' WAZIR SHAKEEL AHMED, J.---Through this revision petition, the above named petitioner has called in question the concurrent findings of the two Courts below where by the suit of respondent was decreed vide judgment/decree dated 15-06-09 and 4-10-12 respectively.
2. Brief fact of the case are summarized as under:-- ' The respondent/plaintiff named above filed civil suit regarding piece of land, the boundaries of land which are mentioned in the heading of the plaint with the contention that the suit land is in the ownership of the plaintiff and the possession of the same is with the present petitioner/defendant in the shape of amanat and has prayed his dispossession through a decree prayed for.
3. According to the averments of the plaint respondent plaintiff who is resident of Haiderabad Hunza and is settled in Chatorkhand Ghizar managed to purchase a piece of land there with the small amount which he spared from the monthly income of service. He left the suit land at Hunza Haiderabad with the present petitioner/ defendant as amanat/tenancy. After some time respondent/plaintiff wanted to get back the land from present petitioner but he could not do so as the preset petitioner did not handed over the same to him by one pretext to another whereupon the respondent/plaintiff approached the Ismailia Council Haiderabad Hunza for his redressal, the council vide its judgment dated 14-5-1972 decided the matter in favour of respondent which was further endorsed by Mir of Hunza according to the custom and the possession of suit land was handed over to respondent/plaintiff, and after getting the same respondent /plaintiff gave the suit land to Messrs Shafa and Darwash Ali on the tenancy for three years.
4. According to para No,7 of the plaintpresentpetitioner/defendant approached respondent / plaintiff at Chatorkhand Ghizar and requested that the suit land be handed over to him on tenancy and offered Rs, 1500 per annum as tenancy and the respondent plaintiff again handed over the suit land to present petitioner / defendant for tenancy in the shape of amanat. It was further alleged that after delivery of possession as mentioned above petitioner/ defendant continued to pay tenancy for some time and according to averments of para 8 of the plaint petitioner/defendant afterwards clearly denied to pay the tenancy and to return the suit land; with the claim that the suit land is that of him and in order to grab the suit land, the petitioner /defendant threatened the respondent/plaintiff of killing him and dire consequences, six year prior to the institution of the suit.
The cause of action according to the plaint was accrued firstly on 2001 and lastly o,. 7 or 10 days before the filing of the suit. Petitioner defendant contested the suit by filing written statement in which 8 primary issues regarding maintainability of the suit were also raised.
5. On facts it was admitted that respondent/plaintiff was residing in Chatorkhand Ghizar since 1957 and also the relationship of the parties inter-se. According to the averment of para 6 of written statement respondent /plaintiff Ghulam Muhammad had left Haiderabad Hunza before 1957 and went to Chatorkhand Ghizar in connection of his job and sold his owned property(suit land) situated Hunza Haiderabad in 1957 to Messrs Shafa son of Muhammad Sultan Khan, Darwash son of Qalandar and Lutuf, Alias, Titam Khan son of Bosang residents of Haiderabad Hunza on consideration Rs,5000 and received a sum of Rs,500 as advance sale money when petitioner got knowledge about the transaction he objected to the same with the plea of pre-emption and respondent/plaintiff by accepting the objection of petitioner/defendant cancelled his sale and sold the suit land to the petitioner/defendant in consideration of Rs,5000/- and received the sale amount and purchased land at Chatorkhand Ghizar using the sale amount. It was also averred in the written statement that in the year 1966 a piece of land in shape of a garden was effected during the construction of KKH and the compensation amounting to Rs,400 was also received by the petitioner and remaining portion of the above garden was sold to Mr. Nadir Shah son of Qalander Shah by petitioner/defendant in the year 1968 in consideration of Rs,1400. It was further averred that in the year 1972 respondent/plaintiff returned to Hunza Haiderabad and requested the Numberdaran of the village that the sold land be got back to him from the petitioner whereupon the Numbardars decided that the land in question situated at Haiderabad be handed over to respondent/plaintiff and the purchased land by the respondent/plaintiff with the amount given by the petitioner/ defendant as sale consideration of the suit land be given to petitioner whereupon respondent/plaintiff denied to act upon the decision of Numberdars of the village and after that the parties of the suit remained in possession on their respective lands.
6. The trial court on the basis of above pleadings framed 16 issues including that of the relief which is reproduced as under:-- 1.Whether suit of the plaintiff in its present form has been wrongly filed therefore, is liable to be dismissed ? OPD.
2. Whether suit of plaintiff is hit by principle of estoppel therefore, is liable to be dismissed ? OPD.
3. Whether suit of plaintiff is ambiguous, based on contradictory statement and mala fide, therefore, is liable to be dismissed ? OPD.
