehan Begum v, Syed Mujtaba Naqvi 1991 .SCMR 2300, (3) Aminul Haq v. Abdul Wasai and others 2004 CLC 555, (4) Mst. Zargoon and others v. Mst. Shadana and others 2002 CLC 1539, (5) Haji Din Muhammad through L.Rs. v. Mst. Hajra Bibi PLD 2002 Pesh. 21 and (6) Khanzada Inamullah v. Mst. Zakia Qutab and others PLD 1998 Pesh. 52.

11. Another aspect of the case is that the sale-deed dated 4-1-1929 (Exh.P.W.2/2) was placed, on record without objection from the respondents/defendants. It is also by now settled that when a document is placed on record without objection by the other side, the admissibility of such document cannot be challenged at the appellate and revisional stages. Reliance in this regard was placed on: (1) Aminul Haq v. Abdul Wasai and others 2004 CLC 555, (2) Abdul Hamid Khan v. Muhammad Zamir Khan and 2 others 1990 MLD 1617 (3) Malik Din and another v. Muhammad Aslam PLD 1969 SC 136-and (4) Abdullah and others v. Abdul Karim PLD 1968 SC

140. Since the sale-deed Exh.P.W.2/2 was a registered document, therefore, under Article 79 of Qanun-e-Shahadat Order, 1984, it was not necessary for the petitioners/plaintiffs to call its attesting witnesses in proof of the said deed particularly when the Executor of the said deed had not specifically denied its execution. On the one hand, the petitioners/plaintiffs claim to be the owners of the suit property on the basis of registered sale-deed Exh.P.W.2/2 and on the other side, the respondents/defendants have relied upon the unregistered sale-deed, dated 6-4-1902 (Exh.D.W.2/1). The question that arises at this stage is as to which of the documents would take precedence over the other. Answer to this question was given by a Full Bench of this Court in the case of General-Manager, H.B.F.C. and others v. Ali Rehman and others.1995 CLC 531, in which it was held:-- "Then the dower deed attested copy EXh.P.W.l/D.1 executed by Fazal-e-Mehtnood, appellant No. 1 in R.F.A. No.41 of 1993 in favour of Mst. Sherin Taj, appellant No.2 therein no doubt was subsequent in time but being registered would take precedence over the earlier unregistered sale-deed allegedly executed by the latter in favour of the plaintiff-respondent." Since the sale-deed Exh.P.W.2/2 produced by the petitioners/ plaintiffs was a registered document, therefore, the same takes precedence over the unregistered sale-deed Exh.D.W.2/1 relied upon by the respondents/defendants. Moreover, the perusal of unregistered sale deed Exh. D. W .2/ 1 shows that the respondents/defendants had purchased "Sufaid Daga" through the said deed and not the house in question. The respondents/defendants, therefore, failed to prove their ownership over the house in dispute. The Courts below thus, failed to appreciate the evidence on record and the legal position mentioned above.

12. So far as the question of induction of the respondents/defendants by the petitioners/plaintiffs as tenants is concerned, the argument of the learned counsel for the respondents/defendants that failure of the petitioners to prove the relationship of landlord and tenant between the parties should straightaway lead to dismissal of the suit filed by them, has no force at all. If the petitioners/plaintiffs could not prove that they had inducted the respondents/defendants in the suit house as tenants but they successfully proved their title over the suit house, therefore, they were entitled to the decree for possession. This view was taken by this Court in:-- (1) Muhammad Nazeef and others v. Mst. Mumtaz Begum 2002 CLC 1517 and (2) Mulibai v. Vassibai and another AIR 1926 Sind

98. Since the Courts below have failed to appreciate the above discussed legal position, therefore, they have committed material irregularity. Resultantly, I allow the revision petition in hand, set aside the impugned judgments and decrees passed by the Courts below and grant a decree in favour of the petitioners/plaintiffs. The respondents/defendants shall hand over the vacant possession of the suit house to the petitioners/plaintiffs within a period of three months but the respondents/defendants are held entitled to the improvements to the tune of Rs.36,668 made by them in the suit house as reported by the Local Commissioner. There shall be, however, no order as to costs. H. B. T./115/P Revision petition allowed.