1990 PLP 1617 (CLC)

3. The suit was contested by the deceased defendant No.4 and the defendants/appellants. They in their written statements raised several pleas, both technical and factual. The defendants Nos.l to 3 in their written statement alleged that the suit property belonged to them; that the defendants/appellants Nos.1 and 2 were their tenants and that they had correctly sold the suit property in favour of the plaintiff respondents Nos.1 to

4. They asserted their exclusive possession as owners over the suit property for more than 50 years without any let or hindrance on behalf of deceased defendant No.4 or his predecessor.

4. Keeping in view the pleadings of the parties, the following issues were framed by the learned trial Judge:‑ (1) Whether the plaintiffs have got a cause of action? (2) Whether the plaintiffs are estopped by their own conduct to bring the present suit? (3) Whether the suit is time‑barred? (4) Whether the suit is bad on account of misjoinder of parties? (5) Whether the suit is bad on account of non‑joinder of necessary parties? (6) Whether the suit is properly valued for the purposes of court‑fees and jurisdiction? (7) Whether the rights of defendants 5 to 7 are protected under section 41 of the T.P. Act? (8) Whether the suit is incompetent in its present form? (9) Whether the plaintiffs are entitled to the decree as prayed for in the plaint? (10) Relief. ADDITIONAL ISSUES: (1) Whether the defendants have made improvements over the suit land, if so to what extent? (2) Whether the relationship of landlord and tenant exists between the parties, if so its effect? (3) Relief.

5. The parties led oral and documentary evidence in the case, pro and contra the issues framed and the learned trial Judge on the appraisal of the evidence produced before him, came to the conclusion that the plaintiffs/respondents Nos.1 to 4 had established their title to the suit property and passed the decree played for in their favour against the contesting defendants including the appellants, vide his judgment and decree dated 31‑10‑1985. Hence the instant Regular First Appeal.

6. We have heard learned counsel for the parties and have minutely gone through the bulky record of the case with their valuable assistance.

7. The learned counsel for the appellants at the out‑set raised a technical objection that the issues framed in the case do not cover the allegations embodied in the pleadings of the parties and submitted that the remand of the case is essential so that the parties have a chance to lead their evidence. In support of his arguments, he cited several authorities as well. He also argued that the impugned judgment is not in accordance with the procedure laid down in Order XX C.P.C, regarding writing of judgments and submitted that issues, totally unconnected with each other, have been jointly discussed. Additionally he referred to an application dated 13‑6‑1985 seeking the order of the Court for summoning Muhammad Shuja for the continuation of his cross‑examination which had been left incomplete.

8. It is by now well‑settled that mere omission to frame an issue does not vitiates the entire proceedings conducted by the trial Court if the parties are alive to the burden of proof respecting the allegations and counter‑allegations made in A the pleadings and have had a chance of producing evidence thereon. In the case in hand the issues were framed twice and the parties were represented by eminent lawyers from the very start of the litigation. If the learned counsel had felt any handicap in the production of their evidence on account of the omission or improper framing of the issues, it was equally their duty to have pointed the defect to the Court orally or through a written application. Their failure to do so can lead to the conclusion that they were satisfied with the issues framed and led the evidence they wanted to produce. Overwhelming evidence in the shape of all the revenue record, the transfer deeds, the money order coupons, mutations and record of the municipality etc. have duly been exhibited on the file and in corroboration of the same the necessary oral evidence had also been tendered. We are convinced that no prejudice is caused to the parties and we repel the contention of the learned counsel for the appellants regarding the non‑framing of the proper issues. As regards the combined discussion of the learned trial Judge on certain issues, the judgment is already impugned in the instant appeal and the g same does not stand in the way of the appellants to express their grievances against the judgment. No doubt the appellants requested the trial Court for the summoning of Muhammad Shuja for the completion of the cross‑examination but summoning of this witness was rightly not considered by the learned trial Court because after the examination of Muhammad Shuia an amended plaint had been filed whereafter another attorney of the plaintiffs namely Qazi Muhammad Arshad Advocate was produced as a witness to state the case of the plaintiffs who C had been thoroughly cross‑examined and it was not binding on the plaintiffs to produce Muhammad Shuja again as an attorney. Anyhow, the Court has not placed reliance on the statement of Muhammad Shuja, therefore, this ground of .the appellants is equally untenable.

