SALIM SHAH Versus IMAM DIN
This Civil Revision No.36 of 1997 arises out of the judgment and decree, dated 22‑1‑1997 passed by the learned Additional District Judge, D.I. Khan, whereby he reversed the judgment and decree dated 6‑7‑1997 passed by the learned Senior Civil Judge, D.I. Khan and while accepting the appeal, suit of the respondents/planitiffs was decreed. The petitioners being aggrieved of the judgment and decree of the Appellate Court have filed the instant revision petition.
2. The brief facts forming the background of this case are that Imam ud‑Din and others, survived by the present respondents, filed a Civil Suit No.97/1 of 1987 for possession claiming ownership of Shop No.C/5552 + 1, bearing Taxation No.C/2410‑6, C/2410‑5, situated in Koocha Gosaim Wala near Commissionery Bazar, D. I. Khan City. An amount of Rs.18,000 was also claimed as mesne profit at the rate of Rs.500 p.m. for the period 15th March, 1984 to 15th March, 1987, It was hotly contested by petitioners/defendants who filed their written statement.
3. According to the averments of plaint, the suit shop originally belonged to a non‑Muslim which, on the partition of sub‑Continent was vested in custodian and subsequently became ownership of Central Government. It was further stated that the Central Government through defendant No.4 through its subordinates wanted to auction it. Haji Zamurdi, the predecessor‑in‑interest of plaintiffs/respondents participated in the auction proceedings and on his highest bid, the auction was confirmed by Additional Settlement Commissioner and Haji Zamurdi became the owner of the suit shop, said the plaintiffs. It was also added that the P.T.D. was issued in the names of his sons on 19‑9‑1975. It was further stated that Qutub Shah, the predecessor of petitioners Nos. l and 2 was in possession of suit shop prior to the issuance of P.T.D. Thus, according to plaintiffs, he became their statutory tenant. Under such belief, an application for ejectment under Rent laws was filed which was dismissed as relationship of landlord and tenant was not proved. An appeal against such dismissal also met the fate of dismissal from the Court of District Judge on 18‑6‑1986. After failure in the rental hierarchy, the respondents resorted to civil action in form of the present suit.
3. The contention of the petitioner/defendants that Shop No.C/5552 + A had neither any Survey Card nor did it belong to evacuees. In Settlement record, there was no mention of its locale, nor its room number was known. The Shop No.C‑5552 auctioned on 24‑10‑1961 was situated in Tajarat Gunj which was purchased by Abdul Karim. Thus, the shop auctioned on 24‑10‑1961 being situated in Tajarat Gunj cannot be identified with the suit shop situated in Koocha Gosain Wala, Commissionery Bazar D.I. Khan City. The petitioners claimed that the suit shop is their ancestral property which belonged to their grandfather Syed Ghulam Yaseen, who used to carry the profession of "Hikmat" therein and on his death at the age of 130 years, the shop was inherited by his father Qutub Shah, who died in the year 1984 and, therefore, the petitioners are in its occupation as owners by inheritance from their grandfather. According to them, the suit shop was not Hindu property, it was Muslim property and from their grandfather down to petitioners, none remained as tenant in the suit shop. The petitioners termed the auction against them as a collusion between the plaintiff and Staff of Settlement Department.
4. The rival contentions were reduced into various issues incorporated in the judgment of the lower Courts. After recording evidence of the parties and full trial, the suit of respondents was dismissed by the learned Senior Civil Judge, D.I. Khan. However, on appeal, the judgment and decree of the trial Court was reversed and the suit of respondents was decreed to the extent of declaratory relief, while the claim regarding mesne profit was dismissed, vide his judgment and decree, dated 22‑1‑1997.
5. The learned counsel for the petitioners contended that the findings of the learned Appellate Court are the outcome of sheer misreading of the relevant documents lying on the record, placing patently, wrong construction thereon. The learned District Judge had gravely erred in law by holding, contrary to the evidence, that the suit shop was the one which was purchased by Haji Zamurdi in auction. He seriously criticized the finding of the Appellate Court appearing on page 7 of his judgment to the effect that the Deputy Settlement Commissioner had duly summoned the transferors on 23‑2‑1965 and in their presence he had corrected the number of the suit Shop as C/5354‑1 instead of C/5552 and to which Abdul Karim and Sharfuddin transferees agreed and raised no objection. It is important to point out that shop No.C/5552 already stood transferred to one Abdul Karim on 30‑10‑1961.
