' RUSTAM ALI MALIK, J.---This is a revision petition against the judgment and decree, dated 19-3- 1996 passed by the learned Additional District Judge-I, Minawali, whereby he had accepted the appeal filed by Haji Ghulam Qadir, respondent against the judgment and decree, dated 6-12-1993 passed, by the learned Senior Civil Judge, Mianwali, had set aside the impugned judgment and decree and had decreed the suit for possession filed by the respondent in his favour.
2. The brief facts are that Haji Ghulam Qadir respondent/plaintiff filed a suit for possession against the petitioner/defendant on the plea that he had purchased the property in dispute i.e. House No.17/41 consisting of two rooms situated within the municipal limits of Kalabagh city, near Lakkar Mandi, Kalabah, Tehsil Isa Khel, District Mianwali, from Malik Allah Yar, etc. Of Kalabagh through sale-deed No. 20/1, registered on 20-2-1990, for an amount of Rs.30,000. The bargain for the sale was struck about two months prior to the execution of the sale deed. Before the plaintiff purchased this house, Malik Allah Yar, and others, the original owners of the house, had given the same to the respondent for his temporary residence. After the bargain was struck and the sale-deed was executed, the petitioner/defendant requested him to allow him to remain in the said house for a few days and undertook of vacate the house thereafter. On account of the weak financial condition of the defendant, the plaintiff allowed him to remain in the said house for a few more days. At the time of bargain and at the time of registration of the sale-deed, the previous owners had told the defendant that the house aforesaid had been purchased by the plaintiff. The defendant however, prolonged his stay on the pretext that he was trying to obtain a house on rent. However, as he appeared to have changed his mind, the plaintiff issued a notice to him for the vacation of the house. He was asked even through the respectables to vacate the house but he refused to do so.
Hence, the suit.
3. The suit was resisted by the defendant. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:--
(1) Whether the plaintiff is owner of the suit property?
(1-A) Whether the suit property falls in Abadi-deh, Kalabagh and as such is not alienable?
(2) Whether the defendant is in possession of the suit property as a licensee and the plaintiff is entitled for its possession?
(3) Whether the suit is time-barred?
(4) Whether the plaintiff has no locus standi and cause of action?
(5) Whether valuation of the suit for the purposes of court-fee and jurisdiction is incorrect, if so, its effect?
(6) Whether the suit of the plaintiff is false, frivolous, mala fide and the defendant is entitled for special costs?
(7) Relief.
4. After recording the evidence of the parties the learned Senior Civil Judge, Mianwali dismissed the suit vide his judgment/decree, dated 6-12-1993.
5. Aggrieved of the dismissal of the suit by the learned trial Court, the respondent/plaintiff went up in appeal which was accepted by the learned Additional District Judge-I, Mianwali vide his judgment and decree, dated 19-3-1996. The learned appellate Court set aside the impugned judgment and decree passed by the learned trial Court and decreed the suit for possession in favour of the respondent/plaintiff. Aggrieved of the aforesaid judgment and decree, dated 19-3- 1996 the petitioner has come up in revision.
6. Arguments have been heard and record perused.
7. In this case the plaintiff had examined three witnesses (including himself) in support of his version. He has also produced in his evidence the following documents:--
(i) Copy of registered sale-deed, dated 20-2-1990 as Exh.P.1.
(ii) Attested copy of the application submitted by the defendant/ petitioner to the Deputy Commissioner, Mianwali as Exh.P.2.
(iii) Attested copies of statements of Gulzar Masih defendant and others, dated 20-2-1990 as Exh.P.3.
(iv) Report, dated 27-8-1990 as Exh.P.4 and
(v) Copy of decision of the Chairman, Town Committee, Kalabagh, dated 31-1-1990 as Exh.P.5.
8. From the other side, the defendant, including himself, examined four witnesses in support of his version and also produced in evidence:--
(i) Extract of the Electoral Rolls for the year, 1979 as Exh.D.l.
(ii) Extract of the Electoral Rolls for the year, 1986-87 as Exh.D.2 and
(iii) Copy of Register Haqdaran Zamin for the year, 1989-90 as Exh.D.3.
9. P. W.1 Alam Khan stated that the house in dispute was owned by Nawab-zadgan i.e. Malik Allah Yar, etc. And who had sold the same to the plaintiff on 20-2-1990 for the sale price of Rs.30,000 (approximately). He stated that he was a witness of the sale-deed. He deposed that before the sale the defendant had submitted an application to the Deputy Commissioner, Mianwali, so that the house is not sold and whereupon the Tehsildar had visited the site and had also recorded the statement of Javed Masih. Councillor. The defendant had taken the plea (before the. Tehsildar) that Malik Ameer Muhammad Khan of Kalabagh had made a 'Will' that he i.e. The defendant shall be the owner of this property. However, he was unable to produce any evidence in that respect and hence the sale-deed was registered in favour of the plaintiff.
