' This petition calls into question judgments and decrees dated 18-1-2003 and dated 16-2-2004 of the learned Senior Civil Judge and that of learned Additional District Judge, Charsadda decreeing suit of the 'respondents-plaintiffs of declaration with consequential relief..
' Arguments heard record perused.
2. Suit filed by the respondents-plaintiffs regarding suit-land area 21 Kanals, 3 Marlas described in the plaint in which the order, dated 7-1-1999 passed by Assistant Commissioner Revenue Charsadda directing correction . In the Khasra Girdawari was also challenged. Initially suit was resisted through written statement where after petitioners did not vigilantly pursued the matter and its such conduct is fully reflected in the order sheets of the trial Court. Despite of last opportunity given petitioners failed to produce evidence thus, its defence was struck off under Order XVII, rule 3, C.P.C. Appeal filed there against also failed' and matter, came up through C.R.
No,17 of 2003 before this Court on 17-1-2003. Both, the judgments of the two Courts below were confirmed, however, it was pointed out to the petitioners that they may, if so wish, press into service the provisions of Order XII, rule 2, C.P.C. To tender the sale-deed in evidence. When the proceedings recommenced before the trial Court on 18-1-2003 petitioners once again requested for adjournment which was disallowed and vide impugned judgment decree was passed and appeal filed there against was also dismissed vide judgment, dated 16-22004.
3. Learned counsel for the petitioners vehemently contended. That this Court passed order on 17-1- 2003 permitting the petitioners to bring on record the deed under Order XII, rule, 2, C.P.C. But the trial Court has shown undue haste refusing the application on 18-1-2003 not granting adjournment to file such notice/application and the appeal Court has also not attended to this aspect of the case.
4. Learned counsel for the respondents on pre-admission notice argued that the history of the case as is evident from order-sheet would show that the petitioners at no occasion have taken any step to record its evidence despite opportunities granted at several times and despite of last opportunity when they failed to produce evidence, its defence was struck off and that the order of this Court dated 17-1-2003 is misconstrued by the petitioners and being misused.
5. So far as the striking off of defence is concerned that has already attained finality when this Court refused to interfere vide judgment dated 17-1-2003. No permission was granted to the petitioners to avail the remedy under Order XII, rule 2, C.P.C. But it was only an advice to them that they may adopt that course, if they so wish, but again the petitioners did not act vigilantly and instead of giving notice to the opposite side they sought adjournment on 18-1-2003. Again in the Appellate Court They instead of availing remedy under Order XII, C.P.C. Filed application for additional evidence which was not allowed.
Not only because both the learned Courts below have fairly attended to each and every aspect of the case and have made the appraisal of evidence in a proper legal manner. No misreading or non-reading of the Revenue Record has been pointed out. The petitioners are guilty of approbation and reprobation by taking inconsistent pleas. In the first instance, they took the plea that they inherited the property but thereafter they pleaded that it was purchased. Both the pleas are self- B clashing and when the Revenue Record and other evidence fully support the case of the respondents-plaintiffs establishing its title over the suit property, therefore, no exception could be taken to the findings recorded by two Courts below.
' For the foregoing reasons this petition is dismissed with no order as to costs. C.M. No,522 of 2004 having become infructuous is also dismissed.