1996 PLP 367 (MLD)

Ejaz Afzal Khan for Respondents. Date of hearing: 1st October, 1995. This revision is directed against the judgment/decree of the learned District Judge, Mansehra dated 29-6-1991 whereby he, while maintaining judgment/decree of the lower Court dismissed the appeal of the petitioner.

2. The petitioner herein, filed a suit for recovery of Rs.16,400 as mesne profit at the rate of Rs.200 per month from 6-5-1981 to 6-3-1988 and for possession of the house as detailed in the heading of the plaint. As per assertions of the plaint, plaintiff was the owner of the house while defendant No.l in collusion with defendant No.2 occupied the same on 6-3-1981 and despite demands of the plaintiff, he did not pay any rent to the plaintiff, therefore, the plaintiff filed an application for his ejectment in the Court of Rent Controller, Mansehra which was dismissed on the ground that the relationship of landlord and tenant could not be established whereafter present suit was filed. Defendant No.l contested the suit alleging that he has matured the title by adverse possession for more than 12 years, therefore the suit was liable to dismissal. Parties led their evidence as they wished to adduce. The learned Civil Judge, Mansehra on assessment thereof dismissed the suit vide judgment/decree dated 14-11-1989 and appeal thereof met the same fate from the Court of District Judge, Mansehra vide judgment/decree dated 29-6-1991.

3. Learned counsel for the petitioner contended that so far the ownership of the house in question is concerned the respondent has explicitly admitted the petitioner to be the owner of the house. He referred to the mortgage/redemption documents exhibited as P.W.1/1, P.W.2/1, P.W./3/1 and stressed that this very house with the same boundaries had been mortgaged to different people and got redeemed, as such the findings of the trial Court that the boundaries of the house in dispute do not correspond to the boundaries given in the above documents, are not maintainable. This fact was also proved through P.Ws.l to 3, who have categorically stated that the same very house which is in dispute was mortgaged and redeemed through the aforesaid documents and their deposition had not been shattered in the cross-examination. Defendant No.l has produced no other evidence except for his own statements in which he has admitted that the house belongs to the plaintiff and he entered into it through defendant No.2 to whom he paid Rs.15,000 as mortgage money. The petitioner had been demanding rent and the possession of the house throughout so in such circumstances the possession cannot be termed to be hostile. The lower Courts have misread the evidence, therefore, their findings are liable to be set aside. .

4. Opposing these contentions learned counsel for respondent No. l contended that respondent No.l has become the owner of the house as admittedly he has never paid any rent to the petitioner hence he being in adverse possession of the house in question has matured the title thus, the suit being time-barred deserves to be dismissed.

5. I have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case.

6. The plaintiff-petitioner produced P.Ws.l to 3 to prove his ownership of the house in question. All the three P.Ws. stated that the house in dispute was mortgaged and later got redeemed by the petitioner from the mortgagees. The last mortgage took place vide Exh.P.W.3/1 dated 3-11-1975 and was redeemed vide receipt dated 10-8-1977 which falsifies the respondent's claim that he got the house on mortgage in 1973. It has been acknowledged by the respondent that after about a year from his occupation of the house, petitioner started demanding rent but he did not pay the same alleging that the house was mortgaged with him.

7. Respondent No.l in his written statement alleged that he was occupying the house for more than 12 years, therefore, the suit is time-barred. While appearing in Court as a witness, he in the very first sentence stated that he was handed over the house by defendant No.2 on payment of Rs.15,000 as mortgage money in 1973. He stated that after about a year petitioner asked him to vacate the house but he told him that the house was mortgaged with him, therefore, he would nor pay any rent. The ownership of the house has been unequivocally admitted by respondent No.l to be the property of petitioner, who has been demanding the rent from him. Prior to this suit, as ejectment application was filed on the ground of default in payment of rent A before the Rent Controller which was dismissed as the relationship of landlord and tenant between the parties was not proved. In such circumstances the respondent's possession cannot be said to be hostile, uninterrupted and peaceful. In view of the admission of the defendant No.l that the house belongs to petitioner the question of ownership needs no further proof. He failed to substantiate either of the pleas of adverse possession taken by him in written statement and that of mortgage raised at evidence stage, which even otherwise were inconsistent inter se. Therefore, the findings of the two Courts on this score are not maintainable. The plaintiff has abundantly proved that the house belonged to him and it was rented out to the defendant No.l through defendant No.2 and as he never paid any rent, therefore, he was within his rights to seek possession of the house alongwith mesne profit. Admittedly the respondent No.l took over the house from respondent No.2 on payment of Rs.15,000 as mortgage money whereas according to the petitioner, he let out the house to respondent No.l through respondent No.2 on monthly rent of Rs.200. Respondent No.2 abstained and he was neither produced by the plaintiff nor by the defendant in proof/disproof of their claim. Hence in such circumstances the plaintiff has not been able to establish his entitlement to mesne profit but is entitled to the possession of the house. The findings of both the lower Courts not being based on proper appreciation of evidence, therefore, are reversed. This revision petition is allowed with costs throughout. The judgment/decrees of both the Courts are set aside. The respondent No.l is directed to hand over the possession of the house to the petitioner within 3 months. A.A./1855/P Revision accepted.