ABDUL FAHEEM Versus PIR MUHAMMAD
The instant revision petition was filed by the petitioners to challenge the correctness and legality of the judgment and decree,' dated 26‑4‑1997 recorded by the learned Additional District Judge, Lakki, whereby he reversed the judgment and decree, dated 13‑3‑1996 passed by the learned Senior Civil Judge, Lakki, decreeing the suit of the petitioners and resultantly, the learned Appellate Court dismissed the suit of the petitioners.
2, The background of the instant case is that the petitioners filed a civil suit in the Court of Senior Civil Judge, Lakki Marwat, whereby they sought relief in three parts, i.e. (a) decree for declaration that the plaintiffs are the owners of the suit property measuring 4 Marlas, (b) decree for the possession thereof and (c) issuance of the permanent injunction against the defendant Sheikh Pir Muhammad to the effect that the defendants should not raise any kind of construction, or make any change in the nature of the suit property.
3. The defendant/respondent contested the suit and pleadings of the parties were culminated into the framing of nine issues plus the relief, which need not be recapitulated, as being part of the lower Courts record.
4. On conclusion of the trial, the learned trial Court decreed the suit of the petitioners, but on appeal the same was dismissed as stated above.
5. The learned counsel for the petitioners has assailed the correctness and legality of the impugned judgment and decree of the Lower Appellate Court vehemently and contended that the Court below has legally erred in setting aside the verdict of the trial Court, which is the outcome of misreading/non‑reading of the evidence adduced by the parties and, as such, the conclusion drawn by the Lower Appellate Court patently bears the imprint of exercise of jurisdiction not vested in it and also the non‑exercise of jurisdiction so vested and, resultantly, a grave miscarriage of justice has occurred. The learned counsel contended that the petitioners are the owners of the suit area alongwith other property, which also remained subject‑matter of dispute between the same parties through Suit No.447/1 decided by the trial Court on 13‑3‑1996, which matter also came before this Court in Civil Revision No.43 of 1997. The entire property was alienated to the petitioners by their father Abdul Qayyum through a registered gift‑deed No. 185, Bahi No. 1, Volume No.47, pages 18 to 20, dated 18‑9‑1994, who in his turn, had obtained the property vide Court decree in Suit No.310/1, decided on 29‑7‑1971 and also purchased vide deed, dated 13‑9‑1973 which is Exh.P.W.2/1 on the file of the trial Court.
6. The learned counsel made a reference to the written statement wherein the respondent has denied the rights of the petitioners qua the area of the present suit on the ground that the area obtained by the father of the petitioners through the abovementioned suit was 1 Kanal, 6‑2/3 Marlas and, as such, the alienation of 2 Kanals, 3 Marlas and 1 Sarsai was wrong. The learned counsel significantly pointed out that in the written statement, no such plea was taken by the respondents that the suit area was purchased by him from some one and simultaneously he referred to the statement of defendant/respondent who appeared as D.W.1, where in his examination‑in- chief, had taken suddenly a different plea that he has purchased some area through a Stamp Paper, dated 11‑4‑1966 from Mst. Qamrunnisa, daughter of Taj Muhammad. The learned counsel seriously objected that neither such a plea was taken in the written statement, nor this document was mentioned in the list, nor any witness in support thereof was produced. While criticizing the impugned judgment and decree of the appellate forum, the learned counsel submitted that the learned Appellate Court was mainly influenced by the fact that the father of the petitioner had obtained less area through the Court decree than what he alienated by way of gift to his sons‑petitioners. In this point, the learned Appellate Court appears to be oblivious of the fact that besides the area obtained through the decree, some other area was also. purchased by Abdul Qayyum through Exh.P.W.2/1.
7. The learned counsel further urged that perusal of the impugned judgment shows that the learned Additional District Judge was influenced by his personal observation that he took upon himself the task of inspecting the spot under the provisions of Order 18, Rule 14, C.P.C. and on his personal observations he came to the conclusion that the claim of the plaintiffs/petitioners was frivolous. He argued that the impugned judgment also shows that the learned Appellate Judge was also influenced by the oral assertion of Ghulam Muhammad, from whom the father of the petitioners had acquired the house through the above‑referred Civil Court decree, who statedly stated that he had transferred a constructed house measuring 1 Kanal. 6‑2/3 Marlas to the father of the plaintiffs, but neither the statement of this witness was recorded on the spot, nor he was summoned as a Court‑witness to record his testimony in a judicial manner. Thus, while concluding his arguments on this point, the learned counsel submitted that the impugned judgment and decree of the Lower Appellate Court are open to exception by this Court.
8. On the other side, the learned counsel for the respondents has defended the judgment and decree of the learned Appellate Court for the reasons recorded therein and argued that the plaintiffs have failed to establish their rights qua the suit land. He criticized the sale‑deed Exh.P.W.2/1 as being unregistered and, as such, devoid of any legal force not capable of creating any rights in favour of the petitioners. He maintained that the area transferred to the petitioners by their father was in excess of his entitlement. He also argued that the suit land was purchased by the respondents from Mst. Qamrunisa vide deed, dated 11‑4‑1966 and, as such, the respondent is the lawful owner on the basis of such deed.
