The supra titled appeals have been filed against the impugned judgment and decree passed by the learned Additional District Judge Mirpur dated 09.05.2006, whereby suit filed by the appellant Mehmood Akram Qadri against Development Authority Mirpur and others was partly accepted.
2. Precise facts giving rise to the instant appeals are that appellant-plaintiff, Mehmood Akram Qadri, brought a suit for recovery of damages to the tune of Rs, 50,00,000/- against the respondents-defendants, Mirpur Development Authority and others in the Court of District Judge Mirpur on 23.06.2004 which was later on entrusted to Additional District Judge Mirpur for disposal under law on 05.05.2005. It was claimed that his Father Ch. Muhammad Akram, applied for allotment of a plot to Development Authority Mirpur who also deposited Rs, 50,^00/- in the account of the above Authority as price of plot on 18.07.1989. His father died before allotment, however, in light of the application, after due process the allotment committee allotted Plot No, 299-E, measuring 1 kanal situated in Phase-I Sub-Sector Dadyal, in the name of mother of the appellant- plaintiff on 16.10.1993. It was alleged that mother of the appellant-plaintiff and pro-forma respondents had also died, hence, he applied for transfer of the plot in the name of legal heirs of the deceased but the respondents-defendants took no step for transfer of the disputed plot. The appellant-plaintiff also applied to the Development Authority Mirpur for approval of the map and permission for construction of boundary wall, however, the Authority did not accord approval, rather it was stated by it that allotment of the plot was made in the area which was not approved yet and the plot did not exist on the spot. It was claimed that due to the act of the Development Authority Mirpur, the appellant-plaintiff and pro-forma respondents suffered a lot of mental agony, hence, they were entitled to the damages including price of the plot to the tune of Rs, 50,00,000/-.
3. The suit was resisted by the respondents-defendants through written statement, alleging therein, that the appellant-plaintiff was having no cause of action and suit was not maintainable in its present form. It was admitted that allotment committee after necessary proceedings allotted disputed plot in the name of mother of the appellant-plaintiff, however, it was alleged that allotment was illegal. It was further averred that Government issued a notification on 14.02.2004 for investigation of disputed and double allotments of plots, therefore, neither permission for boundary wall nor construction of house could be given.
4. The learned trial Court, in the light of respective pleadings of the parties framed issues, recorded evidence and after hearing decreed the suit to the tune of Rs, 1,00,000/- in favour of the appellant- plaintiff vide judgment and decree dated 0.9.05.2006.
5. The appellant-plaintiff Mehmood Akram Qadri, against the above judgment and decree, filed the instant appeal for enhancement of price of plot and damages to the tune of Rs, 50,00,000/- whereas, Development Authority Mirpur & others filed a cross appeal for setting aside the impugned judgment and decree of the trial Court and prayed for dismissal of the suit.
6. After hearing, the appeal filed by the appellant-plaintiff Mehmood Akram Qadri, was accepted by this Court with the direction that Development Authority Mirpur shall deliver possession of the disputed plot to him within two months and also issued permission for construction and approval of map as well as boundary wall. The decree granted by the trial Court to the extent of damages of Rs, 1,00,000/- was confirmed and it was further held that in case the possession of the plot was not given within the stipulated period, then the plaintiff would be entitled to the market value of the plot assessed by the Collector Land Acquisition, while cross appeal filed by the Development Authority Mirpur was dismissed, vide judgment dated 20.10.2007. Against the above judgment both the parties filed appeals before the Hon'ble Supreme Court. The case was remanded by the apex Court with direction that the appeals shall be decided afresh in the light of the pleadings of the parties vide judgment dated 18.01.2012.
