Noor Muhammad VS Niaz Ahmed

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

C.R. No.852-D/2003

Noor Muhammad Versus Niaz Ahmad etc.

JUDGMENT

Date of Hearing: 14.10.2021.

Petitioner by: Mian Tahir Iqbal, Advocate.

Respondents by: Sheikh Muhammad Ashraf, Advocate.

Anwaar Hussain, J. Through this single judgment, I intend to decide Civil Revision No.518-D/2002, Civil Revision No.852- D/2003 and Civil Revision No.1317-D/2010, as all the petitions relate to same property i.e., half share of Plot bearing No. 58, measuring 3-Marla & 2-Sarsahi comprising of Khewat No.218, Khatooni No.227, Khasra No.6/9/9, according to the Register Haqdaran-e-Zamin for the years 1996-97, situated at Chak No.168/10-R, Beerbal Kot, Khanewal, (hereinafter “the Suit Property”) and involve the same parties. The three Civil Revisions referred above emanate from three successive rounds of litigation, between the same parties, qua the Suit Property, as a result of challenge laid down by the petitioner that he was entitled to allotment of the Suit Property in accordance with provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter “the Act 1958”); however, his elder brother namely, Muhammad Hanif (deceased), fraudulently got the entire Plot No. 58 allotted in his favour, by virtue of Transfer Order No. 58883 dated 29.01.1975

(hereinafter “the Impugned Transfer Order”), although possession of the petitioner qua the Suit Property is admitted by the parties.

2.Having laid down the brief background of the chequered history of the dispute between the parties, qua the Suit Property, it is imperative to note, at the outset, that I intend to pen down the judgment in Civil Revision No. 852-D/2003 (hereinafter “CR No.852”), as the same emanates from the first round of litigation.

3.On 28.07.1998, Noor Muhammad (hereinafter “the petitioner”) instituted a civil suit for declaration (hereinafter “the First Suit”), against one Muhammad Shaukat son of Muhammad Hanif (deceased) and others (all hereinafter “the respondents”). It is to be noted that the said Muhammad Shuakat was arrayed as respondent No.2, who has also expired during the pendency of the Civil Revisions. The respondents in all the three petitions are successor-in-interest of said Muhammad Hanif. In the First Suit, the petitioner alleged that he is in possession of the Suit Property as owner and the Impugned Transfer Order, in favour of deceased Muhammad Hanif qua entire Plot No.58, is liable to be set aside being inoperative against his rights to the extent of half of its portion, which is the Suit Property. Written statement was filed, matter was thoroughly contested, and complete trial was conducted; however, the First Suit was dismissed by the learned trial court, vide judgment and decree dated 05.10.2000, which was upheld by the learned appellate court below on 02.12.2000, on the ground that since the matter relates to allotment of the Suit Property under the Act 1958, the civil courts have no jurisdiction by virtue of Section 25 thereof. Hence, CR No.852 was filed in this Court on 05.07.2002, and Office raised certain objections, which was later allotted number in the year 2003 after the objections were removed. It is also worth mentioning that prior to filing of the CR No.852, the petitioner moved a revision/application with the Additional Commissioner (Revenue)/Settlement Commissioner Multan Division, Multan, for

cancellation of the Impugned Transfer Order, which was dismissed on 10.01.2001 on the ground that after promulgation of Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975 (hereinafter “the Act 1975”), Settlement Authorities have no role to play in the matter of allotment, which constrained the petitioner to file another civil suit for the same relief as prayed in the First Suit. Civil Revision No.518-D/2002 (hereinafter “CR No. 518”) emanates from the Second Suit instituted by the petitioner on 10.02.2001, after passing of order dated 10.01.2001 by the Settlement Authorities. The Second Suit was dismissed simply on the basis of principle of Res Judicata, vide order and decree dated 07.11.2001, which was upheld by the learned District Judge, Khanewal, vide judgment and decree dated 11.01.2002. It is pertinent to mention here that CR No.518, though arising out of the second round of litigation between the parties and lays challenge to the order/judgment and decrees dated 07.11.2001 and 11.01.2002 passed by the learned courts below; however, by that time judgments and decrees passed in the first round of litigation dated 05.10.2000 and 02.12.2000 were not challenged and CR No.852 was filed on 05.07.2002 after filing of CR No.518. Thereafter, the respondent side instituted a suit for possession on 20.02.2002 (hereinafter “the Respondents’ Suit”), before the learned Senior Civil Judge, Khanewal contending therein that the Suit Property is part and parcel of Plot No.58, which was in ownership of Muhammad Hanif, predecessor-in-interest of the respondents pursuant to the Impugned Transfer Order issued by the Settlement Authorities after fulfilling all legal formalities and that the petitioner is in possession of the Suit Property, as a licensee only. Predecessor-in-interest of the respondents allowed the petitioner to keep the possession as temporary residence after the petitioner moved to Khanewal from Bhera; when the petitioner was asked to vacate the Suit Property and deliver its possession to them, he flatly refused to do so and instituted the First Suit, which was dismissed, detail whereof has already been mentioned hereinabove. The

petitioner contested the Respondents’ Suit by filing written statement. Issues were framed and evidence led by the parties was also recorded. Thereafter, learned trial court proceeded to decree the Respondents’ Suit, vide judgment and decree dated 04.03.2006. The petitioner preferred appeal, which failed to find favour with the appellate court and the appeal was dismissed vide judgment and decree dated 13.11.2010 passed by learned Additional District Judge, Khanewal. Hence, Civil Revision No. 1317-D/2010 (hereinafter “CR No. 1317”) has been filed by the petitioner whereby challenge has been mounted against the judgments and decrees dated 04.03.2006 and 13.11.2010 by the learned courts below in the third round of litigation.