6. The learned counsel for .the petitioners vociferously contended that tile petitioners were in possession of the suit shop as owners and having inherited from their father, who in his turn had inherited from his father, i.e. the grandfather of the petitioners. This was not at all an evacuee property and thus, putting it to auction by the Settlement Department treating the same as evacuee property and its alleged purchase by Haji Zamurdi in any manner was illegal, void and contrary to the rights of the petitioners and resultantly all documents relied upon by respondents are ingenuine, manipulated and ineffective upon the rights of petitioners. The learned counsel defended the judgment and decree of the learned trial Court and maintained that the trial Court had taken great pain in appreciating the evidence and had arrived at a very sound conclusion after evaluating the evidence on the touch‑stone of principles governing the assessment and appraisement of evidence.
7. On the contrary, the learned counsel appearing for the respondents has defended the impugned judgment and decree of the learned Appellate Court on the grounds appearing in the judgment itself and stated that the impugned judgment and decree are unexceptionable and do not suffer from any legal and factual infirmity.
8. I have very anxiously heard the rival arguments of the combatants and have keenly scanned the record of the case. It may be observed that the respondents have admitted the possession of Qutub Shah who was the father of petitioners and it has been averred by the respondents in plaint and in evidence as well that Qutub Shah was in possession of the suit shop and on its stated transfer in their name they believed that the said Qutub Shah had become a statutory tenant under them. The plaintiffs/respondents, thus, tried his eviction under the rent laws upto the Appellate Court, but their application and appeal were dismissed, as no relationship of landlord and tenant could be proved. After such unsuccessfulness, the respondents filed this suit.
9. Thus, in view of such admitted possession (which according to petitioners was since their grandfather), it was essentially required that respondents/plaintiffs should have crystally proved that the suit shop was an evacuee property and in the same character it was recorded in the Settlement and Rehabilitation Department to have been left back by some Hindu as its original owner. In this respect, the basic document on which the edifice of plaintiff's case was resting is the bid‑sheet, a copy whereof was produced as Exh, P. W. 1/2. A bare look on this document would show that it is a queer bid sheet of its own nature. It does not bear the name of any bidder, thus. it cannot be said as to who and how many persons participated in the auction proceedings of the suit shop and what was the ascending order of each bidder. In this regard, Saleem Ahmad, Senior Clerk, Office of Rehabilitation (P.W.I) has stated that he searched Bid Nos.2940, 3049 and 3042 regarding bid sheet, dated 25‑10‑1968, but could not find the same and, therefore, he said, he cannot tell the name of the bidders. It is also significant that the said bid sheet was originally about Property No.C‑5552 and. subsequently, at some stage "+ A" was added with a pencil to C/5552. The factum of this subsequent addition of "+ A" was admitted by the same P.W. in the following diction:‑‑
"I have seen the original bid sheet that Shop C/5552 is written in ink plus A vide pencil. It is correct to suggest that there are no signature or initial on plus A which is added by pencil in the original bid sheet regarding Property No.C/5552. ... It is correct that plus A which is shown in the property it could be Balakhana, a Baithak or internal part of the original property etc. etc. or there are two doors .of one property."
This postiche, i.e. superfluously and inappropriately super added to a finished work, further causes to fraught the genuineness of bid sheet with extreme doubt and in such a wake, this document cannot be employed to produce a result of conferring title upon respondent. Thus, the ensuing issuance of P.T.D. (EXk.P.W.1/3) in the name of Haji Zamurdi on 2‑1‑1969 and subsequent transfers to respondents on 11‑6‑1974 of an independent shop is of no legal consequence. I feel to reiterate that Shop No.C‑5552 to which subsequently, "+ A" was added in the manner stated above had already been transferred to one Abdul Karim.
