' IKRAMULLAH KHAN J.--- The instant revision is directed against, the impugned judgment delivered by the Additional District Judge, Hangu, dated 22-6-2012.
2. Brief facts are that the petitioner, instituted a civil suit for possession, of a house described thereof in the heading of the plaint, along with the prayer for rent at the rate of Rs,500/- from 1-1- 2003 total amounting to Rs,50,000/- as per rent from 1-1-2003 to 1-11-2010 and further rent at the same pattern. The respondent, out rightly denied thereof from the land lordship of petitioner and thereby claimed in regard to the disputed house, that it was constructed by him.
3. The trial Court framed thereof various issues, out of pleadings of parties, whereof both parties led their evidence, and on conclusion of trial, the suit instituted by the petitioner was dismissed as well as the appeal filed by the petitioner met the same fate.
4. The contentions forwarded herein by the petitioner, was that the disputed house had stepped into his shoes, through domestic arrangement, made thereof between him and his other close relatives, legal heirs of one late Abdul Khaliq, the cousin of the petitioner through a deed dated 18- 6-2002.
5. Petitioner also placed reliance on a rent deed dated 2-12-2002 claimed therein, that respondent was his tenant over the disputed house, on payment of Rs,500/-.
6. The respondent's contention was that, the disputed house was constructed by him with the permission of one Abdul Haq, who was the owner of the land, given to him for construction of house subject to the condition, that at the time of eviction, he would be compensated in lieu of construction of the house.
7. The learned counsel for the petitioner argued that petitioner has proved his ownership in regard to the house in question, but on the other hand, the respondent, failed to substantiate his ownership over the disputed house and thereby agitated a new plea later on in due course of trial that the house was constructed by him. He has estopped to take such a plea, as he never raised such stance in the pleading.
8. He further submitted, that both the Courts below failed to appreciate the evidence adduced by petitioner in regard to his ownership and illegally, without reasonable ground out rightly discarded the documents duly exhibited during course of trial.
9. He termed, the impugned judgment fallacious, erroneous, and is result of misreading and non- reading.
10. On the other hand, the learned counsel for respondent supported the impugned judgment and in response to the contentions of petitioner's counsel, submitted that the possession of the respondents over the disputed house is legal one as he has entered the house is a licensee.
11. Arguments heard and record was carefully perused.
12. Prior to resolve, the controversy, thereof, confronted with in this civil revision, I intend to give reference herein, to some provisions of law, which regulate such-like issues, raised herein this petition.
"The place, where the disputed house is situated, does not fall within the definition of "URBAN AREA" and as such the issue, shall not be dealt with under the West Pakistan Urban Rent Restriction Ordinance, 1959. Neither the grounds or conditions thereto attached with section 8 or section 9 of the Specific Relief Act, 1877 applicable to the circumstances of the case, nor the petitioner has invoked the jurisdiction of thee civil Courts, in this regard, and as such the dispute thereof to be treated under the Transfer of the Property Act, 1882, as the petitioner himself has claimed as was the lessor and respondent as a lessee".
' Section 105 of the Transfer of Property Act, 1882, defines LEASE as:--- "A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing or value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms."
13. In this regard, the petitioner has also served upon the respondents the prerequisite notice as provided under section 111 of the Transfer of Property Act, 1882, which has not been denied by the respondent too. The petitioner has placed his reliance in this regard on the alleged lease deed dated 2-12-2012.
14. In order to prove, and made admissible the alleged lease deed, the petitioner not succeeded thereof to substantiate this through the required evidence or in accordance with the provision of section 79 of the Qanoon-e-Shahadat Order, 1984.
15. In order to prove the deed the solitary attesting witness produced thereof did not affirm the execution of the deed by the respondent and did not verify the signing on the deed by the respondent too. However, the scribe has affirmed the fact but in dubious manner.
