' JAWWAD S. KHAWAJA, J.--- Muhammad Nazir petitioner-defendant impugns the decree of the appellate Court dated 28-10-2006 whereby the decree of the learned trial Court dated 20-6-2006 was set aside with the result that the suit filed by the respondents-plaintiffs seeking possession of the suit-land was decreed.
2. The case set up by the plaintiffs was that the petitioner-defendant was a Moeen and had been given land by their father Haji Muhammad Yousaf of temporary basis on the condition that the petitioner shall vacate the land acid hand it over to the plaintiffs as and when required to do so.
According to the respondents plaintiffs, the petitioner has failed to deliver' possession of the land, thus giving rise to the suit for possession. The defence set up by the petitioner was that he, and before him, his forebears were in occupation of the land which was part of the Shamlat Deh. He also pleaded that the father of the respondents had not given the land to the petitioner, as alleged in the plaint.
3. The respondents produced three witnesses in support of their case including Imtiaz Ahmad (respondent No. 1) himself. The petitioner's right to lead evidence was forfeited vide order dated 1- 2-2006. The learned trial Court examined the evidence of the P.Ws. And came to the conclusion that they had not been able to prove the case. Specifically, it was observed that no witness of the alleged agreement whereby land was given to the petitioner, had been examined by the respondents. It has also been noted that the land in question was part of the shamlat and the respondents had not been able to prove exclusive title to the same.
4. The learned appellate Court, however, as noted above, has reversed the finding of the learned trial Court. The reason which has prevailed with the learned appellate Court is that the petitioner has disputed any interest of the respondents in the suit-land. The learned appellate Court held that it was for the petitioner to produce proof of ownership as well as possession but he failed to do so.
5. Learned counsel for the petitioner argued that the respondents were plaintiffs in the case and it was for them to prove their assertion that they were exclusive owners of the land and that their father had given possession pf the land to the petitioner. He also argued that the two witnesses produced by the respondents did not state that the land had been handed over to the petitioner by the father of the respondents. In this view of the matter, it was submitted that' the respondents had failed to prove their case.
6. Learned counsel for the respondents-plaintiffs contended that the witnesses produced by them had proved the fact that the petitioner had been inducted in the .Suit property as a licensee. To support this contention, he referred to the testimony of the P.Ws. I have gone through the same, with the assistance of learned counsel for the respondents, and find that they are not consistent with each other. Moreover, Fateh Muhammad, who appeared as P.W.2, testified that the arrangement between the petitioner and the respondents-plaintiffs took place in his presence. This itself cannot be true because it was not the respondents who claim to have given the property to the petitioner. Their case is that it was their father Haji Yousuf, who had done so. P.W.2 also stated that the father of the respondents Haji Yousuf was alive at the time but among those, who allegedly were present at the time, he did not mention the father of the respondents-plaintiffs. The other witness in in support of the respondents-plaintiffs was Muhammad Nawaz (P.W.3). By his own showing, he was not a witness to the alleged arrangement between the petitioner and the father of the respondents. In these circumstances, it is clear to me that the respondents-plaintiffs failed to discharge the onus of proving their case.
7. In addition to the above, learned counsel for the petitioner, referred to section 3 of the Punjab Conferment of Proprietary Rights on Non-Proprietors in Abadi Deh Act, 1995, which reads as under:-
3. Conferment of Proprietary Rights in land on non-proprietors--Notwithstanding anything to the contrary contained in any law for the time being in force or in any agreement, instrument, customs or usage or in any decree or order of any Court or other authority, all rights, title and interest whatever, 4 in the land which is situated within the Abadi Deh and which is under a house owned by a non-proprietor, shall, on the commencement of this Act, vest in the non-proprietor under whose house it is situate, free of charge, and no compensation shall be claimed by or paid to any person or 'Governments affected by the vesture of proprietary rights in a non-proprietor under this section."
On this basis it was argued that title in the land over which the petitioner has built his house has come to vest in the petitioner. Learned counsel for the respondents was, at his own request, granted time to examine the above mentioned law. He has not been able to give any valid reason as to why the petitioner should be deprived of the benefit of section 3 ibid. He merely argued that the petitioner was a licensee of the respondents. This fact, however, does not mean that the petitioner cannot claim title on the basis of the above referred statute.
8. In view of the foregoing discussion, this petition is allowed. As a consequence, the decree of the learned Appellate Court is set aside and that of the learned trial Court is affirmed.
9. The petitioner shall also be entitled to his costs throughout.