4. Whether decision assigned to Local Council dated 14-5-1972 is baseless, against fact, fake and based fraud and whether no such decision was made between the parties? OPD
5. Whether the boundaries of suit land are wrongly mentioned therefore, suit is liable to be dismissed? OPD 6.Whether prior to 1957 plaintiff went to Chatorkhand from Hunza in connection with his service, thereafter came back in the year 1957 and sold suit land to Ms Muhammad Shafa son of Muhammad Khan, Darwaish Ali son of Qalander and Latif Ali known as Tatum Khan son of Bosangr/o Haiderabad and received Rs,500/- in advance and whether defendant has on the basis of right of prior purchase as compared to the buyers get back the land against a consideration of Rs,5000/- and plaintiff has purchased land at chatorkhand with the very amount? OPD
7. Whether out of suit land part of a garden was come in the construction of Karakrum high way in the year 1966 and the compensation thereof was received by defendant and rest of the portion was sold by defendant in the year 1968? OPD
8. Whether in the year 1972 on the request of plaintiff Numdaraders have decided that land at Haiderabad would be given to plaintiff and at Chatorkhand which was purchased by the money of defendant would be given to defendant, but plaintiff has refused to accept the decision of Numbaraders and so parties used to possess their lands? OPD
9. Whether plaintiff has a cause of action against defendant? OPD 10.Whether suit of the plaintiff is within time? OPP
11. Whether suit property is the ownership of plaintiff and is entrusted one and the possession of defendant is as trustee therefore, defendant is liable to be dispossessed from suit land and plaintiff is entitled to get the possession of land from defendant? OPP 12 Whether plaintiff has recourse to Ismailia Local Council Hiaderabad Hunza got decision dated 14-5-1972 and get the decision approved from Mir of Hunza in accordance with the prevailing custom and after taking the possession of suit land from defendant handed over the same to MS Muhammad Shafa son of Muhammad Khan, Darwash Ali son of Qalander on tenancy for three years? OPD.
13. Whether plaintiff has left the suit land with defendant on tenancy and received the share of production of tenancy ? OPP.
1.4. Whether in accordance with the decision of Mir of Hunza dated 14-5-1972 suit property was handed over to plaintiff ?OPP.
15.Whether after having been give the suit property MS Muhammad Shafa and Darwash Ali on tenancy on the demand of defendant once again the land was given to defendant on tenancy?
OPP.
16.Relief.
7. Respondent/plaintiff in Support of his plaint got recorded his statement along with 2 PWs and a statement of a RW in rebuttal while petitioner/defendant in support of his claim got recorded 5 DWs besides his statement. After full trial the learned trial court vide its impugned judgment/decree dated 15-6-2009 decreed the suit of respondent/plaintiff and the same was maintained by the 1st appellate court vide judgment/decree dated 04-10-2012 hence this revision petition.
8. I have heard the learned counsel for the parties at length and also perused the available record, according to the same the respondent/plaintiff was shown to have proved issues Nos.9 and 10 which was regarding cause of action of the filing the suit and also of limitation and burden of proving the factual issues 11 to 15 were also rest on the shoulders of respondent/ plaintiff. The record of the case also transpires that that both the learned courts below failed to discuss the issues separately and discussed/tried number of important issues jointly against the mandate of Order XX, Rule 5, C.P.C.
9. Now let us see how the 1st appellate court has dealt with these issues. The relevant findings of the learned 1st appellate court are also worth mentioning which is reproduced as:-- Issues Nos. 11 to 15, title of respondent/plaintiff to the suit land is not disputed. Through issues 6 to 8 burden of proof was shifted to appellant/defendant who failed to prove said issues therefore these issues stood proved in favour of respondent/plaintiff. Appeal stands dismissed finding baseless and meritless judgment/decree of the trial court up held. Appellant to bear his own cost.
File be consigned to record after completion.
10.It is astonishing to note that the learned trial court has found the above issues 11, 13, 14, 15 proved in favour of present respondent/plaintiff not on the basis of any evidence on record but on the basis of arguments of the learned counsel for the respondent/plaintiff, according to which that these issues have been proved by the statement of rebuttal witness, the above rebuttal witness was not cross-examined on relevant PWs.
