2007 PLP 1272 (MLD)

JAWWAD S. KHAWAJA, J.

Muhammad Altaf appellant-defendant impugns the decree of the learned Court of first appeal dated 9-10-1997 whereby the decree of the learned Trial Court, dated 2-11-1994 was set aside and a suit filed by the respondents-plaintiffs seeking possession of the house in dispute, was decreed.

2. The facts of the case as alleged in the plaint, are that the disputed house was owned by the respondents being legal heirs of Muhammad Jamil who was husband of Mst. Nasim Begum now represented by her L.Rs. who are respondents Nos. 3 to 7, and father of Mst. Samina and Mst. Asifa (respondents Nos. 1 and 2). Paragraph 2 of the plaint is relevant which, inter alia, avers as follows:-

3. In the plaint, no date or even year has been given as to when the disputed house was given to the appellant Muhammad Altaf. Furthermore, there is no averment as the nature of the association (taalukdari) between the appellant and the respondents-plaintiffs. Moreover the' respondents-plaintiffs did not bring on record any document of title which would have proved that they and before them Muhammad Jamil was the owner of the disputed house.

4. The appellant filed his written statement wherein he stated that he was the owner of the land and before him his father Hayat Muhammad had remained in possession of the house for a period of fifty years until his death. Based on the pleadings of the parties, the learned Trial Court framed as many as seven issues. The crucial issue, however, is issue No.5 which was framed in the following terms:-- "Whether the plaintiffs are owners of the disputed house being successors of Muhammad Jamil deceased and such are entitled to claim possession of the same? OPP"

5. The parties led evidence both documentary and oral Mst. Nasim Begum widow of Muhammad Jamil appeared as P.W.1. She did not testify as to the time when the disputed house was given to the appellant and nor did she establish the title of Muhammad Jamil. Moreover, she did not make any reference to a partition of property owned by Hayat Muhammad father of the appellant. This aspect of the case has been discussed later in this judgment. The other witness produced, by the respondents-plaintiffs was Ghulam Nabi who appeared as P.W.2. He deposed that Jamil was his adopted son. He did make a reference to the alleged arbitration award (Exh.P-1) and deposed that the house belonged to Jamil. The appellant on the' other hand, produced an electricity bill (Exh.D-1), dated 28-5-1977 in his own name in respect of an electricity connection installed in the disputed house. He also produced on record a card issued by the Malaria Eradication Programme (Exh.D-2) in the name of his father Hayat Muhammad in which the address of Hayat Muhammad was given. In Exh. D-2, the house owned by Hayat Muhammad is shown as having 13 rooms and not 3 rooms as alleged in the plaint. The appellant himself appeared as D.W.2 produced one Muhammad Iqbal as D.W.1 who was resident of the same locality in which the disputed house is located. He supported the plea of the appellant that he was the owner in possession of the disputed house and before him his father Hayat Muhammad had been living there.

6. After considering the afore-said evidence the learned Trial Court dismissed the suit of the respondents-plaintiffs. The learned Appellate Court, however, has decreed the same.

7. I have gone through the record with assistance of learned counsel for the appellant and have also gone through the impugned appellate judgment. The principal reason which has prevailed with the learned Appellate Court for deciding in favour of the respondents-plaintiffs is a document (Exh.P-1) which purports to be an arbitration award rendered by the Arbitration Council of Naunar Union Council No.149. Learned counsel for the appellant has, firstly, pointed out that this document was neither mentioned in the plaint nor was it included in the list of reliance. According to him, it was fabricated later. The document (Exh.P-1).was produced from the custody of the respondents and not from the record of the Union Council. Moreover, no attempt whatsoever was made to summon any functionary of the Union Council or the so-called arbitrators who had signed the alleged award. Here it may be pointed out that on a piece of paper attached to the award the name and signatures of the appellant Muhammad Altaf are inscribed. Muhammad Altaf acknowledged his signatures and also the fact that he and his brothers partitioned the property owned by their father Hayat Muhammad. He, however, denied that there was arbitration between the brothers. His signatures do not appear on the award itself. It may be noted that the award (Exh.P1) has not been proved through the marginal witnesses or any other signatory to the same. It, therefore, could not have been relied upon as a basis for holding that the respondents were the owners of the disputed house. This is particularly so when the onus to prove lay heavily on the respondents to prove this assertion that they were the owners of the disputed house and the same had been given to the appellant gratis.

8. In the absence of proof of title and in view of the fact than Exh.P-1 had not been proved, it is clear that the respondents-plaintiffs had failed to discharge the onus .of proof placed on them in respect of issue No.5 reproduced above. Unfortunately, the learned Appellate Court misdirected itself and also did not take note of the material aspect of the case discussed above. The appellate decree, as such, is not legally sustainable and is, therefore, set aside. As a result, the decree of the learned Trial Court, dated 2-11-1994 is affirmed. H.B.T./M-239/L Appeal allowed.