' This revision petition is directed against the judgment, dated 24-2-1997 passed by learned Addl.
District Judge, Kasur whereby appeal brought by petitioner against the judgment and decree, dated 1842-1995 passed by learned Civil Judge, Kasur was dismissed.
2. Relevant facts for the disposal of this revision petition are that Muhammad Ismail, respondent filed suit for declaration against Abdul Karim, petitioner and stated that he was owner of suit-land (measuring 45 Kanals, 19 Marlas Khewat No.13 situated in Chak No.55 Tehsil and District Kasur) and defendant/petitioner was in possession of the same as tenant. He further stated that defendant/petitioner is real brother of his wife and he (plaintiff/ respondent) was serving in England. He visited Pakistan in 1966 and planned to purchase some land, whereupon Abdul Kasim, petitioner, advised him that he would purchase land for him and he would cultivate the same as his tenant and pay him share of produce. The respondent paid him Rs.2,000 for payment of earnest money and undertook to send him (petitioner remaining price from England. He sent him one thousand pounds (Rs.19,228) through bank draft, whereupon defendant/petitioner informed him that he had purchased land measuring 45 Kanals, 19 Marlas for him and that he was cultivating the same as his tenant. The plaintiff came back after about 1-1/2 years and defendant met him in his village (Chak No.271 RB District Faisalabad) and on his inquiry defendant admitted that he had purchased land measuring 45 Kanals, 19 Marlas from Iftikhar Ali Shah, vide Mutation No.518, dated 26-9-1966, for the plaintiff. He averred that in June, 1973, he was in need of money and he demanded share of produce from defendant but he became annoyed. He asked his relatives to get copies of Revenue Record but they informed the plaintiff that defendant/ petitioner had got transferred the suit land in his own name, whereupon the plaintiff lodged criminal case under section 406, P.P.C. Against defendant/petitioner and his father. Thereafter defendant and his father requested the plaintiff not to pursue the criminal case and promised to pay his share of produce and also to transfer suit-land in his favour, therefore, plaintiff did not pursue the criminal case and the same was cancelled. The plaintiff stated that he visited Pakistan after 2/3 months and asked the defendant to arrange for transfer of the suit-land in his favour and to pay share of the produce, but he refused, therefore, he was constrained to file suit. The petitioner/defendant mentioned in written statement that the plaintiff had obtained Rs.8,500 from him, as loan, when he left for England and thereafter he paid Rs.11,000 to his wife and children. He asserted that he had himself purchased land measuring 31 Kanals, 5 Marlas vide Mutation No.518, dated 26-9-1996 from Iftikhar Ali Shah and since then he was in possession of the same. Learned trial Court framed issues, recorded evidence and decreed the suit, brought by the respondent, vide judgment, dated 18-12- 1995. The petitioner filed appeal thereagainst which was dismissed by learned Addl. District Judge, vide judgment, dated 24-2-1997. Hence this revision petition.
3. I have heard the arguments and perused the record.
4. As mentioned above the case of respondent is that petitioner is real brother of his wife and that he had paid him amount for purchasing suit-land, therefore, he is owner of the same but petitioner/defendant fraudulently got the same transferred in his own name. However case of the petitioner is that he had paid the sale price of the suit-land, therefore, he was owner of the same and respondent/plaintiff has no concern with the same. The plaintiff examined P.W.1, Muhammad Ramzan, who is general attorney of plaintiff/ respondent. He stated that plaintiff is resident of Chak No.271-RB and he asked petitioner to purchase land for him and the same would remain under this cultivation as tenant. The plaintiff paid Rs.2000 to defendant for the payment of earnest money and promised to send remaining amount from England. He further stated that thereafter plaintiff sent remaining amount (one thousand pounds) through bank draft. Thereafter defendant sent letters (Exh. P.3 to Exh.P.6) to plaintiff. P.W.2, Muhammad Boota also corroborated the statement of P.W.1. The defendant examined D.W.1, Muhammad Siddique and he himself appeared as D.W.2 in support of his case. As mentioned above, respondent/plaintiff sent 1000 pounds to petitioner through bank draft Exh.P.2. It is pertinent to note that certificate of remittance (Exh. P.2) was not taken exception to with any vehemence at the time the same was introduced into evidence. The only objection raised was that the document (Exh.P.2) did not figure in the list of reliance of the plaintiff. However, the objection, so raised, was overruled by the learned trial Court and the document was allowed to be exhibited. This document quite naturally gives rise to the presumption raised by Article 129(F) of Qanun-e-Shahadat, according to which it has to be assumed that common course of business was followed in regard to the transaction contained in document, Exh.P.2. Learned Courts below have accepted the plea of the respondent that the petitioner did receive the amount of money in question vide Exh.P.2. Apart from self-serving statement of the petitioner, no worthwhile rebuttal of the said document has come from the side of defendant/petitioner.
