JUDGMENT SYED SAJJAD HASSAN SHAH, J.---This revision petition is preferred against the judgment and decree dated 13-3-2008 passed by learned Additional District Judge Peshawar, whereby, the appeal filed against the judgment and decree dated 23-12-2006 of the Civil Judge-II Peshawar, was set aside and the suit filed by the plaintiff/petitioner (hereinafter called petitioner) against Gul Shah and Lal Gul deceased (represented by his L.Rs. N.Os.2 to 15, the respondents herein).
2. Brief facts of the case are that the petitioner instituted a suit against the respondent No.1 and Lal Gul the predecessor of rest of the respondents, seeking the decree for declaration regarding a house bearing No.1360/M.C.P. 1655 fully detailed in relief "A" of the plaint, on the grounds that he being owner of the disputed house vide Mutations Nos.4102 and 4103 attested on 30-4-1985, Lal Gul the predecessor-in-interest of respondents Nos.2 to 15 was inducted into possession of suit house as tenant on payment of Rs.1500 as rent, as such the respondent No.1 having no right and interest regarding suit house, therefore, could not claim the ownership rights in the suit house. He further asserted that if any document of the suit property prepared by the respondents, same would be fictitious, forged and collusive, ineffective on the rights of the petitioner.
He further prayed for recovery of possession of house and the decree for recovery of monthly rent @ Rs.1500 from July, 1999 to 31 May, 2000 and till the recovery of possession along with the perpetual and mandatory , injunction restraining the respondents to further alienate the disputed house in any manner. At the first instance, filed the proceedings before the Rent Controller for the ejectment and recovery of possession, but the respondents denied the relationship of landlord and tenant, therefore, the learned Rent Controller directed to file civil suit for declaration of ownership, therefore, filed the instant suit. The suit was contested by filing separate written statements by both the defendants/respondents. The learned trial Court framed issues in view of the divergent pleas raised in the pleadings of the parties. Both the parties led their evidence as they wished to adduce, learned trial Court decreed the suit and appeal filed by the respondents, was accepted and suit was dismissed.
3. The learned counsel appearing on behalf of the petitioner contended that the learned appellate court committed misreading and non reading of evidence. The ownership of the petitioner proved through mutations brought on record. The petitioner rented the disputed house to the respondent No.1, and occupied by the respondent No.2 on payment of rent on behalf of respondent No. 1. For the ejectment of the respondents, the petitioner filed an ejectment application to the Rent Controller, the respondents denied the relationship of landlord and tenant. The learned Rent Controller directed the petitioner to file a civil suit for declaration of his ownership. The learned counsel further argued that learned appellate Court while deciding the appeal, not appraised the evidence in accordance - with settled principle of law, thus, committed material illegality and irregularity.
4. The learned counsel appearing on behalf of the respondents rebutted the arguments of the learned counsel for the petitioner, contended that the respondent No.1 Gui Shah purchased the suit house from one Bakht Rehman's son of Abdul Karim, the same is in occupation of Lal Gul, the predecessor-in-interest of the respondents Nos.2 to 15 on payment of monthly rent of Rs.300 and by now increased upto Rs.500 and a sum of Rs.50,000 received as an advance money, the petitioner has no concern with the disputed house. While concluding his arguments, prayed for dismissal of the petition.
5. The arguments of the learned counsel of both the parties considered, record carefully perused.
6. In the instant case, the primary question is of the ownership of the house. It is to be seen that whether the ownership of the house as claimed by the petitioner proved or the respondent No.1 successfully discharged his burden of proof.
7. In order to determine the question of ownership, the entire documentary and oral evidence brought by both the parties to be juxtaposed and then on preponderance of the same, one can be able to arrive certain conclusion.
