MUHAMMAD SALEEM JESSAR, J. Through instant Revision Application, the applicant has assailed the judgment and decree dated 01.09.2008 passed by Vth Additional District Judge, Sukkur in Civil Appeal No.02 of 2007, whereby the said appeal was allowed and set aside the judgment dated 22.11.2006 and Decree dated 27.11.2006, passed by Mid Senior Civil Judge, Sukkur in F.C. Suit No.115 of 2006 and dismissed the suit filed by the present applicant.
2. Facts in brief leading to filing of the present revision application are that applicant filed F.C. Suit No. 89 of 1997 (New FC. Suit No.115 of 2006), against the respondents for declaration and permanent injunction in the Court of First Senior Civil Judge, Sukkur , which was transferred to the Court of Second Senior Civil. Judge, Sukkur wherein it was averred by the, plaintif f /applicant that on the basis of possession over 24000 Square Feet out of Survey No. 301, behind Government Education College near Maka Goth, Shikarpur Road, Sukkur , Deh Old Sukkur , the same was permanently allotted to the applicant / plaintif f and regular Entry No. 51 was made in the Revenue Record on 13.01.1979, showing mutation of the aforesaid area of land in favour of the applicant/ plaintiff, Respondent No.1, who was net happy by such allotment in favour 'of the applicant / plaintiff, he managed to illegally evict the applicant / plaintiff from the suit land but the possession of the same was restored to him later on. Therefore, the applicant / plaintiff filed the aforesaid suit for declaration and permanent injunction.
3. After filing of suit, process was issued to defendants. On 28.01.1998, defendant No.1 filed his written statement in which he denied all the allegations leveled in the plaint by the plaintiff. He submitted that applicant / plaintiff is occupying an area of land which belongs to Madressa Anwar-ul-Uloom foundation stone whereof was laid in the year 1962 and the applicant / plaintiff came to join the same in the year 1967 and was provided accommodation in the Madressa. However, later on, he illegally occupied the same and refused to vacate the same.
4. Learned trial court after framing the issues, recording of evidence of the parties and hearing, counsel for the parties, decreed the suit vide aforesaid Judgment and Decree against which the defendant No.1 filed Civil Appeal, being Civil Appeal No 02 of 2007, which was allowed by the appellate Court, hence this civil revision application.
5. "I have heard the arguments advanced by learned counsel for the parties and perused the material available on the record.
6. Learned counsel for the applicant raised a preliminary objection to the effect that the impugned Judgment is in violation of Order XLI, Rule 31, C.P.C. as the appellate Court is required to set out points for determination; record its decision thereon and give reasons for such decisions and where the appellate Court failed in its judgment to comply with the requisition laid down in Order XLI, rule 31, C.P.C., the High Court in revision remanded the case back to the appellate Court for disposal of appeal on merits. In this regard reliance was placed on the cases reported as 1992 CLC 1022, 2014 YLR 602, 1996 SCMR 669 and 2010 CLC 1931. He also contended that the learned appellate Court erred in passing the impugned judgment as the same is against the facts on record and the law. Learned counsel further submitted that the impugned judgment is result of misreading and non-reading of the evidence on record hence not sustainable in law. It was also submitted by learned counsel that even if it could he termed as a case of illegal order and excessive jurisdiction exercised by the then Deputy Commissioner Sukkur, even then the title of the applicant / plaintiff is not fraudulent. And in that case the law of limitation will also come into play. In this regard reliance was placed on the case of Begum Syeda Azra Masood v. Begum Noshaba Moeen (2007 SCMR 914). Learned counsel for the applicant / plaintiff further argued that the learned. Appellate Court has erred in passing the impugned Judgment as the same is based on surmises and conjecture and is the result of departure from settled principles of law as the same has been passed by ignoring oral as well