1. CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal, with the leave of the Court, is addressed against the judgment of the High Court dated 11-5-2009, whereby second appeal filed by the appellant, herein, has been dismissed.
2. 2.The precise summary of facts giving rise to this lis is that the respondent filed a suit for declaration and perpetual injunction in respect of the suit land in the Court of Sub-Judge Mirpur on 28-11-1996 on the ground that he is owner in possession of land measuring 2 kanals out of khasra Nos.320 and 322, situated in village Jageer Tehsil Mirpur. It was prayed by him that the defendants be ordered to remove the material piled up by them on a portion of the said land. An application for interim relief was also filed by the plaintiff. The trial Court refused to grant the interim relief, against which the plaintiff filed an appeal before the District Judge. During the pendency of appeal, both the parties agreed for the appointment of commission to inspect on spot position. With the agreement of the parties, Assistant Commissioner Revenue department, Mirpur was appointed as Commissioner, who after spot inspection, prepared his report and statements of both the parties were also recorded, wherein both the parties stated that they accept the demarcation made on spot by the Revenue Officials. The defendants contested the suit by filing written statement. At the stage of recording of evidence, the inspection report and statement of the parties recorded by the Commissioner were tendered in evidence as Exhs.PC, PC/1 and PC/2. After completion of the required proceeding, the learned trial Court, vide judgment dated 29-3-2005, on the basis of due appreciation of the evidence, to the extent of suit land comprising Survey No.322 granted decree for possession of 1 and -- marla encroached by the defendants, whereas to the extent of other survey number the suit was dismissed. The defendant feeling aggrieved filed first appeal in the Court of District Judge Mirpur,whichwasdismissedvidejudgmentdated30-12-2005. The second appeal filed in the High Court has also met the same fate through the impugned judgment dated 11-5-2009.
3. 3.Muhammad Siddique Chaudhry, Advocate, the learned counsel for the appellant, after detailed discussion of facts, vehemently contended that all the subordinate Courts have failed to properly analyse the evidence and appreciate the real controversy. The plaintiff respondent has failed to prove his claim by any sort of evidence rather from the evidence, claim of the plaintiff has been negated. He further submitted that the trial Court has given relief, which was neither prayed nor was the part of the pleadings, thus on this score all the judgments are nullity in the eye of law, hence, are not sustainable. While dealing with thequestionofconcurrentfindings,hesubmittedthatasthe findings are totally illegal, therefore, question of concurrent findings doesn't arise.
4. 4.While controverting the arguments of the learned counsel for the appellant, Sardar Muhammad Razaq Khan, the learned counsel for the respondent, forcefully defended the impugned judgment and mainly focused, in his arguments on the legal point that all the three Courts have unanimously recorded findings of the facts against the appellant, therefore, the appellant has no right of appeal. He further submitted that the plaintiff- respondent has not only proved his claim through oral evidence but undisputedly, the Commissioner was appointed with the consent of both the parties, who also admitted on spot position in their statement recorded by the Commissioner. The report of the Commissioner and the statements of the parties recorded by him have been tendered in evidence as Exhs. PC, PC/1 and PC/2. This cogent evidence proves the claim of the respondent beyond any shadow of doubt. The Subordinate Courts have passed the judgment in accordance with the principle of law and justice. He relied on the cases reported as 2003 SCR 2 and 2010 SCR 250.
5. 5.We have paid our utmost attention to the arguments advanced by the learned counsel for the parties and also gone through the record made available.As all the three Courts have recorded unanimous findings and have also analysed the evidence brought on record, the only point which requires consideration, as argued by the learned counsel for the appellant, is whether the relief is granted against the principle of law and pleadings despite failure of the plaintiff to prove his claim.The oral evidence adduced by the parties is not of much helpful as the witnesses in their deposition are supportive of the respective stand of the parties. The most relevant legal reliable evidence is the inspection report of the Commissioner and the statement of the parties recorded by him. The record reveals that there was a report of Tehsildar relied upon by the defendant, but both the parties have agreed before the District Judge on 22-11-1997 for appointment of Revenue official as Commissioner to make spot inspection in their presence.
6. The needful was done by the Commissioner and the report was submitted before the Court. Subsequently during the proceeding before the trial Court, the Commissioner appeared as a witness. His statement was recorded. He also tendered the inspection report Exh.PC and statements of the parties Exhs.PC/1 and PC/2 in evidence. The Commissioner was cross-examined by the appellant. In Exh.PC, It has been clearly reported that no construction is found in the encroached piece of land rather only on the north corner of suit land, some bricks have been stocked. It isinteresting that in the cross-examination the appellant himself established it was further clarified in the cross examination: Thus the preparation of report and recording of statements of the parties stood established beyond any iota of doubt. It is also useful to reproduce the statement of the appellant recorded by the Commissioner, wherein he deposed that: The appellant-defendant neither disputed nor refuted this piece of evidence and nothing contrary to this has been brought on record. Thus the factum of encroachment stands proved from the evidence brought on record, therefore, in our opinion while recording findings the Courts below have neither made any misreading, non-reading or wrong reading of the evidence. On the question of fact, the concurrent findings recorded by the Courts are upheld and we don't find any justification to interfere with.
