2003 PLP 1377 (CLC)

Respondent: Ex parte. Date of hearing: 18th April, 2003. Ghulam Muhammad, the original petitioner/defendant, and the predecessor-in-interest of the present petitioners, through the institution of the present revision petition, has called in question judgment and decree dated 29-1-1991 whereby the learned Additional District Judge accepted respondent's appeal, decreed the suit and reversed the judgment and decree dated 11-1-1989, passed by the learned Civil Judge, through which he dismissed the suit for possession, filed by Syed Farrukh Anwar as successor-in-interest of Syed Anwar Ali Shah.

2. Briefly stated the facts leading to the filing of the present petition are that Syed Farrukh Anwar, the predecessor-in-interest of the present respondents, claiming to be the successor-in-interest of Syed Anwar Ali Shah; on 12-5-1984, filed a suit, against Ghulam Muhammad, for possession of a portion of house, described in the plaint, asserting to be the owner of the said house by virtue of transfer order, issued by Rehabilitation Department. It was the case of the plaintiff that the defendant is in possession of the portion of house as a "licensee" and as he failed to restore the possession, thus necessitating the filing of the suit for possession. Ghulam Muhammad contested the suit by way of filing the written statement, inter alia, pleading that he is owner in possession of the house as an "allottee" through a permit dated 3-11-1956 and that alternatively, he has become owner through "adverse possession." Out of the divergent pleadings of the parties, the learned trial Court framed as many as six issues, recorded the evidence of the parties and proceeded to dismiss the suit, vide judgment and decree dated 11-1-1989. Feeling aggrieved, the plaintiff, Syed Farrukh Anwar, assailed the said decree before the learned appellate, forum and the learned Additional District Judge accepted his appeal, decreed the suit in his favour by reversing the judgment and decree of the learned trial Court, vide judgment and decree, dated 29-1-1991, hence the present petition.

3. After the death of the learned counsel for the respondents, namely Khan Younas Khan, Advocate, notices were issued to the respondents for today. Despite their service, respondents have not entered appearance, thus, they are proceeded ex parte.

4. Learned counsel for the petitioner, while supporting the judgment of the learned trial Court, has submitted that the learned lower Appellate Court has committed legal errors while rendering the impugned judgment and reversing the well-reasoned judgment of the learned trial Court hence, according to the learned counsel, the impugned judgment is not sustainable in law.

5. Upon the examination of the available record, find that Ghulam Muhammad in his written statement has pleaded that he is in possession of the disputed house for the last thirty years, which house has been allotted to him vide permit dated 3-11-1956. It has also been stated that in the alternative he has become the owner of the said house on account of "adverse possession". For ready reference the said portion of the written statement is reproduced below:-- It flows from the above, that the original defendant took contradictory pleas, which are not reconcilable, thus, the suit was liable to be decreed on this short ground, moreso when the plaintiff was able to prove his ownership qua the house in question. The witnesses produced by the plaintiff have stated that the disputed property/house was owned by Syed Ali Anwar Shah, the predecessor-in-interest of Farrukh Anwar, who was transferred this house by the Settlement Department. The learned Additional District Judge, after minutely perusing the record of the case, came to the conclusion that the ownership of Anwar Ali Shah qua the house and the transfer of house in his name by the Settlement Department stands fully proved by order dated 25-11-1964 (Exh.P.3), allotment order dated 3-11-1956 and the subsequent order dated 1-6-1967, passed by the Deputy Settlement Commissioner, which transfer is further fortified by order dated 3-10-1964. The defendant could not produce any evidence to rebut the said documentary evidence and, thus, to 'my mind, the learned Additional District Judge has rightly held that Syed Anwar Ali Shah was the owner of the house in question.

6. Now coming back to the contradictory pleas raised by the defendant in his written statement, I find that the learned trial Court did not give any finding on the said crucial aspect of the case, while the learned Additional District Judge has slightly touched the matter. The consistent view of the Honourable Supreme Court of Pakistan is that the pleas of ownership and adverse possession cannot stand together and that a person who asserts ownership over a certain property by purchase would not be legally justified at the same time to say that his occupation of the property was hostile or adverse as against the real owner. If any case is needed, judgments reported as Mira Khan v. Ghulam Farooq and others 1988 SCMR 1765, Ghulam Qadir v. Ahmad Yar and others PLD 1990 SC 1049 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 can be referred. In view of the afore-noted law declared, I am constrained to hold that the contradictory pleas, taken by the defendant in the written statement, are not reconcilable and the plaintiff had been able to prove his ownership qua the house in question, therefore, the learned Additional District Judge has rightly decreed the suit by reversing the findings of the learned trial Court.

7. I have examined the impugned judgment and find that the learned Additional District Judge has embarked upon the issues involved in the case, appreciated the oral as well as documentary evidence on record in its true perspective and has reached to the proper conclusions, which, to my mind, are not open to exception. The findings, rendered by the learned Additional District Judge are not only in accordance with the record of the case but also in consonance with the law on the subject. On the other hand, judgment and decree rendered by the learned Civil Judge is not only contrary to the record of the case but also violative of the law on the subject. To my mind, the judgment of the learned trial Court, as compared to the learned lower Appellate Court's judgment, is not sustainable in law and suffers from grave legal infirmities, which have been rectified by the learned Appellate Court by reversing the findings of the learned trial Court and substituting its own findings, which are supported by reasons and backed by law.

8. Although the learned counsel for the petitioner has contended that the impugned judgment suffers from misreading and non-reading of evidence, yet when asked to explain as to which portion of the evidence has been misread or non-read by the learned lower Appellate Court, the learned counsel, despite his best efforts, could not, point out any such misreading and non-reading on the part of the learned lower Appellate Court.

9. In my view as the impugned judgment is neither contrary to the evidence nor in violation of the principle of Administration of Justice, thus, the judgment of the learned Appellate Court should ordinarily be preferred. If any case is needed, judgments reported as Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202 and Ilamuddin through Legal Heirs v. Syed Sarfraz Hussain through Legal Heirs and 5 others 1999 CLC 312 can be referred.

10. Upshot of the above discussion is that the present revision petition is devoid of any merits, thus, the same is dismissed with no order as to costs. S.M.B./G-270/L Revision dismissed.