1986 PLP 86 (MLD)

‑‑‑S.96, O.XIII, R.1 & O.XVII, R.1‑‑Placing of documents on record‑ Application for‑‑Adjournment application‑‑Rejection of‑‑Trial Court could not allow appellant to place irrelevant document on record in which no claim of ownership in respect of property in dispute was made out by him‑‑Court had jurisdiction to grant or refuse such adjournment application‑‑No valid grounds were made out in case for challenging order for rejection of adjournment application‑‑Held, neither any prejudice was caused, nor any relevant document was shut out from evidence in circumstances. Ali Ahmed Memon for Appellant. A . K . Niazi for Respondents Nos. 1 to

3. One Bakhtiar Khan Sahibdad died on 16‑7‑1968 leaving behind respondents Nos.1 to 15 as his legal heirs. The respondents Nos.1, 2 and 3 filed suit for partitions, separate possession and accounts against the appellant and respondents Nos.4 to

18. Respondents Nos.16, 17 and 18 are not the legal heirs, but they are shareholders in the immovable property, and therefore, they were joined as party. The respondent No.4 filed written statement which was adopted by the appellant. The properties mentioned in the schedule to the plaint were admitted except the plot of land measuring 4,000 sq.ft. In respect of which the following averment was made in the written statement of respondent No.4:‑ "Deceased Bakhtiar Khan did not leave any plot measuring 4,000 sq. ft. It was purchased by someone Bakhtiar Khan son of Sahib Dino, who purchased it from Deputy Commissioner, Jacobabad for Rs.250. During the trial, the respondent No.4 made a statement that a preliminary decree should be passed by the Court. Therefore, the respondent No.4 did not contest the suit, and in fact admitted the claim of the plaintiff. The learned trial Court recorded the evidence of the parties and granted a preliminary decree for partition and accounts. This judgment and decree has been challenged by the appellant. Mr. Ali Ahmad Memon the learned counsel for the appellant has restricted the challenge only in respect of immovable property measuring 4,000 sq. ft. on the ground that this property actually belongs to the appellant. It has also been contended that fair opportunity to represent the case was not granted by the learned trial Court, and therefore, the impugned Judgment and decree is vitiated. The first contention of the learned counsel is based on the fact that he alleges to have purchased the said land from one Bakhtiar son of Sahib Dino. In the written statement, the appellant had not taken this plea at all. He had only adopted the written statement of the respondent No.4 which has been reproduced above. It only states that the property was not owned by Bakhtiar Khan Sahibdad. It does not allege that this property was purchased by the appellant. Mr. Memon has referred to the statement of the appellant in which he has stated that the has purchased the property from Bakhtiar Sahib Dino, but there is variance between pleading and proof and such a plea without amending the written statement could not be entertained during the trial. The learned counsel contended that the appellant had in his possession a registered sale‑deed in his favour which he wanted to produce as a proof of ownership but the learned trial Court did not allow and the application under Order XIII, Rule 1, C.P.C. was rejected. Even at the time when evidence was recorded this document was not produced, and the explanation now given is that the document was in possession of the Advocate, who was absent on the day when the evidence was recorded. Mr. Memon has shown me that registered sale‑deed which was executed in the year 1971. Even if for argument sake, this document is taken on record, the new plea of ownership cannot be allowed to be raised, as no such claim was made in the written statement. Furthermore, no other document seems to have been produced to show that this property belonged to Bakhtiar Khan Sahib Dino, who is alleged to be the owner of the property. Mere production of a registered sale‑deed in such disputed matter cannot prove the ownership. The only difference in the name of the owner seems to be that one is Bakhtiar Khan son of Sahib Dad and the other from whom the appellant claims to have purchased is Bakhtiar son of Sahib Dino. If the appellant purchased this property in the year 1971, after filing the written statement, then it was his duty to apply for amendment of his written statement, but no such step was taken by the appellant before the trial Court, or even in appeal which has been pending for the last about 11 years. In the circumstances, I am not inclined to believe that the appellant is the owner of the disputed plot of land. The learned counsel contended that no fair opportunity was given as firstly, adjournment was not granted to enable the appellant to bring his Advocate, and secondly, that application under Order XIII, rule 1, C.P.C. was rejected without any basis, therefore, the appellant was not only prejudiced, but material evidence was shut out. On the face of pleadings, the learned trial Court could not have allowed the appellant to place such document on record, which were not relevant because, no claim of ownership was made by the appellant. If such a claim would have been made possibly, the respondent would have challenged the sale‑deed. So far the question of granting adjournment is concerned, the Court has jurisdiction to grant or refuse it. In the facts and circumstances of the case, no valid grounds seem to have been made out for challenging the order for rejection of the adjournment application. Therefore, neither any prejudice has been caused, nor any relevant document has been shut out from the evidence. In the circumstances, I do not find any force in appeal which is dismissed with no order as to costs. H.B.T. Appeal dismissed.