11. The contents of rebuttal evidence recorded on 18-10-2009 admittedly pertains to issues Nos.11, 12 and 15 and has been adduced just to filling up the gapes, as the respondent/plaintiff had failed to adduce any evidence regarding these issues through PWs and hence the above statement of Sultan Mehmood as discussed by the trial court does not come in any way in the ambit of rebuttal evidence. On the other hand also this rebuttal evidence is not worth reliance as the said witness has categorically admitted during the cross-examination that he has no personal knowledge about the transaction of the parties however he got the knowledge of controversy between the parties through his father. Facts in issues Nos. 11 to 15 referred above which were supposed to be proved by the respondent /plaintiff, were jointly taken and discussed by the two court below that also without discussing the evidence on record and both the courts have disposed of the issues superficially and against the mandatory provision of Order XX, Rule 5, C.P.C. The findings of these important issues arrived at by the Courts below are reproduced herein under for ready reference.
The learned trial while discussing issues Nos. 11, 13, 14 and 15 found that (b) <u>these are relevant issues and one burden on plaintiff. Learned counsel Mr. Sharif Ahmed Advocate argued that the statement of rebuttal evidence of Sultan Mehmood proved these issues as he was cross- examined on irrelevant points and there are chain of authorities where the party had made specific assertion on oath then in the absence of its being challenged in the cross-examination by the other side, the statement to be accepted and would be deem carry weight in discussing the issues involved. The learned counsel has relied on formally case laws:- </u>- I PLD 1995 SC AJK-41 II 2000 M LD 1957 Lahore III 2001 M LD 957 Lahore VI 2001 M LD 1225 Karachi V 2001 M LD 1969 Shariat Court AJK.
12.The learned counsel for defendant Mr. Jalal Haider Advocate argued that plaintiff failed to prove to his version amanat and tenancy as plaint and statement of attorney were in contradiction in these circumstances suit of the plaintiff is not maintainable and hence to be dismissed. Having consideration these submission of the learned counsel for the parties I have come to conclusion that it is not material that in what capacity defendant was dispossessed from the suit land but the real question is that the plaintiff is owner of the suit land and this very fact is established by the Exh-P-1 and possession of the defendant could not be justified or regularized at all.
13.The above findings of 1st appellate ' court on theses joint issues are also against the facts of the case in hand wherein the 1st appellate court for the reasons best known to him ' found that the titled of the respondent/plaintiff to the suit land is not disputed and as reproduced above in para No, 9 supra. The learned appellate Court further found that through issued 6 to 8 burden was shifted to appellant defendants who failed to prove said issues therefore theses issues stood proved in favour of respondent/plaintiff.
14. It is well settled proposition of law that the plaintiff has to prove his case at his own and thereby he has to stand on his feet and he cannot be benefited from the weaknesses of the defense. Both the courts below have failed to appreciate the evidence adduced by the appellant/defendant in support of issues Nos.6 to 8 in spite of fact that detailed account of their statement has been reproduced by the learned 1st appellate Court in his impugned judgment of 04-10-2012 but wrongly and erroneously found the issues as found not proved just because of the fact that D.Ws are not the witnesses of the sale of suit land to the appellant by the respondent/plaintiff. Both the lower courts below bitterly failed to appreciate the fact that the sale transaction of the suit land 'by the respondent/plaintiff to petitioner/defendant stood proved through the document Exh-P-1 relied by the present respondent/plaintiff himself wherein it is categorically stated that the present appellant/defendants has without any proved document or reliable witness have purchased land from respondent /defendant. According to the above document decision of local council dated 14- 5-1972 the present appellant/defendant was entitled to keep the ownership of purchased land which is actually suit land, provided he continued to extend constant add to the purchaser but the purchaser ( petitioner ) could not continue constant add to purchase due to which he had suffered financial constrains and was force to claim return of the purchased land and this right of the respondent/plaintiff was accepted elsewhere but the purchaser/ petitioner/defendant tried to linger on the proceeding through lame excuses since last six months.
15.As per para 2 of the above judgment dated 14-5-1972 of the local council it was also held that the present petitioner has sold the sole garden and has constructed a house on the purchased/suit land. The value of the sold garden is reportedly of Rs,1000. Apart from that it is also proved through evidence that a piece of the garden was effected during the construction of road and compensation of road Rs, 400 also received by petitioner (as claimed by him in the written statement.) The council in the light of above facts decided that<u> the present petitioner shall pay Rs,1000 to the respondent in lieu of the payment of sold garden and also to pay a sum of Rs,400 in lieu of amount received as compensation to the respondent/plaintiff along with piece of land at Haiderabad equal to the sold garden and in case of nonpayment of the same the present petitioner shall be deem to be disentitled for his claim of land at Ishkhoman</u>, which is admittedly being purchased by the respondent with the amount paid by present appellant to the respondent in consideration of the suit land.