9. Reverting to the merits of the case it is worthwhile to refer to certain very important documents placed on the record showing the nature of the property, the possession thereof and the alienation of the same from time to time through authentic registered documents. As stated earlier Khairullah Khan was the original owner of the suit property who sold the same vide registered sale deed dated 27‑6‑1922 (copy Ex. PW 7/8), in favour of Mian Asmatullah wherein the boundaries of the property sold are also narrated. According to it, the property sold is bounded on the West by Government Road and towards the North by the house of Guiab Singh, towards the South by the land of Eisa Jee and sons and towards the East the other agricultural property of the executant namely, Khairullah Khan. The delivery of physical possession on the spot is recited in the sale‑deed. This sale‑deed was also given effect to the revenue record vide Mutation No.3235 attested on 11‑7‑1922 (copy Ex. PW 7/9) on the file and a tatima is also drawn on the said mutation. Asmatullah applied to the Municipal Committee, Abbottabad for permission to construct the house thereon and produced the site plan of the proposed construction alongwith his application. Certified copy of the application is Ex. PW 4/1, copy of the site plan is Ex.PW 4/3 and copy of the proposed plan is Ex.PW 4/4 and the perusal thereof would show that Abbottabad Haripur Road adjoins the same on one side and the house of Eisher Singh on the other. The sanction applied for was duly granted to him vide Resolution No.153 passed in the meeting of Municipal Committee, Abbottabad held on 27‑8‑1922 after the spot had been inspected by the concerned staff as is evident from their report on the application. Asmatullah Khan later on joined his brother namely, Wasiud Din, with him and through a correction mutation got his name added as owner in the record of rights. They later on partitioned the house amongst themselves vide deed dated 1‑12‑1928 (Copy Ex. DW.1/1), northern portion was given to the lot of Asmatullah and the southern portion to Waziud Din. Mian Asmatullah sold his portion of the house to Muhammad Ashraf predecessor‑in‑interest of defendants Nos.l to 3 vide deed dated 16‑8‑1932 (copy Ex.DW 1/2) and Mian Waziud Din sold his share of the house in favour of Muhammad Akbar Khan predecessor‑in‑interest of defendants Nos.l to 3 vide sale‑deed dated 2‑6‑1934 (copy Ex. PW 7/5). Both of them namely, Muhammad Ashraf Khan and Muhammad Akbar Khan, in their turn, transferred the house in favour of Mst. Shah Sultan wife of Muhammad Ashraf in lieu of dower vide registered deed dated 2‑3‑1936 (copy Ex.PW 7/10). On the death of Mst. Shah Sultan the same was inherited by defendants Nos.l to 3, her sons and daughter who sold the same vide registered sale‑deed dt: 4‑9‑1977 (copy Ex.PW 2/1) in favour of Muhammad Raza Khan and others, plaintiffs/respondents Nos.l to

4. It is worthwhile to mention here that the suit property is described through boundaries in the aforementioned deeds and in all of them road is shown adjacent to it and the house of non‑muslim to its north. As stated in the earlier part of the judgment Khairullah Khan, the original owner, had alienated five marlas of land in favour of Sardar Eishar Singh. In this respect a registered deed dated 13‑7‑1922 had also been executed copy whereof is Ex.PW 7/4 on the file. This plot is described through boundaries in the sale‑deed and towards the south thereof is shown as the land of Mian Asmatullah and towards the West the Road. Copy of the Shajra Kishtwar showing the existing position of the suit property comprised in Khasra No. 1363 is also available on the record which is Ex.PW 1/6 and its perusal shows that a road adjoins the same towards the West and Khasra No.1364 admittedly owned by Eisher Singh etc. the non muslim previously, adjoins the same towards the North. In this way the identity of D the suit property has satisfactorily been established to be the one which was once owned by Asmatullah Khan and having ultimately been transferred to the plaintiffs as explained above and that the deceased defendant No.4 namely Sharif Khan had no right or interest therein.

