2003 PLP 676 (CLC)

(1) Whether the plaintiff is owner of the suit house? (2) Whether the respondents were inducted in possession of the suit house two years before the filing of the suit by the plaintiff? (3) Whether the respondents are in possession of the disputed property for the last 40/50 years? (4) Whether the defendants are entitled to special costs under section 35‑A, Cr.P.C., if so, to what extent? (5) Relief

3. In order to prove his case the plaintiff produced Saee Muhammad P.W.1 who stated that the suit house belonged to the plaintiff and that P.W.1 and his father resided in the suit house and that it was about four years prior to the statement that the witness had vacated the house and handed over the possession to the plaintiff. Ali Muhammad appeared as P. W .2 who reiterated the factum of ownership of the plaintiff. P. W.3 Jan Muhammad also stated about the ownership of Muhammad Ali respondent. Respondent himself appeared as his own witness as P.W.4 and supported his plea of ownership. In documentary evidence he produced Exh.P.1 which is a copy of the unregistered sale‑deed dated 10‑9‑1942 whereby the respondent claimed to have purchased the suit property. On the other hand, the petitioners produced D.W.1 Rehman son of Fateh Muhammad who stated that the house belonged to the petitioners and was constructed by them. D.W.2 is Muhammad Tahir the alleged vendor of the petitioners from whom they claimed to have purchased the land underneath the house through an oral sale. Shahoo petitioner appeared as his own witness as D.W.3. The learned trial Court found Issues Nos.1 and 2 against the plaintiff primarily on the ground that Taj Muhammad, the vendor of the plaintiff respondent was not proved to be the exclusive owner of the suit‑land as it was part of Shamlat Deh. Finding Issue No.3 in favour of the petitioners/defendants the suit of the respondent was dismissed vide judgment and decree dated 16‑6‑1987. Muhammad Ali respondent preferred an appeal. The learned Appellate Court considered the oral and documentary evidence produced by the parties and came to the conclusion that the plaintiff/respondent has been able to prove his ownership through the statement of the witnesses and more so by the production of Exh.P.1. It was found that Exh.P.1 was a 30 years' old document produced from the rightful possession of the plaintiff and thus carried a presumption of truth. It was also found that as the sale transaction evidenced by Exh.P.1 was for a consideration of less than Rs.100, it was not compulsorily registrable. On the other hand, it was found that the petitioners/defendants have not been able to prove their ownership of the property. Muhammad Tahir D.W.2 was not found to be the owner of the suit property when it was allegedly sold by him orally in favour of the petitioners.

4. The learned counsel for the parties have been heard and record perused.

5. It has been contended by the learned counsel for the petitioner that the marginal witness namely Ghulam Nabi Rajput who was alive had not been produced by the plaintiff and therefore, Exh.P.1. shall not be deemed to have been proved. He further contended that the plaintiffs have never been in possession of the suit property. He made reference to the, statement of P.W.1 and P.W.2 to suggest that the plaintiff himself had never been in possession. On the other hand, his claim is that the petitioners have successfully proved their ownership through the evidence of the witness D.W.1 to D.W.3.

6. After examining the record in detail, it is found that the learned Appellate Court has rightly placed reliance upon the deed Exh. P.1 which is a 30 years' old document and nothing has been brought out to rebut this document by the petitioners. It is also correct that the consideration of the sale is less than Rs.100 and thus this document did not require any compulsorily registration. Exh.P.1 was produced by the plaintiff/ respondent from his rightful custody.

7. The petitioners 'have not been able to show that D.W.2 Muhammad Tahir was the exclusive owner of the land underneath the suit property or that he could validly sell the same in favour of the petitioners. The learned counsel have also not been able to prove that the construction was raised by the petitioners.

8. The evidence produced by the plaintiff viz. P.W.1 also referred to the possession of the plaintiff through this P.W. prior to induction of petitioner. The learned counsel for the petitioners has not been able to indicate any misreading or non‑reading of evidence on the record by the learned Appellate Court. No other irregularity of jurisdiction was pointed out.

9. Resultantly, this civil revision has no merit and is hereby dismissed leaving the parties to bear their own costs. H.B.T./1650/L Revision dismissed.