8. In this respect, the first document available on the record, the plaint of the petitioner, wherein, he has categorically claimed the purchase of the land for construction of the suit house. In support, whereof, appended Mutations Nos.4102 and 4103 attested on 2-8-1985, thereafter, constructed the house and given on payment of rent as Rs.1500 per month to the deceased respondent. A notice issued to the deceased respondent, but no reply given to the petitioner. It is further contended that the wives of both the respondents are being real sisters inter-se, therefore, they hatched up the story of further tenancy in favour of deceased respondent by the respondent No.1, to grab the property of the petitioner. In support of his averments, attested copy of Mutation No.4103 attested on 7-8-1985 produced in evidence as Exh.P.W.4/1. Likewise, Mutation No.4102 attested on 2-5-1985 produced as Exh.P .W.4/2. In support of the claim of the petitioner, a reference can be made of the written statement, wherein, the respondent No.1 neither claimed the ownership of the suit house nor disclosed the tenancy and the amount of rent nor produced any rent deed, whether to have executed by the deceased respondent in favour of respondent No.1, and appended no document with the written statements in order to dislodge the claim of the petitioner.
9. Muhammad Saeed, Patwari Halqa, examined as P.W. 1, he produced the extract from Jumabandi pertaining to 83-84 to 1999-2000 as Exhs.PW-1/1 to 1/13. In cross-examination conducted on behalf of the respondent No.1, it is brought' on record that in the record of rights, the reference of mutation ibid entered in read ink and Khasra No.898/271 shown as constructed property. It is pertinent to note that the property purchased vide the afore-stated mutations for the construction of house by the petitioner.
10. P.W.3 Shahzad Assistant P.T.C.L. Kohat Road, Peshawar examined, deposed that Telephone No.231516 insta4led in the name of Muhammad Hussain son of Shireen (present petitioner) on 2-3- 1996. He further deposed that before granting permission for installation of telephone by the P.T.C.L., we used to check and examine the documents of ownership i.e. Registered deed or mutations, I.D.
Card and copies of all above mentioned documents to be annexed with the application. The witness has not been cross-examined about the statement made in his examination in chief regarding the ownership and awarding the connection in his name by the P.T.C.L.
11. P.W.4, Muhammad Hussain while deposing the detail of his ownership and giving on rent the house to deceased respondent, disclosed about the rent i.e. Rs.1500 per month and also stated about the relationship of both the respondents. In cross-examination, it was further testified that the disputed house owned by Gul Shah, occupied by Lal Gui as tenant. He further testified in cross- examination conducted on behalf of respondent No.1 GuI Shah, that the suit property measuring 3 marla purchased from one Khuda Bakhsh vide two sale mutations. It is further stated that only the disputed house constructed in the suit property owned by the petitioner. He further testified that Lal Gul deceased respondent paid rent for three months, thereafter, the rent was not paid, hence, filed the suit for recovery of possession and rent as well. On behalf of the respondent No.1, deposed that "it is correct, the suit house occupied by the defendants/ respondents forcibly and the tax of the suit house not paid for the reason that, same constructed on the area of 3 marla, as exempted from the payment of tax. Further stated that the electricity and sui gas connections installed in his name".
12. As against that, the above mentioned evidence, the respondent examined one Sanab Gul, DW-1, he stated ownership of the house belongs to defendant No.2 (respondent No.1), Lal Gui occupied the same as tenant. He produced DW-I/ 3 the rent deed and stated that he was the witness to the deed, however, the same was not appended nor mentioned in the written statement, unaware of the person who scribed the rent deed, admitted that no document of ownership shown to him
13. D.W.2 Ghulam Muhammad stated as being a witness of the same rent deed, admitted that both the respondents are the property dealers, unaware about the detail of ownership.
14: Gul Shah respondent examined as DW-3 stated that the suit property purchased from one Haji Bakht Rawan son of Abdul Karim. And a katcha house was built upon 2-1/2 marla and thereafter constructed house at the cost of Rs.1,18,000 and then rented in favour of Lal Gul the deceased respondent on payment of Rs.300 also paid a sum of Rs.50,000 as advance money by Lal Gui and 3/4 years ago Lal GuI passed away as L.Rs. Impleaded as party to the suit He admitted that the house owned by the plaintiff/petitioner, constructed on purchased area situated at the distance of 7/8 houses from the disputed house. But it is important to note that this fact has not been proved by the respondents. Notwithstanding, that after admitting the factum of purchase of land, construction of house on said land situated at the distance of 7/8 houses from the disputed house, which further supports the case of the petitioner. It is also important to note that the said respondent in cross-examination stated that he had purchased the suit house vide stamp paper and he admitted as correct the stamp paper vide which the house was purchased not brought on record. He further admitted the same is still in his possession. He further admitted, he produced no receipt in his favour regarding the payment of rent by tenant Lal Gul. He further candidly admitted that the mutations attested in favour of the petitioners had not been challenged.
