P L D 1998 Supreme Court 1502 (PLP)

ABDUR REHMAN KHAN, J.

Petitioner/appellant was granted leave in this case to consider; whether, the suit property as mentioned in the plaint was the same which was covered by sale-deed Exhs.PW-3/1 to 3/5 executed by Abdul Munaf in favour of the appellants and as to what would be the effect of another deed Exhs.DW-1/1 to 1/24 executed by the said vendor in favour of the respondent.

2. The factual controversy which led to the filing of this appeal was that the appellants brought a suit for possession against the respondent in respect of the suit house in the Court of Civil Judge, Charsadda on the allegations that they were the owners of this house and the defendant/respondent was their tenant on payment of usual customary dues known as Tora and Khakshora; that the defendant had promised to vacate the house whenever needed by the plaintiffs for personal occupation; that when the plaintiffs felt the need of the disputed house for their personal use and asked the defendant to vacate it he refused to do so and went to the extent of denying the title of the plaintiffs. The defendant in his written statement denied the occupation of the house under the plaintiffs and instead asserted his ownership over it on the basis of the sale-deed dated 28-1-1967 Exhs.DW-1/1 to 1/24. Both the parties examined evidence in the case and ultimately learned trial Court by judgment dated 15-5-1993 dismissed the suit. The relevant decisive issues in the case were Issues Nos.l, 4, 7 and 8 which are reproduced in verbatim for better understanding of the case: (1)Whether the plaintiffs have got a cause of action? (4) Whether the defendant has purchased the suit house from one Munef Gul son of Said Alam through sale-deed dated 28-1-1967 and he is in possession of the suit. house? (7)whether the defendant was tenant under plaintiffs on payment of Tora and Khakshora? (8)Whether the defendant is trespasser?" The learned trial Court jointly took up these issues and its finding on these issues is as under:- "Since these issues are interconnected so I propose to discuss them together. Both the parties claim the suit house through purchase from one Abdul Munaf. The deeds relied upon by the plaintiffs are dated 17-2-1961 (Exh.PW-3/1 to Exh.PW-3/5) while the defendant relied upon deeds dated 28-1-1967 (Exh.D.W.I/I to Exh. D.W.1/24). In this situation when both the parties claim under Abdul Munaf his statement assumes pivotal role. He appeared as D.W.I and deposed that he had sold the house through deeds dated 28-1-1967 (24 number) in favour of the defendant. In his examination-in-chief he also deposed that he had sold another part in favour of the plaintiffs, but that is a separate plot and the same has got nothing to do with the disputed house occupied by the defendant presently. He submitted the deeds in all its details. He also admitted the deeds (Exh.PW-3/1 to Exh.PW-3/5 executed in favour of plaintiffs), He went all to explain that in fact the plot mentioned in this five deeds were sold in favour of Fazal Raziq (brother of this witness) but the deed's were executed in the name of the plaintiffs who are the sons of Said Fazle Raziq. In view of this statement the burden heavily lay with the plaintiffs to prove two things. First that the plot mentioned in the Exh.PW-3/1 to Exh.PW-3/5 was the same which is presently in possession of the defendant; and secondly that the defendant either entered the house as their tenant or has ever paid the traditional Tora and Khakshora. The evidence produced by the plaintiffs consists of P.W.1 and P.W.2 who happens to be Petition Writers, while P.W.5 the father of the plaintiff P.W.4 is witness who could have provided an independent account regarding the existence of tenancy in favour of the plaintiffs, but he spoke only one sentence regarding the same. This being so in my view the plaintiffs have failed to discharge the burden of proving their title and their status as landlords vis-a-vis the defendant. On the other hand the defendant by producing the ex owner Abdul Munaf has proved his title to the suit house. Consequently all these issues are decided against the plaintiffs." The learned appellate as well as the revisional Court by their judgments dated 3-3-1994 and 30-4-1994 respectively affirmed the judgment of the trial Court.

4. The learned counsel appearing for the appellants complained of gross non-reading and misreading of evidence which, according to him, caused grave miscarriage of justice and wrong conclusion by all the Courts. He referred to the statements of the various witnesses produced by both sides and dilated upon it to prove his view-point. On the other hand the learned Advocate for the respondent objected to interference by this Court on the ground that all the Courts have concurred in their decisions and that there was no misreading or non-reading of the evidence to warrant interference in these agreed judgments.

5. It is to be noted that both the parties admit that the original owner of the disputed house was Abdul Munaf but plaintiffs' case is that they purchased it from him by a sale-deed dated 17-2-1961 Exhs.P.W.3/1 to 3/5 while defendant claims its purchase from the said owner through sale-deed dated 28-1-1967 EXhS.D.W.I/1 to 1/24. It is now to be determined; whether, the sale in favour of the plaintiffs which is about five years prior to that of the defendant was proved on record or not? In this context the statement of the vendor Abdul Munaf is relevant who appeared as D.W.1. This witness in his examination-in-chief stated that he sold the disputed house to the defendant by sale-deed dated 28-1-1967. He also stated that he had sold some area to the plaintiffs for construction but that was the different place. In the cross-examination this witness admitted the sale by him to Fazle Raziq father of the plaintiffs through sale-deed dated 17-2-1961 exhibited as P.W.3/1 to 3/5. He also admitted that Fazle Raziq then sold it to his sons who are plaintiffs. He, however, stated that he had re-purchased the same place from his brother and then sold a portion of it to the defendant. It would be better to reproduce the relevant portion of his statement: This witness further admitted, So, from the testimony of this witness it is manifest that the sale-deeds Exhs.P.W.-3/1 to 3/5 was executed by him in the name of the father of the plaintiffs but the fact is that this deed is in the name of the plaintiffs. This is also evident from his statement that the sale-deed in favour of the plaintiffs is regarding the same house which he has sold to the defendant. He also admits that the defendant was tenant of the father of the plaintiffs before the sale. In this context the next important statement is that of the defendant himself who was examined as D.W.2. This witness in the very first line of cross-examination admits: ,~ i! Le i 1964 JL _l6 = if C)lf.* ,J t e vi li L? He further stated "_Iflf.:.3lJ ~~1,~~~ -l~.veJ~tJIf?~.JtlL): Thus, it is evident from the statements of Abdul Munaf (D. W.1) and Jan Muhammad (D.W.2) that the sale-deed in favor of the plaintiffs was in respect of disputed house and was executed by the original owner Abdul Munaf. It is also established that the defendant was brought in as tenant in this house by the father of the plaintiffs. The stance of the said two witnesses that Abdul Munaf had repurchased this house from Fazle Raziq father of the plaintiffs is not supported by any sale-deed or any other evidence. The learned Courts have, therefore, not read the evidence on record in its correct perspective and have also misread important evidence. They have, therefore, legally erred in the decision of the case which resulted in miscarriage of justice. It is abundantly proved from the above-referred evidence that the plaintiffs are the owners of the house in question and the defendant was first occupying it as their tenant but later on denied their ownership. Therefore, while accepting this appeal the judgment and decrees of all the Courts are set aside and the suit of the appellants as prayed for is decreed against the defendant but with no order as to costs. A.A./S-97/S??????????????????????????????????????????????????????????????????????? Appeal accepted