as documentary evidence available on record. It was further argued that the official respondents did not dispute the allotment of the suit land and its mutation in the Revenue Record in favour of the applicant/plaintiff as they had not filed any written statement and were declared ex-parte by the trial Court. Per learned counsel, mere mis- description of the suit land in the plaint due to some bona fide typing error could not be taken as circumstance or a determining factor to nullify the case of the applicant / plaintiff as it is a settled law and a suit cannot be dismissed on account of insufficient description or inconsistency between description by boundaries and by areas and it is the duty of the court to determine the same from the evidence available on record. Reliance was placed on 1989 MLD 4107, 2005 CLC 1693 (Lah.), 2005 YLR 1738, 2004 YLR 879, 2000 CLC 1018, 2002 YLR 3096, PLD 1965 SC 274, 2003 SCMR 29. Referring to the admission on the part of the attorney of the applicant/plaintiff during deposition as to the location of the suit land, learned counsel for the applicant submitted that erroneous admission on the part of a party was not conclusive and such erroneous admission could be retracted. Reliance was placed on 2011 CLC 527 (Lah.), PLD 1989 SC 749. Learned counsel for the applicant/plaintiff while referring to the conflicting judgments of the two courts below, submitted that in such situation, High Court under its revisional jurisdiction could examine and reappraise the evidence to reach a just conclusion as to which of the two judgments is correct (2009 SCMR 644, 2006 SCMR 586 and PLD 2004 SC 489). While concluding his arguments, learned counsel vehemently argued that the impugned judgment suffers from patent illegality, is contrary to evidence on record, ultra vires and without jurisdiction, hence the same is liable to set aside and the judgment and decree of the trial Court are liable to be restored.
7. Learned counsel for the respondent No.1, on the other hand, fully supported the impugned Judgment and submitted that no illegality or irregularity was committed by the learned Appellate Court while passing the impugned Judgment and hence the same is liable to be maintained as it does not call for any interference by this Court.
8. I have heard learned counsel for the parties and have perused the record with their assistance.
9. The dispute in the instant case revolves around a piece of land bearing, Survey No. 301, Deh Old Sukkur, measuring about 9 acres and 27 Ghuntas. The case of the plaintiff was that in the year 1962, he established a religious centre by the name of "Madrassa Anwar-ul Uloom" in an area of the said Survey No. 301 through which a road known as "Makka Goth Road" passes. As per para 4 of the plaint (page 95), the plaintiff took up residence on the western side of the road in an area of about 24000 square feet, while the Madressa was on the eastern side. The plaintiff has constructed a house on the said plot for his large family and is in occupation of the same since 1962. However, due to differences with the Madressa, the plaintiff left the Madressa and is no longer associated therewith. The defendant No. 1, claiming to be in-charge (Muhtamim) of the Madressa, complained to the then Deputy Commissioner Sukkur that the plaintiff is in illegal occupation of some part of the land allotted to the Madressa. This dispute provided the cause of action to the plaintiff who filed a suit for declaration and permanent injunction which was decreed as prayed; however, the respondent No.1 filed an appeal against such judgment and decree and same was allowed and the judgment and decree passed by the trial Court was set aside and the suit filed by the plaintiff was dismissed.
10. Thus, there are two conflicting judgments before this Court, one passed by the trial Court dated 22.11.2006, whereby the suit of the plaintiff/applicant was decreed in his favour and the other passed by the Appellate Court, dated 1.9.2008, whereby the Judgment of the trial Court was set aside and the suit of the applicant / plaintiff was dismissed. First I will take up the Judgment dated 22.11.2006 passed by the learned trial Court, whereby the suit of the applicant / plaintiff was decreed.