16.According to the para 3 of the decision it was held that<u> the present respondent Ghulam Muhammad after getting the possession of land and after receiving 1200 in cash shall hand over the purchased land in Ishkhoman in consideration of Rs, 1300 to Shayo. It is further held that in case of any discrepancies the present petitioner shall decide demarcation of his land on oath at last leg of the judgment it was again held in case of non-payment of Rs,1200 to the present respondent the petitioner shall have no right in the land situated at Ishkhoman but in case of selling house at Hunza the present respondent/original owner shall be sole purchaser and the amount of sale shall be determined by the learned counsel according to the custom. </u> 17.from the perusal of the above contents of the document Exh-P-1 produced and relied by the respondent himself it has been proved beyond shadow of any doubt that:- (a) the present petitioner has purchased the suit land from the respondent against consideration of Rs,5000/- and the respondent /plaintiff had purchased the land at Chatorkhan at very amount as per framed issued No,6. Likewise the framed issue No, 7 has also been proved by the contents of the document as Exh-P-1 and also on account of the admission of the present respondent in his cross- examination that out of suit land a part of garden was come in the construction of KKH in the year 1966 and the compensation thereof received by the present petitioner/defendant and rest of the portion was sold by him in the year 1968 as reflected in issue No,7.
18.Nothing to further mention here that the fact of selling the piece of garden also stand proved by the statement of the DW-7 Nadir Shah who vide his un-rebutted statement admitted that he has purchased a piece of garden from the present petitioner/defendant in the year 1968 in consideration of Rs,1400/-. It is also on record that the trial court vide impugned judgment dated 15-6-2009 find the issue proved in favour of the present petitioner and the same has also been found correct by the first appellate court vide impugned judgment dated 04-10-2012.
19.The. findings of the learned first appellate court on the issues Nos.6 and 8 are not sustainable in the eye of law as the same have amply been proved by the DWs in their statements recorded by the trial court and also reflected in the findings of the first appellate court and as per the document Exh-P-1 which is discussed in detail herein before under the circumstances the findings arrived at by two courts. below are the clear example of non-reading and mis-reading of the record of the case and in this way they have exercised their jurisdiction wrongly and erroneously causing mis- carriage of justice.
20.The learned courts below have also miserably failed to appreciate the fact that the suit of the present respondent was hopelessly time bared and the learned trial court while discussing the crucial issue No,10 found that:-- ' Issue No,10 Whether suit of the plaintiff is within time? OPP <u>Issue No,10 Learned counsel for the appellant/defendant did not press this issue while arguing this court, therefore, findings of the learned trial court is up held. </u> 21.Admittedly this suit has been filed before the trial court on 20-9-2004. The para No,10 of the plaint pertains to the accruing of cause of action to the plaintiff which is also worth mentioning and read as:-- {{URDU TEXT}} ' but the record of the case is devoid of any material/particular stand of the plaintiff/ respondent regarding accrual of cause of action as reproduced herein above. The record alio transpires that vide para 4 of the plaint the plaintiff has narrated that due to his proceeding to Chatorkhan he had left the suit land with the petitioner as amanat on tenancy but without mentioning any month or year of the same. Vide para 6 of the plaint the present respondent/plaintiff also claims that after getting the possession of the suit land in the light of verdict of the council he handed over the suit land to the Ms Muhammad Shafa and Darwash for a period of three years without any mention of the year of doing the same. In the same way in para 8 of the plaint it is alleged that the present petitioner / defendant used to give tenancy for some time and afterwards categorically denied to pay the tenancy and to return the land to the petitioner with the contention that the suit land is of him and in order to grab the same threatened the respondent for dire consequences again un- entry any mention of a date, month and year. It is crystal clear that the present respondent/plaintiff in order to make his suit within time intentionally omitted to mention the relevant dates in all the above three paras 6,7 and 8 of the plaint and nothing specific was said in his examination of chief except the narrated words of para 21 reproduced above.
22. In the given circumstances of the case I am of the firm opinion that suit of the respondent/ plaintiff was clearly time barred.
23.Keeping in view of the above heard facts and specially under the circumstances the respondent/plaintiff has also failed to prove the factum of amanat or tenancy and to the contrary the relied document Exh-P-1 which negates the contention of the respondent/plaintiff regarding amanat or tenancy.
24.In the light of what has been discussed I am inclined to set aside the findings of the two courts below vide impugned judgments dated 15-6-2009 and 04-10-2012 respectively by accepting the petition in hand and also dismiss the suit of the present respondent as hopelessly time barred and devoid of any merit whatsoever.