JOHAR BAIG Versus SIHAT KHAN
ALI BAIG, J .---Through this Civil Revision Petition the petitioners/defendants have called in question the impugned judgment/decree dated 31-5-2018 passed by the learned District Judge Ghizer whereby the learned 1st Appellate Court has accepted the Civil 1st Appeal of the present respondents Nos. 1 to 5/plaintiff and has decreed the suit in favour of the respondents Nos.1 to 5.
2. The brief facts of case necessary for disposal of the instant Civil Revision Petition are that father of the present respondents 1 to 5 namely Sakhi Ghulam son of Huzoor Khan had instituted a Suit for declaration and permanent injunction against petitioners/defendants in the Trial Court on 19-03-2011, claiming therein that the suit land fully described in the head note of plaint situated at Nasir Abad Immit Tehsil Ishkoman was devolved upon the plaintiff from his father and uncle. The suit land is in the possession of the respondents Nos.1 to 5 and present petitioners/defendants are illegally and without any justification interfering in the Suit land, therefore, the petitioners/defendants may permanently be restrained from interfering in the suit land.
3. The present petitioners being defendants Nos. 1 to 20 (except the defendant No.16) in the suit contested the suit by way of filing their written statement in the learned Trial Court wherein they have repudiated the averments of plaint. However, the defendant No. 16 namely Gulab Shah has not contested the suit rather has filed admissional/conceded written statement in the trial Court.
4. Out of divergent pleadings of parties the learned Trial Court has framed as many as 17 issues including issue of relief.
5. After framing of issues the parties produced their oral and documentary evidence in support of their respective claims/pleadings.
6. The plaintiff/present respondents Nos. 1 to 5 have adduced 3 oral witnesses namely Roza Baig, Saraf Jan and Mehmood Baig besides recording of their statement through attorney namely Niat Khan. The plaintiff/respondents 1 to 5 have also produced one rebuttal witness namely Shazadah Hussain son of Qamar Zaman.
7. The defendants Nos. 1 to 15 and 17 to 20/ petitioners have produced two oral witnesses namely Martaba Khan, Abdul Hussain besides recording of their statement through attorney namely Jan Khan. The defendants Nos. 1 to 15 and 17 to 20/petitioners have also produced some documentary evidence Exh. D/1 and Exh D/2.
8. After conclusion of Trial the learned Senior Civil Judge punial/lshkoman vide judgment/decree dated 31.05.2016 has dismissed suit of the plaintiff/present respondents Nos. 1 to 5.
9. Feeling aggrieved by the judgment/decree passed by the learned trial Court, the present respondents Nos. 1 to 5 had filed Civil 1st Appeal in the Court of the learned District Judge Ghizer. The learned District Judge Ghizer after hearing arguments on behalf of both the parties has allowed Civil 1st Appeal of the plaintiff/present respondents Nos. 1 to 5 and suit was decreed in favour of the respondents Nos. 1 to 5 vide impugned judgment dated 31-5-2018, hence this Civil Revision Petition.
10. The learned Counsel appearing on behalf of the petitioners contended that the impugned judgment/decree passed by the learned 1st appellate Court is contrary to law and facts on the record of the case as such the impugned judgment passed by the learned 1st appellate Court is not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that the impugned judgment/decree passed by the learned 1st Appellate Court is result of misreading and non reading of evidence of the parties as such the impugned judgment/decree passed by the learned 1st Appellate Court is not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that the plaintiff/respondents Nos. 1 to 5 in their plaint have averred that the disputed land was given to the uncle of plaintiff namely Nazim Khan by Raja Sultan Murad Khan in the year 1946 but the plaintiff/respondents Nos. 1 to 5 have failed to produce a sale deed or reliable/cogent documentary or oral evidence to substantiate their claim in the Trial Court. The learned Counsel for the petitioners further argued that the defendants/petitioners have produced valid documentary evidence in the shape of Exh P/1 and Exh P/2 and two reliable oral witnesses in the Trial Court to controvert/rebut the claim of respondents Nos. 1 to 5 but the learned 1st Appellate Court has failed to appreciate the cogent evidence of the petitioners and has arrived at wrong conclusion and has decreed the Suit in favour of the plaintiff/respondent Nos. 1 to 5.
