QALANDAR ALI KHAN, J:- This revision petition shall also dispose of revision petition No.360/2011, as both revision petitions arise out of the same impugned orders dated 30.10.2010 of Civil Judge, Haripur and that of the learned Additional District Judge-II, Haripur dated 18.05.2011.
2. Mst. Shabana Bibi and other legal heirs of Chanzeb lodged suit for declaration with prayer for possession and recovery in the Court of Civil Judge, Haripur, whereby ownership of Suzuki No.MA- 6077 and articles lying in the shop known as 'Awan Electric Sanitary and Gas Appliances' TIP Barrier Chowk Noor Colony, Haripur through deceased Chanzeb was claimed. The suit was resisted by Aurangzeb, Javed Akhtar and Changez Khan, brothers of deceased Chanzeb, who took the plea that deceased Chanzeb had already disposed of articles in the shop and the Suzuki in question through sale in his lifetime.
3. After recording evidence of the parties and hearing the learned counsel, the learned Civil Judge, Haripur dismissed suit of the plaintiffs, Mst. Shabana Bibi etc vide his order dated 30.10.2010.
Aggrieved of the said order, the plaintiffs preferred appeal, which was partially accepted and judgment and decree was modified to the extent that the plaintiffs were held entitled to the price of the articles lying in the suit shop at the time of death of their predecessor-in-interest to the tune of Rs.150,000/- with 10% profit per annum from March, 2003 till actual payment of the same, by the learned Additional District Judge-II, Haripur vide his judgment and decree dated 18.05.2011, whereby rest of the suit of the plaintiffs was dismissed. In their revision petition, the defendants/petitioners assailed judgment of the learned Additional District Judge-II, Haripur and prayed for restoration of the judgment/decree of learned Civil Judge dated 30.10.2010, whereas in their revision petition the plaintiffs/petitioners called in question both the judgments of the learned Civil Judge as well as learned Additional District Judge-II, Haripur with prayer for setting aside judgment and decree of the learned Civil Judge, Haripur and modifying the judgment of learned Appellate Court / Additional District Judge-II, Haripur and to decree the entire suit of the plaintiffs/petitioners. On the basis of the pleadings of the parties, the learned Civil Judge had framed as many as eight issues with Additional Issue No.1, which reads as follows:- "Whether the shop known as "Awan Electric Sanitary and Gas appliances TIP Barrier Chowk Noor Colony, Haripur" and Suzuki in question was owned and in possession of Chanzeb (deceased) and after his death plaintiffs being legal heirs of Chanzeb are entitled to the same?"
While recording his findings on Additional Issue No.1, the learned Civil Judge arrived at the conclusion that deceased Chanzeb had sold out his business in the shop in question to Changez (defendant No.3). The learned Civil Judge also arrived at the conclusion that the plaintiffs failed to discharge their obligation of adducing their evidence to prove ownership of deceased Chanzeb over the vehicle in question. The learned Civil Judge was driven to the conclusion regarding articles in the shop in the light of statement of the plaintiff, Mst. Shabana Bibi, wherein she admitted that the articles were sold out by her husband to Changez, his brother, which had been claimed by her through the suit.
4. The learned Additional District Judge-II, Haripur, while dismissing rest of the suit of the plaintiffs and holding that the plaintiffs could not produce any evidence to establish the nature of the articles lying in the suit shop nor the worth of those articles, therefore, their claim could not be accepted as prayed for by them; but, nevertheless, modified the judgment and decree of the learned Civil Judge and held that the plaintiffs were entitled to the price of the articles lying in the suit shop at the time of death of their predecessor-ininterest to the tune of Rs.150,000/-, only on the basis of so called admission on the part of the defendants, whereby they accepted value of the articles worth Rs.150,000/-.
5. Since both the learned Civil Judge and learned Additional District Judge-II, Haripur recorded concurrent findings with regard to Suzuki and both held the plaintiffs not entitled for recovery of the same, there is no occasion to interfere with concurrent findings of two Courts in this respect. The two Courts were, however, at variance with respect to the articles in the shop, as the learned Civil Judge found the same to have been sold by deceased Chanzeb to Changez (defendant No.3), while the learned Appellate Court arrived at the conclusion that the defendants failed to prove the sale deed in respect of the articles dated 07.02.2003. It is, indeed, interesting to note that while discarding the sale deed dated 07.02.2003 on the ground of lack of proof, the learned Appellate Court still based his findings in respect of value of the articles in the shop on the basis of this sale deed. It is noteworthy that the learned Appellate Court never adverted to the admission of plaintiff, Mst. Shabana Bibi, whereby sale of articles in the shop by her husband to defendant No.3 was candidly admitted by her, and relied upon by the learned Civil Judge while dismissing suit of the plaintiffs. It may also be noted here that the learned Civil Judge nowhere held that the sale deed dated 07.02.2003 was proved, rather based his findings on the admission of the plaintiff. The learned counsel for the plaintiffs/petitioners contended that the admission, if any, was erroneous and that the plaintiffs could not be denied the relief to which they were entitled, on the basis of such erroneous admission in the light of PLD 1993 Peshawar 81, 2001 CLC 527(Lahore) and 1993 CLC 1248 (Lahore). The said admission on the part of plaintiff has significance for the case of the parties, particularly when the defendants specifically took the plea of sale of articles in the shop in the lifetime of Chanzeb deceased and also produced the sale deed dated 07.02.2003 and marginal witness Fazal-ur-Rehman(DW-2) in support thereof. Apart from that, neither the plaintiff was subjected to re-examination in respect of the admission, described by the learned counsel for the plaintiffs as erroneous, nor she ever challenged the admission at any forum. In view of the said admission, there was hardly any need to prove the sale deed, which was a sort of supportive document in view of the admission of the plaintiff.
6. In view of above, there was no room for modification of the judgment and decree of the learned Civil Judge and holding the plaintiffs entitled to the price of the articles lying in the shop worth RS.150,000/-. Consequently, the revision petition of the plaintiffs/petitioners (CR No.360- A/2011) is dismissed, whereas revision petition of the defendants/petitioners in this Civil Revision is accepted with the result that judgment and decree of the learned Additional District Judge-II, Haripur to the extent of grant of RS.150,000/- as price of articles lying in the suit shop is set aside and by restoring the judgment and decree of learned Civil Judge dated 30.10.2010, suit of the plaintiffs stands dismissed.