2010 PLP 457 (CLC)

LIAQAT ALI SHAH, J.

This revision petition has been filed against the judgment/decree dated 22-10-2007 of the learned Additional District Judge, Hangu vide which Civil Appeal No.63/13 of 2006 filed by the petitioner against the judgment/decree of the learned Senior Civil Judge, Hangu, in Civil Suit No.37/1 of 2003, was dismissed.

2. The learned Senior Civil Judge vide judgment and decree dated 21-7-2006 had decreed the suit of plaintiff/respondent. Respondent/ plaintiff Haji Sarwar Khan and 3 others instituted a suit against the defendant in the Court of learned Senior Civil Judge, Hangu, for possession of a house situated in Khasra No.39, situated in Kach Sumbal Banda, Tehsil and District Hangu, from the defendant claiming themselves to be the owners and defendants as tenants for Rs.500 per month. In part `Bai', and amount of Rs.4500 was claimed as arrears of rent. According to the averments in the plaint, land in Khasra No.39 and other land situated in Mauza Kach Banda and Shinko Banda was the joint ownership of the predecessor of the plaintiffs/respondents namely Ghulam Hamid Khan, Abdul Haq Khan and Muhammad Amir Khan. That on 29-9-2001, private partition took place between the plaintiffs and the legal heirs of Abdul Haq Khan and Muhammad Amir etc. and as a result of such partition the entire Khasra No.39 came to the share of plaintiffs and the legal heirs of Abdul Haq and in Khasra No.39 constructed houses also came to the ownership of plaintiff and legal heirs of Abdul Haq. Further claimed that thereafter again private partition took place between the plaintiff and Mst. Younis Khatoon etc. (legal heirs of Abdul Haq) on 18-6-2002. Six constructed houses in Khasra No.39 were given to the plaintiffs whereas before the second partition the persons residing therein were the tenants of Mst. Younis Khatoon etc, (LRs of Abdul Haq) who were accordingly informed verbally about the change of ownership in the name of the plaintiffs. That at the end only defendant refused to pay the rent who was then duly served through a written notice dated 12-1-2003 for the rent but till the filing of the suit the said defendant had not paid any rent and as such suit for possession and recovery of rent was brought against him.

3. The petitioner/defendant contested the suit by submitting written statement wherein he denied the claim of the plaintiff-respondents and claimed that there was no relationship of landlord and tenant and that he was owner in possession of the suit house and had spent a huge amount on the said house. He has also stated in his written statement that all mutations about the ownership and possession of the disputed house were based on fraud and were liable to cancellation. On factual side, his assertion was that the entries in the column of cultivation and ownership about Khasra No.39 are wrong and against the ground reality and that the plaintiffs/respondents and their predecessor had no concern with the suit house and mutation about the change in the column of ownership and cultivation plus possession was wrong and against the law and was liable to cancellation. Similarly, he has termed the private partition between the plaintiffs and others as bogus. He has further asserted that since the life time of his father he is owner in possession of the disputed house and that the house was constructed by his father and the electricity has also been installed by his father and the meter was installed in the name of his father.

4. The pleadings of the parties led to the following issues:

1. Whether the plaintiffs have got cause of action?

2. Whether the suit is not within time? '

3. Whether the suit is not maintainable in its present form?

4. Whether this Court has jurisdiction?

5. Whether plaintiff is estopped to sue?

6. Whether the relationship of landlord/tenant exist between the parties?

7. Whether the deeds of private partition of the suit-land are true?

8. Whether the entries in Revenue' Record regarding the Khasra No.39 is correct?

9. Whether plaintiffs are the owners of the suit land?

10. Whether any notice regarding payment of rent was made to the defendant?

11. Whether the defendant is liable to be evicted?

12. Whether plaintiffs are entitled to the relief sought?

13. Relief?

5. The parties led their evidence and the learned Senior Civil Judge after detailed discussion decreed the suit of the plaintiff against the defendants according to the prayer made therein.

6. The said judgment and decree of the learned trial Court was challenged in appeal before the learned Additional District Judge, Hangu which appeal was dismissed vide judgment and decree dated 22-10-2007. Hence this argumentative revision petition.