7. The learned counsel for the appellant-plaintiff, Mr. Khalid Rasheed Chaudhary, Advocate, submitted through written arguments that the contents of plaint regarding damages and mantel agony were not specifically denied by the respondents-defendants in their written statement which would be deemed as admitted or in any case as the answers forwarded were evasive which could not be considered as denial in the eye of law. It was further submitted that the appellant- plaintiff produced 3 reliable witnesses in support of his claim before the trial Court and relevant portion of their statements in which it was specifically stated by them that appellant-plaintiff would be entitled for compensation of Rs, 50,00,000/- against mental agony due to mala-fide acts of the respondents-defendants which statements were not challenged through cross- examination, therefore, appellant-plaintiff was entitled for solicited decree under law. It was further submitted that during statement the appellant-plaintiff in support of his contention exhibited written proof regarding value of the plot as more than 1.5 million which documents were not read by the trial Court. It was further submitted that no record was provided by the respondents- defendants that in fact allotment of disputed plot was bogus or allotting authority was not competent to make the allotment, therefore, on the basis of notification of Government the appellant-plaintiff could not be deprived of for the plot in question as such. In support of his contentions the learned counsel for the appellant-plaintiff referred to and relied upon the following case law:--
(i) Shahida Khadim Vs. Secretary Education AJ&K and 5 others (2002 SCR 315);
(ii) Alam Din Vs. Mayor, Municipal Corporation Mirpur & 4 others (1999 SCR 343).
8. The learned counsel for the respondents-defendants Ch. Muhammad Riaz Alam, Advocate, through written arguments submitted that the appellant-plaintiff miserably failed to prove his case under law, hence, his suit was liable to be dismissed. It was submitted that the allotment of plot was intact but the appellant-plaintiff drawn a wrong conclusion for claiming damages and on the point of mental agony only oral evidence was brought which was neither supported by any documentary evidence of illness, mental torture nor bills or medical certificates. The learned counsel for the respondents-defendants further submitted that an important document Exhibit "D/A" application moved by allottee of the plot was not considered by the trial Court. In support of his contentions the learned counsel referred to and relied upon the following precedents:--
(i) Major (Retd) Ismat Ullah Cheema through his special attorney Vs. Sarfraz Ahmed & 2 others (PLJ 2006 Lahore 963);
(ii) Mst. Sardaran Begum Vs. Muhammad Fazil & another (PLJ 1994 AJ&K 1).
9. After examining the written arguments, advanced by the learned counsel for the parties, I have perused the contents of appeals and examined the record made available with utmost care.
10. A contemplate perusal of record reveals that application of father of the appellant-plaintiff and pro-forma respondents for allotment of plot to the Development Authority Mirpur, payment of price to the tune of Rs, 50,000/- on 18.07.1989, death of father of the plaintiff and allotment of Plot No, 299-E measuring 1 kanal situated in Phase-I Sub-Sector Dadyal to his mother by the allotment committee were admitted by the Development Authority Mirpur & others in their written statement.
The assertions of the appellant-plaintiff that after death of his mother to transfer the plot in question to appellant-plaintiff and pro-forma respondents plus permission to allow construction of boundary wall and for approval of plan were also not denied. The defence of the Development "Authority & others was that allotment of the plot was made in the area which was not approved yet and Government had constituted a committee to investigate the validity of plots allotted between 1991 to 2001. A glance perusal of the above notification dated 14.02.2004 reveals that the same was issued to investigate illegal, double and disputed allotments. As nothing was brought on record that how allotment of mother of the plaintiff was illegal, therefore, the above notification was not applicable on the instant matter. At this juncture it is worthwhile to be observed here that it appears from the written arguments that the learned counsel for the respondents-defendants focused on Issues No, IV and V which were also material in the instant case. Issue No, IV was that whether market price of plot in question was more than Rs, 15,00.000/-. On the above issue the learned trial Court did not accept the statement of the appellant-plaintiff and his three witnesses.
The perusal of Para 3 of the plaint reveals that it was specifically stated by the appellant-plaintiff that market value of the plot was more than Rs, 15,00,000/-. The above mentioned Para 3 of the plaint is reproduced as under:-- {{URUD TEXT}} The contents of above-mentioned para 3 of the plaint was answered by the respondents- defendants in their written statement as under:- {{URUD TEXT}} A perusal of written statement filed by the respondents-defendants reveals that assertion of the plaintiff that market value of the plot was more than Rs, 15,00,000/- was not specifically denied in written statement. The denial, if any, would be deemed as evasive which shall again be deemed as admission. The above point was resolved by the apex Court in leading precedent titled Qurban Hussain Vs. Mst. Bashir Begum & 6 others (PLD 1986 SC (AJ&K) 109) wherein, at Page 114 it was held as under:-- "Before discussing the controversial issue as to whether the remand order made by the High Court was correct, let us pause here and refer to the relevant law on the point, i,e, Order VIII, Rule 5 of the Code of Civil Procedure. It reads as under:- `5. Specific denial--Every allegation of fact in the plaint, if not denied specifically or any necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except at against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.'
