' MUHAMMAD JEHANGIR ARSHAD, J.---This civil revision has been directed against the judgment and decree dated 14-10-1997 passed by learned Additional District Judge, Sialkot whereby the appeal filed by respondent No.1 against the judgment and decree of the learned trial Court dated 26-5- 1994 dismissing his suit for possession, was accepted and the suit was decreed against the petitioner.
2. The facts briefly stated are that respondent No.1/plaintiff claiming himself to be the owner of property fully described in the head-note of the plaint, filed a suit for possession against respondent No.2 and petitioner on the ground that property in dispute was constructed by him and was occupied by Barkat Ali respondent No.2 being his brother three years prior to the institution of the suit with his consent. However, six months prior to the institution of the suit the respondent No.2/defendant vacated the said property which was then occupied by the petitioner/defendant No.2. Further it was asserted in the plaint that in the beginning the plaintiff/respondent No.1 did not object to the occupation of petitioner/defendant over the suit property, however, one week before the institution of the suit when the plaintiff/respondent No.1 asked the petitioner/defendant to hand over vacant possession of the same, the petitioner/defendant refused and instead started claiming himself to be the owner of the suit property. Barkat Ali respondent No.2/defendant on 2-11- 1992 filed a consenting written statement but later on his contention that he never filed such a consenting written statement, he was allowed to file fresh written statement which he did on 16-11- 1992, wherein he claimed himself to be owner of the disputed property and alleged that he having sold the said. Property to petitioner/defendant No.2 vide agreement to sell dated 29-4-1992 and also delivered possession of the same to him, hence the petitioner/defendant No.2 had become its owner in possession and the plaintiff/respondent No.1 had no concern with the suit property. Similar was the written statement filed by the petitioner/defendant No.2.
3. Keeping in view the divergent pleadings of the parties the learned trial Court framed the following issues and invited the parties to produce their evidence:-- ' Issues:--
(1) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? OPD
(2) Whether the defendant No.2 purchased the suit house from the defendant No.1 in consideration of Rs.40,000 and the defendant No.2 is rightful owner in possession of the house? OPD.
(3) Whether the suit house was constructed by the plaintiff and it was given to the defendant No.1 for his temporary residence and the plaintiff is real owner of the suit house? OPP.
(4) Whether the defendant No.2 is illegal occupant over the suit house and the plaintiff is entitled to have its possession? OPD.
(5) Relief.
4. The plaintiff/respondent No.1 in support of his case, produced Mst. Hussain Bibi (mother) as P. W.1, Muhammad Yousaf P.W.2 and he himself appeared as P.W.3 and closed evidence. In rebuttal, the defendants produced Muhammad Aslam Khokhar D.W.1 (scribe of agreement Exh.D.1), Barkat Ali D.W.2 (defendant/ respondent No.2) and petitioner/defendant No.2 appeared as his own witness as D.W.3 and closed his evidence.. On conclusion of the trial vide judgment dated 26-4-1994 the learned trial Court dismissed the suit. Aggrieved of the said judgment and decree of the learned trial Court, Muhammad Iqbal plaintiff/respondent No.1 filed an appeal which was allowed by the learned Additional District Judge on 14-10-1997, with the result that his suit was decreed. Hence, this civil revision.
5. The main point requiring determination in this civil revision is as to whether Muhammad Iqbal plaintiff/ respondent No.1 succeeded in establishing his title over the suit property, as suit for possession can only be filed by true owner unless the same is one filed under section 9 of the Specific Relief Act, this is not the position here. Hence, the plaintiff/ respondent No.1 had to succeed only after proving his title over the suit property.
6. Admittedly, no documentary evidence has been produced by either side and the only evidence led with regard to the title is oral assertion of the witnesses. P.W.1 Mst. Hussain Bibi, mother of both the respondents deposed that suit property was gifted to Muhammad Iqbal plaintiff/respondent No.1 by one Sarwar Lamberdar who was owner of the same. Similar is the evidence of Muhammad Yousaf P.W.2 as well as of Muhammad Iqbal plaintiff/respondent No.1 but there is not an iota of evidence on record to establish the title of said Safwar Lamberdar. In the absence of such evidence, Muhammad Iqbal plaintiff could not lay any title or claim over the suit property and mere fact that he had ever raised constructions over the disputed land does not mean that he was or is owner of the said property. On the other hand, the petitioner is admittedly in possession and shall be deemed to be the owner of the property unless otherwise proved in terms of Article 188 of the Qanun-e-Shahadat Order. It has also been asserted in the evidence of respondent No.1 that property in dispute was originally an evacuee property, if it is so then how Sarwar Lamberdar could alienate that property to him i.e. Plaintiff/respondent No. 1 . The findings of two Courts below on Issues Nos.3 and 4 have been scanned and appraised. As against the findings of learned Additional District Judge, the findings of learned trial Court on the said issues are based on law as well as evidence, whereas the conclusions drawn by the learned Additional District Judge while decreeing the suit of respondent No.1 are neither legally proper nor supported by any evidence about title of plaintiff/respondent No.
1. Resultantly, this civil revision is allowed, the judgment and decree of the first Appellate Court/Additional District Judge, Sialkot dated 14-10-1997 is set aside and that of the learned trial Court dated 26-5-1994 dismissing the suit of plaintiff/respondent No.1 is restored. There is no order as to costs.