11. In order to appreciate the judgment dated 22.11.2006 I will first examine the contents of the plaint on the basis whereof the applicant/ plaintiff has put up his case before the trial Court and the trial Court was pleased to decree the same. The first para of the plaint states that Survey No. 301, Deh Old Sukkur is situated on Shikarpur Road, Sukkur and measures about 9 acres 27 Ghuntas. In para 2, the plaintiff claims to have established a religious Madrassa known as "Madrassa Anwar-ul -Uloom" in the year 1962 in an area of Survey No.301. However, witness of the plaintiff, namely, Syed Muhammad Ayob, PW-1, has stated in his deposition (Page 143 of the R&P), that "My father along vith defendant No.1 started Madrassa Anwar ul Uloom in C.S. No. 301 Deh Old Sukkur." Thus, the claim of the plaintiff that the Madressa was established by him in the year 1962 is totally belied by his own witness/ son.
12. Para 4 of the plaint is very relevant and therefore is reproduced hereunder: "4. The plaintif f took up residence on the western side of the road, known as Maka Goth Road, and occupied an area of 24000 sq. ft. while the Madrassah was on the eastern side of the said road. The plaintif f constructed a house on the said plot for his large family , and is in occupation of the same since 1962."
13. However, when the witness of the plaintiff was confronted during his cross-examination with the location of the house i.e. the disputed area of 24000 sq. ft., he stated as under (Page 147 of R&P): "It is correct that the house is on eastern side of the Madressa (not legible) as well as of road. It is fact that in para 4 of the plaint, the house has been shown in the western side of the road. Voluntarily says that it was stated due to typing mistake. It is fact that the above said typing mistake has not yet been corrected by me though the defendants have pointed out in the written statement."
14. In this view of the matter, when in spite of pointation in the written statement, the correct location of the area in dispute was not given by the plaintiff, then the Court cannot be called upon to correct it of its own as the location of the disputed property is of primal importance for deciding the issue between the parties. What transpires from the contents of the plaint is that the Madressa is on one side of the road while the disputed land is on the other side of the road, thus these are two separate properties having no nexus with each other while, the evidence suggests otherwise and the claim of the plaintiff is totally belied by his own evidence. In such a scenario, the matter would not be simply of mis-description of the suit property but would of evidence to the contrary. The claim of the defendant / respondent has been that a piece of land measuring 3-01 acres out of Survey No 301, Deh Old Sukkur, has been allotted to the Madressa on which a Madressa was set up by the defendant No.1 and the applicant plaintiff was allowed to live in some portion of the same, who later on was disassociated from the Madressa and has now illegally occupied a portion of the said area.
15. The learned trial Court, while discussing Issue No. 5, has observed that the case of the plaintiff is that he was in occupation of 24000 sq. feet area out of Survey No.301, Old Sukkur whereon he raised construction and thereafter he moved application to Deputy Commissioner Sukkur in the year 1979 for allotment of the same in his name who vide order dated 1.9.1979 granted the aforesaid area in his name and he paid an amount of Rs.10,760/- for the above area. The trial Court observed that these facts were mentioned in para 6 of the plaint, however, the same were not specifically denied by the defendant No.1 as required under Order VIII, rule 5, C.P.C. and, therefore, these facts are deemed to be admitted by the defendant No.l. Reliance in this regard was placed on the case of 2000 SCMR 1864. A perusal of the written statement filed by defendant No.1 in the subject suit, available at page 107 onwards, clearly shows that that in the very preliminary objections the defendant No.1 has attacked the grant of land to plaintiff by stating "That the grant in favour of the defendant is earlier and grant, if an, in favour of the plaintif f out of the plaintif f 's are of 3-01 acres of land out of. S.No.301 is perverse, mala fide, illegal, void and without lawful authority and does not create any right in favour of le plaintif f."
Apart from this, in reply to contents of para 6, the defendant has submitted as under: "6. It is submitted that the plaintif f has not produced any map to show the location of area granted in his favour . As already submitted, the plaintif f was accommodated in Moulvi House and encroached upon other abounding area apart from Moulvi House in all measuring 27 Ghuntas and continues to occupy the same illegally and unauthorizedly ."
Plaintif f has not disclosed under whic h policy huge area of 24000 wq.ft. was granted to an individual and why map for the area granted though necessary was not issued to plaintif f. This shows to be a secret and manipulated plan made collusively ."
