FAYYAZ KHAN Versus JAMSHED ALI KHAN

ORDER

ALI HUSSAIN QAZILBASH, J-- These are two petitions for leave to appeal against the judgment of a learned Single Judge of the Lahore High Court dated 26-2-1984 and 29-4-1984.

2. The facts in brief are that Jamshed Ali Khan, respondent in both the petitions, brought a suit for possession of residential plot bearing No.279 situated in Gurdawara Block, Pir Mahal, Toba Tek Singh against the petitioner in the Court of Civil Judge, Toba Tak Singh. It was alleged in the plaint that the said plot was purchased by him (Jamshed Ali Khan) in open auction held on 11-8-1950 and having paid its entire price a formal sale-deed was executed and registered in his name by the Colonization Officer, Multan, on 24-8-1965; that the said plot has been occupied by Fayyaz Khan, defendant, now petitioner, who in spite of repeated demands has refused to hand over its possession, therefore, the suit, Fayyaz Khan petitioner resisted the suit. He refuted the allegation and took a stand that the plot in his possession was given to him by the Municipal Committee Toba Tek Singh in 1964, whereupon he raised a house at the cost of Rs.40,000 and is in possession of the same since then within the knowledge of Jamshed Ali Khan respondent. Since then Jamshed All Khan respondent did not take any action against the petitioner he has matured his title by adverse possession over the suit property. The pleadings led to the following issues:-

(1) Whether the defendant has matured his right of ownership by virtue of adverse possession?

(2) Whether the plaintiff is estopped by his act and conduct to bring this suit?

(3) Whether the suit is not properly valued for court-fee, for purposes, if so, what is the correct valuation?

(4) Relief.

The learned trial Court after recording the evidence dismissed the suit by its judgment dated 20-9-1980. Its findings were, however, upset by the learned Additional District Judge before whom the appeal was filed by Jamshed Ali Khan vide its Judgment dated 23-1-1983. The Revision filed by the petitioner before the High Court was dismissed on 26-2-1984 against which a petition for leave was filed in the Supreme Court. It was on 7-4-1984 when the petitioner filed an application in the High Court under Section 12 (2) of C.P.C. praying for setting aside the order of the High Court dated 26-2-1984 and dismissing the suit of the respondent because the same was obtained by misrepresentation and fraud. This application was, however, dismissed through the impugned order dated 29-4-1984.

3. We have heard the learned counsel for the parties and have gone through the record of the case. The learned counsel for the petitioner submitted that the petitioner is in possession of plot No. 279 measuring eight marlas and seven sarsais situated in Gurdawara Block, Pir Mahal, Toba Tek Singh, which was delivered to him by the Municipal Committee, upon which he raised a house in 1964 and is residing therein since then. He produced before us in the Court a copy of registered sale-deed executed in favour of the respondent on 28-5-1976 and registered on 2-6-1976, wherein it was clearly mentioned that Plot. No.279 Mandar Block, Pir Mahal measuring 8 Marlas 7 Sarsais had been sold in favour of Jamshed Ali Khan, respondent. He also brought to our notice various other documents which have been placed on the record showing that in fact a residential plot measuring eight marlas and seven sersais situate in Mandar Block, Pir Mahal was sold in favour of Jamshed Ali Khan respondent. These documents, he submitted, were procured by him after the dismissal of his Revision Petition in the High Court and were produced before the High Court in support of his petition under section 12 (2), C.P.C. but the same were brushed aside by the learned Judge with the remarks that the change in the name of block was merely a clerical mistake. This, the learned counsel submitted, is obviously misreading of evidence it that the word,, "Mandar Block" have been written in a number of official documents. The clerical mistake as alluded to by the learned Judge, he submitted, can occur in one document but not in more than one such documents. In support of his contention he submitted that the treasury challan through which certain amount was deposited by Jamshed Ali Khan was filled and filed by Jamshed Ali Khan himself, wherein he had shown the location of Plot No.279 at Mandar Block. Similarly he submitted two applications before the Colonization Authorities wherein he had shown the location of his plot in the Mandar Block. He brought yet another documents pertaining to a relevant portion of Annexure "E" which shows that there was no plot bearing No.279 measuring eight marlas and seven sarsais in the Gurdawara Block, which had been put to auction. Concluding his arguments he submitted that the above documents - clearly show that Jamshed Ali Khan respondent had obtained a decree for possession against him on the basis of fraud and misrepresentation. It was thus, he submitted, incumbent upon the learned Judge of the High Court that he should have probed into the matter and decided his petition under section 12 (2) C.P.C. on merits. His failure to do so, he prayed, has resulted into miscarriage of justice.

4. After hearing the learned counsel for the petitioner and perusal of the record, we think this case requires further consideration. The delay in filing the petition is condoned. Leave is granted on the present record with permission to file further documents. Security Rs.2,000. Stay is confirmed.

5. Since leave has been granted in Petition No.858/84, we also grant leave in Petition No.344/84 on the present record with permission to file further documents. Security 89.2,000.

S.Q./F-23/S Leave granted.