4.Learned counsel for the petitioner submits that judgments and decrees of learned courts below in the First Suit have been passed without appreciating the evidence adduced and merely on the ground that the civil court has no jurisdiction to decide the questions of validity of the allotment under the Act 1958 and the petitioner has remedy before the Settlement Authorities. Adds that the said ground is not justified inasmuch as the Settlement Authorities itself refused to decide the revision/application of the petitioner to cancel the allotment in favour of the predecessor-in-interest of the respondents on the basis of the Act 1975. Therefore, CR No.852 merits acceptance and the matter must be remanded to the trial court to decide the same after appraisal of the evidence, which has been duly adduced and got recorded by both sides respectively or this Court in its revisional jurisdiction appraise the evidence on record, which will reveal that the petitioner took possession of the Suit Property while his brother Muhammad Hanif (deceased) took possession of remaining half of Plot No.58. Submits that as a natural corollary of the acceptance of CR No.852, the remaining two civil revisions would become infructuous. On merits, with respect to his case, learned counsel for the petitioner submits that the matter has not been decided with correct appreciation of law and fact. In the First

Suit evidence has not been appreciated and the impugned judgment and decree in the Respondents’ Suit is result of non-reading and misreading of evidence. Contends that the Respondents’ Suit has been decreed primarily on the basis of the dismissal of the First and Second Suits filed by the petitioner and on the wrong assumption of title of the respondents having been established after the dismissal of the earlier two suits filed by the petitioner. Adds that this Court needs to appreciate the evidence recorded in the First Suit, which will reveal that the petitioner was in possession of the Suit Property along with predecessor-in-interest of the respondents from the outset and said predecessor-in-interest, in connivance with the Settlement Authorities wrongly got allotted the entire Plot No.58 in his favour. Further argues that if record of CR No. 1317 is perused by this Court, the same will also reveal that evidence has been misread as the predecessor-in-interest of the respondents, who happened to be elder brother of the petitioner, has defrauded the petitioner and robbed him of his title to the Suit Property by approaching the Settlement Authorities and getting allotment of the Suit Property wholly in his favour despite the fact that the possession of the petitioner over the same has been admitted by the respondents’ side. Places reliance on Abdul Ghafoor and 3 others v. Feroze Bibi and 8 others (1974 SCMR 193) and Syed Saeed Hussain v. Settlement & Rehabilitation Commissioner, Lahore and another (1974 SCMR 19) to contend that allotment under the Act, 1958 can only be made on the basis of possession, which fact has been ignored. Finally prays that CR No.852 be accepted and the petitioner be declared as lawful owner of the Suit Property whereas CR No. 1317 be accepted and the Respondents’ Suit be dismissed. Qua CR No. 518, submits that the same has become infructuous in any eventuality.

5.Conversely, learned counsel for the respondents submits that the petitioner was merely a licensee of their predecessor-in-interest as the former had shifted from Bhera to Khanewal where the said predecessor-in-interest was already residing, which fact is even

admitted by the witnesses produced by the petitioner in the First Suit. The petitioner was allowed to live in the Suit Property as he had nowhere else to live in Khanewal. Therefore, the petitioner was not entitled to any allotment and it is for this reason, the Settlement Authorities after verifying this fact allotted the Suit Property in the name of their father Muhammad Hanif (deceased). However, after his demise, when the respondents came to know about the factum of the ownership of the Suit Property in favour of their predecessor-in- interest, the petitioner was asked to vacate the Suit Property but he kick-started frivolous litigation to deprive the respondents from their lawful right. Adds that remanding the matter is not in the interest of justice and evidence recorded in the first and third round of litigation clearly shows that the petitioner has no case at all. Finally argues that even if the courts below have not appreciated the evidence recorded in the First Suit, this Court has ample powers to do the appraisal which will clearly reveal glaring contradictions in the statements of PWs and as such the First Suit instituted by the petitioner was baseless on merits as well. Prays for the dismissal of the three petitions.

6.Arguments heard. Record perused.

