Muhammad Amir Khan vs Musharaf Khan

2014 Y L R 931

[Peshawar]

Before Malik Manzoor Hussain, J

MUHAMMAD AMIR KHAN and others---Petitioners

Versus

MUSHARAF KHAN and others---Respondents

Civil Revision No.15 of 2013, decided on 21st November, 2013.

(a)Civil Procedure Code (V of 1908)---

----S.115---New ground raised at revision stage for the first time---Validity---Plea neither raised in the written statement nor taken before trial Court, could not be entertained or considered in the revisional jurisdiction of High Court.

Khan and others v. Province of Punjab and others 2005 SCMR 1135 rel.

(b)Civil Procedure Code (V of 1908)---

----O.VI, R.7---Departure from pleadings---Validity---Parties cannot go beyond its pleadings and could not make a departure therefrom.

Khan and others v. Province of Punjab and others 2005 SCMR 1135 rel.

Abdul Wali Khan for Petitioners.

Gul Hayat Khan for Respondents.

Date of hearing: 21st November, 2013.

JUDGMENT

MALIK MANZOOR HUSSAIN, J.---This revision petition is directed against judgment and decree dated 16-10-2012, passed by learned Addl: District Judge/Izafi Zilla Qazi, Mastuj at Booni, whereby the appeal filed by petitioners was dismissed and judgment and decree dated 13-2-2012, passed by learned trial Court was maintained.

2.Briefly, the facts of the case are that the respondents Nos.1 to 4, filed a suit for declaration, permanent injunction and possession fully described in the heading of the plaint. The suit was contested by petitioners and after conclusion of trial, the same was decreed by the learned trial Court. Feeling aggrieved the petitioners preferred appeal, which had been dismissed through impugned judgment, 'hence the instant revision petition.

3.Learned counsel for petitioners contended that the respondents failed to prove their case through cogent and reliable evidence whereas the petitioner proved his defence through documentary evidence in the shape of Exh.DW.1/3. It was also contended that the property remained in ownership and possession of the petitioner for the last 32 years, therefore the suit filed against the petitioner was hopelessly time barred. It was further contended that present is a case of misreading and non-reading of material evidence, which resulted into wrong conclusion, hence the impugned judgments and decrees are not maintainable.

4.Conversely, learned counsel for respondents contended that the plea taken by petitioners with respect to the suit property as that to be inherited by them from their predecessor has been introduced freshly and the same did not exist in their written statement. It was further contended that in the written statement the claim of respondents were based on alleged sale-deed Exh.DW.1/3, whereas they chimed the property as legacy of their predecessor.

Arguments heard record perused.

5.Perusal of record reveals that the respondents filed a suit with the claim of property beings inherited by them as legacy of Sher Nadar, which was contested by petitioners through written statement wherein they have categorically stated that this property, had been purchased by the petitioner from respondent No.1 Musharaf Khan through deed dated 27-6-1981 Exh.DW.1/3. The record further reveals that this deed Exh.DW.1/3, was not proved as per requirement of Article 79 of Qanun-e-Shahadat Order, 1984 and thus was not believed by both the Courts below. No other deed was produced by petitioners in order to establish their link with the suit property. During arguments the learned counsel for petitioners developed a plea that the suit property was inherited by petitioners along with respondents therefore, they were co-sharers and no suit could be brought against the co-sharers. The plea raised is hit by the principle of

approbate and reprobate.

6.It is well-settled by now that the plea neither raised in the written statement nor taken before trial Court, could not be entertained or considered in the revisional jurisdiction of this Court. The plea of being co-heirs was neither raised by petitioners/ defendants in their written statement no in evidence or in memo of appeal before the appellate Court, thus could not be allowed to be raised at revisional stage before this Court in view of the legal bar. It is also well- settled that the parties cannot go beyond its pleadings and could not make a departure therefrom. Reliance can be placed on the case of "Khan and others v. Province of Punjab and others" 2005

SCMR 1135.

In view of what has been discussed above, this petition being devoid of any force is dismissed.

JJK/673P Petition dismissed.