2016 PLP 1042 (CLC)

WAQAR AHMAD SETH, J.

This single judgment in C.R. No.864/2005 shall also dispose of C.R. No.1260/2005 as the subject matter of dispute as well as parties to the litigation are one and the same.

2. Brief facts of the case are that the petitioners filed a suit for possession through partition along with declaration, against the respondents of the property fully detailed in the heading of the plaint, in the Court of learned Senior Civil Judge, Kohat, which was entrusted to learned Civil Judge-V Kohat for adjudication. It is averred in the plaint that the suit property was the ownership of one Syed Ameer Hussain Gillani, the predecessor of the parties, who died in the year, 1979 leaving behind two widows, four daughters and four sons. Mst. Hussain Zeba, was her second wife, who had two issues, namely, Syed Tajdar Gilliani and Mst. Robeena while the petitioners and respondents are sisters and brothers inter se, and they are from the first wife. After the death of Syed Ameer Hussain Gillani, predecessor of the parties, a dispute regarding succession/inheritance and partition of the property has been arisen between the first and second wife of the deceased. The matter was referred to the Arbitrators for settlement, who on 9.9.1981 announced the award. Subsequently, Mst. Hussain Zeba and her children, filed an application under Section 14 of the Arbitration Act for making award as rule of the Court, which was accepted and the award was made rule of the Court on 10.1.1982. On the basis of above said decree, the present petitioners, who are real daughters of the deceased, were entitled to the extent of 1/3 share in the suit property and the respondents have got no right to deprive them from the suit property. The suit was contested by the respondents by filing written statement. Issues were framed and accordingly evidence of the parties was recorded. The learned trial Court, after hearing the learned counsel for the parties, partially decreed the suit to the extent of prayers (a) and (c) while rest of the suit was dismissed vide judgment and decree dated 7.4.2004. Feeling aggrieved, the petitioners as well as respondents filed two separate appeals before the learned Appellate Court but the same were dismissed vide consolidated judgment and decree dated 12.2.2005, Hence, the instant Revision Petitions.

3. I have heard the learned counsel for the parties and have also gone through the record.

4. Record is suggestive that petitioners/ plaintiffs filed suit for declaration and possession through partition to the extent of 1/3 share in the legacy of Syed Ameer Hussain Gillani, property mentioned in detail in the plaint at serial No. "a to e". The suit was decreed in favour of petitioner/ plaintiffs to the extent of prayer "a and c" while the prayer "d and e" was refused therefore, the share in Aamir Plaza and Gillani shopping centre are to be discussed only. There are few facts admitted on record, that all the properties mentioned in the plaint are the leftover properties of Ameer Hussain Gillani, and according to Muhammadan Law the legal heirs/petitioners are entitled to their shares in all the properties without any exception or reservation. The Gillani shopping centre and Ameer Plaza are also admittedly, the properties of Syed Ameer Hussain Gillani who is the predecessor in interest of both the contesting parties, it is also an admitted fact that said owner i.e. Syed Ameer Hussain Gillani the predecessor of the parties died in the year 1979, leaving behind two widows, four daughters and four sons.

5. In addition to above, it is also on record that the second wife of the said deceased in the year 1981 filed an application under section 14 of the Arbitration Act, for making award as Rule of the Court, which was subsequently made Rule of the Court and a decree was passed on 10.01.1982, Ex.PW-1/2 and in these proceedings the present respondents/defendants never agitated the factum of gift in their favour; as alleged and brought on record, in the evidence stage.

6. Record is further suggestive that in the written statement the present respondents/defendants never pleaded that they are in possession of the property through a gift deed or any partition deed under a private partition, neither pleaded that there is sale deed in favour of Pir Tahir Shah, but contrary to that in their evidence defendants produced Ex.DW-2/3 a gift deed in their favour. Anything not specifically claimed in the pleadings cannot be allowed to introduce in the evidence and that too, in a superficial manner and the evidence so recorded to this effect is always declared irrelevant.

