2022 PLP 76 (YLR)

ANWAAR HUSSAIN, J.

Brief facts of the case are that on 24.05.2005, respondent No.3 (hereinafter called "the respondent") instituted a suit under Section 9 of the Specific Relief Act, 1877 (hereinafter "the Act 1877") against the petitioners, alleging therein that, on the night of 16th and 17th of March, 2005, the petitioners have dispossessed the respondent and his family from ahata falling in khasra No. 14/1, comprising khewat No.42 situated in revenue estate of Chak No.479/EB, Tehsil and District Vehari, (hereinafter "the Suit Property"), which he purchased from Asif Mehmood and Saleem Raza through agreement to sell dated 10.01.2005 and possession was also handed over to him but the petitioners/defendants forcibly and illegally dispossessed him from the Suit Property in respect of which FIR No. 32/05 was also lodged. In the said suit, the respondent further averred that the petitioners were asked to restore possession of the respondent over the Suit Property but they refused, which constrained the respondent to institute the said suit. The petitioners controverted the assertions made in the suit by filing written statement and from divergent pleadings, the learned trial court settled issues and recorded evidence adduced by the parties where after vide judgment and decree dated 26.02.2009, the learned trial court decreed the suit of the respondent, which was challenged by the petitioners through filing of civil revision. During the pendency of the revision petition, the respondent filed application under Order VI, Rule 17 read with section 151, of Code of Civil Procedure, (hereinafter "C.P.C.") for the amendment of the plaint to the extent of description of the Suit Property with the prayer that Suit Property be read as ahata comprising in khasra No.14/7 instead of khasra No. 14/1. The petitioners contested the same by filing written reply thereto; however, the learned revisional court allowed the application of the respondent and dismissed the revision petition of the petitioners vide judgment and decree dated 04.11.2013 while amending the decree dated 26.02.2009 to the effect that Suit Property be read as one falling in khasra No. 14/7 instead of 14/1. Hence, this writ petition.

2. Learned counsel for the petitioners contends that on the one hand, the respondent laid claim that the Suit Property falls in khasra No.14/1 and on the other hand, he produced evidence in respect of khasra No.14/7, to which the respondent did not put forward his claim in the first instance. On the contrary, it has been the stance of the petitioners throughout that they are in possession of ahata falling in khasra No.14/7. Further submits that the application under Order VI, Rule 17 was wrongly allowed vide judgment dated 04.11.2013, paving the way for illegal and unwarranted order passed by the learned Additional District Judge, Vehari where the judgment and decree passed by the learned trial court has been amended as well and the description of the Suit Property has been totally changed. Lastly, submits that the impugned judgments and decrees suffer from misreading and non-reading of evidence as the learned courts below have committed material illegalities while passing the same, therefore, the same cannot sustain. Placed reliance upon Hassan Din v. Hafiz Abdul Salam and others (PLD 1991 SC 65), Baqar v. Muhammad Rafique and others (2003 SCMR 1401), Habib Bank Limited v. 1st Additional District Judge and others (2005 MLD 1525 Karachi), Province of Punjab through Collector, Gujranwala and another v. Alamgir and 3 others (PLD 2005 Lahore 401) and Mashooq Ali and others v. Mursalin Shah and others (2012 YLR 2300 Peshawar)

3. On the other hand, learned counsel for the respondent has vehemently opposed this writ petition and fully supported the impugned judgments and decrees. He has relied upon Karam Din and 2 others v. Allah Ditta and another (1987 CLC 1096 Lahore), Manzoor Hussain v. Malik Karam Khan and 2 others (1991 SCMR 2451) and Muhammad Iqbal Khan v. Musa Khan and 3 others (1992 CLC 400 Peshawar).

4. Arguments heard. Record perused.

5. The present case involves two legal issues to be examined. Firstly, whether the revisional court was justified in allowing the application for amendment of the plaint paving the way for the amendment of the decree which altogether altered the description of the Suit Property and secondly, whether the evidence on record establishes the basic ingredients for relief under Section 9 of the Act 1877.

