1. ' The present revision application is directed against the concurrent findings of two Courts below by which the suit for possession and mesne profits filed by the applicant was dismissed.
2. ' The facts giving rise to the present application are that one Gul Sher owned the disputed shop situated at Halani Road. On 4-1-1993, Gul Sher gave the said shop to Madressa Darul-Fazal as charity through a written document and then after few days, the said Gul Sher died. Thereafter the applicant demanded the rent of the said shop from the respondent and from other tenants.
3. However, the tenants filed a Suit No,4 of 1993 in the Court of learned Civil Judge, Kandiyaro for perpetual injunction on the basis of possessory rights in the property. The said suit was disposed of on the statement made by the applicant that they would not be dispossessed from the property without due course of law. The applicant approached the respondent many times to pay the rent but he failed to pay. Therefore, he filed the suit for possession and mesne profit at monthly rent of Rs,200 from January, 1993 till the possession is given to him.
4. ' The respondent was served. He filed a written statement in which he denied the allegations of the applicant. He claimed that the applicant had no right to claim the rent from him. He further took a plea that Gul Sher died before the execution of documents through which the property was allegedly transferred to the applicant and that the said documents are forged and fabricated. He took a plea that the suit was not maintainable, hence he prayed for the dismissal of the suit.
5. ' Out of the pleadings of the parties, the trial Court framed the following issues:-- Issues
(1) Whether originally property belongs to Gul Sher who donated to Madressa plaintiff?
(2) Whether the defendant was already in occupation of the disputed shop on rent?
(3) Whether the suit is maintainable at law?
(4) What should the decree be?
6. ' The parties led evidence in support of their respective claims. The learned trial Judge after going through the evidence available on the record and hearing the parties counsel decided the issue No,1 that the property did not belong to the applicant who failed to produce, ownership document.
7. The issue No,2 was decided that the defendant was already in occupation of the shop on rent. The issue No,3 was decided that the suit was maintainable. Consequently, the suit was dismissed vide judgment dated 8-8-1996 and decree, dated 15-8-1996. The applicant challenged the said judgment and decree before the District Court. The learned Additional District Judge who heard the appeal formed the opinion that Gul Sher was not the owner of the property as no ownership documents were produced by the applicant. The respondent was also not found owner of the property, as he could not produce the documents of ownership but as per Exh.19 he was found to be in possession of the suit property as tenant. Consequently, the appeal was dismissed by judgment and decree dated 19-8-1998.
8. ' The applicant was dissatisfied with the said judgment and decree, therefore, he has preferred the present revision application.
9. ' I have heard the Advocate for the applicant, respondent and perused the record of this case very Carefully. The learned Advocate for the applicant has stated that the property was owned by the Government but the same was occupied by Gul Sher long ago who constructed shops and a house on the said property; that the shops were rented out to three different tenants out of them the disputed shop was rented out to the respondent; that the respondent was paying rent to Gul Sher that Gul Sher had transferred his possessory and tenancy rights to the applicant through written documents which have been produced in evidence as Exhs.19 And 20; that the applicant demanded the rent from the respondent but he refused to pay the same therefore, the suit was filed for possession and mense profits; that both the Courts below misread the evidence; that both the Courts below gave emphasis on the production of ownership documents of Gul Sher but he had no ownership rights in the property as he had only possessory rights which are transferable; that the evidence of applicant and his witnesses about the tenancy between Gul Sher and the respondent has not been denied in the cross-examination therefore, both the Courts below reached at the wrong and illegal conclusions which are required to be set aside.
10. ' On the other hand the learned Advocate for the respondent has stated that both the Courts below did not commit any illegality or irregularity in dismissing the suit of the applicant; that the applicant had no right title or interest in the suit property therefore, he cannot claim any such right; that no rent receipt has been produced; that the possession of the respondent has been admitted by the applicant; that the documents transferring the property to the applicant by Gul Sher are forged documents therefore, they cannot be relied upon and that both the Courts below did not misread the evidence therefore he prayed for the dismissal of the revision application.
11. ' I have given due consideration to the arguments and gone through the evidence available on the Court. I find that the applicant and his witnesses namely Muhammad Ramzan, Haji Muhammad Mossa, and Sikander Ali have categorically stated that the respondent was tenant of the Gul Sher.
12. Their evidence reveals that sometimes the respondent was paying the rent and sometimes he was not paying the rent to Gul Sher therefore, a dispute arose between them. The above piece of evidence went unchallenged as no cross-examination was conducted by the respondent to any of the above named witnesses challenging their assertions or denying that the respondent was not the tenant of Gul Sher. It is well-settled principle of law that if any piece of evidence is not challenged in the cross-examination then it is presumed to be accepted as true by the other side.
