2006 PLP 439 (MLD)

JAWWAD S. KHAWAJA, J.

The facts of this case are very simple. The petitioners claim ownership of the suit property on the basis of the Revenue Record (Exh. P.1). The respondents are in possession of the suit-land. The petitioners filed a suit seeking possession of the land on the basis of their alleged ownership. It was their case that they had temporarily given the property to the respondents for use. The suit was A resisted. The defence set up by the respondents was that they had become owners of the property under Settlement Scheme No.7. In the alternate, they asserted that their title land matured on the basis of adverse possession.

2. The learned Trial Court framed issues on which the parties led evidence. The learned Trial Court, based on the available evidence including Ex.P-1, came to the conclusion that the petitioners, being owners, were entitled to possession. Their suit was decreed. However, on appeal filed by the respondents set aside the decree of the Trial Court dated 14-1-1996 and proceeded to dismiss the suit of the petitioners vide appellate judgments an decree dated 1-2-2001. Hence, this revision petition.

3. The learned Appellate Court has, inter alia, held that the petitioners/plaintiffs had not been able to prove that they had given the property to the respondents on temporary basis. It has further been observed that the respondents/defendants had raised a lot of construction on the disputed property but had not been obstructed by the petitioners/plaintiffs. These findings are supported by the available evidence and are unexceptionable.

4. The learned Appellate Court also noted a material contradiction in the testimony of the witnesses produced by the plaintiffs. Muhammad Ramzan, who is one of the petitioners/plaintiffs, appeared as P.W.-1 and deposed that his father had purchased the suit property even prior to the creation of Pakistan. However, P.W.-2 testified that the property was non-Muslim evacuee property and the owners thereof had migrated to India. This witness deposed that the property was subsequently allotted to the father of the petitioners, namely, Nawab Din, P.W.-2 is a credible witness and is also qualified to testify as to the nature of the disputed property. He was sixty years old when he gave evidence and clearly stated that he and Nawab Din father of the petitioners, were local residents of the area since prior to partition. In the circumstances, the testimony of P.W.-2 was' sufficient to rebut the assertion of Muhammad Ramzan (P.W.-1) that the petitioners and their predecessor-in-interest were owners of the property in their own right since pre-partition's days and were not allottees of the same. 5. (sic).

6. Learned counsel for the petitioners argued that the two pleas taken by the respondents/defendants viz. that they had become owners under Settlement Scheme No.7 and in the alternate that their title had matured through adverse possession, were contradictory and mutually destructive. This argument, however, is misconceived. The stance of the petitioners consistently was that they had been in possession of the suit-land since 1947 when they had migrated from areas now composed in India. In the circumstances, their plea that they had either become owners under Settlement Scheme No.7 or had acquired prescriptive title, were not mutually destructive-pleas. If the petitioners had been able to prove (which they have not done) that they and their predecessors were owners even prior to 1947, the plea of adverse possession would have been available to the respondents. On the other hand, their assertion of title on the basis of Settlement Scheme No.7, was available to them in the event the disputed land was proved to be evacuee property. In the present case, on the basis of the testimony of P.W. it is justified to conclude that the disputed property was indeed, evacuee property and the title of the respondents was created and has been perfected by virtue of Settlement Scheme No.7.

7. Learned counsel for the petitioners next argued that the respondents were merely licensees who had been given permissive temporary possession of the disputed land. On this basis, it was argued that the respondents were estopped from denying the title of the petitioners. This argument is wholly untenable because the petitioners have failed to prove that they had given the disputed land on temporary basis to the respondents.

8. At this point, there are significant aspects of the case which need to be noted and which prevailed with the learned Appellate Court. Firstly, the version of events put forth by the petitioners that they had temporarily given the property to the respondents, is not at all believable. This is, particularly so because even Muhammad Ramzan petitioner/plaintiff as P.W. was not able to state as to when the property was given to the respondents. Furthermore, his statement that the property was temporarily given to the respondents for their residence, also cannot be given any credence because the petitioners did not take any steps to prevent the respondents from raising their pacca construction and houses on the property. Thirdly, in view of the express averments in the written statement that the respondents had become owners under Settlement Scheme No.7, it was incumbent upon the petitioners to produce the relevant documentary evidence to show, firstly that the disputed land was owned by them since prior to 1947 and was not evacuee property. This could have been easily proved through production of the Revenue Record for the relevant period. This was not done by the petitioners. Secondly, the petitioners should have produced the order passed by a competent functionary whereby the name of their predecessor Nawab Din, was introduced into the Revenue Record. This also has not been done by the petitioners.???????

9. For the reasons noted above, I find that the petitioners have I miserably failed to prove their case and their suit was rightly dismissed by the learned Appellate Court. As a consequence, this petition is also dismissed with costs throughout. H.B.T./G-162/L?????????????????????????????????????????????????????????????????????????????????? Revision dismissed.