DADU Versus DADU
ALI BAIG, J.--- This Civil revision petition is directed against the impugned judgment/decree dated 31-5-2016 passed by the learned District Judge Hunza/Nagar whereby the learned 1st Appellate Court has dismissed the appeal of the present petitioner by maintaining the judgment/decree passed by the learned trial court.
2. Through this single judgment I intend to decide two civil revision petitions bearing No. C. Rev.82/2016 and No. C. Rev.83/2016 as both petitions have arisen out of one and the same judgment passed by the learned District Judge, Hunza/Nagar.
3. The pithy facts for fair adjudication of the instant civil revision petitions are that the present respondent No.1/plaintiff namely Dadu son of Ramzan Ali instituted a suit for declaration and possession of suit house fully described in the heading of plaint against the present petitioner/defendant No.1 namely Dadu son of Malik Ashdar and present respondent No.2 namely Liaqat Ali son of Muhammad Shafa to the effect that the respondent No.1/plaintiff is owner of the suit house which was given to the present petitioner by the respondent No.2 as Amanat/temporarily. Now the petitioner/defendant No.1 is reluctant to return back the suit house and has illegally occupied on the disputed house which is illegal and against the right of the plaintiff/present respondent No.1, therefore, the petitioner/defendant No.1 is liable to be ejected from the disputed house.
4. The present petitioner being defendant No.1 in the suit contested the suit by means of filing his written statement in the learned trial court wherein he has raised certain legal objections and has also denied the claim of the plaintiff/respondent No.1 by pleading that suit house was owned by the defendant/respondent No.2 namely Liaqat Ali and petitioner had entered into an agreement with the respondent No.2 to construct a new house for him in consideration of his old disputed house. Accordingly he constructed the new house in return the respondent/ defendant No.2 has delivered the possession of suit house to the petitioner and he has been residing in the disputed house for last eight years as owner in possession.
5. It may be mentioned here that the present petitioner namely Dadu son of Malik Ashdar had also instituted a suit against the present respondent No.2 namely Liaqat Ali and SHO Police Station Nagar for declaration and perpetual injunction in respect of the disputed house.
6. The present respondent No.2/defendant also contested that suit by filing his written statement in the trial court wherein he has raised certain legal objections and has also repudiated the averments made in the plaint.
7. The learned trial court framed issues in both the suits and parties adduced their respective evidence in the trial court. But before hearing of final arguments the learned trial court consolidated the above mentioned two suits and after hearing arguments of the learned counsel for the parties the learned trial court has dismissed the suit of the present petitioner and decreed the suit of the present respondent No.1 vides judgment/decree dated 15-5-2010.
8. Feeling aggrieved and dissatisfied with the judgment of Civil Judge Ist Class Nagar, the present petitioner filed civil first appeal in the court of the learned District Judge Hunza/Nagar. The learned District Judge Hunza/Nagar after hearing arguments on behalf of both the parties has dismissed the civil first appeal of the present petitioner vide the impugned judgment/decree dated 31-5-2016.
9. Feeling aggrieved by the impugned judgment/ decree passed by the learned District Judge Hunza/Nagar, the petitioner has challenged the impugned judgment of 1st Appellate Court through the instant civil revision petition before this court.
10. The learned counsel appearing on behalf of the petitioner contended that the impugned judgment/decree passed by the 1st Appellate Court is contrary to law and facts on the record of the case as such the impugned judgment/decree passed by the learned District Judge Hunza/Nagar is not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that the learned trial court has wrongly consolidated the suit of the parties at the time of final arguments whereas under law the learned trial court should have consolidated the suit at the time of framing of issues, hence the learned trial court has committed material irregularity and illegality. The learned counsel for the petitioner further argued that the judgment/decree passed by the trial court is silent regarding suit filed by the present petitioner, hence the judgment/decree passed by the learned trial court is not tenable and the learned 1st Appellate Court has wrongly maintained the judgment of trial court. The learned counsel for the petitioner further argued that the learned 1st Appellate Court has failed to record issue-wise findings and neither the learned Ist Appellate Court has formulated the points for determination as required under Order XLI, rule 31(a), C.P.C.
