WAHID GUL Versus FAZAL QAYUM
This petition under section 115 of the Civil Procedure Code, 1908, arises out of a suit brought by respondents Nos.1 and 2 against the petitioners and pro forma respondents Nos3 to 8 for possession of the disputed house and recovery of price of Khakshora amounting to Rs.1,000 on the claim that the petitioners had repudiated their tenancy. The petitioners contested the suit and, while denying the relationship of landlord and tenant between the parties, they laid claim to the title of the disputed house by way of purchase from the predecessor‑in‑interest of the pro forma respondents Nos.3 to 8. They pleaded adverse possession and claimed compensation for improvements in the event of the success of the suit. The pleadings of the parties gave rise to as many as 8 issues including the relief. For the purposes of this petition the findings of the two Courts below were questioned on the following issues only:‑‑
(4) Whether the defendants Nos.7 to 10 have matured their title on the suit house through adverse possession for over 12 years?
(6) Whether the relationship of landlord and tenant exists between the parties?
(7) Whether the plaintiffs are entitled to the decree as prayed for?
The learned Civil Judge, after appraising the evidence adduced by the parties, came to the conclusion that due to the admission in the cross examination of Wahid Gul defendant No.7 to the effect that Khakshore which was lying on the spot would be made over to defendants Nos.1 to 6 and that the pro forma defendants have admittedly transferred their rights to the answering respondents, the petitioners' claim was unfounded. It was thus found that relationship of landlord and tenant existed between the parties and that the plea of adverse possession raised by the petitioners was not substantiated by any evidence and thus issue No.4 was decided against the petitioners; issue No.6 was answered in favour of the answering respondents and in consequence issue No.7 was decided in favour of the answering respondents decreeing the suit on 31‑5‑1989. In appeal, the learned Additional District Judge had affirmed the findings of the learned trial Judge and dismissed the appeal.
3. Mr. Ghulam Naqashband Khan, learned counsel for the petitioners, contended that the written statement filed by the petitioners having been drafted by a mofussil lawyer should have been construed liberally both on the plea of adverse possession as well as title of the petitioners to the disputed house. Reliance was placed on Sri Manmatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman and others (PLD 1969 SC 565). It was next contended that the two Courts below have fallen into an error to hold that the evidence led by the defendants‑petitioners was inconsistent with the pleadings of the parties. In this context the learned counsel referred to the authority of Budho and others v. Ghulam Shah (PLD 1963 SC 553). It was lastly submitted on the basis of the precedent of Pakistan Development Corporation Ltd. v. The Bank of Bahawalpur Ltd. (PLD 1960 (W.P.) Karachi 885) that the admissions according to Article 34 of Qanun‑e‑Shahadat, 1984 corresponding to section 31 of Evidence Act (I of 1872), since repealed, are not conclusive proof of the matters admitted. In this authority the law enunciated was that it is always open to a person who has made an admission to show that he had done so under some mistake, misapprehension or miscalculation and further that an admission unless coupled with other facts which might constitute an estoppel, cannot form the foundation of a right.
4. Haji Mahfuz Khan, learned counsel for the answering respondents, on the other hand, relied on the case of Riaz v. Muhammad Salim and 4 others (1989 SCMR 1491) in support of the proposition that the concurrent finding of fact of the two Courts below is that the answering respondents had successfully proved their title over the disputed house whereas the petitioners were in illegal possession thereof and this finding of fact having been decided against the petitioners could not be interfered with in revision. Similar precedents of Ghulam Rasul and others v. Karim Bakhsh and others (1990 CLC 1439) and Mst. Urman Jee v. District, Judge, Kohat and 3 others (PLD 1990 Pesh. 100) were also referred to.
5. In their written statement filed before the trial Court on 29‑9‑1987, the petitioners/defendants Nos.7 to 10 have pleaded adverse possession simpliciter on the legal plane and pressed into service the plea of having purchased the disputed house and questioned the propriety of the claim of purchase thereof by the answering respondents. In his evidence Wahid Gul defendant No.7, who appeared in the witness‑box as D.W.2, asserted that Muhammad Hasan Khan, predecessor‑in‑interest of some of the answering respondents, was owner of 1/2 share which was purchased by him for a sum of Rs.2000 by virtue of an oral sale transaction which took place about 4 years prior to 29‑6‑1988 after which he did not pay Khakshora to any body. He then pressed into service the dead, photo copy Exh.D.W.2/1 to Exh.D.W.2/3 to show that prior to the alleged sale, the disputed house had been mortgaged by Shah Pasand Khan aforesaid in favour of the father of Wahid Gul. At almost the close of his cross examination he, however, made a very significant admission that Khakshora was lying on the spot which would be delivered to the previous owners, defendants Nos.1 to 6, and that he was not prepared to oblige the plaintiffs answering respondents on this score. It would thus be seen that the pleadings as aforesaid, the evidence of Wahid Gul D.W. and the admission of Ikram Muhammad D.W.3 run counter to the case set up in the written statement. It is not a case of an exception to the maxim Secundum allegata probata (a fact has to be alleged in pleadings before it is allowed to be proved). Similarly it is also not a case of inartistically worded written statement drafted by a Mofussil lawyer as laid down in the Sri Manmatha Nath Kuri's case cited above wherein it was held that reading the plaint as a whole liberally, according to the accepted principle of construction of Mofussil pleadings, there can be no manner of doubt that the cause of action pleaded was in substance for damages under the Fatal Accidents Act, even though the draftsman had erroneously included therein averments of general damages by way of solatium for the grief and suffering caused to the parents by the loss of their child and other irrelevant matters. In the case before me, initially the claim of adverse possession simpliciter was set up in contradistinction to the claim of extinguishment of mortgagor's right on the ground of prescription. This plea which was tried to be substantiated in the witness‑box had not at all been even conceived by the answering respondents while filing their written statement. The question of oral sale set up in the written statement was not at all proved by any evidence worth the name. Above all, not only D.W.2 but also D.W.3 had admitted in their cross‑examination in unequivocal terms that Khakshora was lying on the spot which would be realized by the pro forma‑defendants Nos.1 to 6. It is on the basis of this strong material that both the Courts below found the plea of adverse possession and the claim of purchase raised by the petitioners to be far from proved. These findings after perusal of the evidence are well founded and no exception could possibly be taken there against. The learned counsel for the petitioners has thus not been able to show any jurisdictional error, material irregularity or patent illegality, two of the elements that only confer revisional jurisdiction on this Court.
6. The upshot of the above discussion is that there is no substance in this revision petition which is dismissed with costs.
AA/1269/P Revision dismissed.