7. The word pleading has been defined in Order-VI, Rule-1 and means plaint or written statement. Sub-Rule (II) provides that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defense, as the case may be. The purpose of pleading is to let the other party know what case it has to meet, and accordingly the terms material facts refers to such facts which the parties have to prove or to establish the cause of action or the defendants to establish their defense. Even the judgments cannot be placed upon pleas not raised in the pleading. Likewise, Order VIII, Rule II provides that the defendants must raise by their pleadings all matters, which shows the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defense as, if not raised, would be likely to take the opposite party by surprise. In the instant case the written statement so filed by the present respondents/defendants is totally silent regarding the gift in their favour nor anything, in this regard has slightly been indicated. There is nothing on record to show that respondents/ defendants asked for any permission for amendment in this respect. The parties are bound by the averments made in the pleadings and in this respect courts are directed not to take into consideration the deviation in the evidence, therefore, judgments cannot be based upon pleas not raised in the pleadings. Under Order-VI, Rule-V respondents/defendants had the opportunity for better statement, which has not been availed . What is not pleaded cannot be pressed and departure from pleading cannot be allowed. In the case of Mehboob Alam and 2 others v. Province of the Punjab reported in 2007 MLD 1496(d) it has been held as under

"

O. VI, R.2

Written statement

Fact not pleaded

Effect

Question of fact not pleaded / mentioned in written statement unless amended with permission, cannot be allowed to be argued." Likewise, in the case of Rafique Wadood and 4 others v. Messrs Haji Suleman Gowa Wala and sons reported in 2009 CLC 1070(c) it has been held that:- "

O. VI, R.I

Pleading

Evidence beyond scope of pleadings could not be led or considered by Court while decide a controversy

Principles."

8. If statement of fact contained in plaint is not specifically controverted in written statement and even a evasive answer is given, it amounts to admission. Reliance in this respect is placed on PLD 2007 Lahore

300. In the case of Messrs Choudhary Brothers v. Jaranwala Central Co-operative reported in 1968 SCMR 804(b) it has been held that: "Civil Procedure Code (V of 1908), Os. VI & XIV

Facts neither raised in pleadings nor incorporated in issues framed

No evidence can be allowed on such facts."

9. Plea could not be raised in evidence for not having been raised in written statement; reliance in this respect is placed on 2005 SCMR 1174. The principle of secundum allegata et-probata was applicable as it meant that a fact had to be alleged by party before it was allowed to be proved and no party was allowed to lead evidence in respect of plea which was not taken in pleadings and even if evidence was led, the same could not be considered as evidence in the case. In the case of Binyameen and 6 others v. Chaudhry Hakim and another reported in 1996 SCMR 336(c) it has been held that:- "

Practice and procedure

No evidence can be led or looked in support of a plea which had not been taken in pleadings."

10. Since the relationship of the parties, i.e. sister's and brother's inter se is not disputed. And the partition of property owned by Syed Ameer Hussain Gillani between two wives and their respective children vide judgment and decree under the Arbitration Act, is also not denied, therefore, the suit property falls into shares of the present petitioners and defendants, equally as per inheritance law. The plea of the respondents / defendants that there was a private partition between the parties is also not supported from record, as the private partition is only alleged by DW-3 and in the said statement of DW-3 he has stated that Tahir Shah DW-5 is the witness of the same and the said Tahir Shah who appeared in the witness box did not supported the version of respondents/ defendants and as such the plea of private partition in between the parties could not be proved beyond shadow of doubt, as such both the courts rightly discouraged the same. Moreover in the previous record of litigation no such plea of gift has been raised.

11. In view of above this revision petition is allowed. Both the judgments and decrees passed by learned lower fora to the extent of para's "d and e" of the plaint are set aside and petitioners are held entitled to the said prayers, also. Connected C.R. No.1260 of 2005 is dismissed, accordingly. No order as to cost. ZC/424/P Revision allowed.