Instant revision, petition is directed against the Judgment and decree of learned Additional District Judge, Peshawar, dated 25.02.2011, and that of learned Civil Judge. Peshawar; dated 13,05.2010,'whereby suit of respondent-plaintiff was concurrently decreed by both the Courts below.
2. Succinctly stated facts of the case are that, respondent -plaintiff filed a suit for declaration to the effect, that he is owner in possession of property measuring 12 Kanals, 5 Murals and S Sarsai. out of 204 Kanals and 06 Murals, bearing Khata. No, 322/934 and Khasra No, 5322/3759. without mentioning the revenue estate, where -does the property exists. He claimed that Mutation No,.
4079, attested on 30.03.1994, was the result of fraud and collusion of predecessor of the defendants-petitioners and the revenue officials inter-se. which is ineffective on his rights. The suit was contested by the defendants petitioners by filing written statement wherein they controverted the allegations of the respondent-plaintiff. They averred in the written statement that suit property, after purchase, is in their possession, on which they have raised huge construction worth of lacs.
They particularly challenged the veracity and genuineness of the Fingers Print Expert Report, on the basis of which, suit was filed by respondent- . plaintiff by describing it as fraudulent and result of collusion. In light of divergent pleadings of the parties, eleven issues were framed by the trial Court.
It appears that petitioners-defendants. during pendency. of the suit, filed an application on 16.12.2008, for referring the thumb-impression of respondent-plaintiff to the FSL for report, as to whether with the passage of 14 years, the characteristics of thumb-impression vary or otherwise .The report of the FSL, received With the observation that the thumb-impression on. original Mutation No, 4079, is different from samples of right and left thumb impression of Mr. Umar Khitab plaintiff-respondent, In Tight of the FSL, report. and allegedly on the basis of joint statement of the parties, with regard to decision of the case. on the basis FSL report, the suit was decreed by learned trial Court and appeal filed there against by the petitioners-defendants, was -dismissed by learned Appellate Court. Hence this revision petition.
3. Learned counsel for petitioners argued that, both the Courts below were not justified to decree the suit merely on the basis of FSL report, whose author, has not been produced in the Court nor petitioners have been provided an opportunity to cross-examine him. He maintained that petitioners have specifically raised- objection improvement in their written statement, as a consequence whereof, Issue No, 9 was framed, on which, neither any finding has been given by both the Courts below, nor an opportunity of leading evidence provided to petitioners; that FSL report, without examining its author, is no evidence, at all.
4. As against that, learned counsel for respondent argued that both the parties recorded their joint statement before the Court that case be decided on the basis of FSL report and learned trial Court has acted on the wish of the parties. Learned counsel contended that there is only a Tube-well in the suit properly, and possession of petitioners is, as tenants therein.
5. I have given my anxious consideration to the respective submissions of the learned counsel for the parties and have gone through the available record with their valuable assistance.
6. It is evident from the plaint that though plaintiff-respondent has mentioned Khata number, and Khusra number along with measurement, but it is no where disclosed that in which revenue estate, the suit property situates. It is the basic requirement of Order-VII, Rule 3 CPC that when subject- matter of the suit is an immovable property, the plaint shall contain description of the property, sufficient to identify it. The purpose of this provision is that, if a decree is drawn, it should contain specific description of the property so that there may not be a confusion or hardship at the time of its execution. It is established law that the Court shall not pass a vague decree, terms of which, cannot be ascertained with reasonable exactitude, which later on may not be executed. The decree should be of such a nature that the Executing Court should execute the same, without going beyond it or making its own interpretation with regard thereto. 'In the instant case, in such backdrop, the defendants-petitioners may raise an objection that though Khasra number is mentioned in the plaint, but in which revenue estate the same is situated is not disclosed so it does not relate to the suit property. It is strange that this crucial aspect of the case has escaped notice of both the Courts below. Had the two Courts below adverted thereto, the deficiency could have been removed at the initial stage.
7. Admittedly, suit Mutation No, 4079 was attested on 30.03.1994. The suit has been filed on 03.04.2006, after a period of more than 12 years. It is also admitted at the bar that petitioners- defendants are in possession of the suit property. Though, construction has not been specifically admitted, but Tube-well installed therein, is conceded. These are the questions which need not be dilated upon by this Court at this stage, lest it may prejudice the case of either side. As, these are the questions, which require evidence. However, being relevant facts, to be considered at the time of final adjudication of case.