15. Imtiaz Ahmed, examined as DW-4, in his cross-examination, admitted that he had never seen any document regarding the ownership of respondent No.2. In this respect, he did not witness any document nor any sale consideration paid in his presence. He further admitted that the said agreement never seen by him.
16. Kiramatullah, examined as DW-5, his statement is similar to the other witnesses, the said witness as well as Gul Shah respondent both are the property dealers. Even, otherwise, the statement of this witness extend no benefit to the case of the respondents.
17. After going through the above referred evidence a prudent mind would not accept the version of the respondent No.1, for the reason that the respondent No.1 preferred claim of his ownership over the suit property, more or less the petitioner produced on record duly attested mutations where from his ownership right has been proved, cumulative effect of the reading of evidence of both the parties, it is proved that the petitioner is the lawful owner of the suit house and Lal Gul, the deceased respondent and his successor-in-interest of respondents Nos.2 to 15 was the tenant at will, they being close relatives illegally grabbing the property 'of the petitioner. Had the ownership of the suit house belonged to the present respondent No.1 then this would be an important and material fact, which must be averred in the plaint. In support whereof the documents on the basis of which the ownership of the disputed house as claimed by Gul Shah respondent in his statement before the court, those documents must be enclosed with the plaint or to be mentioned in the list of reliance or in the list of witnesses. But the defendant has badly failed to prove the ownership in the suit house. In support thereof, reference made to a judgment reported in 2006 SCM R 562, the dictum laid down that the party would not be permitted to deviate from his/her pleadings.
Pleadings---Court could not set a different plea for a party and decide the suit on its basis much less at the appellate stage.
18. Similarly, it is held in 2002 CLC 1517, case titled Muhammad Nazeef v. Mumtaz Begum, while analyzing the provision of Order VI Rules 4 and 7, plea has to be, taken in the pleadings before it can be allowed to be proved and if in a case the plea is not taken in the pleadings the party would not be allowed to lead evidence in support thereof and even if some evidence is allowed the same is not looked into.
19. Similar rule laid down in PLD 1992 Peshawar 144 and 2002 CLC 587 by the Hon'ble Division Bench of the Lahore High Court.
20. The mutations were admitted in evidence without any objection regarding their admissibility.
Therefore, the same cannot be taken in appeal, the mutations are deemed to be proved and can be used for all practical purposes. Reliance placed on 2003 M LD 1900 (Peshawar) titled Major (R)
Abdul Rauf Khan v. Atta Khan and others. The same rule reiterated in the judgment reported as 1983 CLC 414.
21. The petitioner has produced the.
Oral as well as documentary evidence in order to prove his ownership and possession and also that the house was occupied by Lal Gul, the, deceased respondent as tenant. The mutations have not been rebutted by any documentary evidence, mere bald statement against such entries could not cut any ice. Further supported by a judgments reported as 1995 CLC 695, 1987 SCM R 1845 and 2008 SCM R 1395.
22. In Muhammad Nazeef case ante, it was observed that where the suit for recovery of possession filed, failure to prove the relationship of landlord and tenant between the parties, nonetheless, the petitioner could not prove that he had inducted the deceased respondent in the suit house as his tenant, however, successfully proved his ownership in the suit house, petitioner was entitled for the grant of decree for possession. Therefore, in this case the petitioner had proved his ownership over the suit property through reliable oral and documentary evidence and the defendants had failed to rebut the same. Mutations were attested in the name' of the petitioner, those have not been rebutted by any evidence, therefore, the respondents have miserably failed to prove his ownership as well as possession and inter se tenancy pertaining to the suit land.
23. In view of the above discussion, this petition is accepted and the impugned judgment and decree passed by the learned appellate court is hereby set-aside, the judgment and decree passed by the learned trial court is restored. No order as to costs.