16. This is a clear denial of the claim of the plaintiff and I do not find the observation of the trial Court that the denial of the defendant is not sufficient to be correct.
17. Rule 5 of Order VIII, C.P.C. States that "Every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted...." The learned trial Court was not justified in holding that the averments of para 6 have been admitted by the defendant as there are specific as well by implication denials of the claim of the plaintiff in the said para as well as other paras. The trial Court was not justified in apply such strict provisions with such leniency.
18. In para 5 of the plaint it is claimed by the plaintiff that in the year 1975 an area comprising 3-01 acres was allocated to the Madressa while in the year 1979 (para 6) an area of 24000 sq. ft. was, allotted to the plaintiff.
The case of the defendant is precisely this that once an area of 3-01 acres out of Survey No 301, Old Sukkur was allotted to the defendant for the Madressa in the year 1975, which is also admitted by the plaintiff in para 5 of the plaint, any subsequent grant to the plaintiff in the year 1979 would be of no legal value. Then there is added responsibility on the plaintiff to show under what compelling circumstances he was granted such a huge area for residential purpose in violation of the policy for grant of residential plots.
19. In para 7 of the plaint, the plaintiff states that due to differences with the persons now running the Madressah the plaintiff is no more associated with the Madressah. Although if the Madressa was established by the plaintiff himself, then it should have been other way around and those employed by him should have been shown the door rather than abandoning a religious Madressah in such way .
20. If the above facts are examined in juxtaposition, what transpires is as follows: While the plaintiff claims to have established the Madressa in the year 1962, however, he has not produced any document in this regard which will prove that the plaintiff has established the Madressa in the year 1962 or at any subsequent date thereto, while witness of the defendant (Page 193 of R&P) has produced registration certificate of the Madressah one issued in the year 1965 and the other in the year 1994 (Exhibits 136 and 137). In this regard I will also refer to another document, which though has been denied by the defendants / respondents as false but since it has been produced by the plaintiff, therefore, the same can be examined to show whether it proves any averment made by the plaintiff. The plaintiff claims to have established the Madressa in the year 1962 while it is denied by the defendant who claims that it was established by his father / grandfather in the year 1962. The witness of the plaintiff has produced a purported award by Maulana Syed Muhammad Binnori at page 88 of the R&P on the last page whereof the arbitrator has stated (in Urdu) that "after examining the documents of party No.2 (i.e. the applicant / plaintif f) I have reached a conclusion that the second party is in possession of his own area. He has not encroached upon the area of Madrassa of Maulana Muhammad Anwar." This completely belies the stand taken by the applicant / plaintiff that the Madressa was established by him in the year 1962 because in that even the Madressa would have been belonged to him alone.
21. Now, taking up the Judgment of the Appellate Court, dated, 1.9.2008, first I will address the preliminary objection raised by learned counsel for the applicant/plaintiff regarding violation of Order XLI, Rule 31, C.P.C.. In this regard reference may be made to page 65 of the file wherein the Appellate Court has selected issue No.5 for the purpose of the appeal in the following words: "From pleadings of the parties, issues reproduced above were settled by the learned 11-Senior Civil Judge Sukkur from which the issue No.5 is material for the purpose of this appeal, namely, "Whether the respondent is lawful allottee of 24000 Sq.ft. out of S. No.301 Old Sukkur towards west of Maka Goth Road and he is not occupying any area allotted to Madrassa Anwar-ul -Uloom"?
22. Thus, there is no substance in the preliminary objection with regard to non-compliance of Order XLI, rule 31, C.P.C. as the learned Appellate Court has very clearly settled the controversy before it for the purpose of the appeal. Accordingly, the objection is rejected.
