2000 PLP 2029 (YLR)

(1) Whether the suit has been in correctly valued for the court‑fee and jurisdiction? If not, what is the effect? OPP (2) Whether the plaintiffs are owners for the property in dispute? OPP (3) Relief.

2. The parties led the evidence. The learned Trial Court vide judgment and decree, dated 31‑3‑1985 decreed the suit filed by the respondent/plaintiff and the appeal filed by the petitioner/appellant was dismissed vide judgment and decree, dated 28‑4‑1987. The instant revision petition challenges both the judgment and decree passed by the subordinate Courts.

3. Arguments advanced by the learned counsel for the petitioner are that the Court below have misread the evidence on records as the documentary evidence Exh. P.1 and Exh. D.2 relate to House No. 192/8 which is its fact claimed by the respondent/plaintiff but there was not documentary evidence available that the property was never a shop and allotted to respondent/plaintiff. Moreover, the Courts below have relied on the demarcation by the Deputy Administrator Residual Properties, which is Exh. P.2. Further contended that this demarcation must be proved by a person who contended the same. As they did not join the petitioner at the time of demarcation. This was an ex parte demarcation and despite the objection raised by the petitioner it was exhibited as Exh. P.2 and this document was read in evidence being a foundation stone of the impugned judgment and decrees passed by both the Courts below. The learned counsel further argued that in order to resolve what was actually the number of the property and where it was situated the petitioner had moved an application for appointment of a Local Commission who could have visited the disputed property and the Courts could ascertain whether the property as pointed out in the averments of the plaint and in the evidence by the respondent that this property was a shop or a house or room. Even the suit for possession was not maintainable. The Courts have decreed the suit contrary to law and against the pronouncement of the Superior Courts of the Country and in this behalf the Courts below have committed procedural as well as substantive irregularities which need correction through exercise of reversional jurisdiction.

4. Learned counsel for the respondent has vehemently stressed that the demarcation proceedings were conducted by the competent authority as per order of Deputy Administrator, Residual Properties dated 6‑4‑1989. The disputed property is a shop, which is allotted to the respondent through P.T.D. Both the Courts below have concurrently decided the case in favour of respondent and they have properly discussed the evidence available on record, which does not need any interference by this Court in the revisional jurisdiction.

5. I have heard the arguments of learned counsel for the parties and carefully gone through the record. In the present case the Courts were bound to look into the fact that what was the real issue for determination and then could decide what weight is attached to the particular document produced in evidence by the parties. Manzoor Ahmad, plaintiff, appeared as P.W.1 and stated that he purchased the shop through "Sharakatnama" and got it demarcated and nobody objected the demarcation. Further deposed that Muhammad Sharif was in possession of the same and is still in possession. In cross‑examination he admitted that the house was neither allotted nor transferred to him. He purchased it on 20‑9‑1980 and after six months the same was registered. It was only 'Sharakatnama' from the Settlement Department. He added that the number of the Property is 8/192. He does not know whether the owner was Kathoo Ram and it was situated on left side of the house belonging to Zohra Bibi. He does not know that it was in possession of Ghulam Muhammad son of Khair Din. Further, admitted on the northern side there is Muhammad Sharif's house, southern side is a road, on eastern side he does not know who is owner and behind the disputed shop there is a house of Muhammad Sharif which is 187/9: He had the knowledge that this house was allotted to one Khair Din and subsequently purchased by the defendant and the disputed property was not a part of House No. 187/8. He denied that the disputed property is a part of Daragah in possession of a mosque. He produced Exh. P.1. P.T.D. Exh. P.2 Demarcation and Exh. P.3 cancellation of auction. On the other hand, the defendant produced Muhammad Hafeez as D.W.1. He stated on oath that the disputed property was a room and was not a shop. The house belonged to Kamal Din and had four rooms and courtyard. It was allotted to Khair Din who sold the same to Muhammad Sharif, defendant, through registered sale‑deed arid he is a marginal witness of the sale‑deed. The sale‑deed Exh. D.2 carries his signatures as Exh. D.W.1/A. Three rooms were purchased by Ghulam Muhammad and Nawab. Those rooms were situated by the road side. The defendant's house is situated on the eastern side of the disputed property, on the western side there is house of Ghulam Majeed, on the south there is a house of Inayat and on the north there is a road. The room belonging to Zohra Bibi is ahead of the street and the back of the shop. The disputed property has no connection with the property owned by Zohra Bibi. The disputed room was a part of full house which was auctioned. D.W.2 also stated on oath that the disputed room was never a shop. It was a part of House No. 187/8 which has four rooms and one court‑yard. It was allotted to Khair Din being an evacuee property and was purchased by Muhammad Sharif and Ghulam Muhammad collectively. He is marginal witness of the sale‑deed and his signatures are Exh. D.1/8. Disputed property was not connected with the property if Zohra Bibi. Her house is at the western side of the street. In cross examination he stated that his property was obtained by the plaintiff through collusions with the Settlement Department as no auction took place. The plaintiff came to him and asked which Property bears 192/8 and he told him that the property is included in Darasgah' and the same thing was stated to the Inspector who came for demarcation. D.W.3 is Ghulam Muhammad son of the Khair Din. He stated that the disputed property was never a shop. It was a room and part of house which was allotted to Khair Din and Khair Din sold the same to Muhammad Sharif through registered sale‑deed. Kamal Din refugee used to live in it. On the other side of the street there is a house and in that house Zohra Bibi used to live. Zohra's property has no connection with the disputed property. In cross‑examination he stated that it is incorrect that the room is a shop. It is also incorrect that this is not a part of the house. No demarcation was conducted in his presence although Settlement people came many times and were searching the disputed property D. W .4 is Muhammad Sharif who stated that the disputed room is a part of House No. 187/8. It has four rooms and a courtyard and was purchased from Khair Din allottee: On the eastern side of the disputed room there is a house of Ghularn Muhammad. Zohra Bibi never lived in a room connected to the disputed property. On the other side of the street there is a 'Darasgah' and the Darasgah' property is described as 192/8. He produced Survey List of Property No. 192/8 as Exh. D.2, copy of Survey List of Property No. 187/8 as Exh. D.3 and deed of property as Exh. D.4.