7.Before dilating upon controversy on its merits, I would first like to address whether matter is required to be remanded as admittedly evidence in the First Suit has not been appreciated by both the courts below. The Impugned Judgment and Decree dated 05.10.2000 of learned trial court in the First Suit, which was upheld by the learned District Court, is based primarily on the ground that the civil court lacked jurisdiction to try the First Suit as the Suit Property had been allotted by the Settlement Authorities. This finding of fora below is clearly not sustainable in the light of dicta laid down by the Hon’ble Supreme Court of Pakistan in Ghafoor Bukhsh v. Haji Muhammad Sultan and others (PLJ 2000 SC 1933) wherein it has been held that after promulgation of the Act 1975,

Settlement Authorities have no jurisdiction to decide the matter. In view of the ratio laid down in Ghafoor Bukhsh supra, it is clear that the learned court erred in deciding Issue No. 5 framed in the First Suit and rejected the plaint thereto, on the basis of Order VII, Rule 11, Code of Civil Procedure, 1908 (hereinafter the CPC”). This fact alone could be made basis to allow CR No.852 and remand the matter as prayed for by the petitioner but that, I am of the view, amounts to replay of an agonizing and protracted trial already undergone by both the parties for a period of more than two decades and would demonstrate an empirical evidence of oft-used maxim- justice delayed is justice denied. Moreover, remanding the matter would serve no purpose as in the first and third round of litigation, complete evidence of the parties has been recorded and is sufficient to sift the chaff from the grain and bring out the truth to the surface to reach a just conclusion. Remanding the matter after such a long period of two decades would not only take its toll on the finance of the parties by causing further holes in the pocket but also while away the time of the parties as well as judicial apparatus of the state. This Court while exercising its revisional jurisdiction needs to remain pivoted to the object of remanding a case. Where this Court finds that sufficient material and evidence has been brought on record, remanding the matter would not serve any useful purpose. Remand of a case needs to be resorted to only in a situation where this Court feels handicapped and is unable to reach a just conclusion on the basis of material and evidence available on record. It is settled principle of law that where oral and documentary evidence is already on record and the parties have satisfactorily availed the opportunity of leading evidence, the case must be decided and should not be remanded. I am fortified by the law laid down by the Hon’ble Supreme Court of Pakistan in Pramatha Nath Chowdhury and 17 others v. (1) Kamir Mondal (2) Ismail Mondal (3) Baju Mondal alias Hagura Mondal and (4) Dukha Mondal (PLD 1965 SC 434), Fateh Ali v. Pir Muhammad and another (1975 SCMR 221), Nasir Ahmad

and another v. Khuda Bukh and another (1976 SCMR 388), Amanullah Khan (A. Khan) v. Chotey Khan (1978 SCMR 14), Sarwar Khan v. Mir Ali and 10 others (1980 CLC 110), Arshad Ameen v. Messrs Swiss Bakery and others (1993 SCMR 216) and Muhammad Darvesh Al-Gilani and 14 others etc. v. Muhammad Sharif and others (1997 SCMR 524). Therefore, instead of remanding the matter to the trial court, in view of the fact that the Hon’ble Supreme Court of Pakistan has discouraged the remand orders as discussed hereinabove, I intend to decide the three petitions on merits while appreciating the evidence recorded in the first round of litigation, resulting in CR No.852, in the revisional jurisdiction of this Court for the first time while separately analyzing the evidence recorded in the third round.

8.At this juncture, the question of law which also needs to be answered first is whether this Court can do the appraisal of the evidence duly recorded in the trial for the first time in revisional jurisdiction, which admittedly was not appreciated and analyzed either by the trial court or the appellate court below. In this regard, I am of the view that there is no impediment, under the law, qua power of this Court to appraise the evidence for the first time in its revisional jurisdiction inasmuch as powers of this Court under Section 115, CPC are not limited in nature. The judgment of the Hon’ble Supreme Court rendered in case cited as Manager, Jammu & Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) provides ample guidance in this regard. The august Court at Page-697 has held as under:

“...The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and Secondly, the Court “may make such order in the case as it thinks fit”.

(Emphasis supplied)

9.Perusal of the record reflects that in the First Suit filed by the petitioner, the entire plea of the petitioner for seeking declaration qua the Suit Property is his defence in the Respondents’ Suit filed by the respondents and in both the suits evidence has been duly recorded except that in the First Suit, same has not been appreciated by the trial court or the appellate court. It is pertinent to point out that the First Suit leading to CR No.852 was based on the claim of the petitioner that the Impugned Transfer Order is result of fraud and misrepresentation as predecessor-in-interest of the respondents, namely, Muhammad Hanif (the elder brother of the petitioner) got transferred the whole property, measuring 06 Marlas 04 Sarsais, in his name instead of half of the Plot bearing No. 58 as said half, which is the Suit Property and was admittedly in possession of the petitioner from the beginning and was required to be transferred in the name of the petitioner. The following issues were framed in the First Suit:

“ISSUES

1.Whether the plaintiff has got no locus-standi and cause of action? OPD.

2.Whether the suit is not maintainable in its present form?

OPD.

3.Whether the plaintiff is estopped by his words and conduct, to bring this suit? OPD.

4.Whether the plaintiff has approached the Court with unclean hands, hence, is entitled to any discretionary relief? OPD.

5.Whether the plaintiff (sic) is liable to be rejected u/o VII rule 11 CPC? OPD.