8. Petitioners-defendants objected on the earlier report of the FSL, Peshawar, on the ground that plaintiff-respondent being a retired police employee has collusively procured the same and requested for its transmission to FSL Islamabad for analysis and report. The application so filed before the learned trial Court, does not contain any such stipulation that on obtaining FSL report from Islamabad, suit of respondent-plaintiff be decreed. However, it is stated at the bar that joint statement of the parties was recorded that suit be decided on the basis of FSL report. There are two important questions to be resolved. Firstly, whether an Expert Opinion, is an evidence of such a character, on the basis of which, in absence of any other evidence, suit may be decreed? And secondly, whether the offer, if any, made by the parties, should be made basis for determination of their rights, without recording evidence?
9. So far as, report of the Expert is concerned, that is admittedly a circumstantial evidence.
Undoubtedly, circumstantial evidence, in absence of direct evidence, is a weak type of evidence, unless it is corroborated by other strong pieces of evidence. When the Expert is also not examined in the Court to substantiate his report or offer himself for cross-examination it loses its efficacy. In "Allah Dino and 2 other's case (1974 SCMR 311), report of the Expert, who was not examined in the Court, was not considered by the Hon'ble Supreme Court. Similarly, in Syed Muhammad Umar Shah's case (2004 SCM R 1859), Expert opinion, being a weak piece of evidence was also not considered by their lordships.
10.In 'light of the consistent view of the apex Court, Expert opinion, is a weak type of evidence which cannot be relied upon for determination of rights of the parties, in absence of any other corroborative piece of evidence.
11. Now the question is as to whether petitioners-defendants are precluded to raise objection on the report of FSL, about which, they have consented themselves. It is settled law that admission of a party in ignorance of a legal right, is not binding on the maker. Likewise, admission being wrong on point of fact is also not admissible. While petitioners-defendants were under illusion or delusion that the report shall not come against them, so they made the offer, not in their application, but allegedly, later on. The language and tenor of their application clearly suggest that they were under the impression that this was a wrong, report obtained by the plaintiff-respondent by exercising his influence in the FSL. So, under that impression, they have made the offer that case be decided by referring the thumb-impression to any other Laboratory, out of Peshawar. It is also an admitted position that offer made by the petitioners, was not with clarity of mind or knowledge, but was the result of misconception about the prospective and existing report of the FSL, which was erroneous in its character. In terms of Article 34 of the Qanun-e-Shahadat Order, 1984, an admission, even though, if considered to be a legal one, is a relevant -fact, which clearly connotes that the admission is not a conclusive proof against a party, making it. It is also provided in the said Article that the admission so made, can be proved, so in such a situation, the other side may prove the same to be wrong on the point of fact On the other hand, respondent-plaintiff, after making offer, if any, has not changed their position, which may create estoppel. However, in peculiar backdrop of facts of the case, the offer so made by petitioners for sending the thumb-impression to the FSL, is not an admission, as defined in Article 30 of, the Qanun-e- Shahadat Order. 1984, as it is no where admitted by them that these are not the thumb. impressions of the plaintiff. Rather, they have controverted the allegation of the plaintiff in explicit terms, so they referred the matter to other FSL. This was a situation which is even not covered by Article 163 of the Qanun-e-Shahadat Order, 1984. In this respect reliance placed on case titled, 'Ahmad Khan versus Rasul Shah and others" (PLD 1975 Supreme Court 311) and case titled, "Qabil Shah and others versus Shaday" (PLD 1992, Peshawar 144).
12.Thus, in view of legal and factual aspects of the case, learned trial Court was required to proceed with the case by inviting the parties to lead evidence on issues framed, particularly, when the petitioners-defendants have raised specific plea of improvement in the suit property. In such circumstances, both the Courts below have erred in law by decreeing the suit of respondent- plaintiff, without recording evidence, merely on the basis of FSL report, which is not a safest way for dispensation of justice.
13. In wake of the above discussion, judgments and decrees of both the Courts below, being the result of patent violation of the law as well as non-adherence to the law applicable to the points involved in the matter are illegal which are not sustainable. Though, the High Court normally does not interfere in the concurrent findings of facts recorded by two Courts below, but when there is gross illegality and patent. violation of the law causing grave miscarriage of justice, the High. Court, is under legal obligation to rectify the error by interference in such illegal findings. Reliance placed on case titled, "Ghulam Muhammad and 3 others vs. Ghulam Ali and case titled, 'Mushtari Khan vs. Jehangir Khan" (PLJ 2006 SC 877 and case titled, "Ghulam Muhammad and 3 others 'vs. Ghulam Ali"
(2004 SCM R 1001). Thus, by, following the command of law declared by the Apex Court and statutory provisions of Section 115, CPC, instant revision petition is allowed, impugned judgments and decrees of the two Courts below are set aside and consequently, case is remanded to the trial Court for decision afresh, after recording pro and contra evidence. Parties are directed to appear before the trial Court on. 29.0-3.2013. Needless to mention that office shall ensure transmission of record forthwith. No order as to costs.