6. As regards the scope of Order VI, Rule 17, C.P.C. qua amendment of pleadings at revisional stage, it is pertinent to note that the legislature has empowered the court seized with the matter, to allow the amendment of pleadings, at any stage of the proceedings. However, this discretion is not unfettered and unrestricted as, according to the language of Order VI, Rule 17, C.P.C., it is imperative that the amendment of the pleadings may be allowed in such manner and on such terms as it may be just. It is further provided that such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Purpose of pleadings is to lead the other party to know as to what case it had to meet as well as the facts which parties were to prove or establish the cause of action or the defendants to establish their defence. Reliance is placed on Syed Sardar Alam Zaidi v. Messrs Pakistan Gum and Chemicals Limited (2017 YLR Note 205 Sindh). Importance of the pleadings and its legal value and significance could be evaluated and gauged from the fact that it was primarily on the basis thereon that the issues were framed. Reliance is placed on Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others (2015 SCMR 1698). The intention of the legislature is evident from the fact that an amendment, which is relevant and necessary to the proposition under consideration, has to be permitted. An amendment may not be allowed when it was likely to change the nature of the suit or cause of action, or both. Moreover, in cases where, on account of omission to raise a plea in the pleadings, a valid right was accrued to the opposite party, in such cases, the amendment was not permissible.

7. In the instant case, the respondent in his suit clearly mentioned the Suit Property to be one falling under khasra No. 14/1, which he purportedly purchased from Muhammad Asif and Saleem Raza who claim to have purchased it from one Allah Ditta. In cross-examination, the respondent categorically stated that he has filed the instant suit regarding property in khasra No.14/1 in the following manner: He further stated as under: The statement of PW.1 was contradictory to that of PW.2 Munir Ahmed qua attempt on part of Allah Ditta to get possession of the Suit Property. PW.2 in his cross-examination deposed as under: In-fact, the stance of the PWs quoted above corroborates the version of the petitioners as it is the averment of the petitioners that said Allah Ditta was their servant who when made an attempt to occupy the ahata falling under khasra No.14/7, the situation was escalated and a suit was filed by the petitioners against the said Allah Ditta. Petitioner No.1 appeared before the court as DW-1 and categorically deposed that he was residing in the Suit Property for about twenty years. He deposed that Allah Ditta had no concern with the Suit Property but when Allah Ditta extended threats to him (petitioners), a suit was instituted in the civil court wherein Allah Ditta made statement that he had no concern with the Suit Property and same belongs to the petitioners. He further stated that Allah Ditta was his servant and never remained in possession of the Suit Property. One Muhammad Shafi appeared as DW.2 to depose in examination-in-chief that: (Emphasis Supplied) While being cross-examined, DW.2 stated as under: Said DW remained firm and denied the suggestion that Abdul Hameed (respondent) was in possession of the Suit Property. He also denied the suggestion that the petitioners, armed with weapons, dispossessed the respondent from the Suit Property. Petitioners also brought on record copy of the suit instituted by them against Allah Ditta (Exh.D2), which has been ignored altogether by the learned courts below. In-fact this piece of documentary evidence contradicts the stance of PW.2 that when Allah Ditta came back to the Chak, he got the possession of the Suit Property. Moreover, the petitioners have submitted a copy of jamabandi, where the following note is incorporated: The above said jamabandi in unequivocal terms shows that the petitioners are in possession of property in khasra No.14/7 whereas the respondent claims that he purchased the Suit Property from Muhammad Asif and Saleem Raza who were vendees under Allah Ditta. There is nothing on record to suggest as to how the possession of Suit Property went from the petitioners into the hands of Allah Ditta and then from Allah Ditta to Muhammad Asif and Saleem Raza. Neither Allah Ditta nor Muhammad Asif or Saleem Raza, the alleged vendors of the respondent, came forward to corroborate the stance of the respondent from which an inference can be drawn that they do not support the version of the respondent. Not a single word has been said in respect of Saleem Raza, who as per contention of the respondent, was his co-vendor. The respondent has failed to produce any other document except agreement to sell dated 10.01.2005 whereby he allegedly purchased the Suit Property from Muhammad Asif and Saleem Raza, and agreement to sell dated 16.12.2004 through which Allah Ditta allegedly sold the Suit Property to Muhammad Asif and Saleem Raza. It is trite law that mere agreement to sell does not create any right, until and unless it is proved through cogent evidence. None of the marginal witnesses of the said agreements to sell entered appearance in the witness box, which was basic requirement of Article 79 of Qanun-e-Shahadat Order, 1984. As per Jamabandi (Exh.D2), the Suit Property is owned by the Government of the Punjab and the revenue record depicts that the petitioners, and not the respondents, are recorded as illegal occupants thereof. There is no other revenue document, which could even suggest that the respondent ever remained in possession. It is settled law that the documentary evidence will have precedence over the oral evidence. Admittedly, the respondent filed suit regarding property bearing khewat No.42, khatooni No.21, khasra No.14/1, which was decreed by the learned trial court. The respondent's application under Order VI Rule 17, C.P.C., for amendment in the plaint reads as under: Bare reading of above clearly reveals that the respondent admits that he instituted the suit regarding property in khasra No.14/1 and now intends to amend the plaint that the Suit Property actually falls in khasra No.14/7. He also took the stance in the application that while instituting the suit, he appended jamabandi regarding Suit Property in khasra No.14/7. The assertion of the respondent that he appended jamabandi of the Suit Property with the plaint is not established from the record as no such document submitted by the respondent is available. In-fact the said jamabandi was produced by the petitioners, which was exhibited as Exh.D2 and is part of the record, which, as noted above, shows possession of the petitioners over property in khasra No.14/7 and not that of the respondent. The suit was instituted on 24.05.2005 and the respondent was cross-examined on 21.12.2006, i.e., after about 1 years of institution of the suit wherein he states that he had instituted the suit regarding property in khasra No.14/1. Meaning thereby that he was well aware of the fact even after 1 years of the institution of the suit that his suit is regarding property falling in khasra No.14/1 and he accordingly adduced evidence. Since the respondent had instituted suit regarding property falling in khasra No.14/1 and categorically deposing the same while being cross-examined, he cannot summarily be allowed to amend the plaint proposing to incorporate a different description of Suit Property i.e., one falling in khasra No.14/7.