6.Whether the suit is barred by section 42 & 56 of the Specific Relief Act? OPD.

7.Whether the defendants are entitled to recover special costs u/s 35-A CPC? OPD.

8.Whether the suit is within time? OPP.

9.Whether the plaintiff is owner of half portion of plot No.58 and is in his possession as an owner and the transfer order No.58883 dated 29.1.75 and account No.569 for entries as plot No.58 in favour of Muhammad Hanif, deceased are against law and fact, fraudulent, void ineffective qua the rights of the plaintiff and liable to be cancelled? OPP.

10.Whether the plaintiff is entitled to the decree as prayed for? OPP.

11.Relief.”

(Emphasis supplied) In Respondents’ Suit, following issues were framed:

“ISSUES

1.Whether the construction in the suit property was raised by Muhammad Hanif, the predecessor-in-interest of the plaintiffs and he gave the suit property to the defendant for temporary residence? OPP.

2.Whether the plaintiff is entitled to the decree for possession of the suit property as prayed? OPP

3.Whether the plaintiff has got no cause of action and locus standi to file the suit? OPD

4.Whether the suit of the plaintiffs is liable to be rejected under Order 7 Rule 11 CPC? OPD

5.Whether the defendant is/has been in possession of the suit property measuring 3-M & 2-S since 1958 and as such the deed dated 29.1.1975 prepared by the Settlement Authorities in favour of the plaintiffs is illegal, against law and facts, hence ineffective qua the rights of the defendant? OPD

6.Relief.”

(Emphasis supplied)

When above-quoted issues in the first and the third round of litigation are put in juxtaposition, it is apparent that Issue No. 9 in the First Suit filed by the petitioner is precisely covered in the form of Issue No. 5 in the Respondents’ Suit inasmuch as by virtue of both the issues, the petitioner was under burden of proof to establish his title to the Suit Property. In order to discharge the burden of

proof qua Issues No.8 and 9 framed in the First Suit, the petitioner had full opportunity to adduce the evidence, which was produced and recorded in both first and third round of litigation.

10.The First Suit was instituted on 28.07.1998. In the First Suit as many as five PWs appeared including the petitioner himself. The petitioner appeared as PW.4. It was the case of the petitioner in the First Suit that he along with his father namely, Gulab as well as brother Muhammad Hanif came to Bhera from India and from there to Khanewal and got possession of Plot No. 58, in respect of which the petitioner trusted his elder brother Muhammad Hanif for the transfer of the Suit Property in his name; however, the former came to know about the fraudulent transfer by way of the Impugned Transfer Order in favour of said Muhammad Hanif few days prior to the institution of the First Suit when he decided to sell the Suit Property to move to some other vicinity whereas it was defence of the respondent side that their predecessor-in-interest (Muhammad Hanif) came alone from India directly to Khanewal and settled there, and when later, the petitioner came to Khanewal from Bhera, said Muhammad Hanif allowed the petitioner to live in the Suit Property as a licensee only.

11.The petitioner was obligated to prove that he along with his father namely, Gulab and brother Muhammad Hanif came together from Bhera to Khanewal, he paid the dues required under the Settlement Laws and that deceased Muhammad Hanif was not in prior possession of the Suit Property. Perusal of evidence reveals that the petitioner appeared as PW.4 and in his examination-in-chief stated as under:

’’ںیم ےن زویر رفوتخ رک ےک الپٹ فصن ہصح یک تمیق ادا یک یھت۔ ںیم ےن دیعس ادلنی ےک اسےنم رمق دی یھت اور اس ےن یہ اسرے اکم رکواےئ ےھت وقحق تیکلم ےک وصحل ےک ےئل دمحم فینح وک اایتخر دای وہا اھت اور ویہ

ریپوی رکات اھت۔ دمحم فینح ےن ریمی ال یملع ںیم اسرے الپٹ اک

PTDطلغاحلصرکایل۔ںیمفصنہصحالپٹاکامکلوہں۔‘‘

)(Emphasis supplied

While in cross-examination, PW.4 stated as under:

’’ںیمےنالپٹیکینتکتمیقدییھتہناتباتکسوہں ۔‘‘

He further stated as under:

’’ںیمےنوجتمیقادایکیھتاسیکردیسریمےاپسہنےہ۔‘‘

Whereas PW.3, namely, Saeed-ud-Din, appeared and stated in cross- examination as under:

’’ملعہنےہہکدمیعےناالٹنمٹےکےئلینتکرمقادایکیھت۔‘‘ Similarly, regarding the time when the parties came to Pakistan, PW.1 namely, Khalil Ahmed, during the cross-examination stated as under:

’’دمیع اور دمحم فینح اک وادل دنہواتسن ےس رجہت رک ےک دمیع ےک 4/5 اسلدعبآایاھت۔‘‘

PW.2, namely, Karim-ud-Din in cross-examination stated as under:

’’دمیع اور دمحم فینح ریمے اسےنم اپاتسکن آےئ ےھت۔ وشتک ،فینح اور ان اک وادل الگب ااسکیھت اپاتسکن آےئ ےھت رھپ اہک ہک الگب ،فینح اور دمیع اک وادلاھت۔۔۔طلغےہہکدمحمفینحےلہپاپاتسکنآایاوردعبںیمونردمحم آای اوررھپ آرخ ںیم ان اک وادل آای اھت۔ رھپ اہک ہک ایدہن ےہ ہک ان ںیم ےسےلہپوکناوردعبںیموکنآایاھت۔‘‘

PW.3 in his examination-in-chief stated as under:

’’دمیع اور دمحمفینحےک وادل ےن اپاتسکن آ رک اکی الپٹ رپ 2ےصح رک ےک 2اکمن انب رک اکی اکمن دمیع وک اور اکی دمحم فینح وک دے دای۔اس وتق ےس رفنیقیاےنپاےنپاکمنںیمراہٗشزپریںیہ۔‘‘

Whereas while being cross-examined, PW.3 stated that:

’’اپاتسکن ںیم بس ےس ےلہپ الگب وادل آای اھت اور اس ےک دعب اپاتسکن ‘‘ںیمفینحآایاھتاورفینحےکدنچروزدعبدمیعآایاھتـ

The petitioner as PW.4 while being cross-examined stated:

اسل دعب2 ’’اخوینال ںیم بس ےس ےلہپ فینح آای اھت اور اس ےس ‘‘ںیماہیںآایاھت۔

(Emphasis supplied)

Perusal of above evidence recorded in the First Suit, and quoted hereinabove for facility of reference, brings forth glaring contradictions in the statement of the petitioner and his witnesses. On top of this all is the statement of the petitioner himself when he states that in Khanewal, it was Muhammad Hanif deceased who came first and the petitioner reached Khanewal two years thereafter. This statement alone shows that possession over the Suit Property falling under the purview of Settlement Laws, for the purpose of allotment to displaced persons after the partition in 1947, was that of predecessor-in-interest of the respondents in the first place and the petitioner entered into the same as a mere licensee and his possession was only permissive in nature. Hence, the case of the petitioner that he and his brother i.e., deceased Muhammad Hanif came to Khanewal together when their brother in law Khalil Ahmed (PW.1) invited them and they got the possession of Plot No.58 jointly to the extent of their respective shares and that the possession of the Suit Property rests with the petitioner from day one stands shattered and caves in under the weight of the contradictory evidence of the petitioner himself. There are contradictions not only qua the time when the petitioner came to Khanewal and got possession of the Suit Property but also regarding the amount of money paid as dues and the person in whose presence the said payment was made. The petitioner admits that he is not aware of the quantum of money he paid for getting the allotment. More importantly, the petitioner

mentioned PW.3 as his witness in front of whom he made the purported payment but the said PW.3 showed his complete ignorance about the payment. Similarly, PW.2 Karim-ud-Din states that he is witness of when the petitioner and deceased Muhammad Hanif came to Pakistan. He deposes that the petitioner, deceased Muhammad Hanif, their father Gulab and respondent No.2, namely, Muhammad Shaukat together came to Pakistan. This fact is, however, belied as the partition took place in 1947 when said Muhammad Shaukat was not even born as it is an admitted position that his birth took place in Bhera (Pakistan). No doubt, there are also some contradictions in the statements of the witnesses produced by the respondents’ side but it is undisputed fact that the respondents were minors at the time when the petitioner came to Khanewal, which is admitted in para 3 of the written statement filed by the petitioner himself in the Respondents’ Suit. Even otherwise, on one hand, there is a title document in favour of the predecessor-in-interest of the respondents, which remained unchallenged for more than 23 years and on the basis of which mutation No.5132 has been effected in favour of the respondents after the demise of deceased Muhammad Hanif and on the other hand, mere vague assertion has been made that fraud was committed by the predecessor-in-interest of the respondents in the year 1975. No particular of the fraud has been spelled out either in the pleading or through the evidence and hence, the petitioner failed to comply with the requirements of Order VI, Rule 4 of the CPC. Ghulam Shabbir v. Mst. Nur Begum and others (PLD 1977 SC 75) and Taj Muhammad Khan through LRs and another v. Mst. Munawar Jan and 2 others (2009 SCMR 598) are referred in this regard.

12.The matter can be examined from another angle i.e., examination of the settlement record. Respondents produced the receipt of payment of settlement dues (Ex.D-3), notice of transfer (Ex.D-4) and most importantly application for transfer of the evacuee property bearing Plot No. 58 to predecessor-in-interest of the respondents dated 14.11.1958 (Ex.D-5). Perusal of Ex.D-5 alone

indicates that the deceased Muhammad Hanif (predecessor-in- interest of the respondents ) was in possession of Plot No.58 since 1947 when a hut ( ) وھجیگنwas there on the said Plot, which was constructed with the permission of the then SDO namely, Khan Ahmed Raza Khan, and on 03.02.1952, predecessor-in-interest of the respondents constructed a room thereon. This fact also refutes the claim of the petitioner that he and predecessor-in-interest of the respondents occupied Plot No.58 simultaneously, more particularly when the petitioner admits that he came to Khanewal in the year 1958 two years after the predecessor-in-interest of the respondents. The petitioner failed to produce or bring on record any other document such as survey form the Settlement Department in the First Suit, which was the best evidence that could have resolved the present controversy qua possession of the Suit Property as admittedly allotment was based on the possession at spot. In this regard, PW.1, while being cross-examined stated that:

