2005 PLP 1830 (YLR)

(3) Whether the plaintiff has no cause of action? OPD. (4) Whether the defendants are entitled to compensatory cost? OPD (5) Relief. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 28-10-1989. The learned District Judge, Multan, dismissed the first appeal of the petitioner on 13-2-1993.

2. Learned counsel for the petitioner contends that the petitioner has proved his title whereas the respondent failed to prove any title in the suit property which was, admittedly, his possession and as such the suit was bound to be decreed. No one has turned up for the respondent despite service through publication. He is accordingly proceeded against ex parte.

3. I have gone through the copies of the records. Now the petitioner appeared as P.W.4. He produced Mutation No.582 as Exh.P.2. The copy of the judgment and decree in the pre-emption suit was filed as Exh.P.3. On the other hand, the respondent produced agreement Exh.D.1. Now according to the description given in the plaint, which has not been questioned, the property is located in Khasra Nos. 796/1, 791/1, 799/1 and 795/211. On the other hand, Exh.D.1 is an agreement to sell by one Altaf Ezad in favour of Dr. Gul Muhammad. It does not disclose the Khasra numbers of the land agreed to be sold. It further provides that the total consideration is Rs.70,

000. A sum of Rs.43,100 has been paid whereas the balance Rs.26,900 is to be paid on 1-1-1978 and in case the same is not paid, the earnest money shall stand forfeited. There is no plea and no evidence as to whether the balance was paid or that a sale-deed was executed or any suit for specific performance was filed and decreed.

4. Thus, over all effect of the evidence on record is that the petitioner has proved his title to the suit property which is admittedly in possession of the respondent and the respondent has failed to prove any title in the same.

5. Now coming to the impugned judgments, the learned trial-Court held that Exh.D.1 does not confer any title upon the respondent. "Now while dealing with issue No. 1, the learned trial Court somehow or the other has proceeded to state that Mutation No.582 has not been brought on the record. This is a case of non-reading of evidence inasmuch as the mutation is duly exhibited on the record as Exh.P.2.

6. The learned District Judge in his impugned judgment proceeded to add another ground of his own to the judgment of the learned trial Court that the relief has been refused as the land is in a joint khata. The learned District Judge has then proceeded to hold that the plea of the petitioner that the respondent was given the property as a licensee and then that his possession is unauthorized are inconsistent.

7. The observations are perverse. It is settled law that a plaintiff can always fall back upon his title to get possession of the land owned by him even if the other relationship being pressed is not proved. So far as the question of title is concerned, the learned District Judge has failed to take note of the fact that the respondent has failed to prove any title in the suit property which vests in the petitioner and as such he was entitled to get possession of the said land. I may further note that there is no evidence on the record that Altaf Ezad the alleged transferee of the agreement Exh.D.1 owned any land or share in the suit property or for that matter the alleged joint Khata.

8. The learned District Judge has then proceeded to observe that since there is no evidence that the terms of the decree of the pre-emption were not complied with, the petitioner shall be deemed to have lost title. Again, the learned District Judge opted to remain oblivious of the fact that the negative has been proved by the petitioner by stating that the terms of the decree were not complied with and it was not even the case of the respondent that the terms of the decree were so complied with.

9. The learned District Judge then proceeded to observe that according to Mutation No.582, the land is under plough. The learned District Judge has failed to read the mutation as well. Nothing of the sort is reflected in the mutation and otherwise it is narrated that it is "ﻰﻧﻜﺳﻊﻴﺑ"

10. Having, thus, examined the records, I do find that both the learned Courts below have either failed to read the evidence or have deliberately misread the same. The impugned judgments and decrees cannot be sustained. The civil revision is allowed. Both the impugned judgments and decrees are set aside and the suit filed by the petitioner is decreed as prayed for. No orders as to costs. H.B.T./M-1045/L Revision allowed.