P L D 2004 Peshawar 168 (PLP)

Date of hearing, 22nd April, 2004. TALAAT QAYUM QURESHI, J.‑‑‑This appeal is directed against the judgment and decree dated 22‑10‑2002 passed by learned Senior Civil judge, Abbottabad whereby suit filed by the appellants was dismissed.

2. Mr. Abdur Rashid Awan, learned counsel representing the appellants argued that the suit property comprising Survey Nos. 1556 to 1560 now as "Darul Noor" situated at Kuchery Road, Abbottabad was owned by Saleema Noor Ahmad widow of Sheikh Noor Ahmad having been transferred in her name by her husband. Sheikh Noor Ahmad her husband had earlier married another woman, out of the said wedlock Sheikh Muhammad Ahmad a son was born who is husband of Ms, Surayah. Out of the wedlock ,of Sheikh Noor Ahmad with Mst. Saleema two sons, namely, Aftab Ahmad Khan and lqbal Nhmad Khan were born. Since the suit property belonged to Saleema Noor Ahmad, therefore, Shikh Muhammad Ahmad who was her step son was not entitled to any share in the suit property whereas appellants who are legal heirs of Saleema Noor Ahmad were legally entitled to inherit the suit property.

3. It was also argued that the learned trial Court failed to appreciate the evidence available on record.

4. It was also argued that the respondents did not adduce sufficient reliable evidence to prove their ownership but the learned trail Court by framing irrelevant issues and by burdening the appellants to prove all the issues had erred in law.

5. It was also argued that the learned trial Court did not provide sufficient opportunities to appellants to produce their evidence. Their evidence was closed under Order 17, rule 3, C.P.C on 11‑6‑2002 which order was altogether illegal.

6. It was also argued that the appellants have filed C.M.No.24 of 2004 for grant of permission to record additional evidence and they want to place on record the documents enlisted with the application. With the placing of those documents on record this Court would be in a position to decide the controversy between the parties. Reliance in this regard was placed on PLD 1992 S.C 811.

7. On the other hand, Qazi Muhammad Shehr Yar, learned counsel representing the respondents argued that the appellants/plaintiffs had failed to prove their case as per requirement of law. In fact their suit was based on record of the Municipal Committee which could not confer any title on the appellants. In order to prove their case the appellants only examined Shaukat Jamil, Record‑keeper of Municipal Committee of Abbottabad as P.W.1 who only placed on record extract of register Ex. P.W.1/1. The said witness in cross‑examination admitted that the register produced by him did not prove the ownership of the appellants/plaintiffs.

8. It was also argued that the appellants/plaintiffs were provided many opportunities but they failed to adduce their evidence. The learned trial Court after providing them last opportunity closed their evidence under Order 17, rule 3, C.P.C vide order dated 11‑6‑2002 although their suit should have been dismissed on the same day but still in order to meet the ends of justice the learned trial Court fixed the case for 17‑6‑2002 for recording evidence of defendants. The defendants/ respondents recorded the statements of their witnesses and since there was no material available on record to prove the case of the appellants, the suit filed by them was rightly dismissed. Reliance in this regard was placed on 2003 SCMR 797, PLD 1981 SC 474 and PLD 2003 Peshawar 60.

9. It was also argued that the burden to prove their case was upon the appellants/plaintiffs. They relied only upon Municipal Committee record which was riot admissible in evidence. Reliance in this regard was placed on PLD 1996 Peshawar 6, A.I.R 1938 Lahore 440.

10. We have heard the learned counsel for the parties and perused the record.

11. The arguments of the learned counsel for the appellants that the evidence of the petitioners/plaintiffs was wrongly closed under Order 17 Rule 3 C.P.C., has no force. Perusal of the record shows that vide order dated 23‑2‑1998 the case was fixed for evidence of the plaintiffs for 28‑3‑1998. Thereafter, vide order dated 2‑2‑1999 plaintiffs were again directed to produce their evidence on 13‑2‑1999. It was vide order dated 15‑10‑1999 that the learned trial Court directed to summon the official witnesses of plaintiffs for 13‑11‑1999. It was on 3‑2‑2000 that official witness Shaukat Jamil Record Clerk of Municipal Committee, Abbottabad was present but he had not brought the relevant record with him and he sought time to bring the same. The case was adjourned to 21‑2‑2000 for evidence of plaintiffs. The dates were adjourned for one reason or the other. It was, however, vide order dated 6‑12‑2000 that one of the official witnesses of plaintiffs was present but the learned counsel for defendants sought adjournment. The case, therefore, stood adjourned to 17‑1‑2001 on which date the examination‑in‑chief of the official witness was recorded, and the learned trial Court directed the witness to bring further record. The case was posted to 22‑2‑2001 for cross‑examination of the said official witness. On the next date, i.e., on 22‑2‑2001 the record keeper did not attend the Court. Similarly, on the next date of hearing the date was adjourned due to, the note of the reader. I It was, however, on 18‑4‑2001 that cross‑examination of the official witness (record keeper) was completed and the case was again posted for remaining evidence of the plaintiffs for 17‑5‑2001 on which date the plaintiffs sought adjournment for producing their evidence. They were given "last opportunity" to produce their evidence on 21‑6‑2001. Thereafter three dates were adjourned on the note of the reader. The order sheet dated 28‑11‑2001 shows that the evidence of the plaintiffs was not present on the said date and the learned counsel representing the plaintiffs sought further adjournment. The plaintiffs were again given last opportunity and the case was posted for 5‑1‑2002. Again four dates were adjourned on the note of the reader and the case was transferred by the learned District Judge, Abbottabad to Civil Judge‑II. On 27‑5‑2002 the learned trial Court received the case file and recorded the order that the plaintiffs had already been given last opportunity vide order dated 28‑11‑2,