5. The same appears to be the position of the letters (Exh. P.3 to Exh.P.6) which were admitted into evidence by learned Trial Court without objection by the defendant/petitioner. The petitioner denied any responsibility for the authorship of letters Exh.P.3 to Exh.P.6, in his statement before the learned trial Court. However no explanation is forthcoming as to why exception was not taken to admissibility of the said letters at the time of their reception into evidence. Likewise the petitioner has failed to explain as to why the letters sent by his father to the respondent were allowed to be exhibited without objection in the trial Court.
6. As regards the technical objection raised on behalf of the petitioner that since respondent has failed to ask for the further relief of possession, despite being out of possession, therefore, his suit is not maintainable in view of the bar contained in the proviso to section 42 of the Specific Relief Act.
This objection is of technical nature, which has no effect on the merits of the case. The respondent by asking the relief that the petitioner may be declared to be holding possession for and on his behalf, has actually claimed to be in constructive possession of suit-land. As a consequence of the decree passed in favour of the respondent, the petitioner has automatically become tenant of the respondent. Hence the respondent can competently seek his eviction from the suit-land through Revenue authorities thus the relief prayed for by the respondent seems to be quite adequate and does not involve disregard or violation of aforementioned legal provision.
7. It has also been agitated on behalf of the petitioner that area of the suit-land, as described in the plaint, quite clearly exceeds the land actually transferred by Iftikhar All Shah, vendor, vide Mutation No.518, which is on record as Exh.P.9 and Exh.D.1, according to which land measuring 33 Kanals, 2 Marlas was transferred by Iftikhar All Shah, vendor. The area of the suit-land has been shown to be 45 Kanals, 19 Marlas in the plaint. Having Juxtaposed the plaint with the particulars borne on Mutation No. 518, I find that plaintiff/respondent, while drafting the plaint, fell into error by showing area of suit-land to be 45 Kanals, 19 Marlas. This was perhaps done inadvertently. Vide sale Mutation No.518. Iftikhar All Shah transferred 31 Kanals, 5 Marlas from Khewat No.13 and 1 Kanal, 17 Marlas from Khewat No.15 (1/8 share), total area whereof stood at 14 Kanals, 14 Marlas. The vendor, therefore transferred only 1 Kanal, 17 Marlas out of Khewat No.15. However, it seems that respondent /plaintiff mistakenly included the entire area of Khewat No.15 in the suit-land. That is why area of suit-land was mistakenly alleged to be 45 Kanas, 19 Marlas, which unduly included total 14 Kanals, 14 Marlas area of Khewat No.15, although out of this Khewat only 1/8th share, measuring 1 Kanal, 17 Marlas, had been transferred by the vendor, through the mutation in-question. This, therefore, appears to be case of misdescription of the suit-land in the plaint. The law is well-settled that nobody can be non-suited on account of any technicality of this nature. The mistake highlighted above is even otherwise floating on the surface of the record and can be conveniently corrected without any difficulty. It is accordingly held that the correct area of the suit-land is only 33 Kanals, 2 Marlas, as reflected in Mutation No.518 (Exh. P.9/Exh.D.1). With the above modification, this revision petition is dismissed. No order as to costs.