' In order to avoid mutation of Gift No.2195, dated 28-11-1972 in favour of respondents Nos.1 to 3 and subsequent Sale-deed bearing No.471, dated 11-3-1990 in favour of respondent No.4 by respondents Nos.1 to 3, petitioner filed a suit for declaration and perpetual injunction to establish his title to the suit-land. The plaintiff pleaded in para.2 of the plaint to have acquired title of suit- land measuring six Marlas in 1965 purportedly upon an oral Hiba by his father Saghar Khan in his favour. The petitioner-plaintiff also claimed that the purported Hiba in his favour being oral could not be entered in the revenue documents and also that he at his own expense made constructions thereupon and obtained water and electric connections. Petitioner-plaintiff challenged Hiba through Mutation No.2195, dated 28-11-1972 in favour of respondents Nos. 1 to 3 from his and their late father Saghar Khan and sale by respondents Nos. 1 to 3 on the basis of gift in favour of respondent No.4 through registered Sale-deed No.471, dated 11-3-1990, as illegal and fraudulent.
Petitioner in para.4 of the plaint claimed adverse possession of the suit property in case of non- success of other pleas. Respondents filed their contesting written statement claiming to be the owners of the suit property. Issues were framed by the learned trial Court. Evidence was recorded whereupon the learned Civil Judge, through judgment and decree, dated 24-10-1995, dismissed the suit with costs. Petitioner filed an appeal thereagainst. This appeal was also dismissed by the learned Additional District Judge, Gujrat camp at Kharian, through judgment and decree, dated 3- 6-2000. Hence the present civil revision.
2. The learned counsel for the petitioner contended that proceedings filed by respondents against the petitioner for his ejectment were dismissed by the learned Rent Controller in absence of relationship of landlord and tenant wherefor the same amounted to res judiciata qua the question title and further that respondents failed to prove valid execution and incorporation of mutation of gift in their favour by presenting two witnesses and the learned Courts below failed to consider the fact of continuous possession of the petitioner over the suit property and that petitioner acquired title through adverse possession in absence of proof of gift in his favour, And that the plea of adverse possession as raised by the petitioner was an alternate plea and not a contrary plea.
3. Learned counsel for the respondents, supported the impugned judgment and decree.
4. I have considered the submissions of the learned counsel for the parties and have also examined the record. The suit was filed by the petitioner to establish and to seek a decree of declaration of his title as owner in possession of the suit property on the basis of purported gift claimed to have been made by Saghar Khan in favour of the petitioner in 1965. As stated above, in para.2 and ground {{URDU TEXT}} of the plaint, petitioner specifically pleaded that gift of the land was made in his favour in 1965 by his father but the same was not incorporated in revenue papers till date but he himself immediately constructed a house thereupon and obtained water and electric connections. And as per para.3 of the plaint it was to cause loss to him that respondents purportedly set up Hiba through Mutation No.2195, dated 28-11-1972 and Sale-deed No.471, dated 11- 3-1990 and also requisite entries in the Register Haqdaran Zamin in their favour on the basis of the said gift mutation. On contest by respondents in their written statement, Issues Nos.1, 2, 3 and 4 were framed on merits. Onus of all these issues was on the petitioner as plaintiff. Issue No.1 related to the factum of gift in his favour by his father and Issues Nos.2 and 3 were related to the purported illegality and gift through Mutation No.2195, dated 28-11-1972 and Sale-deed No.471, dated 11-3-1990 on the basis of the said gift. Issues correctly and validly represented the litigated questions between the parties arising out of their pleadings. The entire basis of petitioner's case as structured in the plaint was the claim of ownership of the suit-land on the basis of oral gift by his late father Saghar Khan in his favour in 1965 and the alleged fraud to his rights of respondents by raising gift through mutation, dated 28-11-1972 and the sale-deed, dated 11-3-1990. It thus cannot be overemphasized that burden to prove his ownership was upon the petitioner-plaintiff on the basis of 1965 gift to negativate gift of 1972 in favour of his step-brothers, respondents, Nos. 1 to 3 by late Saghar Khan. As such the plea of the learned counsel for the petitioner cannot be accepted that it was the duty of respondents to prove gift through Mutation No.2195, dated 28-11-1972 in their favour as beneficiaries to disprove the ownership of the petitioner on the basis of oral gift of 1965 in his favour. Challenge was based by the petitioner upon purported fraud to his ownership, which was denied by respondents. He was thus under a legal burden to prove pleas taken in the plaint qua his ownership, oral gift in 1965, construction of the house and installation by him of water and electricity connection. Instead of endeavouring to shift the burden on the respondents.
5. The learned Courts below through thread-bare analysis and proper evaluation and appreciation of evidence, concurrently concluded that petitioner had failed to prove his ownership as well as the gift of 1965 in his favour. The evidence has neither been overlooked nor misread by the learned Courts below. Petitioner failed to specify the exact date of the gift in 1965. He, however, claimed in his evidence the gift from his father about 28/29 years prior to the date of his deposition while his own witnesses (P. W.1 and P.W.2) stated the gift to have been made about 25/26 years ago. P.W.1 in his cross-examination admitted that the house was constructed in 1972/73 by father of the petitioner. The petitioner in ground {{URDU TEXT}}of plaint pleaded to have constructed the house himself immediately upon the purported gift in 1965. Furthermore petitioner claiming to have installed water and electric meters himself A admitted the electric meter to be in the name of his step-brother Barkat Ali who statedly died 32 years ago. Petitioner has given no reason whatsoever in his evidence as to why the purported oral gift of 1965 could not be given effect to in the revenue papers or through a decree of the Court. Evidence as presented by the petitioner is contrary, unreliable and unworthy of any credence. In absence of any misreading, non-reading and access of authority, this Court cannot interfere in the concurrent findings of fact arrived at by the learned Courts below.
6. Plea of adverse possession as raised by the petitioner cannot by any stretch of imagination be considered an alternate plea. The basic ingredients of the plea of adverse possession are adversity to the owners of the property and continuous hostility by the occupier to the title and rights of the owner. In the present case the situation is converse. Petitioner vaguely pleaded adverse possession in para.4 of the plaint though claiming in the other parts of the plaint to have acquired valid title through gift from his father i.e. The original owner. The two pleas thus suffer from inconsistency and are obviously self-destructive. Furthermore non-establishment by respondents of relationship of landlord and tenant in the rent proceedings before the learned Rent Controller cannot be taken under the above explained circumstances to the establishment of petitioner's title to the suit property, particularly, when the question of title was under litigation through petitioner's suit before the Courts of competent jurisdiction under section 9 of the Civil Procedure Code. The plea of res judicata thus has no substance.
7. In view of what has been held above, this civil revision is dismissed with costs.