' MUHAMMAD MUZAMMAL KHAN, J.-This judgment purposes to decide two civil revisions (Civil Revisions Nos. 1037 and 1038 of 1996) between the same parties, relating to same properties and arising out of consolidated proceedings of two suits of the parties and directed against consolidated judgments given by both the Courts below.
2. Respondents filed a suit for possession with permanent injunction claiming three properties, detailed in para. 1 of their plaint, in their ownership through registered sale-deed dated 23-12-1943.
Respondents also asserted in the plaint that property mentioned in para 1-B was adjacent to their earlier house and thus was included therein, making it a house of eight rooms, two courdyards with open space and having two staircases. Respondents also pleaded that Muhammad Fazil son of Muhammad Din (petitioner No, 2) and Muhammad Ikram were their real cousins and had no place to live, consequently, respondents gave them a part of their property with permission to live therein under their license and this part has been shown by the respondents in the site plan attached with the plaint with words "JBCK". Respondents also claimed that Muhammad Ikram died in the year 1976, who was succeeded by the petitioners Nos.3 to 7 and respondent No,21, who are also living in the house in question with their permission. Respondents claimed in the plaint that now they need portion of their property given to the petitioners for their personal use and occupation and they required them to vacate it, but on their refusal, necessity of filing the suit arose.
3. Petitioners being defendants in the suit contested it by controverting the allegations in the plaint and with regard to house in their possession they pleaded that it was owned by Muhammad Afzal and Muhammad Ikram their predecessors, as it came to their share in private partition of their ancestral property. They further pleaded in their written statement that their predecessors reconstructed this house about 32/33 years back and since then they are in exclusive - possession of it. They alternatively claimed adverse possession there over, by saying they had been paying all the taxes relating to this house and thus are owners.
4. Respondents' predecessor Malik Karamat Ali Khan and others also filed a suit under section 39 of the Specific Relief Act, 1877, seeking a adjudgment of rent notes dated 22-1-1946, 1-1-1945 and 1-3- 1949 allegedly executed by Imam Din son of Pir Muhammad in favour of predecessor of the petitioners. In this plaint, they pleaded that the rent notes in question were produced in evidence by the petitioners in their suit for possession mentioned above on 28-5-1979 which gave them a cause of action of-filing this suit.
' Petitioners also contested this suit and denied averments in the plaint, claiming ownership of the house in question through their written statement.
5. Both suits filed by the respondents' predecessor were consolidated by the learned trial Court and after framing as many as twelve consolidated issues arising out of the pleadings of the parties conducting proceedings in the suit for possesion which was earlier in time and required the parties to produce their evidence. On the basis of this evidence, the learned civil Judge vide his judgment and decrees dated 10-11-1986 decreed both suits of the respondents holding them to be. Owners of the properties in dispute and entitled to possession thereof.
6. Petitioners aggrieved of the judgments and decrees dated 10-11-1986 filed appeals before the learned Additional District Judge, Sialkot, and challenged both the decrees passed in both the suits of the respondents, but remained unsuccessful as their appeals were dismissed vide judgment and decrees dated 16-1-1996. Petitioners have no come up before this Court in revisional jurisdiction by filing two separate revision petitions which after admission to regular hearing were taken up as Pakka case.
7. Learned counsel for the petitioners submit that the learned trial Court had not framed proper issues arising out of the pleadings of the parties and a material issue with regard to ownership of the respondent regarding property mentioned in para. 3 of the plaint marked as "JBCK", which was denied to be owned by them in the written statement, was not brought to issues. He further submits that the respondents could not prove their ownership of the property mentioned in para. 3 as "JBCK" and possession of which was claimed to be delivered to them. He further elaborated his arguments by saying that ownership for the respondents with regard to properties mentioned in paras. 1-A and 1-C are not disputed and the only portion disputed is mentioned in para. 3 of the plaint, but both the Courts below have not adverted to this aspect of the case. Learned counsel for the petitioners claimed that both the Courts below have seriously misread documents Exh.D.l and other alight oral evidence produced by the parties. He emphasized that since none of the respondents/plaintiffs had appeared in the witness-box to support their averments before closing their affirmative evidence, case of the respondents is not proved. He claims that statement of the respondents recorded at the conclusion of trial after rebuttal evidence of the defendants, cannot be read in affirmative evidence.
8. Learned counsel for the respondents while refuting arguments of the petitioners submitted that the respondents have successfully proved their ownership over all the three properties mentioned in para. 3 of the plaint and portion mentioned in para. 3 is para of those three properties. He contends that respondents only claim possession, of a part of property, in possession of the petitioners, falling within the dimension of the properties mentioned in para. 1 of the plaint. He relied on the copies of some judicial record, including judgment and decree in earlier litigation relating to property in dispute, which was delivered on 17-1-1946 and asserted that in all these documents including Exh.P.l, sale-deed in favour of the predecessors of the respondents, boundaries mentioned in para. 1 of the plaint though relates and thus there is no substance in the arguments of the learned counsel for the petitioners that the respondents could not prove title to the property in their possession.
9. I have considered the arguments of both the learned counsel for the parties and have examined the record appended with both the revision .Petitions. Fate of the suit filed by the respondents under section 39 of the Specific Relief Act, 1877, primarily hinges over the decision in their suit for possession, wherein if it is held that the respondents are owners of the property in possession of the petitioners, suit filed by them for cancellation of rent deeds, would automatically succeed. In order to prove ownership, respondents, besides producing oral evidence, have brought on record certain documents. The foremost document is Exh.P.l, a registered sale-deed dated 12-1943, which proposes to transfer three houses in favour of Malik Bahadur Ali Khan, Malik Taj Khan, Muhammad Wajid Ali Malik and Malik Karamat Ali Khan sons of. Pir Khan, who are predecessors of the respondents. The three houses mentioned in this sale-deed have been detailed by giving their boundaries. I have myself compared these boundaries with those mentioned in para 1 of the plaint.
