P L D 1971 Lahore 89 (PLP)

| | | | | | Abdul Hamid Ghulam Ahmad Waheed‑ud‑Din (Plaintiff).

8. The case of the plaintiff is that Hussain Bakhsh predecessor of defendant No. 1 sold the land/or a parcel of the land to Sajjada alias Shehzada on 4‑8‑1878 as per deed of sale marked "A". Sajjada alias Shehzada had three sons (1) Miran Bakhsh alias Jamita ; (2) Haji Booti and (3) Muhammad Bakhsh alias Manda. Muhammad Bakhsh alias Manda and Haji Booti relinquished their rights in two plots by means of a relinquishment deed (Exh. P. W. 3/1), dated 15‑1‑1935, in favour of Miran Bakhsh alias Jamita, father of plaintiff Abdul Hamid. (The deed is accompanied by a site plan marked "B"). Miran Bakhsh in this way became owner of the entire land which had been purchased by Sajjada alias Shehzada from Hussain Bakhsh the predecessor of defendant No.

1. The plaintiff led three more documents into evidence to prove his title and also the user of the property in dispute. One document (Exh. P. 1) is a deed of mortgage dated 13‑12‑1921, which shows that Haji Booti mortgaged the land in favour of two persons, namely, Muhammad Bakhsh and Muhammad Nazir who appeared as P. W. 1 (though he is described as Nazir Ahmad). The second document is a rent note, dated 10‑8‑1933 by one Aziz Din in favour of the plaintiff (marked "C"). The third document is a rent note dated 15‑7‑1941, marked "D" and was executed by one Jan Muhammad in favour of the plaintiff. The position in a graphic form as evident from these documents will be as follows :‑ 1 2 3 4 5 Sale deed Sale deed Mortgage deed Relinquish Rent deed 9‑11‑1871 dt.4‑8‑1878 by dt.13‑12‑1921 ment deed dt. 10‑8‑33. by Sharaf Hussain by Malik dt. 15‑1‑1935 by Aziz‑ud Din in fa‑ Bakhsh in Booti in by Ghulam Din in vour of favour of favour of Ahmad s/o favour of Hussain Sajjada alias Mohd. Bashir Haji Booti & Malik Hamid Bux father Shahzada and Mohd. Malik Manda plaintiff mark‑ of defdt. marked as Nazir sons of s/o Malik ed as "C". No. 1 "A". Abdul Hamid Shehzadain (Exh. D. (Exh. P. 1). favour of 1). Miran Bux father of Abdul Hamid plaintiff (Exh. P. W. 3/1) with re gard to two plots. (Area in feet (Area in feet (Area in feet 306 feet) 202 feet) 337 feet) Area in feet 241 It con tains site. Its plan (marked "B" which is Triangular in shape and tallies with the site shown in the site plan marked "E". Second plot (Shown The narration of events as given in paragraph No. 8, above, cannot be doubted, supported as it is by documentary evidence. All that the learned counsel for the defendants‑appellants stated in that respect was, that the plot of the land in dispute is not that or out of that which was sold by his ancestor Hussain Bakhsh to Sajjada alias Shehzada vide sale deed marked "A", dated 4‑8‑1878. It may be mentioned that the defendants alongwith their list of documents on 21‑7‑1960 (before remand) placed on record (a) original sale‑deed dated 9‑11‑1871 ; (Exh. D. 1) ; (b) site plan marked "E" and (c) a copy of first information report No. 27 dated 8‑6‑1960 lodged by the plaintiff. The site plan was duly referred to by the learned Addl. District Judge in his order of remand dated 5‑4‑1965. In the site plan, the defendants indicated the portion in red as "site" in dispute. Its particular features are :‑ (i) that it is triangular in shape ; (ii) on its east is street or street‑land and on its west is House No. A/300 of Fazal Hussain defendant No.

1. On its north is open land and street and on its south is street -land. These boundaries tally with those of plot Alif shown in relinquishment deed (Exh. P. W. 3/1), dated 15‑1‑1935. Alongwith the relinquishment deed is a plan marked "B". The shape of the site as in "E" is in conformity with the one given in "B". (iii) the boundaries of the site as given in "B" tally also with those as given in the sale‑deed dated 4‑8‑1878 marked "A". (iv) these boundaries also tally with those as given in mortgage‑deed (Exh. P. 1), dated 13‑12‑1921 and rent‑note dated 10‑8‑1933 marked "C". In these two documents on west is shown a house of Feroze Din who is father of defendant No. 1 and son of Hussain Bakhsh as indicated in para. 6 above. If these documents are read along with the oral statements of plaintiff's witnesses, there is left no doubt that the site is the same which was involved in sale‑deed (Exh. D. 1), dated 9‑11‑1871 and sale‑deed marked "A" dated 4‑8‑1878. P. W. 1 is Nazir Ahmad son of Abdul Majid. He deposed that he had seen the site in question and it is the same whose owner was Malik Booti who had once mortgaged it with the witness vide mortgage deed (Exh. P. 1), P. W. 3 is Ghulam Ahmad son of Malik Boota who deposed that he alongwith his uncle Muhammad Bakhsh surrendered the land in question in favour of the plaintiff vide relinquishment deed (Exh. P. W. 3/1). P. W. 4 is Jan Muhammad. He deposed that he had taken the land in dispute on rent from the wife of the plaintiff and had executed a rent‑note marked "D" in her favour; because at that time the plaintiff was out of station. P. W. 5 Muhammad Hussain deposed about the ownership of the plaintiff. P. W. 6 was Abdul Hamid plaintiff who deposed about the facts hereinbefore mentioned. Earlier he appeared as P. W. 2 also. All this evidence fully establishes the title of the plaintiff:

9. As against the above, defendant No. 1 himself appeared as his own witness as D. W. 1 and defendant No. 2 as D. W. 2 on 20‑4‑1961. They made a general statement about the ownership of defendant No.