16. The petitioner also not succeeded to substantiate his plea, that respondent has ever paid any premium in regard to the disputed house and bring him under the garb of lessee as defined under section 105 of the Transfer of Property Act, 1882.
17. The other deed, relied upon, by the petitioner in respect of his ownership, too remained unproved, as that very deed was also not proved by any reliable, authentic source. The witnesses, who purportedly attested this deed, never called to witness box in order to enable the Court to consider and appreciate this document.
18. Section 17 of the Qanun-e-Shahadat Order, 1984, specifically stressed it and has made it mandatory that such documents shall be reduced into writing in presence of at least two attesting witnesses, while Article 79 of the Qanun-e-Shahadat Order, 1984 described the mode of F proof of such document.
19. On both counts, the petitioner, failed to either prove himself as a lessor and the respondent as a lessee.
20. Both the parties not discharged their burdens in regard to the facts alleged thereof and denied in their pleading.
21. The documents on which the petitioner placed reliance in course of recording evidence, never alleged specifically and not mentioned thereof in the plaint. Likewise, the 'respondent miserably failed to substantiate, the plea of ownership in regard to the disputed house, by any susceptible evidence. Order VI, rule 7 of C.P.C., 1908 specifically bar such like new plea not taken in the pleading except by way of amendment.
22. The respondents never alleged thereof in his pleading that one late Abdul Khaliq was the owner of the land, so could not be allowed as a rule of evidence to agitate such like plea, which he has raised in cross-statement. Litigant cannot be allowed to raise a new ground of 'attack or defence before the trial Court during the course of adducing evidence, specifically not raised in their pleading. After the disclosure of the respective positions of the parties in their pleading, no evidence which deviated from or was contrary to the pleadings was to be looked out of consideration but rights and obligations of the respective parties were always to be determined keeping in view only such pleas that had been taken by them in their respective pleadings. Any piece of evidence adduced thereof, was to be considered only in respect of their respective stance taken thereof in their respective pleadings.
23. I, fortify my this view by the judgment rendered by the Hon'ble Lahore High Court in case of Bashir Ahmad v. Shah Muhammad and another (2010 CLC 734) whereas it was observed that:--- "The ingredients necessary to be mentioned in the plaint are not mentioned, no evidence can be led on such point".
24. Though, the petitioner, not succeeded thereof in regard to the two deeds stated hereinabove, however, made out a case insofar as the Revenue Record is concerned.
25. The petitioner, has been incorporated in the Revenue Record as owner with many other co- owners in regard to Khasra No,39 which had attained the status of constructed house {{Urdu Text}}.
And on the other hand, the respondent failed to prove his ownership over the land whereof, the disputed house was constructed, however, he otherwise proved the factum, that the disputed house was constructed by him but with the permission of another co-owner late Abdul Khaliq.
26. In such state of things, respondent would not be a lessee but a licensee, who constructed the disputed house with the permission, granted by a lawful owner.
27. Though the partition deed, relied upon by the petitioner was not said to be legally proved but at least he has a co-owner in the disputed land, which later on has attained the status of village Abadi.
28. As, the respondent, is not owner of the land but has constructed the house though with permission and in such situation, section 51 of the Transfer of Property Act, 1882, would be applied thereof to the present situation prevailing thereof and be more fitting provision in this regard as;--- Section 51.--- When the transferee, of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title thereto, the transferee has a right to require the person causing eviction either to have the value of improvement estimated and paid or secured to the transferee, or to see his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement".
' The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction."
29. Keeping in view the golden principle of this law, coupled with the reasons stated hereinabove, I, partially allow this civil revision and set aside the impugned judgment of both the Courts below with finding that, the respondent be compensated in terms of the improvement made thereof, in regard to the disputed house according to the prevailing market value, and thereafter respondent shall vacate the disputed house without any further claim of any kind except to receive, the cost of construction over the land whereof, respondent has constructed the disputed house. Parties are left to bear their own cost due to peculiar circumstances of the case.