11. Conversely, the learned counsel for the respondents supported the impugned judgment/decree passed by the 1st Appellate Court by contending that the suit house is admittedly owned by the respondent No.1 and, therefore, the learned trial court as well as the learned Ist Appellate Court have rightly decreed the suit of the respondent No.1/plaintiff in his favour. The learned counsel for the respondents further argued that the petitioner had filed a single civil first appeal in the court of District Judge Hunza/Nagar, but the petitioner has filed two separate revision petitions against the judgment/decree of the learned 1st Appellate Court which is not permissible under law. Thus both the revision petitions filed by the petitioner are not maintainable and liable to be dismissed. The learned counsel for the respondents further argued that since the respondent No.1 has proved his case by adducing reliable evidence in the trial court and the petitioner has failed to prove his case in the trial court, therefore, the learned courts below have rightly decreed the suit in favour of the respondent No.1 and against the present petitioner.
12. I have heard the learned court the parties and perused the record with their able assistance.
13. From perusal of pleadings of the parties it reveals that the present petitioner has averred in the plaint as well as in his written statement in cross suit that as per oral agreement he has constructed a new house for respondent No.2 namely Liaqat Ali and in return of that he has given him the disputed house. In order to substantiate his claim the petitioner has produced three witnesses namely Shafa Ali son of Akbar Ali, Ramzan Ali son of Zawar Ghulam and Muhammad Hussain son of Muhammad Bashir, I have carefully gone through the statements of the above named witnesses of the petitioner. Perusal of the statements of witnesses of petitioner would show that witness namely Shafa Ali is hearsay witness as he has deposed that he has heard that the respondent No.2 has given the disputed house to the present petitioner because the petitioner had constructed a new house to the respondent No.2 namely Liaqat Ali. Witness No.2 namely Ramzan Ali has stated in his statement recorded before the trial court that the petitioner was expelled from the house by his father and thereafter the petitioner is residing in the house of respondent No.1 for last 2/3 years. In his cross-examination the above named witness of the present petitioner has admitted that the petitioner was expelled by his father from his house and the petitioner had sought the disputed house from the respondent No.1 for residing temporarily. Witness No.3 namely Muhammad Hussain has deposed that he is not a witness of any agreement between the parties. However, the petitioner is residing in the disputed house for last 8/10 years and the petitioner has worked as carpenter in the newly constructed house of the respondent No.2. Hence the petitioner has miserably failed to prove his case by adducing cogent and reliable evidence in the trial court.
14. While it is the case of the respondent No.1 that since the present petitioner was expelled by his father from his house, therefore, he had allowed the petitioner to reside in his old house on humanitarian ground. In order to substantiate this plea/ground the respondent No.1 has produced two witnesses namely Sheikh Ali son of Khudayar and Dadu son of Malik Shah. From perusal of statements of above named witnesses recorded before the trial court it transpires that the above named witnesses have supported the version of the respondent No.1. Hence the respondent No.1 has proved his case by adducing reliable two witnesses.
15. The learned counsel for the petitioner mainly contended that since the learned trial court and Ist Appellate Court have committed irregularities while passing their judgments as the trial court has consolidated both the suits at the time of final arguments which is illegal, therefore, the case may be remanded back to the learned trial court for decision afresh by setting aside the judgments of both the courts below.
16. It is true that the learned trial court has consolidated both the suits at the time of final arguments and as such has committed some irregularity, but I am not inclined to remand the suit to the trial court as since the petitioner has failed to prove his case by adducing reliable evidence in the trial court, therefore, remand of case would serve no useful purpose and it would be futile exercise and wastage of precious time of the parties as well as court.
17. The learned counsel for the petitioner could not point out any misreading and non-reading of evidence/record by the courts below warranting interference by this court in revisional jurisdiction.
18. In view of above discussion, these revision petitions have no merits which are accordingly dismissed leaving the parties to bear their own costs. Certified true copy of this judgment be placed on civil revision petition No. C. Rev.83/2016. File.
ZC/169/GB Revision dismissed.