2006 PLP 2874 (YLR)

SARDAR MUHAMMAD ASLAM, J.

This civil revision is directed against the judgment and decree dated 12-10-2000 passed by the learned District Judge, whereby he set aside the judgment and decree dated 18-2-2000 passed by the learned trial Court in a suit for possession in favour of the petitioner.

2. Brief facts of the case are that the petitioner-plaintiff had instituted a suit for possession of a house fully detailed and described in the head note of the plaint. The respondents contested the suit. Out of the pleadings of the parties various issues were framed. Both the parties produced their respective evidence. The learned trial Court vide judgment dated 18-2-2000 decreed the suit of the petitioner-plaintiff. Feeling aggrieved the respondents filed an appeal before the learned District Judge, who vide his judgment dated 12-10-2000 set aside the judgment and decree of the learned trial Court and dismissed the suit of the plaintiff-petitioner, which judgment is being assailed through this civil revision.

3. Learned counsel for the petitioner contends that delivery of permissive possession to the respondents of suit property has been proved on record and the findings of the learned Additional District Judge are based on misconstruction of documents and non-reading of evidence.

4. On the contrary the learned counsel for the respondents vehemently opposed the contention. He argued with reference to Exh.P.2 that the respondents are in possession of the property in dispute since 1947 and the question of permissive possession of the property is without any basis.

5. I have considered the arguments of the learned counsel for the parties.

6. The petitioner appearing as P.W.1 stated of raising construction of Havali fully detailed and described in the plaint and delivered its possession 5/6 years before the filing of the suit by the respondents for residential purposes. Ahmad Bakhsh P. W .2 is Lambardar of the village. He stated that petitioner has given the possession of the property in dispute to the respondents. In cross-examination, he stated that the house in dispute was constructed 27/28 years before. He further stated that two rooms were constructed by the police. An A.S.-I. had taken the disputed premises from the petitioner. At the moment, the suit property was lying vacant but is under control and possession of the respondents. P.W.3, Mumtaz Ahmad stated that the property in dispute was given in permissive possession to the respondents. In cross-examination he further stated that written agreement was not drafted between the parties. Exh.p.2 is list of houses. Respondent C.I.A. Staff had been shown in possession of 7 Marlas and 12-1/2 Marlas of land owned by Lakhan Singh evacuee since 1947. Exh.p.3 is a copy of Register Haqdaran Zamin 1980-81, wherein the petitioner-plaintiff has been shown to be the owner of land measuring 7 Kanals "Ghair Mumkin Abadi Chhaper" bearing Khasra No.6079/2634. Exh.P.1 is a copy of register Haqdaran Zamin 1976-77 which indicates possession of the petitioner along with his brother bearing Khasra No.2634-Min measuring 8 Kanals.

7. The respondents produced Muhammad Inayat D.W.1. He stated that since the creation of Pakistan the office of C.I.A. Staff is housed in the building, which was evacuee in nature and allotted to the Government. Faiz Ahmad appeared as D.W.2, who also stated that the disputed property was an evacuee one and is in possession of the petitioner since establishment of Pakistan

8. Ghulam Qadir Patwari of the concerned Revenue was produced as D. W.3. He had visited the office and residence of the officials of the CIA Staff. According to him Khasra No.6432 is Shamlat Deh comprising of 34 Kanals and 13 Marlas. He is not aware of the office of the C.I.A. Staff and the residence of the officials. He was not in possession of the record in respect of allotment. In cross-examination he stated that the office of the C.I.A. Staff is located in Khasra No.2634 whereas other building in possession of the C.I.A. Staff does not fall within the limits of Khasra No.2634. Jamabandi Exh.D.1 for the year 1915-16 was produced which evidences the land bearing No.2634 in possession of the owner which records its classification of Ghair Mumkin Chhapar. Exli.D.3 Jamanbandi for the years 1968-69 records similar possession. Register Haqdaran Zamin 1972-73 Exh.D.4 records possession of petitioner along with his two brothers on land bearing Khasra No.2634-Min measuring 8 Kanals. Exh.D.5 is copy of Register Haqdaran Zamin 1992-93 evidencing possession of the petitioner on Khasra No.6093/2634 measuring four Kanals and 7 Marlas.

9. Both the parties failed to lead evidence required for resolution of' the dispute. The demarcation was not conducted to ascertain the location of the disputed property. Exh.P.2 shows that C.I.A. Staff is in possession of two buildings, since 1947 which were evacuee in nature and owned by Lakhan Singh. No evidence has been led to reconcile Exh.p.2 with the Revenue Record. Heavy onus lay on the plaintiff-petitioner to prove that the disputed Havaili was constructed by him and that the same fell in Khasra No.2634.

10. The controversy cannot be resolved on the basis of oral as well as documentary evidence available on record. Both the Courts below have adopted a relaxed attitude in resolution of the real controversy between parties. In the circumstances, it was required by the learned Courts below to have appointed a local commission to conduct investigation and demarcation at the spot to ascertain she existing construction and its location. The respondents C.I.A. was also required to substantiate their claim of ownership of the property in dispute by producing documentary evidence indicating its evacuee nature and allotment in their favour.

11. A valuable right in immovable property is involved. The same cannot be sacrificed at the altar of technicalities. Substantial justice requires settlement of dispute on the basis of evidence and no party should be deprived or given undue benefit.

12. In view of the above discussion, this civil revision is allowed and the impugned judgments and decrees of both the Courts below are set aside. The matter is remitted back to the learned trial Court, who shall afford an opportunity to the parties to produce their respective evidence. The learned trial Court shall also appoint a local commission, who shall visit the spot and ascertain the location of the suit property. On receipt of report from the local commissioner the learned trial Court shall grant an opportunity to the parties to raise objections to the same. It shall thereafter decide the matter afresh on evidence already available on re-Cord or to be produced by the parties. M.I./S-75/L Case remanded.