001. The same warning/last opportunity was repeated again and case was posted for the evidence of plaintiffs for 11‑6‑2002. The evidence of the plaintiffs was not present on 11‑6‑2002 also, therefore, the learned trail Court closed the evidence of the petitioners/plaintiffs under Order 17, rule 3, C.P.C. The above noted order of the learned trial Court shows that the petitioners/plaintiffs were provided ample opportunities to produce their evidence but they failed to produce the same. The petitioners/plaintiffs were not only negligent in producing their evidence but they did not care about the last chances provided and warnings given to them, therefore, the order dated 11‑6‑2002 whereby the evidence of the petitioners/plaintiffs was closed was unexceptionable. This Court in PLD 2003 Peshawar 60 "Mian Gul Shahzad Aman Room and others v. Kameen Mian and others" had held:‑ "The perusal of the record annexed with the revision petition shows that the petitioners/plaintiffs were not only negligent in producing their evidence but they did not care about the last chances provided and warnings given to them to proceed under Order 17, therefore, the order passed by the learned trial Court, closing the evidence of the petitioners/plaintiffs was unexceptionable." Similarly, august Supreme Court of Pakistan in "Fateh Sher v. Muhammad Zubair" 2003 SCMR 797 held:‑ "We however; find that the order passed by the learned trail Court for closing his evidence was in accordance with law, for the same was passed on the date which was fixed on the petitioner's request after affording him a number of opportunities for production of evidence. We also infer that the petitioner did not produce the evidence for the reason that admittedly he had already executed an Arbitration agreement on 29‑3‑2001."

12. Another admitted fact is that when the evidence of the petitioners/plaintiffs was closed vide order dated 11‑6‑2002 the petitioners/plaintiffs did not challenge the said order by filing any appeal or revision or writ petition, the same, therefore, became final.

13. The argument of the learned counsel for the appellants that the learned trial Court failed to appreciate the evidence produced by the appellants and also failed to consider that the defendants had failed to prove their case therefore, the impugned judgment was based on misreading and non‑reading of evidence also has no substance at all. It is by now settled that it was the burden of the plaintiffs to prove their case C and they could take advantage of the weaknesses of the case of the defendants. In PLD 1996 Peshawar 6 "Muhammad Sher and others v. Mst. Taj Meena and others" it was held:‑ "They have failed to produce any documentary evidence qua the title of the suit house despite the fact that one Amir Khan a witness of the plaintiffs had categorically stated that 5 to 6 houses near the suit house were also purchased by the plaintiffs."

14. In the case in hand, despite various opportunities provided to the petitioners/plaintiffs, they only examined Shaukat Jamil Record Keeper as P. W. 1 who placed on record copy of assessment register of Municipal Committee, Abbottabad which was placed on record as Ex.P.W.1/1. None of the plaintiffs bothered to appear in person or through attorney to depose in favour of their case. Even in paragraph No. 1 of the plaint which is reproduced hereunder, the declaration with regard to the ownership of the disputed house was sought on the basis of Municipal Committee record. Para I of plaint is reproduced hereunder for convenience:‑

15. Now the question that requires consideration is as to whether Municipal Committee record, i.e., copy of the assessment register. Exh.PW.1/1 could be conclusive proof of the ownership of the petitioners/plaintiffs and the said record was admissible in evidence. Answer to this question is in negative. Neither the entries made in the Municipal record by the official of the Municipal Committee at their own without having backing of foundation can confer any title or ownership I nor those entries are admissible in evidence as held in AIR 1938 Lahore: 440 "Jassa Ram v. Puran Bhagat" and AIR 1936 Lahore 965 "Magan, Nath and others v. Harbans Singh and others". Exh.P.W.1/1 which is extract of the assessment register of Municipal Committee, Abbottabad entries wherein were made by the officials of the Municipal Committee at their own and which entries were not based on either any title E document or any decision of the Court, therefore, the same could no give/provide ownership to the plaintiffs. Even Shaukat Jamil Record keeper Municipal Committee (P.W.1) in cross‑examination admitted. The leaned trial Court has, therefore, rightly appreciated this position and dismissed the suit.

16. So far as C.M. No.24 of 2004, i.e. application for grant permission for further evidence is concerned, we do not feel inclined to give permission for further evidence because:‑ Firstly, the petitioners /plaintiffs were provided ample opportunities and even last chances to produce their evidence but they were negligent in producing their evidence. The warnings of last chances even did not prevail and the learned trial Court had to close their evidence vide order dated 11‑6‑2002. Allowing permission to adduce further evidence would amount to annulling the said order (dated 11‑6‑2002) which has attained finality: Secondly, the list of documents attached with the application which the appellants intend to place on record shows that the same comprises of judicial record, affidavits and Municipal Committee record. Neither any document of title whereby the property in dispute was G transferred to Mst. Saleema Noor Ahmad is intended to be exhibited nor any pedigree‑table of Sheikh Noor Ahmad is to be placed on record. Therefore, the documents which are intended to be exhibited would not help the appellants even if they are allowed to be placed on file. Thirdly, the Courts are bound to decide each case on the basis of its own record without reference to the record of another case as held in Muhammad Shakeel v. The State PLD 1990 S.C

686. We, therefore, dismiss the application C.M No.24 of 2004.

17. The learned trial Court has rightly dismissed the suit filed by the petitioners/plaintiffs and we have not been able to, find out any mis reading or non‑reading of evidence warranting interference.

18. Resultantly, the appeal in hand is dismissed with no orders as to costs. S.A.K./108/P Appeal dismissed.