2019 PLP 12 (CLCN)

ALI BAIG, J.

This civil revision petition is directed against the impugned judgment/partial decree dated 07.4.2016, passed by the learned Additional District Judge Gilgit, whereby the learned Ist Appellate Court has partially decreed the suit of the petitioners L.Rs of the plaintiff to the extent of land measuring 49 kanals 14 marlas out of total 222 kanals suit land.

2. Brief fats of the case are that the petitioner/plaintiff namely Subidar (Retired) Taighoon Shah since deceased and represented by his legal heirs instituted a suit for declaration and perpetual injunction against the respondents/defendants in the trial court claiming that suit land measuring 222 kanals fully described in the head note of plaint was allotted to the plaintiff by the competent authority on different occasions. The plaintiff has developed the suit land by constructing channel and investing huge amount on the suit land before framing/enacting. N.As Nauture Rules 1978. Now, the respondents/defendants are bent upon to take possession of suit land by ejecting the L.Rs of the plaintiff from the suit land, therefore, the respondents/defendants may be restrained from interfering in the suit land.

3. Notice of suit was issued to the respondents/defendants and accordingly the respondents/defendants appeared before the learned trial court and filed written statement denying averments/allegations made in the plaint. However, contesting defendants i.e. defendants Nos.1 to 4 and 6 and 9 have admitted para No.2 of the plaint, wherein the plaintiff had averred/claimed that due to his meritorious services rendered by him in Pak. Army, the competent authority had allotted 49 kanals 14 marlas land in his favour on 12-12-1953.

4. On the basis of pleadings of parties, the learned trial court framed the following issues:-

5. The plaintiff in order to prove his claim produced in the witness box Rehmatullah son of Habibullah as P.W.-1, Haji Muhammad Ali son of Ghulam Shah as P.W.-2 and Ahmed Jami son of Mir Ahmed Khan as P.W.-3 besides recording of his own statement through his attorney namely Haji Karim son of Maqsad Murad. The plaintiff has also produced one witness namely Muhammad Salman in rebuttal.

6. On the other hand the defendants Nos.1 to 4 and 6 to 09 got recorded their statement through their departmental representative namely Amjad Qureshi, Naib Tehsildar and in support of their claim they have produced in the witness box one witness namely Shah Khan Halqa Patwari as D.W.1. The defendant No.5 namely Behram Khan son of Bahadur Khan has appeared before the trial court and has got recorded his statement in the trial court.

7. After conclusion of the proceedings, the learned trial court has dismissed the suit of the plaintiff vide its judgment dated 27-11-2014. The legal heirs of the plaintiff filed civil first appeal against the aforesaid judgment/decree of the trial court in the court of the learned District Judge, Gilgit which was assigned to the learned Addl. District Judge, Gilgit and the civil first appeal of the L.Rs of plaintiff was partially accepted by the learned 1st Appellate Court and suit of the plaintiff was decreed to the extent of 49 kanals and 14 marlas suit land. The present petitioners/legal heirs of the plaintiff as well as the defendants have challenged the aforementioned judgment/decree of the learned 1st Appellate Court though separate revision petitions before this court.

8. By means of this single judgment I intend to dispose of civil revision petition No.C.Rev.41/2016 and civil revision petition No.C.Rev.66/2016 as both the aforementioned revision petitions have arisen out of one and same judgment passed by the learned 1st Appellate Court.

9. The learned counsel appearing on behalf of the petitioner/ plaintiff contended that the impugned judgment/decree passed by the learned trial court as well as the learned 1st Appellate Court are result of mis-reading and non-reading of evidence of the parties. The learned counsel for the petitioners/plaintiff further argued that the competent authority has allotted 222 kanals ksalisa sarkar land in favour of the father of present petitioners/plaintiff before introducing N.As Nautore Rules, 1978 and the learned trial court has wrongly dismissed the suit of the plaintiff/petitioners. The learned counsel for the petitioners/L.Rs. of plaintiff further argued that the learned Ist Appellate Court has partially decreed the suit in favour of the plaintiff to the extent of land measuring 49 kanals 14 marlas, whereas the plaintiff was entitled for a decree to the extent of whole suit land measuring 222 kanals. The learned counsel for the petitioners/L.Rs of plaintiff further argued that the defendants have miserably failed to prove the issues, which were to be proved by them.

10. Conversely, the learned Additional Advocate General controverted the arguments advanced by the learned counsel for the petitioners/L.Rs of plaintiff and contended that the competent authority has not allotted the suit land in favour of the L.Rs of plaintiff as the plaintiff has not been able to produce any valid allotment order in the trial court. The learned Additional Advocate General G.B. further argued that suit cannot be decreed on the basis of admission made in the written statement as plaintiff has to prove his claim on the strength/footing of his own evidence and decree cannot be passed on the basis of weakness or any admission of opposite party/defendant.

11. Heard the learned counsel for the petitioners as well as the learned Additional Advocate General G.B. and with their valuable assistant I have gone through the record.

12. From perusal of record it reveals that the learned trial court had dismissed the suit of the L.Rs of plaintiff vide its judgment dated 27-11-2014, but the learned Ist Appellate Court while accepting civil first appeal filed on behalf of the plaintiff has partially decreed the suit to the extent of suit land measuring 49 kanals 14 marlas on the basis of admission made by the respondents Nos.1 to 4 and 6 to 9 in para No.2 of their written statement.

13. Although the petitioners/L.Rs of plaintiff have failed to produce any valid allotment order of the disputed land in the trial court as well as in the learned Ist Appellate Court in support of their claim/version, but the contesting defendants/respondents have categorically admitted para 2 of plaint in para No.2 of their written statement. Hence, I would like to re-produce para No.2 of plaint as under:- The contesting respondents i.e. respondents Nos. 1 to 4 and 6 to 9 have admitted the para 2 of the plaint in their written statement which is reproduced as under:-

14. From plain reading of above reproduced contents of plaint and written statement it transpires that the contesting defendants have unequivocally admitted the claim of the plaintiff to the extent of suit land measuring 49 kanals 14 marlas in their written statement and later on even they have not applied to amend the para No.2 of the written statement, hence under Article 113 of Qanun-e-Shahadat, 1984, no fact be proved in any proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands or which by any rule or pleading inforce at the time they are deemed to have admitted by pleadings. Moreover, provisions of Order XII, rule 6 are also relevant regarding admission which are re-produced as under:- Order XII, Rule 6, Judgment on admission.

Any party may, at any stage of a suit, where admissions of fact have been made, either in the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court may upon such application make such order, or give such judgment, as the Court may think just.

15. Keeping in view the above re-produced provisions of law, I have come to the conclusion that the learned 1st Appellate Court has rightly passed partial decree in favour of the petitioners/L.Rs of the plaintiff on the basis of admission of fact which has been made in the written statement of the respondents Nos.1 to 4 and 6 to 9.

16. For what has been discussed above, both the revisions petitions filed by the parties against the impugned judgment passed by the learned 1st Appellate Court are devoid of merits which are hereby dismissed. Consequently, the impugned judgment/decree passed by the learned 1st Appellate Court dated 07-4-2016 is maintained. Parties are left to bear their own costs. Certified true copy of this judgment be placed on file of Civil Revision Petition No.66/2016 file. ZC/217/GB Revision dismissed.