10. P.W.2 Muhammad Aslam deposed similarly.. During cross-examination, he stated that the property in question was situated within the limits of Town Committee, in Lakkar Mandi. He denied that the construction on the vacant land had been raised by the defendant. He stated that the defendant had submitted the application to the Deputy Commissioner, Mianwali and on which Tehsildar had visited the spot and had recorded the statements and (before the Tehsildar) the defendant had taken the plea that this property had been given to him as bakhsheesh. During cross-examination he also stated that the defendant had been in possession of this property for about 4/5 years.
11. The plaintiff himself appeared in the witness box as P.W.3 and deposed in support of his version.
He denied that the construction ( of the disputed house) had been raised by the defendant. He asserted that Pacca Kothas had been constructed by Malik Sahiban (the previous owners).
12. From the other side, D.W.1 Muhammad Latif is the Election Officer, Mianwali and who proved the documents Exhs.D.1 and Exh.D.2 to prove the entry of the name of the defendant in the voters' lists.
During cross-examination he stated that in the copies Exh.D.1 and Exh.D.2 and also in their original record there is no mention of the number of the house and further that these entries (of the voters' lists) do not prove the ownership (of the defendant) but only indicate his residence.
13. D.W.2 Muhammad Safdar stated that the house in dispute is situated in Abadi-deh. He stated that this property was not owned by anyone. However, the defendant was residing therein. He stated that the defendant had got constructed this house and that it had no concern with Nawab- zadgan. During cross-examination he stated that Malik Ameer Muhammad Khan, the Nawab of Kalabagh, was the owner of entire Abadi of Kalabagh. However, he stated that he was the owner 'by force'. He however admitted that Nawab-zadgan (the previous owners according to plaintiff's version) had got registered the sale-deed concerning this house in favour of the plaintiff. The witness further stated that this site was lying vacant which was occupied by the defendant and he had raised construction thereon. He denied that the defendant had been residing there with the consent of Nawab-zadgan.
14. D.W.3 Muhammad Yar also stated that it was a vacant land and the construction thereon was raised by the defendant. He also stated that this land was situated in Abadi-deh. He stated that the defendant is a Khakrob (as employee of Town Committee, Kalabagh). He stated that he had been living in this house for about 20/21 years. He deposed that Nawab-zadgan had no concern with this house and that it was previously owned by Hindus (non-Muslims).
15. The defendant himself appeared in the witness box as D.W.4 and stated that he had himself raised construction of this house and that previously this land was lying vacant. He stated that this house did not belong to Nawab-zadgan. During cross-examination he stated that he had had never obtained this house on rent from Nawab-zadgan. He however admitted that he and the plaintiff had submitted applications to the Chairman of the Town Committee. But he stated that he i.e. Chairman, Town Committee did not record any statements nor had given any decision. He stated that even the Deputy Commissioner, Mianwali had not decided his application. He denied that on 31-1-1990 the Chairman of the Town Committee had given the decision that he had no concern with this house.
16. Exh. P.1. Is the copy of Registered sale-deed to which presumption of truth is attached. From the document Exh.P.2 it appears that Gulzar Masih defendant/petitioner had submitted an application to the Deputy Commissioner. Mianwali stating therein that he had raised construction of two rooms and Veranda etc. In Abadi-deh and was in possession of the same and that the plaintiff had collusively got registered the sale-deed in his favour by Nawab-zadgan by keeping him in the dark and now they want to eject him forcibly therefrom. From the document Exh.P.3 it appears that the statement of the plaintiff was recorded by the Tehsildar, Mianwali on 20-2-1990 and wherein Gulzar Masih petitioner/defendant had stated that this land had been given to him by Malik Muzaffar Khan and about 3 years ago Malik Muzaffar Khan had waived the rent and hence for the past three years he had not been making payment of rent and that he had no proof of ownership.
17. Exh.P.4 is the report prepared on the application of the petitioner and wherein it was, inter alia, stated that Gulzar Masih had been trying to strike a bargain concerning this house with Nawab- zadgan but on account of insufficient funds had not succeeded in doing so and this house was (subsequently) sold by the owners thereof to Ghulam Qadir. In the report it was also stated that the applicant/petitioner had entered this property as a tenant and now he claims to be its owner, although he has no proof in support of his claim. In the report it was also stated that the application submitted by the applicant/petitioner was frivolous.
18. Exh.P.5 is the copy of a decision of Chairman, Town Committee, Kalabagh and wherein it was stated that the first party (Haji Ghulam Qadir) was -asked to produce the proof of ownership and on which he had produced the registered sale-deed. However, the second party (Gulzar Masih) had refused to accept the decision of the Chairman.