9. I have heard the arguments of both the parties anxiously and gone through the record with care and attention. In the instant case, it is obvious that the plaintiffs/petitioners were claiming rights over the suit area being the transferees by way of registered gift deed referred earlier and the area so gifted by their father was obtained by him through the Court decree stated above and also through a document placed on file as Exh.P.W.2/1 having been sold by Muhammad Ayub, son of Azeem Khan and the legal heirs of Taj Muhammad Khan, namely, Mst. Jafra Begum, widow, Mst. Taj. un‑Nisa and Mst. Qanuunnisa, daughters of Taj Muhammad. This document bears a detailed description of the property, wherein in para. "Bey.", specifically this area of four Marlas with the boundaries thereof have been mentioned. Now a reference is made to the statement of respondent (D.W.1) recorded on 4‑1‑1996, where in the cross‑examination he stated as follows:‑‑----
This portion of the statement of the D.W. goes a long way to establish that there was a property of Nasrullah Khan, Muhammad Ayub and Taj Muhammad in the area. Next, in the same statement, it was stated in the following words:‑‑---
This is a clear cut admission on the part of the respondent that the father of the petitioners had purchased 2/3rd share from Nasrullah Khan, Muhammad Ayub and Taj Muhammad and obviously this is an addition to the area obtained by Abdul Qayum through the above‑referred Court decree and this admission, in its effect, gives a legal effect of creating a right of the petitioners qua the suit land purchased through Exh.P.W.2/1 from Muhammad Ayub and the legal heirs of Taj Muhammad as mentioned above.
10. Now the position comes to this that the area of four Marlas has been admitted to have been purchased by the father of the petitioners which was included in the gift mutation. The law on this point is settled that a fact which is admitted need not be proved. Thus, the objection of the learned counsel or for that matter the finding of the Lower Appellate Court loses its weight that the sale‑deed was not registered and I am of the view that by way of Exh.P.W.2/1, the petitioners had established their right over the suit land.
11. Another significant feature of this case is that the learned Additional District Judge was greatly moved by his personal observation while proceeding under Order 18, Rule 18, C.P.C. visited the spot, and as a result of his inspection, he made certain observation in his judgment which culminated into a conclusion unfavourable to the petitioners. The conclusion drawn by the learned Additional District Judge on visiting the spot against the interest of the petitioners is, in my opinion, not warranted by law. As the record shows that no spot inspection notes were prepared and placed on record and no statement of‑any person was recorded during the course of inspection particularly when he exhibited his influence through the statement of Ghulam Muhammad. In such a situation, the aggrieved party cannot avail the benefit of cross‑examination, nor any record of inspection is available for the scrutiny by the higher forums. It also appears that no application was submitted by the parties for spot inspection.
12. In the case of Mst. Asia Begum v. Nehmat Ali and 6 others 1993 MLD 338, it was observed as under:‑‑---
"No doubt, Order XVIII, Rule 18 does not specifically say that the Court making local inspection shall prepare notes of such inspection and keep them on record. Mere omission, however, will not do. Section 539‑B, Cr.P.C., a parallel provision, specifically provides that memorandum of observations shall be prepared which shall form part of the record. Though there is no such corresponding compulsive provision in Rule 18, yet on the strength of the Ruling of the Superior Courts, it is now a settled statement of law that in cases where a Court makes a local inspection, it is desirable and it will be useful also at the further stages of the case that it makes notes of inspection forthwith to the knowledge of the parties and the counsel, who may be present at the time. This procedure will help the parties to know the result of the inspection and impressions which the Court came to form at the inspection and this knowledge shall enable them to produce such evidence or material as they may choose to support or rebut the impression. See AIR 1952 Mad.
181. This view of law was later affirmed in Kaliammal v. Pongiammal and others AIR 1958 Mad. 331. ...."
13. In Muhammad Ilyas v. Muhammad Shafi 1993 MLD 1677 in paragraph No. 9 of the judgment, it was observed as under:‑‑-----
"It needs no gainsaying that inspection is no substitute for evidence and a case cannot be decided merely on the basis of opinion of impression formed during inspection."
Reference was also made to Muhammad Juman and another v. Mst. Aqlan and 2 others PLD 1980 Kar. 108, Nur Muhammad and another v. Khushi Muhammad and 6 others PLD 1975 Lah. 515 and Tirath Ram and others v. Muhammad Abdul Rahim Shah and others AIR 1923 Lah. 546.
14. In the case of Muhammad Nawaz v. Jain Rai and 2 others 1981 CLC 867 (Karachi), it was held that statement recorded by Judge during course of inspection is also of no evidentiary value, unless the person whose statement was recorded subject to cross‑examination., or the opposite‑party is given opportunity to do so.
15. In context of the above discussion and the judgment of the Lower Appellate Court being viewed in the spectrum of law on the subject, it is evident that the Lower Appellate Court has passed the judgment and decree, dated 24‑3‑1997 without there being any warrant of law for doing so.
16. In view of the above legal and factual position, I am clear in my mind that the learned Appellate Court below had clearly fell in error in appreciating the evidence of the parties in its true perspective and the law on the subject under Order XVIII, Rule 18, C.P.C. was also misconceived by him.
17. Resultantly, I accept this revision petition, set aside the impugned judgment and decree of the learned Additional District Judge, Lakki and decree the suit of the plaintiff as prayed for in the plaint.
Q.M.H./M.A.K./122/P Revision allowed.