9. What Rule 5 of Order VIII, it would appear, says is that any allegation of fact must either be denied specifically or by necessary implication or there should be a statement that the fact is not admitted. If the plea is not taken in that manner then allegation shall be taken to be admitted. The Order, thus, provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication in the written statement, shall be taken to be admitted by the defendant.
The defendant must deal specifically with each allegation of fact of which he does not admit their truth. If the defendant, therefore, fails to do so, it can legitimately be said that the fact pleaded in the plaint has been admitted."
Similarly in case of Shahida Khadim Vs. Secretary Education AJ&K and 5 others (2002 SCR 315) at Page 318 it was laid down as follows:-- "We have given our due consideration to the arguments advanced at the Bar and perused the relevant record. It may be stated that so for as the merit of the appellant is concerned, that has not been repudiated by any of the respondents. Respondent No, 3 has evasively denied the allegation made in Para No, 2 of the writ petition filed by the appellant. It remains now settled that an evasive denial under Order VIII, Rule 5 of the Code of Civil Procedure shall be deemed to be the admission of the averment made in the relevant para. So the averment made in Para No, 2 of the writ petition that the appellant stood first in the merit list stands admitted by the respondents".
Likewise in case titled Alam Din Vs. Mayor, Municipal Corporation Mirpur & 4 others (1999 SCR 343) at Page 344 it was held by their lordships as under: "The next point as to whether the denial made by the petitioner in the written statement amounted to an evasive denial or specific denial has already been dealt with and we have reached the conclusion that denial being evasive, the same may be taken to have been admitted the allegations made therein. In this view of the matter the point argued before us having been finally resolved one way or the other cannot be reopened as the scope of review is very limited and it cannot be treated as an appeal so as to reopen the points which stood already resolved".
12. Apart from pleading, the statement of the appellant-plaintiff and his 3 witnesses were also not appreciated or the same were misread- by the trial Court. All the above witnesses specifically stated that value of one kanal plot at Dadyal will be more than Rs, 15,00,000/-. The statement of plaintiff and his witnesses were not cross-examined, by the respondents-defendants. If any portion of statement of witness was not cross-examined then the same shall be deemed as admission. The above view is fortified by the following case law.
In case titled Mst. Nur Jehan Begum through Legal Representatives Vs. Syed Mujtaba Ali Naqvi (1991 SCM R 2300) at Page 2303 it was held as under: "The principle enunciated in the Commentaries and rulings is that where on a material part of his evidence a witness is not cross-examined it may be inferred that the truth of such statement has been accepted. Statement of a witness which is material to the controversy of the case particularly when it states his case and the same is not challenged by the other side directly or indirectly, then such unchallenged statement should be given full credit and usually accepted as true unless displaced by reliable, cogent and clear evidence".
The other case is titled Walayat Khan & 2 others Vs. Muhanimad Yu.saf and 15 others (PLD 1995 SC (AJ&K) 41) at Page 46 of the report it was laid down as follows: "Apart from Khasra Girdawari Exh. PB Muhammad Rasib one of the plaintiffs appeared as a witness, who deposed that the land was purchased by his father and uncle in 1966-67. It was in possession of the vendees prior to the execution of the sale-deed. Their possession was continuous. However, the suit land was occupied by the defendants in the year 1978. It was explained by them that encroachment was made by the defendants as one of the Survey Nos, of the defendants was contiguous to the suit land. In answer to a question in the cross-examination the witness deposed that the suit land measuring 4 Kanals 12 Marlas was in possession of the defendants and possession of the rest of the land measuring 4 Kanals 8 Marlas earlier entered in the plaint was acquired by the plaintiffs prior to the amendment application. It is interesting to note that the witness deposed in unequivocal terms that the defendants occupied the land in 1978 but the fact remains that no challenge was thrown to the evidence of this witness by the learned counsel for appellants during his cross-examination. It is a settled proposition of law that if the veracity of a witness has not been challenged on a particular point in the cross-examination, his evidence on that point shall be deemed to have been admitted by the other side".