6. The Courts below have relied on the evidence produced by the plaintiff, which is Exh. P.1 and Exh. P.2 is particulars of Transfer Deed where Shop No. 8/192 was transferred in favour of Muhammad Ibrahim son of Ditta through negotiation scheme and Muhammad Ibrahim surrendered his full rights in favour of Manzoor Ahmad Butt son of Habibullah vide agreement, dated 13‑9‑1980. The original transfer order in favour of Muhammad Ibrahim is dated 10‑2‑1981, while second order is dated 6‑4‑1981. Exh. P.2 is demarcation conducted under the order, dated 6‑4‑1989 of Deputy Administrator Residual Properties. This demarcation is showing House No.8/187 on the northern side. Manik Road on' the southern side, house of Muhammad Sharif on eastern side and on western side House No.8/191. It is very material that at the time of demarcation neither Muhammad Bashir had joined nor Ghulam Muhammad or any witnesses. Demarcation was conducted as per order of Deputy Administrator Residual Properties and not the Settlement Commissioner as per section 10 of the Settlement Act which has been repealed. Such a demarcation of the property by a Deputy Administrator needs a careful scrutiny whether the property in dispute was a part of House No. 8/187 or whether it is an independent house and that is only possible when the defendant or the person in possession of the property adjacent to the disputed property had joined the demarcation conducted under the order of the Deputy Administrator, dated 6‑4‑1989. The Survey Register, dated 1‑1‑1953, Exh. D.2, shows that the disputed Property bears the number 192/8 was owned by one Kathoo Ram and description of the property is a house. In the column of the name of allottee, the name of Zohra Bibi and Ghulam Muhammad son of Khair Din were recorded. The Survey Register, dated 15‑1‑1948, Exh. D.3 shows that Property bearing No. 187/8 is owned by an evacuee owner Kathoo Ram and it is a house and in the column of allottee it is written Kamal Din refugee. P.T.D. of the Property No. 187/8 shows that the house was transferred to Khair Din son of Nawab Din through auction. It does not show the area. Exh.P.3 is document which shows that House No.8/192 was transferred to one Kaka son of Eida by the Deputy Settlement Commissioner, Sialkot on 27‑11‑1987.

7. The complete perusal of, the documentary evidence produced by the parties shows that admitted Property No. 187/8 and Property No. 192/8 are two separate properties and were altogether different. The real point for determination for the Courts was whether Property No. 192/8 was connected with the Property No. 187/8 or it was an independent property. None of the Courts below has touched the real controversy between the parties. This could be easily resolved if the Courts below had allowed. the application for appointment of Local Commission to visit the spot and to see that as to where the disputed property was actually situated. As the grievance of the petitioner is that this property is not part of his property, it is a part of 'Darasgah' while both the properties were house and not a shop. Both the 'Courts below have not correctly read the documentary evidence produced by the parties. They have given emphasies only to demarcation which was conducted upon the order of Deputy Administration and not the Settlement Authorities and the demarcation was ex parte conducted. A document not prepared in accordance with law has no evidentiary value both the Courts below had given extraordinary weight to the document. Moreover; the evidence produced on record shows that the Property No. 8/192 was a house and not shop. As far as allotment of Property No. 187/8 and allotment of Property No. 142/8 is concerned both the parties do not challenge the same inter se.

8. The upshot of the aforesaid discussion is that the Civil Revision is accepted and the impugned judgment and decree passed by the Trial Court and Appellate Court are set aside. The case is remanded to the learned trial Court to decide the real controversy in question between tote parties as to whether Property No. 192/8 ix a part of the House No. 187/8 or an independent property situated somewhere else through appointment of Local Commission and after giving an opportunity of evidence to the parties decide the case afresh within six months of receipt of judgment passed by this Court: H.B.T./K‑35/L Case remanded.