13. Reference is invited to a case of Muhammad Akhtar v. Manna 2001 SCM R 1700.
14. ' The trial Court and the Appellate Court are unanimous on the point that the respondent occupied the premises on rent. The Appellate Court further observed that the respondent was tenant as per Exh.19 through which Gul Sher transferred the property to the applicant.
15. ' Both the Courts below are unanimous on the point that the applicant could not produce the proof of the ownership rights of Gul Sher by not producing his ownership document therefore, the suit was dismissed. In this connection it is pertinent to point out that applicants witness Sikandar Ali categorically stated that Gul Sher occupied a Government plot situated on Link Road Halani near bus stand. He constructed four shops and a house over the said property. This statement of the witness went unchallenged, as the respondent did not cross-examine the witness on the above point. The respondent also did not claim the ownership of the property as he claims to be having possessory rights over it. From the above position, it is clear that the suit property was owned neither by Gul Sher nor by the applicant nor by the respondent but it is the property of Government.
16. 'Gul Sher claimed possessory rights over the suit property. Under section 8 of Specific Relief Act a person entitled to the possession of a specific immovable property can recover it in the manner prescribed by the Code of Civil Procedure. The words "entitled to possession" appearing in section 8 of the Specific Relief Act mean a right to possession on the basis of ownership or possession of which the person claiming has been dispossessed. It has been held in a case of Ismail Ariff v.
17. Mahomad Ghous ILR 20 Cal. 834 (PC) that there may be a title by contract, inheritance, prescription or even by possession and the last will prevail where no preferable title is shown. In the same authority it has further been held that lawful possession of land is sufficient evidence as owner as against a person, who has no title whatsoever and who is a mere trespasser. It has further been held in ILR 6 Bombay 215 that possession is a good title against all persons except the rightful owner, and entitles the possessor to maintain ejectment against any other person than such owner who dispossessed him.
18. ' Keeping in view the above proposition of law with regard to possessory rights in the suit property now it is to be seen as to whether the respondent had better title than Gul Sher. All the applicant's witness clearly stated that Gul Sher was in the possession of suit property who had let out the same to the respondent. The respondent did not claim that he owns the property but he also claims possessory rights over the suit property. It has come in the evidence through P.W. Sikander Ali that Gul Sher constructed the disputed shop and let out the same to the respondent. This piece of evidence also went unchallenged, as the respondent made no cross-examination to this witness on the said point. The respondent examined himself and took a plea that he constructed the shop in question. The applicant through cross-examination denied the said assertion. In spite of the denial from the side of the applicant, the respondent did not care to lead any further evidence to prove his assertion. After scrutinizing the evidence available on the record, I am of the considered view that the rights of Gul Sher were earlier in time than the alleged rights of respondent. In fact, the respondent occupied the suit property as tenant of Gul Sher, which is the unanimous decision of both the Courts below.
19. 'The question arises whether the possessory rights are transferable. This point was examined by Madras High Court in a case reported in AIR 1958 Mad.
497. It has been held that a person in possession without title has an interest in the land possessed which unless and until the true owner interferes, he can dispose of by deed or will or by way of gift, and which can be disposed of by an execution of sale, in just the same manner as if his title was unimpeachable. It has been held in Gobind Prasad v. Mohan Lal ILR 24 All. 157 that possessory interest is not only transferable but also heritable. Reference is also invited to cases of Ahser v.
20. Whitlock LRI QB 1; Shri Gopal v. Ayesha Begum, ILR 29 All 52. Thus, the above rights of a person in possession of property are heritable and transferable therefore, the said person can dispose of the same by deed or gift or will or by execution of sale.
21. ' In view of the above position, it is clear that Gul Sher was competent to transfer his rights to the applicant which he did by executing such deed and the same has been produced as Exh.19. The said deed has been proved by the applicant by examining himself, Muhammad Ramzan, the scribe of the above document, two attesting witnesses Haji Muhammad Moosa Opera and Sikander Ali.
22. ' In the light of what has been stated above it is clear that both the Courts below misread the evidence. They did not consider that Gul Sher has only possessory rights. He did not have ownership rights in the suit property as it belongs to the Government. Therefore, both Courts wrongly emphasized upon the fact of non-production of ownership document of Gul Sher. Both the Courts below committed material irregularity and illegality in assessing and scrutinizing the evidence available on the record. Thus, a miscarriage of justice has taken place which is required to be rectified. Hence, the judgments and the decrees of both the Courts below are set aside. The suit of the applicant is decreed as prayed with direction to the respondent to vacate the premises within a period of two months. The revision application is allowed.