10. So far as the possession of the suit property is concerned undoubtedly the possession was handed over to Muhammad Ashraf Khan and Muhammad Akbar Khan at the time of the execution of the sale‑deed dated 16‑8‑1932 and registered sale‑deed dated 2‑6‑1934 respectively. Since the nature of the suit property had undergone a change from vacant site to residential, the revenue staff were not legally required to conduct girdawari thereof on the spot as accurately E as they do in the case of agricultural property. Nevertheless the suit Khasra number is consistently recorded in the possession of Muhammad Ashraf Khan predecessor‑in‑interest of defendants Nos.l to 3 as from the jamabandi 1954‑55 (copy Ex.PW 1/2) till the jamabandi 1966‑67 (copy Ex. PW 1/7) as well as in the Khasra Girdawari (Ex. PW 1/7) from Kharif 1955 till Rabi, 1977. The entries from Rabi, 1970 to Rabi 1977 of the khasra girdawari show Mir Afzal Khan appellant as tenant on behalf of Muhammad Ashraf Khan on payment of Rs.40 per month since. Rabi, 1970. These entries of possession, to which the presumption of truth is attached under the Land Revenue Act, are further corroborated by the original rent deed dated 21‑11‑1966 (copy Ex.PW 1/20) executed by one Gul Zaman in favour of Muhammad Ashraf Khan, the predecessor‑in‑interest of defendants Nos.l to 3 and also by the original money order coupons Ex.PW 1/4 to Ex.DW 1/19 testifying to the remittance of monthly rent by the appellants in favour of defendants Nos.l to 3 (respondents Nos.5 to 7 herein). The appellants do not deny their possession over the suit property as tenants prior to the alleged sale in their favour by Sharif Khan deceased defendant No.4 but allege that they were inducted in possession by the said Sharif Khan. They have miserably failed to produce any evidence in rebuttal of entries of the jamabandis narrated above and the other evidence on the record, through documentary or oral evidence of unimpeachable character. The plaintiffs have consequently established on record that Muhammad Ashraf Khan, the predecessor‑in‑interest of Defendants Nos.l to 3 from whom they derived title to the suit property remained in physical possession thereof for considerable length of time right from the time of his purchase and also remained in possession through tenants including the appellants.

11. Much capital was made out, by the appellants, of the entries of the jamabandis of the ownership column since the settlement of 1948‑49 upto date whereby Sharif Khan is recorded as owner of the suit khasra number. The plaintiffs also feel aggrieved of the same and have specifically challenged the entries in the name of Sharif Khan deceased defendant No.4 as wrong, illegal and collusive. It has already been held above that the suit property is the very property which was sold by Khairullah Khan, grandfather of Sharif Khan in favour of Asmatullah vide registered sale‑deed dated 27‑6‑1922 (copy Ex.PW 7/6). The khasra number given to the said area in the next jamabandi prepared after the said sale was 3921 which finds mention in the Misl‑ei‑Haqiyat 1948‑49 as the Khasra number from which the present Khasra No.1363 in suit was carved out. The sale in favour of Muhammad Ashraf Khan and Muhammad Akbar Khan was not given affect to in the revenue record prior to the Settlement of 1948‑49 presumably because, the area had been amalgamated in the urban area of Abbottabad Municipality and the correction of revenue record was not felt necessary. Consequently during the course of settlement proceedings culminating in the preparation of the settlement record of 1948‑49, the Settlement Officer committed a mistake to enter the name of Sharif Khan instead of the real owners and the wrong entries in the ownership column continued in the subsequent jamabandis. However, the cultivation column was corrected in the succeeding jamabandi 1954‑55 wherein Muhammad Ashraf Khan was recorded in possession on account of sale which admittedly took place much earlier than the preparation of Misl‑e‑Haqiyat of 1948‑49 on behalf of rightful owner Asmatullah Khan and others and not Sharif Khan whose name wrongly crept in the Settlement record of 1948‑

49. Sharif Khan never tried to correct the entry of the cultivation column in the name of Muhammad Ashraf Khan nor tried to dispossess him within the statutory period of 12 years in spite of his claim of ownership on account of sale and denial of the alleged rights of Sharif Khan on the basis of the entries of the ownership column. There is force in the statement of Muhammad Arif, defendant (DW 1) that the appellants approached him for the cancellation of the sale‑deed in favour of the plaintiffs and offered to pay them more than the sale consideration paid by the plaintiffs/respondents Nos.1 to

4. The money order coupons exhibited on the file coupled with the entries of the khasra girdawari referred to above conclusively proved that the appellants were in possession of the suit property as tenants of defendants Nos.l to 3 and they felt aggrieved from the transfer of the suit property in favour of plaintiffs/respondents Nos.l to 4 and on their demand for vacating the suit property not only refused to vacate the premises but also denied their title as well and instead managed to acquire the suit property from Sharif Khan deceased defendant No.4 whose name wrongly appeared as owner in the revenue record. We are convinced that the plaintiffs/respondents Nos.l to 4 are the owners of the suit property through valid F purchase from defendants Nos.l to 3 (respondents Nos. 5 to 7 herein) and that the possession of the appellants over the suit property, after denial of the title of the plaintiffs respondents No.l to 4 is unlawful and hence liable to dispossession. The learned trial Judge was perfectly justified in granting the decree for possession of the suit property in favour of the plaintiffs/respondents Nos.l to 4 against the defendants/appellants.

12. The upshot of the above discussion is that there is no merit in the instant appeal and the same is hereby dismissed. However, in view of the complicated points involved, parties are left to bear their own costs. AA./1022/P Appeal dismissed.