7. 6.The other point, which has been forcefully argued on the part of the appellant that the relief has been granted beyond the scope of pleadings. The perusal of pleadings of the parties reveals that the respondent-plaintiff in his plaint alleged that the land comprising survey No. 322measuring 20 feet (east west)x 3 feet (north-south) has been encroached by the defendant and in survey No. 320 encroachment is measuring 1 feet (east-west) x 15 feet (north-south). The appellant-defendants in his written statement clearly stated that:-- Thus, it is clear that the appellant-defendant has no claim over the suit land, hence the ownership of the plaintiff-respondent is admitted.The only variation is that, according to the plaint, the encroachment is shown in two number khasras with a specific measurement, whereas according to site inspection's report, no encroachment is found in survey No. 320 while the encroachment found is in Survey No. 322, which is larger in measurement than that mentioned in the plaint.Itisalsoacelebratedprincipleoflawthat admittedfactsneednottobeproved.Whenthe statementoftheappellant- defendant,injuxtapositionwiththereport oftheCommissionerisanalyzed,it makesclearthattheappellant-defendanthasnoconcern withKhasraNo. 302.
8. He, himself deposed in his statement:-- Insuchstateofaffairs,thegrantofdecreebythetrialCourtisquiteinaccordancewiththeprincipleoflawandjustice.NowthequestionarisesthatwhethertheCour case we are of the opinion that ordinarily litigants are not the expert of measurement. Normally in such like circumstances without proper demarcation or measurement conducted by the expert officials, the statementismadeonthebasisofaroughestimation.Fortheendsofjusticeif therelief,whichflowsfromthepleadingsand alsoprovedfromtheevidence,theCourtsareempoweredtomouldandgrantthesame.Ourthisviewfindssupportfrom Muhammad Rafiq v. Allah Rakha's case 2002 YLR 2073. The facts of this case are nearly identical to the case in hand. In this case, the Commissioner was also appointed to inspect the site of suit property and submit a report. The relief was granted accordingtothereport.TheCourtresolvedthisissue inpara.8ofthejudgmentwhichisreproducedas following:--- "8.The last ground urged by Mr. Sikandar Khan Yasir is that the prayer made in the listed application is beyond the scope of the reliefs claimed by the plaintiff in the suit. In reply to this, Mr. RasheedA.Razvihasrightlyreferredtheprovisionof Order VII, Rule 7, C.P.C. and cases reported in PLD 1988 Karachi 414, PLD 1978 Supreme Court 220 and PLD 1989 Karachi 404. The ratio of these cases is that the Courts are not denuded of their powers to mould and grant such relief to a party as dictates of justice may demand in the changed circumstances of the case, even if such relief has not been expressly claimed by a party, provided otherwise that Court has jurisdiction to grant such relief. In view of this legal position the last objection of Mr. Sikandar Khan Yasir has also no force."
9. Almost the same principle has been laid down in Muhammad Yaqoob v. Muhammad Ishaque's case 1980 CLC 2056. The Courts are also vigilant of the facts that for avoiding multiplicity of proceeding and shortening the litigation the Courts are competent to mould the relief. In a case titled Messrs Muhammad Amin Muhammad Bashir Limited and another v. Pakistan through Secretary, Ministry of Communications Rawalpindi and 5 others (2000 CLC 1559), while dealing this aspect of the matter the Karachi High Court observed as following:-- "It is settled law that now Courts are competent to mould relief according to altered circumstances but this discretion is to be judicially exercised in the larger interest of justice with a view to avoid multiplicity of proceedings, to shorten litigation and to do complete justice between the parties. If any reference is needed, see Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 Supreme Court 220. The rule laid down in Amina Begum's case (ibid) was reiterated by a Full Bench of Honourable Supreme Court in Muhammad Aslam v. Wazir Muhammad PLD 1985 SC 46 rel. at 51."
10. A division Bench of Lahore High Court in Majhena, Advocate's case 2000 YLR 280, observed as following:- "We have observed that the respondents only asked for the relief of possession and did not make a specific prayer for the recovery of the sale price.
11. In law, the Court is competent to mould the relief and also to grant the relief to a party to which the said party is found entitled, keeping in view the substance of the plaint and also the evidence on record, no matter such relief is not specifically asked for. Reference can be made to Samar Gul v.
12. Central Govt. and others (PLD 1986 SC 35) and Mst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220). In the given circumstances, the appropriate relief, which could be claimed in the suit was for recovery of the sale price or in the alternative for recovery of possession."
13. The Karachi High Court in Paryaldas and others' case (2000 YLR 584) while embarking on this point held:-- "The trial Court rightly held that the relief of declaring the instrument can be granted under Order VII, Rule 7, C.P.C. Even otherwise as held in PLD 1986 Supreme Court 35 (supra) the Court is empowered to grant such relief as justice of case demand and for determiningthe relief asked for whole of the plaint must be looked into so that the substance rather than the form should be examined. The suit has filed for cancellation of sale and possession but it appears that there is no prayer clause to the effect of cancellation of sale-deed. A perusal of the plaint shows that it is a suit for cancellation of the sale-deed Exh.89 in respect of the suit property and forpossessionthereof.Itwillnotbeappropriate nottograntareliefofcancellationofthesale-deedthoughithasnotbeenspecificallyprayed for."
14. 7.In view of the above discussion, we are of the opinion that the appellant has failed to make out any case for interference of this Court. Thus finding no force in this appeal, the same is hereby dismissed with no order as to costs.