10. The P.T.D. (Exh.P.W.1/3) shows that on 2‑1‑1969, a shop was transferred to Haji Zamurdi but on 9‑10‑1973 respondent Islamuddin madc an application to Deputy Settlement Commissioner D.1. Khan as follows:‑‑
The tenor of this application shows that he was claiming two numbers, i.e. C/5552 and 52‑A. On this application, it appears that some enquiry was initiated and on the reverse page of application (EXh.P.W.I/11), it is importantly noted as "according to the record, the position is as under:‑‑
CUS‑2
C/5552 Kanhiya Ram
C/5553 Unknown there is no C/5552‑A or C/5554‑A
C/5554 Unknown
11. Again, the same note is repeated that there is no C/5552‑A or C/5554‑A. On the same page, the Survey Inspector has given the following report:‑‑
Then, on page 47 of the trial Court file, the following observations are relevant:‑‑
"Reference report, dated 21‑11‑1973 of Malik Rashid Ahmad regarding C/5552 and C/5553. Shop No.C/5553 is situated in Mohallah Juma Shah according to Survey Enquiry Form, therefore, I suggested that the two shops situated in Gali Gosain Wali may be numbered as C/5552 and C/5552‑A and there is no need of rectifying it.
(Sd.) 21‑11‑1973 D. S. C.
As suggested. Act according to the Bid Sheet, i.e. 5552+A.
(Sd.p21‑11‑1973."
12. In the above scenario, I feel obliged to have recourse to the principle " Verba accinienda Sunt Cum effectu ut Sortiunture effectum (Words are to be received with effect, so that they may produce effect)".
13. In the above reference from page 47, it appears that the action was taken on mere suggestion. The word "suggestion" is defined and explained in 13 the Black's Law Dictionary Sixth Edition as follows:‑‑
"A suggestion; presentation of an idea especially indirectly, as through association of ideas bringing before the mind for consideration, action, solution or the like. It is in the nature of hint or insinuation and lacks the element of probability. Facts which merely suggest do not raise an inference of the existence of the fact suggested and, therefore, a suggestion is much less than an inference or presumption. "
14. I also recollect that in order to personally satisfy myself about the lacunatic bid sheet. I had directed on 18‑6‑1999 that the original record of the Settlement Department should he summoned from the Assistant Commissioner/Deputy Settlement Commissioner, D.I. Khan for 25‑6‑1999 ' in respect of Property Nos.C‑5551, C‑5552, C‑5552‑A, C‑5354‑A, C‑5553 and C‑4945. The said record was produced by the concerned Clerk and I had the occasion to see the bid sheet in which as criticized by the learned counsel for the petitioners and admitted by P. W .1, there was a subsequent addition "+A" with the pencil without there being any initial or signature. The bid sheet is hit by the principle " Quod nullum est, nullum producit effectum ( Th at which is null produces no effect).
15. It is pertinent to note that a particular property whether is or is not an evacuee property can only be determined from the General Survey Card and such a General Survey Card, according to the learned counsel for the respondents, was prepared in the year 1952. This fact was also affirmed by the concerned Clerk who produced the original record before me on 18‑6 1999 that the only document from which the nature of the property (evacuee property) can be determined is the General Survey Card. Admittedly, in this case, there is no General Survey Card of the suit shop. The non‑availability of the Survey Card regarding the suit shop is clearly admitted by P.W.1. Thus, it becomes clear more particularly, with reference to Exh. P. W .1 / 11, that there was no property under the No.C/5552+A and subsequently, merely on the basis of suggestion as stated above, this number was imposed upon the shop of the petitioners by the Settlement Functionaries, meaning thereby that the respondents had totally failed to prove that the suit shop was in fact an evacuee property and it was bearing No.C/5552. This fact was thoroughly thrashed out. by the learned trial Court. However, the learned Appellate Court on the misreading of the documents erroneously concluded that the mistake was corrected in favour of the respondents. There was no basis for such a correction with the Settlement Functionaries. The learned Appellate Judge also was not justified in concluding that the defendants/petitioners failed to prove through reliable evidence that the suit property was not evacuee or that they had purchased it through auction or from the real owner thereof. This is a settled principle of law that the plaintiff shall prove his case on the strength of his own evidence and he cannot draw any benefit from any weakness of the defendant. In this case, p the burden initially lay upon the respondents to prove that it was an evacuee property carrying No.C/5552+A and was validly purchased in a transparent auction.
16. There is well‑known legal maxim "Possession Vaut titre". In most systems of jurisprudence, the fact of possession raises a prima facie title or a presumption of the right of property in the things possessed. In other words, the possession is as good as title (about). In this case, the possession of the petitioners is undoubtedly admitted by the respondents.
17. In the above legal and factual scenario, I have no hesitation to hold that the plaintiffs/respondents had failed to prove their case.
18. Resultantly, this revision petition is accepted and suit of the plaintiffs/respondents is dismissed.
Q.M.H./M.A.K./478/P Revision accepted.