1992 PLP 1915 (CLC)

(1) Whether the suit is within time? (2) Whether the plaintiff has got a cause of action? (3) Whether the defendant has matured his title on account of adverse possession? (4) Whether the suit house is the ancestral property of the defendant? (5) Whether the plaintiff is estopped by his conduct to bring the present suit? (6) Whether the suit is competent in its present form? (7) Whether the defendant has made improvements in the suit land, if so, to what extent and to what effect? (8) Whether the plaintiff is owner of the suit house? (9) Whether the suit house was rented out to the defendant by the plaintiff on monthly rent of Rs.30? (10) Whether the defendant has become a trespasser? (11) Whether the plaintiff is entitled to declaration and possession of the suit house? (12) Whether the plaintiff is entitled to rent? If so, its extent? (13) Relief. The plaintiff, apart from himself, examined Shah Qadar Patwari (P.W.1), who testified to the correctness of the site plan Exh.P.W. 1/1; Abdul Qayum, Assistant District Qanungo (P.W.2) to substantiate the pedigree‑table drawn on Inheritance Mutation copy Exh.P.W.2/1 of Nawaz Khan Fazali Qadeem (P.W.4) to prove the execution of unregistered mortgage deed dated 29‑5‑1935 allegedly pertaining to the house in dispute, by Nawaz Khan in favour of one Ajoon Khan; Ayub Khan who testified to the factum of ownership of Nawaz Khan over the disputed house, that after redemption he was collecting the rent on behalf of the plaintiff and finally that on the death of Nawaz Khan plaintiff's father had inherited the house. Defendant's attorney Faiz‑ur‑Rehman appeared for the defendant to deny the claim of the plaintiff and assert the defendant's ancestral title to the house.

5. Issues Nos.5 and 6 were not pressed by the defendant while issues Nos.7, 11 and 12 were decided against the defendant for lack of proof. Issues Nos. 3 and 10 were held by the learned trial Judge to have become redundant in view of his finding on issues Nos.4, 8 and

9. The latter issues were decided against the plaintiff but on issue No.l the suit was held to be within time. Consequently, the suit of the plaintiff was dismissed on 14‑2‑1990 leaving the parties to bear their own costs. An appeal filed in the Court of learned District Judge was also dismissed on 6‑11‑1991 and against that order this revision petition has been filed.

6. Mr. Safirullah, the petitioner's counsel, had submitted that the findings of the two Courts below on issues Nos.4, 8, 9 and 10 arc incorrect inasmuch as it was the result of sheer misreading and non‑reading of evidence. In this context, reference was made to the solitary statement of Faizur Rehman (D.W.1) attorney of the respondent which, according to the learned counsel, was far from satisfactory proof of the respondent's claim.

7. The first and foremost question is whether the petitioner has been able to establish by any cogent evidence either oral or documentary that the disputed house originally belonged to Nawaz Khan, his deceased cousin. In order to substantiate this allegation, reliance has been placed on an unregistered mortgage deed copy Exh.P.W.3/1 on the file which was the only proof. This document shows that there was a house belonging to Nawaz Khan which was mortgaged to one Jamal son of Ajoon. The boundaries of that house do not correspond to the disputed one. There is thus no evidence to identify the house in dispute with that described in the mortgage deed. There are discrepancies in the oral evidence as to its redemption, the mortgagee and the period. The ocular evidence of Ayub Khan on the point of receipt of rent of the disputed house is sketchy and not confidence inspiring. In consequence, the title of Nawaz Khan to the house in dispute is far from proved. This point was pivotal in the suit. When the plaintiff‑petitioner has not been able to establish the title of Nawaz Khan to the house, whole edifice sought to be raised thereon ipso facto crumbled. The learned counsel, as stated earlier, laid much stress that the respondent has not been able to substantiate his claim over the disputed property. It is the established principle of law that plaintiff has to stand on his own legs and any weakness or shortcoming in the claim of the defendant would be irrelevant for lending strength to his own weak case.

8. Besides, the Courts below have concurrently found issues Nos.4, 8, 9 and 10 against the petitioner for valid reasons. No misreading or non‑reading of any material evidence was pointed out. No jurisdictional defect or illegality in the appraisal of evidence was either pointed out or was discernible on the face of the record.

9. A perusal of section 115, C.P.C. would show that its scope is‑limited to cases where subordinate Court has exceeded its jurisdiction or has declined to exercise jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. None of these defects were either pointed out in the proceedings or were glaringly apparent on the record.

10. On the evidence as it stands the petitioner has failed at all to establish his case. As the findings are those of facts and the two Courts below have concurred in them, those are binding now and cannot be disturbed in revision. The judgments of the Courts below are unexceptionable which have to be affirmed. This revision petition is, therefore, dismissed in limine. H.B.T./1372/P???????????????????????????????????????????????????????????????????????????????????? Revision dismissed.