23. Learned counsel for the applicant vehemently argued that the learned Appellate Court was not justified in dismissing the suit of the applicant / plaintiff merely on account of mis-description of the suit property. In this regard reliance was placed on a number of cases cited at the Bar. The case of the applicant / plaintiff, as set out in paras 1-4 of his plaint, quoted above, was that Survey No. 301, Deh Old Sukkur, measures about 9 acres and 27 Ghuntas and is situated on Shikarpur Road and in the year 1962 the plaintiff started a madressa in the name of "Madrassa Anwar-ul-Uloom in an area of said survey number. However, the area has not been disclosed in pant 2 of the plaint by the plaintiff in the plaint. Maka Goth Road passes through Survey No. 301, Old Sukkur.
Now, in para 4 of the plaint, the plaintiff gives full description of the land allegedly, in his occupation and states "That the plaintiff took up residence on the western side of the road, known as Makka Goth Road, and occupied an area of 24000 sq. ft., while the Madressah was on the eastern side of the said road. Although the plaintiff has given the area allegedly in his possession as accommodation in this para as 24,000 sq. It, however, still there is no mention about the area of the Madressa. Thus, the plaintiff has very clearly and in unequivocal terms claimed that his residence was on the western side and the Madressa was on the eastern side of the Makka Goth Road.
The defendant No.1, in his written statement first raised a preliminary object on that the plaintiff has failed to place on record any document to identify the particulars of his property. Then in para 4 of the written statement, the defendant No.1 has clearly and unambiguously stated that the plaintiff was accommodated in Moulvi House which is on Eastern side of Madressa / Mosque. The witness of the plaintiff, namely, Syed Muhammad Ayub, (page 143 of R&P), in his examination-in-chief stated that the Madressah is on the western side and the plaintiff constructed his house on the eastern side. When he was confronted with the averments made in the plaint to the effect that the house was claimed to be on the western side of the road, the witness simply termed it as a typographical mistake. But when again he was asked whether such typographical mistake was ever corrected he answered in negative. This cannot be termed as a mere typographical mistake as this dispute goes to the root of the dispute. When these facts are placed before a prudent mind, his immediate reaction would be that the two properties i.e. the Madrassah and the alleged residence of the plaintiff are two different properties situated in two different directions. However, if the ambiguity is removed and it is shown that the same are situated on one side of the road, then the admission on the part of the plaintiff in para 5 of the plaint would come into play which clearly states that an area of 3.01 acres was allotted to the Madressa in the year 1975. The plaintiff in para 6 claims that in the year 1979 an area of 24000 sq. It was allotted to the plaintiff, however, no description of the area has been given. In case an area of 3.01 acres was also granted to the Madressa in the year 1975, then the same area cannot be allotted to anybody else.
24. Learned counsel for the applicant / plaintiff argued that the learned appellate Court failed to appreciate that there was no dispute between the parties with regard location of the suit property and no such issue was framed, therefore, the learned appellate Court was not justified dismissing the suit of the plaintiff on this ground. The learned Appellate Court, on the question of location of the suit property, observed as under: "In the circumstances, it is obvious that the respondent No.1 (plaintiff) has failed to prove his assertion through evidence. The learned II-Senior Civil Judge has erred in holding that the plaintiff (respondent No.1) has proved his case that the area allotted to him was on the western side of the road and decreed the suit wrongly... There is contradiction between the pleadings and the evidence of the respondent No.1, therefore, no declaration can be granted in his favour that his property was situated on the western side of the Maka Road. A party can plead a case if it had been made out by it in its pleading. No evidence can be led or looked into in support of the plea, which has not been taken in the pleading."
"Since the respondent No.1 has failed to establish the boundaries of his 24000 sq. ft. situated at the Makka Road and his pleadings and oral evidence are contradictory to each other. His pleadings speak that it was located on the western side while oral evidence speaks that it was on the eastern side, in such circumstances., no such declaration can be granted. Simultaneously, permanent injunction can also not be granted, as the boundaries of the plot have not been established accordingly. He cannot be given license by way of injunction to keep the plot in possession on the eastern side of the road."