‘‘’’وجصخسجہگجرپاقضباھتاسوکیہاالٹنمٹیک یئیھت۔ـ

Similarly, PW.2 while being cross-examined stated as under:

’’درتس ےہ ہک وج صخ ومعق رپ اقضب اھت اس وک یہ الپٹ االٹ ےئک ےئگ ‘‘ںیہ۔

PW.3 also stated as under while being cross-examined:

‘‘’’درتسےہہکالپٹرصفانولوگںوکاالٹوہےئےھتوجومعقرپاقضبےھت۔ The petitioner himself as PW.4 while being cross-examined stated as under:

’’درتس ےہ ہک اکمن اس وک االٹ ایک ایگ وج ومعق رپاقضب اھت۔ از وخد ہک ہک ‘‘ںیمیھبومعقرپاقضبوہںاوررشوعےساقضبوہں۔

By not producing or summoning the record from the Settlement Authorities to establish as to what the survey report indicates, the

best evidence has been withheld by the petitioner and adverse assumption is to be taken against him in terms of illustration (g) to Article 129 of Qanun-e-Shahdat Order, 1984. I am fortified by the dicta laid down by the Hon’ble Supreme Court in Dilshad Begum v. Mst. Nisar Akhtar (2012 SCMR 1106).

13.The petitioner was obligated to discharge the onus of proof qua Issues No. 8 in general and No. 9 in particular, framed in the First Suit. The above discussion and appraisal of the evidence propels me to draw the conclusion that the petitioner failed to substantiate his claim in the First Suit through preponderance of evidence as from the evidence adduced and recorded, neither it is deducible that the petitioner and predecessor-in-interest of the respondents came into possession of respective shares of Plot No. 58 simultaneously nor the element of fraud in allotment of said plot could be proved. It is pertinent to note that CR No.852 merits dismissal being time barred as well since through CR No. 852, challenge to judgments and decrees dated 05.10.2000 and 02.12.2000, passed in the first round of litigation, has been laid but the same was filed in this Court on 05.07.2002, after a gap of one year, seven months and three days and was allotted a diary No. 1097/2002 and certain objections were raised. Alongwith CR No.852, a civil miscellaneous application bearing No.2-C/2003 for condonation of delay, occurred in filing the said CR, was also filed specifying the reasons that after dismissal of the First Suit, vide judgment and decree dated 05.10.2000, upheld by learned appellate court below on 02.12.2000, the petitioner approached the Settlement Authorities on 22.12.2000 by filing application, which was dismissed on 10.01.2001 and hence, the delay was liable to be condoned as the petitioner was pursuing the matter, with the Settlement Authority, in good faith, in terms of judgment dated 05.10.2000 passed by the trial court and upheld by the learned appellate court. By the time, CR No.852 was taken up on judicial side on 30.09.2003, CR No.518 emanating from the second round of

litigation was already set down for hearing. Learned counsel for the parties have not attended to this aspect of the matter during the course of arguments, however, perusal of record revealed the same and this Court is obligated to address the limitation issue as well. Admittedly, through CR No.852, judgments and decrees dated 05.10.2000 and 02.12.2000 have been assailed after a gap of about one year, seven months and three days instead of laying the challenge within the stipulated period of 90 days. The reasons provided in the application for condonation of delay too are misconceived on the ground that the Settlement Authorities passed order on 10.01.2001 and even if the period consumed with the Settlement Authorities is excluded, yet the instant CR No.852 having been filed on 05.07.2002, i.e., with delay of one year, five months and twenty-five days, is badly time barred. In fact, the petitioner, instead of immediately filing CR No.852, instituted the Second Suit and when he lost the same as well, the instant CR No.852 was filed alongwith application for condonation of delay.

14.Although, having analyzed and appreciated the evidence on record and reaching the conclusion that the petitioner failed to establish his claim qua the Suit Property in the First Suit instituted by him, CR No. 518 and CR No. 1317 automatically fails; however, since the learned courts below decreed the Respondents’ Suit for possession after recording evidence of the parties, I feel it appropriate to briefly examine the same as well more so when preponderance of evidence in the third round of litigation too clearly shows that the petitioner failed to establish his lawful claim qua the Suit Property. The petitioner took wavering stance in the third round of litigation as well regarding the knowledge of the purported fraud. As opposed to the First Suit wherein he stated that he came to know about the fraud few days prior to institution of the First Suit, which falls somewhere in the month of July, 1998, in the third round of

litigation he has stated that he came to know about the fraud when he got the gas connection installed, which was about ten years prior to recording of evidence. The evidence in the third suit was recorded somewhere in the year 2002, which indicates that the installation of gas connection took place in the year 1992. Nothing has been stated as to why the petitioner remained mum till filing of the First Suit in the year 1998. In the third round of litigation, the petitioner was defendant and he presented as many as three witnesses while defending the Respondents’ Suit. Surprisingly, the witnesses who appeared in the earlier round of litigation were not presented and when confronted no explanation to this extent was given during the course of arguments as to whether they were alive or dead or otherwise not available at relevant point of time. In the third round DW.1 namely, Fateh Muhammad, in his examination-in-chief, stated as under:

’’دمیع اک دادا الگب رجہت رک ےک ریھبہ رہش ںیم آابد وہا۔ رجہت دنہواتسن ےس یک۔ دمیع اک دادا ایگرہ اسل ریھبہ ںیم راہ۔ فینح اور ونر دمحمیھبالگبےکاسھتریھبہںیمآابدےھت۔دمیعیکوھپیھپاکرہتشاخوینال ںیم ےط وہا وج ہک مہ ےن ایل اورمہ الگب وک واہں ےس ااھٹ رک اخوینال ںیم الےئ۔ الگب ےن رساکری اکمن رپ ہضبق ایک اور راہشئ ریھک۔اکمن ذموکرہ وک دو وصحں ںیم میسقت رک ےک فینح اور ونر دمحم وک دای ایگ۔ الگب ونر دمحم ےک ‘‘اسھتراتہاھت۔

In cross-examination, DW.1 stated as under:

فینح اور الگب اےھٹک، ونر دمحم،’’دنہواتسن ےس رجہت رک ےک وشتک ریھبہ آےئ ےھت۔ ہی امتم ارفاد ایگرہ اسل کت ریھبہ ںیم رےہ۔ ےھجمایدہنےہہکدنہواتسنےسوکنےسنسںیمآےئےھت۔ےھجمایدہنےہ ‘‘ہکہیارفادسکنسںیمریھبہےساخوینالآےئےھت۔

DW.1 further stated as under:

’’ریمے اسےنم ونر دمحم دماع ہیلع ےن فینح وک رمق دی۔ ریمے ملع ںیم ہن ےہ ہک ینتک رمق دی یھت۔ بج دمحم فینح ےن ہمکحم سیٹلمنٹ ‘‘ںیمعمجرکوایئںیماسھتہناھتاسےئلےھجمرمقاکملعہنےہ۔ (Emphasis supplied)

One Jeewan appeared as DW.2 who stated in his cross-examination as under:

’’ونر دمحم ےنریمےاسےنم ابتب االٹنمٹ دمیع ےک وادل دمحم فینح وک رمق ہن دی یھت۔ ریمے ملع ںیم ہن ےہ ہک ونر دمحم ےن زویارت ےچیب۔ ‘‘ںیموبتقریمعتاکمانتوطبررگنانہنڑھکااھت۔

DW.3 Noor Muhammad (petitioner) deposed as under:

روےپرمق دییھتںیمےنبجرمقاےنپئاھیئوکدی146/’’االٹنمٹیکابتب اس وتق وکیئ اور وموجد ہن اھت۔ ۔۔۔۔ںیم ےن وج اکمانت ریمعت رکواےئ اس یک ابتب ریمے اپس ردیسات وموجد ںیہ۔ از وخد اہک ہک رتسمی یھب زدنہ ےہ۔ ںیم ےن وجاب دوعی ےک اسھت ردیسات ابتب ریمعتات ہن اگلیئ ںیہ۔۔۔۔۔ںیم ےن وج وگااہن شیپ ےئک ںیہ۔ ان یک رگناین ںیم اکمانت ریمعت رکواےئ۔۔۔۔۔۔االٹنمٹ ےضبق کیمطاقب وہیئ۔ اہتبل ریما ہضبق یھب اھت۔ رسوے ٹسل ںیم ریما انم ہن آای اھت۔ ںیم ےن اینپ رطف ےس وکیئدروخاتسسیٹلمنٹہنزگاریےہویکہکنےھجماسرفاڈاکملعہناھتازوخد ںیم سیٹلمنٹ وےسی یہ متخ وہ ایگ۔ ںیم ہمکحم سیٹلمنٹ ےک1974 اہک نس درتف ںیم اجدیئاد دتموعہی یک االٹنمٹ ےک ہلسلس ںیم یھبک ہن ایگ روےپ293/- اھت۔۔۔ہمکحم سیٹلمنٹ ںیم االٹنمٹ یک ابتب واابجت رساکر ‘‘عمجوہےئےھت۔ےھجمملعہنےہہکسیٹلمنٹیکینتکسیفیھت۔۔۔ (Emphasis supplied)