8. Reliance placed on the judgments by the learned counsel for the respondent is not applicable in the instant case inasmuch as in Karam Din supra, there was no controversy about the agreement in question on the basis of which the suit was instituted by the plaintiff therein and correct killa numbers were not mentioned in the plaint, which resulted in the omission of the same in the decree prepared in the said case. Similarly, in Muhammad Iqbal Khan supra, it was a pre-emption matter where due to clerical mistake the property was wrongly mentioned in the plaint and thus incorporated in the decree, which was rectified. In the instant case, the respondent remained adamant while being cross-examined that he instituted the suit for possession under Section 9 of Specific Relief Act regarding property falling under khasra No. 14/1 and not under 14/7.

9. Moreover, the learned revisional court below has erred in allowing the application filed by the respondent for amendment of the plaint while placing reliance on Manzoor Hussain supra and while doing the same, has incorrectly amended the impugned decree passed by the learned trial court without appreciating that the same has completely changed the description of the Suit Property. No doubt, in Manzoor Hussain supra, it has been held by the august Supreme Court that even the executing court can correct the decree to the extent that it can bring the same in conformity with the title deed; however, a careful perusal of Manzoor Hussain supra indicates that in the said case, suit for possession was instituted which was based on a title deed that was duly attested by the Tehsildar and on the basis of principle of incorporation, the amendment was allowed, which is not the situation in the instant case. In the present case, the facts are quite distinguishable inasmuch as the stance of the respondent was that he appended khasra girdawri to show his possession over khasra No. 14/1 which is not correct. In-fact, petitioners in their defence under suit for recovery of possession submitted the revenue record to substantiate that they are in possession of property falling in khasra No. 14/7. Being so, even if amendment in the plaint was to be allowed, the same could not be made basis of corresponding amendment of decree without allowing both the parties to lead their respective evidence after framing issue, if so needed, in view of the amended plaint as the parties come up with their defence on the basis of the pleadings and evidence is to be led within and not beyond the pleadings. Therefore, the revisional court erred to this extent as well by jumping on to the amendment of decree on the basis of amendment of plaint.