1. Later on, they produced Ghulam Muhammad (who also was marked as D. W. 1). He was a Taxing Clerk living in a neighbouring galli and used to distribute bills. He deposed that he had been seeing defendant No. 1 as using the site in question. This is a vague statement and cannot be considered conclusive regarding defendant No. 1's ownership. D. W. 2 is Muhammad Rafiq. D. W. 3 is Muhammad Hayat. D. W. 4 is Muhammad Hussain. They all deposed about the general use of the site by the defendants. Their statements are thus of a general character and cannot be of much assistance. D. W. 5 is Inayat Masih Muharrir Head Constable who proved a copy of F. I. R. No. 27 (Exh. D. W. 5/1), dated 8‑6‑1960, lodged by the plaintiff. The defendants wanted to show that in this report the plaintiff had written that: From this it was sought to be argued that the plaintiff was not the owner of the site inasmuch as he simply wrote in the F. I. R. that he had been considering himself to be the owner (and not that he, in fact was the owner). The argument is too subtle to be given any serious consideration. 1). W. 6 is defendant No. 1 Fazal Hussain again. He made no substantial rebuttal of the plaintiff's evidence and deposed generally about his user. He, however, stated that the land belonging to the plaintiff was that where the plaintiff had installed an oven and that the said place was towards the north of the site in question. It was for the first time in this statement that the ownership of the plaintiff was admitted though its location was sought to be shifted to another spot towards the north. No effort was, however, made to locate the said place, nor any other evidence was led to identify it with the documentary evidence led by the plaintiff. It is further to be pointed out that no other witness made any such statement and nor was the alleged spot in north fixed up with any other evidence. It appears to me that both, the site in question and the alleged northern‑side- plot, (if it is taken to be the same plot which is marked "X" by me in Plan "E") safely fit in with the two plots mentioned in the relinquishment deed (Exh. P. W. 3/1 dated 15‑1‑1935), and therefore, the suggestion made in the deposition of D. W. 6 cannot give him any help. The case of the plaintiff is well‑proved on the record whereas the defendants have relied upon generalities and vague statements. They have not been able to rebut the plaintiff's documentary evidence and after having gone through the entire material on the record, I am of the opinion that the view taken by the two Courts below cannot be taken exception to. Learned counsel argued that since the relinquishment deed is dated 15‑1‑1935, it was not possible for the plaintiff to give on rent the site in question vide rent‑note marked "C", dated 10‑8‑1933, and, therefore, the said rent‑note should not be taken into consideration. The point has no value, firstly, because the rent‑note marked "C" is pretty old, executed at a time when there was no dispute between the parties and, secondly, because the plaintiff being an heir of Sajjada alias Shehzada had already one‑third share in the land and could give the same on rent and if the other two heirs relinquished their share in 1935 in his favour, that does not detract from his case in any manner and rather it goes to establish even his prior co‑ownership or prior title. Thirdly, in the relinquishment deed itself, there is a clear recital that the said plots had already been given to the plaintiff's father which shows that the relinquishment deed was being written just for the sake of formality and the plots mentioned therein already vested in and belonged to the plaintiff. Another argument raised was that the areas in various documents hereinbefore mentioned were not quite exactly the same. For example, in Exh. D. 1 dated 9‑11‑1871, the area was given as 306 feet (One marla and 9 gaz. In sale‑deed marked as "A", dated 4‑8‑1878, the area is given as 202 feet (22‑1/2 yards). In relinquishment deed (Exh. P. W. 311) dated 15‑1‑1935, the area of plot Alif is given as 241 feet (One Marla and 16 feet) and area of Plot Bey is given as 129 or 149 feet. In mortgage deed, dated 13‑12‑1921, (Exh. P. 1), the area is given as 337‑1/2 feet (One‑and‑a‑half marla). It was further argued that the plot which is the subject‑matter of controversy in this case has been described in the plaint as to consist of 149 feet. The point is not of any substance; because the area which is mentioned in the plaint is less than various areas hereinbefore mentioned and is included in them. Once it is accepted that the area in dispute is that which is shown by the defendants themselves in their site plan marked "E", then the same quite fits in with the various documents hereinbefore mentioned. Moreover, it is well settled that if in the plaint or in any deed there is an inconsistency between the description by the boundaries and by the areas, then that which is more certain and stable and least likely to have been mistaken and which sufficiently identifies the land should prevail. The true construction is that which will, as far as possible, bring the several factors into harmony with one another and express most nearly the intention of the parties. Applying these principles to the facts and the circumstances of the present case, and judging the matter from an overall point of view, there is no escape from holding that the plaintiff has been able to prove that the spot in dispute is out of the same land which is shown in the various documents relied upon by him. The defendants have not been able to rebut the plaintiff's case by any cogent evidence and, as such, the finding on issue No. 1 is hereby maintained.

10. The upshot of the above discussion is that this appeal has no merits and is dismissed with costs throughout. S. Q. Appeal dismissed.