2001 PLP 1658 (CLC)

Syed Zafar Ali Shah for Petitioner. Muhammad Zaheer for Respondent. Dates of hearing: 25th January and 21st March, 2001. On 22‑6‑1986, the respondent filed a suit against the petitioner. In the plaint it was stated that suit‑property measuring 3 Marlas was acquired by the respondent vide registered exchange deed dated 15‑4‑1980; that the property (shop) was obtained by the petitioner as a licensee but not only has he refused to hand over the possession but is even denying his title. He sought a decree for possession. In his written statement, the petitioner took the plea that he had acquired property including suit‑property from its former owners namely Sardar Ali and Imam Din who had privately partitioned their property in Khasra No.889. Whereas Sardar Ali transferred his property to the petitioner vide a registered sale‑deed dated 26‑11‑1975, Imam Din had proceeded to transfer the property through an oral sale. It was also stated that the sale was made on 27‑2‑1967 when possession was delivered to him and that his possession is adverse. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 26‑1‑1989. A first appeal filed by the respondent was heard by a learned Additional District Judge, Gujrat who allowed the same on 20‑1‑1990 and decreed his suit.

2. The learned counsel for the petitioner contends that the respondent had not proved his ownership. The precise contention is that the exchange pleaded by the respondent had not been proved by producing its witnesses etc. It is further contended that it had been proved on record that the petitioner had purchased the suit‑property from Imam Din. At the same time it is contended that suit for possession could not have been filed and the only relief available was to sue for partition. It is also contended that the plea of licence had not been proved.

3. The learned counsel for the respondent, on the other hand, argues that the petitioner miserably failed to prove the sale pleaded by him whereas the execution of exchange deed by Imam Din was never denied. According to the learned counsel title having been established, his client was. entitled to possession.

4. I have gone through the copies of the record appended to this revision petition. I find that the respondent had duly pleaded the acquisition of the property and the particulars of the exchange deed in the plaint. The plea taken by the petitioner in his written statement was that the exchange has been effected by collusion inter se the respondent and the said Imam Din who never let him know about the same. He appeared in the witness‑box as D.W.7 and stated his case viz. a viz. the exchange deed as under:‑‑ A certified copy of the exchange deed has been produced on record as Exh.P.5. In the said state of pleadings and evidence the learned counsel for the respondent has rightly argued that the factum of exchange by Imam Din in favour of respondent had not been denied by the petitioner and as such there was no need to prove the document formally. It is a registered, document, the execution whereof is disputed by none and as such its certified copy is admissible in evidence.

5. Coming to the plea of the petitioner regarding oral sale he has stated in his written statement filed on 9‑7‑1986 that the oral sale took place on 27‑2‑1967. In his statement. as D.W. which was recorded on 4‑9‑1988 he states that he paid Rs.2,000 each to Imam Din and Sardar Ali 17 years ago. He also stated that whereas Sardar Ali transferred his property through a registered deed 13 years ago, Imam Din had been refusing to do so. He has also stated in his examination‑in‑chief that 8 Marlas of land was purchased by Imam Din and Sardar Ali and the petitioner jointly and it was partitioned in such a manner that he and Sardar Ali got 2‑1/2 Marlas each on the road side while Imam Din got 3 Marlas on the back. Now he has admitted in his cross‑examination that on the backside of the disputed property in his house, His stance, therefore, stands negated in his own statement. I, therefore, find that this is a case where the respondent had proved his title and was entitled to possession on the basis of the same and the petitioner had failed to prove the title pleaded by him.

6. As to the plea of adverse possession suffice it to say that the petitioner could not have been allowed to approbate and reprobate by pleading a valid title on the one hand and at the same time pleading adverse possession. Reference be made to the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245.

7. As a result of above discussion, I do not find any case being made out for interference in the impugned judgment and decree of the learned appellate Court within the meaning of section 115 of the Code of Civil Procedure. The revision petition is, accordingly, dismissed leaving the parties to bear their own costs. H.B.T./A‑198/L Revision dismissed.