Boundaries of each house mentioned in the sale-deed tally with the boundaries given in the plaint and thus I have no doubt in my mind that all the three houses mentioned in paras. 1-A, B, C, were purchased by the predecessors of the respondents through Exh.P.l, which besides being a registered document, is old for more than 30 years and remained unchallenged till today. Even learned counsel for the petitioners has not addressed me disputing authenticity of Exh.P.l and thus I hold that the respondents, who are successors of the purchasers through sale-deed, are owners of the properties mentioned in paras 1-A, B, C of the plaint.
10. Respondents in order to further support their title have produced copies of judicial record, including a copy of the judgment and decree dated 17-1-1946 passed by an Additional Sub-Judge 1st Class, Siajkot, in a suit filed by the predecessors of the respondents against Ghulam Akbar and others. Dimensions of all the three houses claimed to be owned "by the respondents have also been mentioned in para. 3 of the plaint in that litigation, which is Exh.P.7 on the file. I have also compared dimensions given in this plaint and these, without any exception, tally with those given in the plaint in hand. This suit of the predecessors of the respondents was decreed, copy of the decree sheet is Exh. P.8, and it also details absolutely the same dimensions, which are given in the instant plaint and sale-deed Exh.P.l. Without referring to any further document, title of the predecessors of the respondents to the properties claimed by them in their ownership is without any doubt.
11. Respondents in para. 2 of their plaint have clearly mentioned that property mentioned in para. 18 was included in their owned adjacent house making it property earmarked in the site plan as "A B C D E F G H J K". Petitioners though in their written statement have denied this paragraph while giving reply to para. 2 on merits, but have not specifically mentioned therein that inclusion of property mentioned in para. 1-B of the plaint, in the self-owned property adjacent to it of the respondents, did not take place. According to my mind, reply in para. 2 of the written statement is evasive denial.
Anyhow out of this amalgamated property a portion is said to have been given to the petitioners, which they pleaded, to have come to their share out of ancestral property through private partition.
Petitioners have produced about 15 documents in their evidence. Though all these are not documents of title, yet none of those contain any description of property in their possession exception Exh.D.14 and Exh.D.15, which are rent notes and have boundaries of the property mentioned therein, but these boundaries do not tally with the property in dispute and no effort has been made by the petitioners to show that property mentioned in these two rent notes is the property in their possession. Let us assume for a moment that these rent notes relate to the same property, which is subject-matter of dispute in this litigation, I fail to understand how through these rent notes the petitioners claim ownership, but adversely these rent notes can prove the person in whose favour these were executed a landlord of the property mentioned therein but not the owner.
Likewise most of the other documents are receipts of property tax, wherein no detail of the property has been mentioned and if these documents be also taken to be that of the property in dispute, do not prove ownership. A person by merely paying property tax cannot claim to be owner of the property of which he pays the tax. Had the claim of the petitioners been truthful, they could have very easily prove their title in the property in their possession by producing ownership documents of their ancestors, as they claim that it devolved on them by inheritance. There was another j mode of proving ownership, as they claim that this part came to their share through private partition, some partition deed could have been produced along some documents of title of their ancestors, but no such evidence was brought on the file. Learned counsel for the petitioners could not show any document of title, thus I am left with no option to hold that the property in their possession is that of the respondents and both the Courts below have rightly concluded that this is the property of the respondents. My own'scan of file affirms that judgments and decrees of both the Courts below are strongly in consonance J . 'with the evidence on the file and no misreading or non- reading has been pointed out. I wanted to reproduce oral evidence, as well, which I have examined, but since witnesses can falsely depose and the documents do not tell lie, I refrain from dilating upon discussion of oral evidence.
12. Adverting to the submissions of the K learned counsel for the petitioners that the learned trial Court has not framed proper issues arising out of the pleadings of the parties and in this inaction, ownership with regard to property in possession of the petitioners was not brought under issues. I must observe that the petitioners had never objected to the framing of issues before the learned trial Court by filing any application under Order XIV rule 5, C.P.C. They did take a customary ground in the grounds of appeal before the appellate Court saying that proper issues were not framed by the learned trial Court, but this matter was not urged before the appellate Court, as it has not referred to it in its judgment. Both the parties without any objection produced evidence of their choice before the trial Court, being aware of the controversy involved in the suit, cannot now be allowed to turn back and to say that the trial was not properly conducted. I called upon the learned counsel for the petitioners to show me the evidence, which the petitioners could not produce at the time of trial, but except replying that legal obligation of framing issues has not been discharged by the Courts below, he had not other answer. This objection is only an objection and has no worth in it. Honourable Supreme Court of Pakistan in case of Fazal Muhammad Bhatti and another v. Mst.
Saeeda Akhtar and 2 others (1993 SCM R 2018) gave a clear mandate that when parties being aware of the controversy produced evidence, framing or non-framing of issues, placing of their onus loses importance. I respectfully following the dictum laid down in the case of Fazal Muhammad Bhatti and another (supra) hold that parties produced evidence of their choice by availing full opportunity and now they have nothing with them to produce any more.
13. For what has been discussed above, I conclude that property subject of litigation is that of the respondents and their suit for possession has correctly been decreed. In view of these findings, both their suits rightly succeeded. Both the revision petitions (Civil Revisions No, 1037 and 1038 of 1996) being without substance, are dismissed with costs, throughout.