AMIN-UD-DIN KHAN, J. - Through this appeal the appellant- plaintiff has challenged the judgment and decree dated 9.3.2006 passed by the learned Additional District Judge, Bahawalnagar whereby the appeal filed by the respondents-defendants was accepted against the judgment and decree dated 22.7.2005 passed by the learned Civil Judge, Bahawalnagar whereby the suit filed by the plaintiff appellant was decreed.
2: Brief facts of the case are that the plaintiff appellant on 22.1.1997 filed a suit for declaration praying therein that she is owner of suit land measuring 12 Kanals and 17 Marlas fully mentioned in the head-note of the plaint and stated that the possession of the defendants over the suit property is illegal and prayed that the defendants be ordered to remove their structure and hand over the possession to the plaintiff-appellant. As per claim of the appellant- plaintiff she is owner of the suit property in accordance with Jamabandi for the years 1991-92 and stated that in her absence the defendants-respondents have taken possession of the suit property and near about three years back, she came to know about the possession of the defendants. She asked them to vacate the possession but on their refusal she has filed this suit. The defendants who are officials of the Irrigation Department filed their written statement and contested the suit. They pleaded that the land in dispute is ownership of Province of Punjab and since the year 1925 the department is in possession and constructed houses of employees of Irrigation Department. It was also pleaded that on the basis of some forged and fictitious documents the plaintiff has filed the suit. The learned Trial Court framed the issues and invited the parties to produce their respective evidence.
Both the parties produced their respective evidence. The learned Trial Court vide judgment and decree dated 22.7.2005 decreed the suit. An appeal was preferred which was accepted by the learned first Appellate Court, hence this appeal.
3. Learned counsel for the appellant submits that the land was allotted to Ismail, Khalil and Noor Samand by the Settlement Authorities and Mutation No. 1155 was attested in their favour on 29.11.1981 and they transferred the same to the appellant through registered gift deed No. 224, dated 28.3.1982 and Mutation No. 1237 on the basis of gift deed was sanctioned in favour of the appellant on 19.4.1982. All the three documents were not part of the record of learned Trial Court.
Therefore, he has filed C.M. No. 1367 of 2006 for permission to produce these documents as additional evidence under Order 41, Rule 27.C.P.C.
4. Learned A.A.G. Submits that forged and fictitious documents have been appended with this application for additional evidence and the application is absolutely not maintainable at this stage.
5. I have noticed that these documents were never introduced by the plaintiff-appellant in the plaint as well as in the proceedings before the learned Trial Court. The case pleaded by her was on the basis of Jamanbandi for the years 1991-92 and she claimed the suit property. Even I have scanned these documents. Mutation No. 1155 has been allegedly based on the foundation of some order of the Assistant Commissioner dated 30.8:1975 and this mutation was sanctioned on 29.11.1981. I am afraid that after the repeal of Settlement Laws through Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 how this mutation was attested on the basis of any order of the Assistant Commissioner as after the repeal of Settlement Laws, Officer notified by the Provincial Govt, was competent to deal with the property and this mutation shows that from the ownership of Central Govt, of Pakistan the property has been transferred in the name of Ismail etc. Whereas after the repeal of Settlement Laws in accordance with Section 3, the property lying in the name of Central Govt, was transferred in the name of Provincial Govt. This document per se seem to be a forged document, as under the order of the Revenue Officer the order dated 30.8.1975 has been referred, whereas in column No. 17 of Mutation the order dated 30.9.1981 as well as 25.10.1981 for transfer of proprietary rights on behalf of Central Govt, in favour of Ismail etc. Has been referred which shows that this document having no base on any valid order passed by the competent authority and furthermore no such order has been placed on the i.e or permission has been sought to produce the order as additional evidence. So far as registered Hibanama and Mutation No. 1237 on the basis of Hibanama are concerned, the basic of these documents has been discussed above, Mutation No. 1155 seems to be forged and fictitious document which does not create any right in favour of Ismail etc., therefore, it cannot transfer any further right in favour of the appellant.
Therefore, instant CM. No. 1367 of 2006 is not maintainable and is dismissed.
6. Learned counsel for the appellant, while arguing the appeal has supported the judgment and decree passed by the learned Trial Court and attacked on the findings recorded by the learned first Appellate Court. He contends that the first Appellate Court apart from issue No. 1 has not. Given any findings on the remaining issues; therefore, impugned judgment is unsustainable on this score as well. He has prayed that the judgment of the first Appellate Court be set aside and that of the learned Trial Court be restored.
7. Learned A.A.G. Has supported the findings recorded by the first Appellate Court and states that there is no case for interference by this Court while exercising jurisdiction under Section 100, C.P.C.
8. I have heard the arguments of the learned counsel for the parties at length and have perused the Record with their able assistance.
9. I have noticed that Ex.D-2 which is Jamanbandi for the years 1963-64, in column of ownership Provincial Govt, has been recorded as owner of this property and is in possession of the Irrigation Department. There is nothing on the record that how in the column of ownership the name of Central Govt, was replaced in Jamanbandi for the years 1971-72. Though the possession of Irrigation Department and Bungalow of Irrigation Department have been recorded in the Jamanbandi for the years 1971-72. Further statement of DW.l Muhammad Sharif Patwari that on the suit property Irrigation Department is in possession since the year 1934 and residential houses of the employees have been constructed after spending huge amount. He stated that in the years 1962- 63 the land in dispute was ownership of the Provincial Govt, and in the Jamanbandi for the years 1967-68 without any justification after cutting in the forthcoming Jamanbandi for the years 1971-72 the ownership of Central Govt, was recorded which has no backing Of law or any valid order. He has stated that by forgery Mutation No. 1155 has been got sanctioned in favour of Khalil etc and then the land has been got transferred in favour of plaintiff fictitiously The vital part narrated by the Patwari DW.l was not cross-examined by the learned counsel for the plaintiff..
Under the law, a portion of statement of witness which remains unchallenged in the cross- examination will be presumed to have been accepted by the opposite party. The other circumstance that when the land was allotted in the name of Ismail etc. In the year 1975 and they succeeded in getting the mutation sanctioned in their favour on 29.11.1981. Admittedly, they were not in possession of the suit property. How the same could be gifted when they were not in possession of the suit property and further the filing of the suit by the appellant in the year 1997 also speaks volumes of deceit against the plaintiff- appellant. Learned counsel for plaintiff-appellant has failed to show any defect or illegality in the judgment passed by the first Appellate Court.
In the light of what has been discussed above, this R.S.A. Having no merit is dismissed with costs of Rs. 50,000/- as the plaintiff-appellant has dragged the department and Province of Punjab in this litigation without any justification. Consequently, the suit filed by the plaintiff-appellant stands dismissed.