QABIL SHAH Versus SHADAY

Shaday, plaintiff, sued Sherin, since dead and represented by Sabz Ali etc. for possession of 16 kanals of land in dispute as a result of demarcation proceedings carried out by the revenue officials. The defendants contested the suit wherein the allegation that they have encroached upon it was controverted. A few legal objections were also taken up. Among the issues, those material for the purpose of this petition were:‑‑

(6) ??????? Whether defendants have encroached upon the suit property as a result of demarcation proceedings?

(7) ??????? Whether the demarcation proceedings are wrong and illegal?

(8) ??????? Whether the plaintiff is entitled to the decree as prayed for?

During the trial, the plaintiff, apart from himself, examined Bashir Ahmad Girdawar who had conducted the demarcation proceedings Ex. PW.1/1 and had prepared the map of encroachment EX.PW.1/2 and Taj Muhammad Patwari Halqa. Qabil Shah defendant had appeared alone in the witness‑box and closed evidence for the defendants. After appraising; the evidence, the learned trial Judge held on issue No.6 that `in re‑examination plaintiff has again stated that he is in possession of the suit land', therefore, he held that the suit land was in possession of the plaintiff and that the defendants had not encroached upon the suit land. Issue No.7 was held redundant and thus dismissed the suit. On appeal by the unsuccessful plaintiff to the Additional District Judge, the judgment and decree of the learned trial Judge was reversed and the plaintiff's suit was decreed. The contention raised by the plaintiff‑appellant's counsel that the plaintiff's `erroneous admission' had unduly weighed with the learned trial Judge in non‑suiting him found favour with the learned appellate Court..

2. ???????? Feeling aggrieved, the defendants have filed this revision petition.

3. Mr. Abdul Qadir Khan Khattak, learned counsel for the petitioners, contended that the case warranted remand because the plaintiff‑respondent is also shown to have encroached upon the land of the defendants‑petitioners. The learned counsel then made a pointed reference to the admission made by the plaintiff‑respondent in his re‑examination before the learned trial Judge that he was in possession of the disputed land and submitted that admissions referred to in the Qanun‑e‑Shahadat, 1984 are evidentiary admissions and are relevant and that admission of the plaintiff‑respondent in the trial Court was sufficient to non‑suit him which had illegally been ignored by the appellate Court.

4. The first contention raised by the learned counsel for the petitioners is not tenable on two‑fold grounds: (1) The plea that the plaintiff‑respondent had also encroached upon the land of the defendants‑petitioners does not furnish a valid cause to deny to deliver the land of the plaintiff‑respondent and; (2) neither this plea was taken up in the written statement nor there is an iota of evidence in support of this plea. Besides, no evidence can be looked into upon a plea not raised in the pleadings. In this context reference may be‑made to Pakistan v. Abdul Ghani PLD 1964 SC 68 and Messrs Chaudhary Brothers Ltd., v. The Jaranwala Central Cooperative Bank Ltd. 1968 SCMR 804.

5. An admission is defined in Article 30 of the Qanun‑e‑Shahadat as "a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances in the three succeeding Articles". There is also no cavil with the proposition that evidentiary admissions are relevant but not conclusive and may, therefore, be shown to be wrong. 1n consequence, an admission which is wrong in point of fact and evidently made in ignorance of legal rights is wrong and has no binding effect on the person making it. See Amritlal Nasirlal v. Sadashive AIR 1944 B. 233, Mst. Munia v. ManoharW etc. AIR 19410. 429, Ram Jiwan v. Hanuman Prasad AIR 1940 O. 409. This view was reiterated in Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311. In this case Rasul Shah respondent on his own behalf and on behalf of Abdul Malik addressed to the Excise and Taxation officer disowning all concern to the land in dispute wherein proceedings had been initiated for recovery of certain taxes in respect of the land aforesaid. Rasul Shah by means of that application had stated that the land in dispute had been sold by one Ghulam Haider and that, therefore, his brother Abdul Malik should be `excused' from the payment of the tax. The learned counsel for the appellant therein strenuously urged that this was a solemn acknowledgement by Rasul Shah, disclaiming any interest or title in the land and affirming the subsistence of title in the appellant. It was also stressed therein that this admission was conclusive and the findings of the trial Court and the High Court therein could not, therefore, be maintained. The Supreme Court found it difficult to subscribe to the proposition that the admission was conclusive or it would otherwise destroy the title in the land accruing to the plaintiffs‑respondents therein on the basis of their adverse possession for the statutory period. In the above circumstances, it was held that it will not be right to contend that the admission contained in the application therein by Rasul Shah was conclusive against the plaintiffs‑respondents nor would it otherwise undo the extinction of title of the original owner in the land which had taken place by reason of the plaintiffs‑respondents' continuous possession for more than twelve years.

6. As a sequel to what has been observed above and respectfully following the dictum of the Supreme Court in Ahmad Khan's case cited above, I subscribe to the view taken by the learned appellate Court that the erroneous admission made by the plaintiff in his re‑examination that he was in possession of the land in dispute was not conclusive. The right and title of the plaintiff respondent herein does not, therefore, get extinguished on account of his abovementioned erroneous admission.

7. For the foregoing reasons, I find no merit in this petition which is dismissed with costs.

AA./1366/P ???????????????????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.