25. Thus, it would be seen that the dispute was not with regard to the location of the suit property . On the contrary , as observed by the learned appellate Court, the issue was with regard to the averm ents made in the pleadings and the oral evidence in support thereof. While in the pleadings it was alleged that the suit property is on the western side and such declaration and permanent injunction was sought by the plaintif f through his plaint, the oral evidence was to the contrary . Therefore, the learned appellate Court rightly held that "There is contradiction between the pleadings and the evidence of the respondent No.1, therefore, no declaration can be granted in his favour that his property was situated on the western side of the Maka Road. A party can plead a case if it had been made out by it in its pleading. No evidence can be led or looked into in support of the plea, which has not been taken in the pleading."
26. Learned counsel for the applicant / plaintiff has not been able to show that any of these observations suffers from non-reading or misreading of evidence or the same are perverse. Learned counsel for the applicant/plaintiff has placed reliance on a number of reported cases to argue that insufficient description of the suit property in the plaint cannot be made a ground to dismiss the suit. There can be no cavil with such proposition, however, the present case is not one of insufficient description of the suit property or mere incorrect description of the suit property. Immediately on filing of the suit by the applicant / plaintiff before the trial Court, the respondent No.1/defendant pointed out in his written statement that the averment made by the plaintiff with regard to location of the suit property is wrong. However, the plaintiff despite such information never bothered to get the mistake, if it was a mistake and not an assertion by the plaintiff, corrected. Therefore, the learned Appellate Court rightly held that it was not a typographical mistake and that such declaration and injunction cannot be granted in favour of the plaintiff without supporting evidence.
27. In the case reported as 2004 YLR 879 (Lahore), it was held that mere incorrect descriptions of the property given in a document cannot be the sole consideration where there is ample material to establish the identity of the property. In the present case this case is not at all applicable as there is no material, let alone ample material, to identify the subject property. On the contrary, the oral evidence produced on behalf of the plaintiff goes on to prove the case of the defendant that the suit property is not located at the side as claimed by the plaintiff in his plaint. In this regard reference may also be made to the relevant prayer clause, which reads as under: "a) declare that the plaintif f is legal allottee of 24000 sq. feet out of survey No. 301, Old Sukkur , lying to the west of MAKA Goth Road....."
28. It is beyond comprehension as to how this declaration can be prayed for and granted by a competent Court when the witness of the plaintif f himself states that the suit land is not situated on the western side of Maka Goth Road. This, as held by the learned Appella te Court, would be like giving a license to the plaintif f by way of injunction to keep the plot on the eastern side of Maka Road in his possession.
29. Before parting with the judgment, I should also like to refer to the Statement of Condition issued by the Land Utilization Department, Government of Sindh for the grant of land to various persons. Condition No.5 states that residential plots shall ordinarily be granted after being laid out in suitable plots by negotiations and in case there is completion for grant of such land then, as per the proviso to Condition No.5, the plot shall be disposed of by auction. It is yet to be determined as to how such a huge plot can be given to someone for residential purposes without complying with the Conditions for grant thereof. However, this aspect of the case is beyond the ambit of instant revision application. Therefore, I am not giving any finding on this aspect of the case as in view of the Order dated 22.1.2009 passed by a Division Bench of this Court in C.P. No.D-381 of 2006, further action may be initiated in suo motu revision.
30. As a result of the above discussion, I am of the opinion that the learned Appellate Court was justified in setting aside the Judgment dated 22.11.2006 and decree dated 27.11.2006 passed by the trial Court in F.C. Suit No.115 of 2006; and dismissed the suit of the applicant / plaintiff. Accordingly, I dismissed the Civil Revision Application and maintain the impugned Judgment dated 01.09.2008 passed by the Appellate Court in Civil Appeal No. 02 of 2007 and leave the parties to bear their own costs. Consequently the listed applications are also hereby disposed off in the terms stated above.