7. The learned counsel for the petitioner mainly argued that it has not been established and remained unresolved as to whether the suit house is situated in Khasra No.39. He further submitted that the subsequent change after settlement in the Revenue Record could have not been relied upon and the old entries made during the settlement should have been given preference. He next contended that the question of limitation has also not been properly addressed by the Courts below as the suit was time-barred. He also contended that suit for mere possession was not competent.

8. The learned counsel for the respondents/plaintiffs argued that the two Courts below have correctly appreciated the evidence as well as the law. He submitted that the suit was well in time and that in private partition it had come to the ownership of the plaintiffs/respondents and that the issue that the suit house is situated in Khasra No.39 has been resolved.

9. In the case in hand, plaintiff claims to be landlord/owner of the suit house on the basis of ownership through his predecessor Ghulam Hamid Khan etc. and private partition effected between the Legal heirs of Abdul Haq and Muhammad Amir Khan and further partition between plaintiffs and legal heirs of Abdul Haq whereby plaintiff became owner of six houses and thoroughfare in Khasra No.89. After such partition except for the petitioner, other tenants of the five houses attorned to him and paid rent. However, in the case of the present petitioner, plaintiff/respondent filed suit for possession and recovery of outstanding rent with effect from July, 2002 till March, 2003 when plaintiff became the owner. Petitioner/defendant denied relationship of land and tenant and claimed to be owner by virtue of long possession of the house.

10. I have gone through voluminous evidence on the record which has been discussed by the Courts below.

11. The learned counsel for the petitioner could not persuade me to undertake reappraisal of evidence in the revisional jurisdiction specially when he failed to point out any misreading or non-reading of evidence. Much stress was placed by the learned counsel on the fact that electricity meter was installed in the suit house in the name of petitioner but the statement of P.W.4, from the office of the PESCO, sufficiently establishes that connection was allowed to the petitioner only after no objection in writing was given by the then owner. The application form for electricity connection is available at page 184 of this file and it is so written on it. Except for the said electricity connection, petitioner has failed to produce any further documentary or any convincing evidence in support of his ownership.

12. The grounds now being urged before this Court are after-thought. It was never the case of the petitioner that the suit house was not situated in Khasra No.39. Even otherwise too if petitioner had any other reservation about the change in the Revenue Record affecting his rights, there was nothing to stop him, questioning the same before proper forum in appropriate proceedings.

13. Otherwise too, the old record since 1971-72 about which the learned counsel for the petitioner submitted that it should have been believed, has rightly been discarded by the Courts below. The statement of P.W

2. ADK with reference to the Revenue Record was recorded in detail and he makes it crystal clear that before 1971-72, the suit property was recorded as "Maqbooza Malikan". This P.W. further states that there is nothing whatsoever in the column of remarks about the change in the relevant column when the entry from "Maqbooza Malikan" was changed to "Maqbooza Ahlian-e-Deh". At page 23 he admits the same position and with reference to the entries of 1971-72 and Misl-e-Haqiat Exh.PW2/1 prepared during settlement, there is no entry whatsoever in the remarks column on the basis of which the above change has been brought in the year 1971-72. So the entries made in the above stated circumstances could have not been relied upon.

14. The suit was instituted well within time by the plaintiff-respondent when he became the owner of the suit house. Hence the suit was well in time.

15. Learned counsel for the petitioner also could not point out any evidence whereby the denial of relationship of landlord and tenant could be justified which otherwise seems to be frivolous. This also takes care of his objection with regard to the maintainability of the suit for recovery of possession without seeking declaration of title. As plaintiff was already owner of the property by virtue of inheritance and partition, mere denial of relationship of landlord and tenant, by the petitioner, could not convert the suit into one for title. As observed above, such denial is not based on any convincing evidence. So when the title of respondent/plaintiff was not defective, he could competently brought the suit in the present form.

16. In view of the above discussion, it is held that the two Courts below have rightly passed the impugned judgments and decrees. The present petition being devoid of any force is dismissed with no order as to costs. H.B.T./27/P Petition dismissed.