19. Now the position is that in his statement before the Tehsijldar recorded on 20-2-1990, Gulzar Masih had taken the plea that this land had been given to him by Malik Muzaffar Khan and that he had waived the rent three years ago and now for the past three years he had not paid any rent.
Although other than the said statement, the petitioner nowhere else admitted that he had entered this property as a tenant and subsequently the rent had been, waived, yet, one thing which is clear is that this land had been given to Gulzar Masih petitioner by Malik Muzaffar Khan (one of the previous owners) for residential purposes. However, there is, no convincing evidence on record that it had been given to him on rent. It is not the case of the plaintiff that the property in dispute was in possession of the defendant as a tenant. He had only taken the plea that when he had purchased this property from its previous owners, it was in the possession of the defendant.
20. The learned counsel for the petitioner has argued that the petitioner was not confronted with his alleged statement before the Tehsildar during the trial and hence the copy of the statement i.e. Exh.P.3 could not be taken into consideration. However, the said argument has no basis because it appears that during the course of cross-examination the defendant had admitted that he had submitted an application to the Deputy Commissioner and the Tehsildar had visited the spot. He had however taken the plea that the Tehsildar had not recorded his statement but he had obtained his thumb-impression. It, therefore, implies that the defendant had been confronted with his aforesaid statement but he did not admit the same, although he admitted that his thumb impression had been obtained by the Tehsildar in the course of enquiry.
21. The learned counsel for the petitioner in the course of arguments has taken inconsistent pleas.
In the first instance it was argued by him that a suit for possession was not competent, if the petition had entered this property 'as a tenant and only an ejectment petitioner could be filed to eject him. However, this argument is not available to the petitioner because the respondent/plaintiff had never taken the plea that the petitioner had entered this property as a tenant. In fact it was the version of the petitioner himself before the Tehsildar that he had entered this property as a tenant but subsequently the rent was waived by Malik Muzaffar Khan. The second plea of the learned counsel for the petitioner is that if the possession of the petitioner of the property in dispute is considered as that of a lessee, as he had executed works of permanent character and had incurred expenses in doing so, therefore the licence could not be considered as revocable. In this respect he has referred to Clause (b) of section 60 of the Easements Act, 1882.
However, there is hardly any convincing evidence on record to the effect that the construction existing at the site in question had been actually raised by the defendant. Hence, if the petitioner was a licensee, the licence has been clearly revoked.
22. The learned counsel for the petitioner has also taken the plea that if the possession of the petitioner cannot be considered as that of a lessee., then he had become owner of the disputed property on account of adverse possession as he had been in continuous, open and hostile possession of the property in dispute for the last 20/21 years. However, this argument has also no force because in his statement before the Tehsildar on 20-2-1990 (Exh.P.3) the petitioner had taken the plea that about three years ago Malik Muzaffar Khan had waived the rent and he had not paid the rent for the last three years. The aforesaid statement, as mentioned above, was recorded on 20-2-1990 while the suit had been filed on 29-5-1990. Then how the plaintiff could take the plea that he had become owner of the property in dispute by adverse possession. Furthermore, it was nowhere pleaded by the petitioner that his possession of the property in dispute was adverse and hostile to the actual owners of the property in question. Therefore, it is not open to the petitioner to take the said plea for the first time before this Court,.
23. From the judgment of the learned trial Court, it is clear that even the learned trial Court (which had dismissed the suit of the plaintiff) had held that the proprietary rights in the suit-land were alienable and the same had been rightly transferred to the plaintiff. However, it had held that the site being of the nature of Abadi-deh, the defendant is not liable to ejectment. However, the finding of the learned trial Court was clearly inconsistent. While holding that the proprietary rights in the said land were alienable and while upholding the sale in favour of the plaintiff, there was hardly any justification for the finding that the defendant/ petitioner could not be ejected from the property in dispute. In the contents of the document Sharat Wajib-ul-Arz, a copy of which is appended with the file, there is nothing to the effect that a person in `permissive' possession of the property in Abadi-deh cannot be ejected there-from by its owner. The learned Appellate Court has rightly observed that the Customary law had been done away with long before the transfer of the house in dispute to the vendee. The petitioner cannot claim any right under the Customary law, which can hardly be pressed into service in this case.
24. In view of what has been stated above, it is clear that the judgment of the learned Additional District Judge-I, Mianwali, dated 19-3-1996 whereby he had accepted the appeal and had set aside the judgment/decree of the learned trial Court does not suffer from any illegality or material irregularity. As such, there is no justification for interference in exercise of revisional jurisdiction of this Court. The revision petition is thus accordingly dismissed.
' The parties are left to bear their own costs.