' MUHAMMAD ALAM, J.--Petitioners/plaintiffs have challenged order dated 27-08-2015, passed by the learned Additional District Judge Gilgit, through this petition. Through impugned order, learned first appellate court dismissed the appeal (C .F. A . No .129-A/2014).
2. Petitioners/plaintiffs filed Civil Suit No,57-A, 88-A/1993 in the Civil Court of Civil Judge First Class No,II, Gilgit, who through his judgment/findings dated 31-05-2002, dismissed the suit. Feeling aggrieved from the same, petitioners/ plaintiffs filed C.F.A. No,129-A/2014 and the first appellate court passed the impugned order, whereby, the said court dismissed the appeal upholding the judgment/findings of trial court.
Previously, suit of petitioners/plaintiffs was dismissed by the learned trial court through his judgment/order dated 07-11-2013 which was challenged in this court through Civil Revision No,73/2013. Through order dated 28-08-2014 on the said civil revision, this. Court passed the following order:--
4. 1, therefore, set aside impugned order of the first appellate court and direct the first appellate court for compliance of the order dated 11-10-2010 of this court passed in C.F.A. No,20/2006. No orders as to costs. This file be consigned to record."
' Learned counsel for parties advanced arguments, pro and contra the petition and I have gone through the material available on file.
3. The case in hand has its very peculiar circumstances. An important aspect of the case is title of one M. Din to suit property. Record shows that title of M. Din to the suit property is not disputed as both the parties draw their title to the suit property on the basis of title of said M. Din. In the case in hand, the documentary evidence filed by the parties attains very importance. I have thoroughly gone through the evidence of parties available on file. From joint perusal of pleadings of parties, it is very important to note that burden of proof has clearly shifted to the respondent No,l. Learned two courts below have relied on Exh.D/1, therefore, Exh.D/1 attains very importance. From joint perusal of paras Nos.1 and 2 of the written statement, it is evident that respondent No,1 has admitted that both petitioner/ plaintiff and respondent No,1 purchased suit property commonly and then partition took place. Respondent No,1 has clearly averred that as a result of said partition, suit property fell in the share of respondent No,1. These kinds of averments in the pleadings, shifted burden of proof from petitioner/plaintiff to respondent No,1. What the respondent No,1 was bound to prove is that the suit property fell in his share as a result of a partition between the said two contesting parties. Then we had to minutely peruse Exh.D/1 which has two parts, one pertains land and the second pertains to the house. So, the question is that whether respondent No,1 has fully relied on Exh.D/1 or relied on the same partly? An important aspect of the case is that suit property is comprised of landed property as well as buildings while averments of written statement and evidence of respondent No,1 is regarding the house only. As statements of all the DWs as well as.
Exh.D/1 shows that respondent No,1 has attempted to prove that suit house fell in his share as a result of a partition between himself and the petitioner/plaintiff. Exh.D/1 as well as the oral evidence of the respondent No,1 clearly show. That suit property fell in share of petitioner/plaintiff except the house but even then the learned two courts below did not decree the suit to the extent of that part of-the suit property. DW-1 is stating about Exh.D/1 and DW,2 confirms that Exh.D/1 was written by DW-1. Likewise, DW-3 also supported the statement of DW-2. Rest of the DWs are stating about the possession of respondent No,1 on the suit property. As petitioner has prayed for possession of the suit property, therefore, statements of rest of the DWs is irrelevant. A very important aspect of the case is that none of the DWs are direct witnesses of any partition, not to talk of felling the suit house in the share of respondent No,l. Moreover, there is no evidence showing joint purchase of suit property or any part thereof by the petitioner and the respondent No,l. The DWs are stating about preparation of Exh.D/1 and the same is with reference to what petitioner/plaintiff admitted before the DWs Nos.1 to 3.
4. In my opinion, both the learned two courts below have failed to correctly read the evidence of parties. The peculiar circumstances of the case demand for placing the documentary evidence of the parties at juxtaposition. The learned two courts below have relied on Exh.D/1 and have baselessly rejected the documentary evidence, Exh.P/1 to Exh.P/3, filed by the petitioner/plaintiff. I do not find any plausible reason for rejecting the said documentary evidence of the petitioner/ plaintiff. In his statement, DW-1 has clearly stated that Mr. Abdur Rahim, plaintiff, purchased the 'suit house from Sheikh Mohammad Din. Exh.P/1 to Exh.P/3 are the relevant documents in proof of version of the petitioner/plaintiff. In the case in hand, burden of proof has shifted to respondent No,1 and in my opinion, respondent No,1 has Failed to prove the issues that he was bound to prove, therefore, I rely upon Exh.P/1 to Exh.P/3 and hold that petitioner/plaintiff has proved his title to suit property.
5. Yet another very important aspect of the case is that burden of proof of issues Nos.1 to 3,5,6 and 9 was on the respondents and learned trial court has framed the said issues in the light of averments of paras Nos.1 and 2 of parawise written statement. Learned trial court has, while giving findings on the said issues, held that the same were not pressed. In my opinion, the proof of the said issues was binding on the respondents.
6. As a result of above discussion, I hold that both the orders of the two courts below are result of misreading of evidence of parties, therefore, merited reversal. Petition allowed throughout. Suit of petitioner/plaintiff decreed throughout. Respondent/defendants to bear costs. This file be consigned to record.