11. On the other hand the learned Counsel for the respondents Nos.1 to 5 controverted the arguments advanced by the learned Counsel for the petitioners and supported the impugned judgment/decree passed by the learned 1st appellate Court by contending that the learned 1st Appellate Court has rightly decreed the suit of the respondents 1 to 5 in their favour after proper evaluating the evidence produced by the parties before the learned trial Court. The learned Counsel for the respondents Nos. 1 to 5 further argued that the learned Trial Court had wrongly dismissed the suit of the respondents Nos. 1 to 5 by its judgment dated 31-05-2016, whereas the learned 1st Appellate Court has rightly set aside the judgment/decree of the learned Trial Court as such the judgment/ decree passed by the learned 1st Appellate Court may be maintained in the interest of justice.
12. I have heard the learned Counsel for the parties and perused the material available on record with their able assistance.
13. Admittedly the plaintiff in his plaint has averred that the suit land was given to the paternal uncle of the plaintiff namely Nazim Khan by one Raja Sultan Murad Khan the then Governor Ishkoman in the year 1946 and his uncle namely Nizam Khan was issueless, therefore, on his death the suit land was devolved upon the plaintiff. The suit land is in the exclusive possession of the plaintiff and petitioners/defendants are illegally interfering in the suit land.
14. In order to substantiate their above mentioned claim, the plaintiff/respondents Nos. 1 to 5 have produced some four documents Exh. P/1 to P/4 as documentary evidence. Exh P/1 to P/4 are receipt of purchase of some pieces of land but in the said documents/receipts description of suit land has not been disclosed/described, hence Exh.P/1 to P/4 are irrelevant documents and are not admissible in evidence to the extent of Suit land. The plaintiff has also produced two oral witnesses namely Lamberdar Roza Baig and one Saraf Jan. I have gone through the statements of above named two PWs. recorded before the learned trial Court. Both the above named PWs. have deposed in their examination in Chief that the suit land was given to the uncle of the plaintiff namely Nazim Khan by Raja Sultan Murad Khan. In their cross-examination both the above named PWs. have admitted that the land which was allegedly given to the uncle of the plaintiff namely Nazim Khan by the then Governor Ishkoman namely Sultan Murad Khan is situated on the lower side of channel, which is admittedly in the possession of respondents Nos. 1 to 5, whereas the suit land is situated on the upper side of the channel and is a barren land. PW/3 namely Mehmood Baig has testified before the learned trial Court that he know nothing about the suit land, hence his statement is not admissible in favour of the plaintiff/respondents Nos. 1 to 5, as such the plaintiff/respondents Nos.1 to 5 have miserably failed to prove their claim by adducing reliable and cogent evidence in the learned trial Court.
15. On the other hand the defendants Nos. 1 to 15 and 17 to 20 have successfully rebutted the claim of the plaintiff by adducing reliable and cogent documentary and oral evidence in the trial Court. The Exh D/1 produced by the present petitioners in the Trial Court is compromise/ conciliation deed effected between Nazim Khan and plaintiff namely Sakhi Ghulam through Aga Khan conciliation and Arbitration panel Immat Ishkoman, wherein it has been written that disputed land known as benjar dass is not owned by the plaintiff. Exh D/2 is Iqrar Nama dated 02-8-1991 wherein Nazim Khan deceased has admitted before the convener and members Aga Khan conciliation and Arbitration panel Immat Ishkoman that the disputed land Banjar dass is not owned by him as no any Raja has given/allotted the suit land to him. The petitioners/defendants have also produced marginal witness of Exh D/1 and Exh D/2 namely Abdul Hussain son of Mehboob who has corroborated and authenticated the contents of Exh D/1 and Exh D/2. Even otherwise it is settled law that plaintiff always has to succeed on the strength of his own case and not on the weakness of the case of defendant.
16. For what has been discussed above, I have come to the conclusion that the learned 1st Appellate Court has failed to appreciate the evidence of the parties and the impugned judgment/decree passed by the learned 1st Appellate Court is based on of misreading and non reading of material evidence of the parties, whereas the learned Trial Court had rightly dismissed the suit of present respondents Nos. 1 to 5 by proper evaluating the evidence of the parties. Consequently, this revision petition is accepted and the impugned judgment/decree dated 31-5-2018 passed by the learned 1st Appellate Court is set aside. Consequently the judgment/decree dated 31-5-2016 passed by the learned trial Court is maintained. Parties are directed to bear their own costs. File.
ZC/26-GB Revision allowed.