10. In-fact, in the instant case, the amendment was not required at all as the basic ingredients for grant of relief under Section 9 of the Act, 1877 were not established by the respondent before the trial court. In a suit for possession under Section 9 of the Act, 1877, the plaintiff has to establish at trial that: (i) he was in possession of specific immovable property; (ii) he was dispossessed by the defendant; (iii) he was dispossessed without his consent and not in accordance with law; and (iv) such dispossession took place within a period of six months prior to the institution of the suit. Perusal of record reals that the learned courts below have not read the evidence on record properly where documents having some evidentiary value such as the jamabandi, suit filed by the petitioners against Allah Ditta (purported vendor/ predecessor-in-interest of the respondent) etc., is in favour of the petitioners and not the respondent to establish the factum of possession qua scope of relief under Section 9 of the Act 1877. The learned courts below have given weightage to FIR No. 32/05, which was lodged by the respondent through his son ignoring altogether other documentary evidence including the proceedings initiated by the respondent against the petitioners under Section 145, Criminal Procedure Code, 1898 (hereinafter "Cr.P.C"). Regarding the said proceedings, the respondent, while appearing as PW.1 before the court, deposed as under: (Emphasis supplied) The above deposition of the respondent is a categorical admission on his part that the proceedings under section 145, Cr.P.C. in respect of Suit Property culminated in favour of the petitioners and the stance of the respondent that he was dispossessed by the petitioners could not be proved in the said proceedings as decision in the said proceedings came against him. The respondent did not opt to challenge the said decision before higher forum, which attained finality. It can easily be inferred that the respondent admitted the decision of the court to the extent that the petitioners did not dispossess him from the Suit Property. Except that an FIR No. 32/05 was lodged by the respondent through his son regarding purported dispossession, nothing has been brought on record by the respondent in support of his stance that the property bearing khasra No. 14/7 was ever in possession of Allah Ditta, which through Muhammad Asif and Saleem Raza came under the possession of the petitioners. Even otherwise, it has been completely overlooked by the courts below that the possession of the Suit Property by the respondent is claimed through Allah Ditta who is to be deemed as the predecessor-in-interest of the respondent and said Allah Ditta has denied his possession in the judicial proceedings by recording his statement on 18.10.2004 before the civil court in the suit instituted by the petitioners against said Allah Ditta and same have admittedly been presented by the petitioners during the examination-in-chief as Exh-D

1. The admitted judicial proceedings of the suit instituted by the petitioners against Allah Ditta in respect of the Suit Property strengthens the stance of the petitioners. It is settled law that presumption of truth is attached with the judicial proceedings.

11. The learned trial court has wrongly inferred gaps in statement of DWs and went on to give benefit of the same to the respondent (plaintiff) ignoring the settled principle of law that the plaintiff has to stand on his own legs to prove his case. The learned trial court erred in not appreciating that PWs were not even aware of duration of intermediary possession of Muhammad Asif and Saleem Raza, from whom the respondent claims to have got possession of the Suit Property. PW.1 stated as under: Whereas PW. 3 stated as under:

12. The above-referred discussion on documentary and oral evidence deduced by the parties indicates that the preponderance of evidence heavily lies in favour of the petitioners, which establishes that the petitioners are in illegal possession of the Suit Property belonging to the Government and the respondent never got possession thereof. As evident from the above discussion, appraisal of evidence by both the courts below is arbitrary and suffers from misreading of evidence as well as misconstruction of material available on record and the learned revisional court has erred in allowing the amendment of the plaint followed by the amendment in the decree, particularly when the respondent failed to establish basic ingredients of section 9 of the Act, 1877.

13. For what has been discussed above, this writ petition is allowed, impugned judgments and decrees passed by both the learned courts below are set aside and the suit of the respondent is dismissed.

14. This Court is examining the matter in constitutional jurisdiction. The Suit Property is admittedly state land and the petitioners admit their illegal possession thereof as reflected in jamabandi available on record as well; therefore, before parting with, Office is directed to transmit the copy of this judgment to the Member (Colonies), Board of Revenue to look into the matter, in terms of the Punjab Government, Rules of Business, 2011, in order to safeguard the interest of the government qua State land, forming subject matter of the present petition. ZH/M-206/L Petition allowed.