In case titled Khan Muhammad Badar & 6 others Vs. Mst. Roshni & 43 others (2008 SCR 46) at Page .51 of the report it was held by their lordships as follows: "Both the aforesaid witnesses deposed that Wazir Muhammad was not capable of giving evidence before the Court. As these portions of the statements were not challenged in the cross- examination, these shall be deemed to have been admitted. It is well settled principle of law that where a portion of statement of a particular witness is not challenged during the cross- examination, then that shall be deemed to have been admitted by the other party."
13. A glance perusal of record reveals that appellant-plaintiff solicited Rs, 35,00,000/- as damages of mantel agony. On the above point beside statement of the plaintiff, evidence of his 3 witnesses were also not considered by the Court below. As the respondents-defendants admittedly obtained Rs, 50,000/- as price of the plot from father of the appellant-plaintiff on 18.01.1989 and after his death the same was allotted in the name of mother of the appellant-plaintiff and pro-forma respondents on 16.10.1993. The mother of appellant-plaintiff and pro-forma respondents also died in 1995. After death of his mother the plaintiff was continuously struggling for transfer of the plot in his name and pro-forma respondents as legal heirs of the ,deceased, however, despite obtaining application, the Development Authority Mirpur failed to perform its legal duties. The Authority did not bother to transfer and handover the possession of the plot to legal heirs of its allottee. No record was placed before the Court that the above mentioned allotment was bogus or the authority was not competent to make allotment, therefore, as stated earlier notification dated 14.02.2004 was not applicable on the plot in question. Even otherwise, matter with regard to transfer of plot in the name of legal heirs was initiated after the death of mother of the appellant-plaintiff in the year 1995, therefore, pretext of the above notification dated 14.02.2004 looked to be lame excuse of the Development Authority Mirpur which was issued about 9 years later after the death of plaintiffs mother. I have, therefore, no hesitation to hold that there was no hurdle in the way of Development Authority for transfer of the plot in the name of leg, heirs of Mst. Khurshid Akram, for giving possession plus approval of map and permission for raising boundary wall. Record also reflects that appellant-plaintiff even requested to Development Authority for allotment of an alternate plot as he was living in a rented house which request was also not accepted.
There was no any legal or moral justification on the part of Development Authority to obtain price of Rs, 50,000/- of the plot on 18.07.1989 and then failed to transfer as well as handover possession of the vacant plot to the legal heirs despite elapsing more than two decades. According to my estimation, due to mischievous conduct of the Development Authority, the appellant-plaintiff suffered a lot. All P.Ws. and the appellant-plaintiff unanimously deposed that the plot stood allotted in the name of mother of the appellant-plaintiff for a tune of Rs, 50,000/-, however, inspite of the said allotment the Authority failed to deliver the possession and grant permission for map plus construction of boundary wall and due to the said mischief of the respondents-defendants, plaintiff suffered mental agony in addition to undergone peculiar losses, therefore, Issue No, 5 was proved. It is liable to be observed here that DW Khadam Hussain, Record Keeper of Development Authority Mirpur, admitted all the facts pleaded by the appellant-plaintiff except bringing on record notification dated 14.02.2004, which as stated earlier, was not applicable on the disputed plot entitled the appellant to recover compensation from the respondents-defendants.
14. The case law referred by the learned counsel for the respondents-defendants, Mr. Riaz Alam, Advocate, (PLJ 1994 AJ&K 1) relates to the ex-parte proceedings having no nexus with the proposition involved in the instant case.
Similarly, (PLJ 2006 Lah. 963) referred to and relied upon by the learned counsel for the respondents-defendants pertains to malicious prosecution which is also distinguishable and not applicable to the peculiar facts of the present case.
15. For the reasons enlisted above, suit is decreed in terms that the appellant-plaintiff and pro- forma respondents are entitled to recover Rs, 15,00,000/- as price of the Plot No, 299-E measuring 1 kanal situated in Phase-I Sub-Sector Dadyal and due to overall circumstances Rs, 5,00,000/- as damages for mantel torture from the respondents-defendants. The appeal, therefore, filed by the appellant-plaintiff Mehmood Akram Qadri is accepted in the manner indicated hereinabove, while cross appeal filed on behalf of Development Authority Mirpur and others being not maintainable, is hereby dismissed.
The costs shall follow the eventualities.