As observed earlier while appreciating and analyzing the evidence recorded in the First Suit, settlement record was not produced or summoned to establish how the survey was conducted, what amount of dues was paid etc. Similarly, neither receipts were presented and produced nor this factum of availability of receipts is mentioned in the pleadings and hence, evidence cannot be led beyond pleadings. Moreover, the same is result of too and for swings of the petitioner. Furthermore, DW.3 has also stated that no one was present at the time of making payment of the Plot whereas DW.1 stated in his examination-chief in the Respondents’ Suit that when the price was determined and paid qua the Suit Property, both the brothers paid the amount collectively and in cross-examination stated that payment

was made in front of him by the petitioner to predecessor-in-interest of the respondents. Similarly, while being cross-examined, on one hand, the petitioner has stated that he is not aware of amount of settlement fee and on the other hand, in the same breath, he referred an amount of Rs.293/- as dues deposited with the settlement department. In addition, the petitioner in his evidence in the Respondents’ Suit admitted that the allotment was made on the basis of the possession and the survey by the Settlement Authorities was conducted and his name was not in the survey list, which fact itself reflects that the petitioner was aware of exclusion of his name even at that time when survey was made. So the stance of the petitioner gets belied in this manner also.

15.In the Respondents’ Suit, there is also an interesting angle of the case. The petitioner in his written statement in the Respondents’ Suit has not clearly stated anything about the time of knowledge of purported fraud but while appearing as DW.3 has related the time of knowledge of fraud with the installation of gas connection when he has admittedly obtained affidavit of respondent No.2 (Muhammad Shaukat, deceased), in the following manner:

’’ہکبجںیمےنوسیئسیگاکرٹیموگلاای وتدمیعاک ایبنیفلحاسھتاگلای۔ازوخد اہکہکاسوتقےھجماسرےرفاڈاکملعوہا۔ےھجمنسایدہنےہاہتبل دس اسل لبق ںیم ےن وسیئ سیگ اک رٹیم وگلاای۔ اجدیئاد دتموعہی یکابتباالٹنمٹ ےکاکذغاتھچکدنریمےاپس رےہںیہ۔ےھجمایدہنےہ ہک وکن ےس نس ںیم اکذغات ریمے اپس رےہ۔ از وخد اہک ہک اکذغات ارگنزیی ںیم ےھت اور ںیم وھتڑا ڑپاھ وہا وہں اس ےئل ےھجم ملع ہن اھت ہک اس ںیم ایک رفاڈ ےہ۔ ہی اکذغات ریمے اپس ‘‘االٹنمٹےکدعبرےہ۔رھپںیمےنہیاکذغاتدمیعےکوحاےلےئک۔ (Emphasis supplied)

Perusal of above reveals that the petitioner admits that while getting gas connection, the petitioner obtained affidavit of his nephew Muhammad Shaukat (defendant No.1 in the First Suit) for

installation of the Sui Gas connection, which indicates that the petitioner knew that the respondents are the real owners and Sui Gas Company certainly had asked for title documents and that were in name of the predecessor-in-interest of the respondents. The question arises as to why the petitioner did not object immediately as and when he first came to know about the ownership of the respondents over the Suit Property. No evidence with regard to the application for gas connection has been adduced to establish that why the affidavit of Muhammad Shaukat (deceased) was even required qua the Suit Property. This was best evidence to indicate his date of knowledge of fraud and why he was constrained to obtain affidavit for installation of gas. Perusal of above evidence in the third round of litigation also unequivocally establishes that the documents of allotment remained with the petitioner. It is surprising that the petitioner never got alarmed about incorporation of name of deceased Muhammad Hanif as owner of the entire Plot No.58 of which the Suit Property is a part. The explanation furnished during the evidence in this regard that the petitioner was not literate enough to understand English Language and hence, could not discover fraud committed by predecessor-in- interest of the respondents, is also not plausible, more particularly when the application for allotment of the Plot (Ex.D-5) was in Urdu language and the petitioner was admittedly literate enough to read the same. Perusal of above evidence also reveals that the petitioner was not only well aware of the allotment but also acknowledged the same by getting the affidavit of one of the respondents and not challenging the same immediately, and in this manner his claim to the title of the Suit Property is baseless. In this view of the matter, CR No. 1317 also lacks merit.

16.So far as reliance on Abdul Ghafoor and Syed Saeed Hussain supra is concerned, the facts of both the cases are distinguishable from that of the instant matter inasmuch as the possession of the claimants in the referred cases was not disputed by any of the side for the purpose of allotment under the Act, 1958 whereas in the

present case, the possession is disputed with the claim by the respondents that their predecessor-in-interest, occupied Plot No.58, who got allotment of the same after the survey, which was conducted in accordance with law and the petitioner was in possession as a licensee of the former only and hence, was not qualified for the allotment under the law.

17.In view of the above discussion, Civil Revision No. 852- D/2003 emanating from the First Suit is dismissed and the judgments and decrees dated 05.10.2000 as well as 02.12.2000 passed in the First Suit by both the courts below are modified in the way that the said suit, instituted by the petitioner, is dismissed on merits after appraisal of evidence and not on the basis of lack of jurisdiction. CR No. 852-D/2003 is also liable to be dismissed being badly time barred. As a consequence of the same, connected Civil Revision No.518-D/2002 as well as Civil Revision No. 1317-D/2010 have no merit, hence, the same are also dismissed.

(ANWAAR HUSSAIN)

Judge Akram

Approved for reporting.

Judge