' AMIN-UD-DIN KHAN, J.---Through this civil revision petitioner has challenged the judgment and decree dated 24-4-1996 passed by learned Additional District Judge, Lahore whereby appeal filed by the petitioner was dismissed and judgment and decree dated 7-1-1992 passed by learned Civil Judge, Lahore whereby suit for possession filed by the predecessor of respondents-plaintiffs was decreed.
2. Brief facts of the case are that plaintiffs-respondents on 9-2-1976 filed a suit for recovery of rent as arrears and ejectment of defendant from the suit house. Written statement was filed. Suit was contested. Learned trial Court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Vide judgment and decree dated 7-1-1992 learned trial Court decreed the suit. Appeal was preferred, which was dismissed by the learned first appellate court vide judgment and decree dated 24-4-1996. Hence, this civil revision.
3. Learned counsel for the petitioner at the very outset has drawn my attention to the order passed by this Court on 12-12-2005 whereby Ch. Muhammad Hussain, Advocate (Retired Assistant Commissioner) was appointed as a Local. Commissioner to conduct demarcation to find out whether the suit property, a built one, falls under Khasra Nos. 207/208/209 or 433/415/210 situated Rampura Jaghir, Lahore. Record shows that the learned Local Commissioner submitted various reports wherein in the last report submitted on 23-2-2011 it is mentioned that due to non- cooperation of the parties as well as the revenue officials it is impossible that report be submitted with regard to the demarcation despite the fact that the Local Commissioner visited the spot various times, issued notices through TCS etc. Also. Learned Local Commissioner has written that he is ready to refund the fee. Learned counsel for both the parties state that as the report is impossible, therefore, they are ready to argue the matter and do not press for appointment of Local Commissioner. In this view of the matter, the arguments have been heard.
' At this stage I will note that the fee paid to the learned Local Commissioner will remain with him as he has made his sincere efforts for compliance of the order of the Court, therefore, no need to refund the fee.
4. Learned counsel for the petitioner argues that a suit was filed previously in the year 1975 which has been admitted by the plaintiff when appeared as P.W.1 that the same was dismissed and without permission of the court this second suit has been filed on 3-3-1976 on the basis of same cause of action which was not maintainable.
5. In the suit in hand though claim of the plaintiffs is that the suit quarter was rented out to the defendant on 1-10-1959 on monthly rent of Rs.22 and tenancy was from month to month and defendant has failed to pay the rent from 1-10-1965 and the notice was sent to him before filing the suit on 8-1-1976 for terminating his tenancy in accordance with law. In the written statement the relationship between the parties that of landlord and tenant was denied. It was stated that descriptions and particulars of the property in possession of the defendant have wrongly been given in the plaint. It was stated that defendant is owner and the suit house is situated in Khasra Nos. 433/415/210 measuring six marlas which was allotted to him 'by the competent authority and he himself constructed the house and is residing therein. In Para 4 of the written statement it is mentioned that notice issued by the plaintiff was replied by the defendant on 14-11-1975, therefore, notice was withdrawn and in the second notice dated 8-1-1976 nothing new has been mentioned.
The original notice or the copy thereof has not been produced on the file. The pivotal point in this litigation was that what is the Khasra number of the suit property. As both the parties have not denied title documents of each other, therefore, when the plaintiff came to this Court for issuance of a decree for possession in his favour, it was the duty of the plaintiff-respondent to prove the case pleaded by him. As he has pleaded that the property was handed over to the defendant by the plaintiff on rent in the year 1959, there is no mention of the month or whether the tenancy was oral and then before whom the agreement of tenancy was arrived at, it is not on the surface and further that when it is the claim of the plaintiff that till the year 1965 the defendant was paying the rent, there is no receipt and even it is also not on the,surface that whether till December, 1965 the rent was paid or till which month the rent was paid. As I have noticed that while discussing Issue.
No. 1 the learned trial Court on the basis of Mark-A and Mark-B which are denied by the defendant finding that even the Expert opinion is not possible as these documents are 16 years old, therefore, by comparing alleged signatures of defendant upon these documents with the admitted signatures the learned trial Court came to the conclusion that these are the signatures of the defendant. I am afraid that this practice by the learned trial Court is not permissible under the law when in the light of (2004 SCM R 361) titled "Rehmat Ali Ismailia v. Khalid Mehmood" the august Supreme Court of Pakistan has observed that it is undesirable that a Presiding Officer of the Court should take upon himself the task of comparing signature in order to find out whether the signature/ writing resembled to,the disputed document with that of admitted signature/writing. As I have noted above that the ownership of both the parties is not in dispute but the matter in issue was that upon which property the suit house is constructed? The learned trial Court has taken inference from Exh.P3=Exh.P.8 presuming it to be a report of "Had Brari" and on the basis of this document the findings have been recorded that disputed quarter falls in Khasra Nos. 207/208 and
209. I have noticed that it is not a report of "Had Brari", it is a copy of Rapt Roznamcha issued by the Patwari and there is no mention that under what authority of law Patwari has entered this Rapt finding himself that Mukhtar Ahmad Khan is in illegal occupation of Khasra No. 209 and Shaukat Ali and Abdul Majeed in Khasra Nos. 207, 208 and 209. Even otherwise, this document was not per se admissible in evidence as without producing the original record, copy of this Rapt was not admissible in evidence, which has been produced in the statement of P.W.3 the attorney of the plaintiff. In these circumstances, it is settled law when a party to a lis pleads and asks the court to believe his pleadings it is his duty to prove the same and if the party asking the court to believe a certain fact orally asserts the same in his oral evidence and no document is produced and the other party also orally rebuts the same, the result would be that the party asking the court to believe a certain fact will fail. In this case as I have noted above the plaintiffs-respondents have asking the court to believe that suit house is constructed upon Khasra Nos. 207/208/209, it was duty of the plaintiffs to prove the said fact through cogent evidence, except the oral statement nothing is on the record to prove that the suit house is constructed upon the said Khasra numbers.
The position of Exh.P3=Exh.P8 has 'been discussed above, it is actually a copy of Rapt Roznamcha which is not per se admissible. The learned trial Court has wrongly presumed it as a report of demarcation, therefore, reached to a wrong conclusion. Further point which is very important that when the defendant according to the plaintiffs stopped paying the rent in the year 1965 what stopped the plaintiffs for 11 years from filing the suit. This fact is also important. In these circumstances of this case, learned first appellate court has also not attended to these legal questions and therefore, reached to a wrong conclusion. In this view of the matter, the judgments and decrees passed by both the courts below are nullity in the eye of law and against the evidence available on the file as well as the settled principles of law. Resultantly, while allowing this civil revision judgments and decrees passed by both the courts below are set aside and suit filed by the plaintiffs-respondents stands dismissed with costs throughout.