MUHAMMAD SHER and others vs Mst. TM MEENA and others

' Muhammad Sher son of Nasrullah and numerous others brought a suit against Zamrood and 8 others for a declaration and in the alternative, for possession to the effect that they are owners of the disputed house measuring 9 Marlas and that the sale thereof through deeds dated 14-11-1980 and 14-12-1980 on behalf of defendants Nos.1 to 7 in favour of defendants Nos. 8 and 9 was void, unlawful and ineffective upon the rights of the owners.

2. The main allegation of the plaintiffs was that they belonged to the proprietary body of the village and hence owners of the house which the defendants were not and further that the predecessor of defendants Nos. 1 to 7 and the defendants were tenants of the plaintiffs on payments of `Khakshora' and on rendering services. The defendants contested the suit and ultimately on 9-2-1991 it was dismissed by the learned Additional Civil Judge, Swabi. Appeal filed by the plaintiffs was also dismissed by the learned Additional District Judge, Swabi on 24-4-1993 and hence this revision.

3. It is a well known principle of law that a plaintiff has to succeed on the strength of his own case and not on the weakness of the case of the defendants. So the proof of title regarding the suit house was squarely a burden of the plaintiffs. They have failed to produce any documentary evidence qua the title of the suit house despite the fact that one Amir Khan a witness of the plaintiffs A had categorically stated that 5 to 6 houses near the suit house were also purchased by the plaintiffs.

4. Amir Khan, P.W. Is a witness in whose presence nothing had taken place and he had admitted in the cross-examination that his version was hearsay. The second witness of the plaintiffs was Abdul Jalil who also admitted in cross-examination that the defendants never paid `Khakshora' to the plaintiffs in his presence or knowledge and the suit house also was not given to the defendants in his presence. It was a pure question of fact which was not supported by the very witnesses of the plaintiffs and hence the concurrent conclusion drawn by the two Courts below was in accordance with record. No exception can be taken thereto.

5. The second important aspect of the case is that Shamoon and Nisar sons of Mir Hassan defendants Nos. 8 and 9 are the persons admittedly in possession because of being vendees of the suit house from defendants Nos.1 to 7. The dismissal of the plaintiffs' suit had practicallk gone in favour of Shamoon and Nisar but it is pertinent to note that while filing appeal before the District Judge, the said Shamoon and Nisar were never impleaded as respondents. Thus one cannot controvert the fact and the legal consequence that the decree passed by the learned Additional Civil Judge, Swabi on 9-2-1991 against the plaintiffs had become final in favour of Shamoon and Nisar. The instant revision can be of no help to the petitioners.

6. It is argued by the learned counsel for the petitioners that Shamoon and Nisar were not impleaded in the memorandum of appeal before the District Judge because they had not filed a written statement, that they had not appeared in the witness-box and thus there was no decree against them. This is wrong factually as well as legally. Factually, because the written statement was joint on behalf of all the defendants filed by their joint counsel Mr. Muhammad Ibrahim Khan on whose `Vakalatnama' the signature of Shamoon and the thumb-impression of Nisar clearly appeared. Legally, because the names of Shamoon and Nisar do appear in the decree-sheet prepared by the trial Court and hence they were bound to be impleaded in the memorandtut of appeal. Non-impleadment of Shamoon and Nisar in the appeal makes the judgment of the trial Court final in their favour.

7. Keeping in view the legal as well as factual position in the instant case, the revision petition is hereby dismissed with no order as to costs.