' This second appeal under section 100, C.P.C. is directed against the judgment and decree, dated 22-3-1968 whereby the first appeal of the appellant was dismissed by the learned Additional District Judge, Gujrat, Camp Gujranwala. The plaintiff had filed a suit for declaration to the effect that an Ihata (vacant site) No, 94 was purchased by him and Karim Bakhsh, his brother, in the year 1911 and thereafter h built a house on his portion of the site so purchased. It was further averred that on 7-11-1963, a writing was obtained fraudulently and through pressure from him at the back of the original sale-deed, dated 17-1-1911 which was to the effect that the said house was gifted by him to Ismail, grandson of Azim respondent. It was also averred that the said writing having been obtained under pressure, illegally and without paying consideration was ineffective against his rights and that the plaintiff-appellant was the owner in possession of the said house. The respondent in his written statement denied the claim of ownership of the house in dispute and asserted that as the house in dispute is owned and possessed by the respondent-defendant, no question arises of obtaining any writing from the plaintiff and that the plaintiff has after manufacturing some writing on some old document has come up with the alleged baseless claim.
He asserted that he was in possession as owner since 1938 and, as such, the plaintiff is not authorized to transfer the ownership of the said house in favour of the grandson of the respondent- defendant.
2. The learned trial Court framed the necessary issues on the basis of the pleadings of the parties and after recording the evidence, dismissed the suit holding, inter alia, that the plaintiff had failed to establish the ownership of the house in dispute. The appeal filed by the appellant was dismissed, as indicated above, by the learned Additional District Judge after thoroughly going through the oral as documentary evidence.
3. Learned counsel for the appellant in support of the second appeal has argued that the suit brought pertained to house owned by the appellant-plaintiff exclusively which is situated on the western side of the house previously owned by Karim Bakhsh and that the respondent having taken the plea that he is not concerned with the writing, dated 7-11-1963, whereby the gift was purportedly made, the suit should have been decreed. The plea in nutshell is that there were two houses on the site and the learned Courts below have failed to appreciate the correct position emerging from the record and had they been conscious that two houses existed, one owned and possessed by the respondent and the other owned and possessed by the appellant-plaintiff, then the suit would have been decreed.
4. Having gone through the evidence on record, I find that the submissions made by the learned counsel have no merit. My reasons for coming to the aforesaid conclusion is that the story which was built up by the appellant in the evidence produced before the trial Court was not taken in the plaint itself. It is well-settled that the position which is not asserted and taken in the plaint cannot be allowed to be proved at the evidence stage. The case in the plaint was that the vacant site was purchased by the appellant-plaintiff along with his brother Karim Bakhsh and thereafter he built a house on his share of the area so purchased. It was not disclosed that any house was built by Karim Bakhsh on any area falling to his share. The witnesses produced by the plaintiff mainly talk about the Panchayat allegedly held by the Baradri before which Azim allegedly admitted the ownership of the appellant. The appellant, however, stated in his cross-examination that it is incorrect that any gathering of the Be radri took place in connection with the dispute relating to the house in question. The appellant-plaintiff in his statement at the evidence stage for the first time came up with the plea that the area in question purchased by him jointly with his brother Karim Bakhsh was partitioned and on half of it he built his house while on the other half, Karim Bakhsh constructed another house. He further deposed that the rights conveyed by him pertained to the share in the house of Karim Bakhsh which he inherited on the demise of Karim Bakhsh as one of his brothers and that he had not sold or conveyed his own house. The plaintiff thus came up with the story that there were two houses one constructed and owned by him and the other constructed and owned by Karim Bakhsh which later devolved on the brothers and out of which he sold his own share to respondent, Azim. As noted above, this was not the case of the appellant-plaintiff in the plaint. Be that as it may, this assertion does not appear to be correct as besides the site plan got prepared by the appellant himself and Exh.P. 4 an extract from the Register of Property Tax, nothing was prod iced to establish this assertion. On the other hand, the documents produced by the respondent-defendant show that there was only one house and that the share held by the appellant was sold by him to Azim. The evidence' produced by the plaintiff is not specific on this point and was thus rightly not relied upon by the two Courts below. It is incorrect that the learned Courts below were not conscious of the real question arising for determination. The learned appellate Court noted down the version of the appellant-plaintiff in detail and repelled the same by referring to the oral as well as documentary evidence.
5. Be that as it may, the question whether there existed two houses or one, is a question of fact. The findings recorded by the learned appellate Court are based on evidence on record. There is neither any misreading nor non-reading of any evidence produced on record. The finding is unexceptionable that right from the year 1939-40 till 1959-60 Azim was shown to be the exclusive owner of the house as is apparent from Exh.D.4 to D.B. The rent note relied upon by the appellant was rightly not given weight as Muhammad Hussain, the executant, was not produced and as that very Muhammad Hussain had earlier executed a rent note in favour of the respondent. Had there been two houses, the plaintiff could have easily produced official documents in support of his this version. I also agree with the conclusion arrived at by the learned appellate Court that Allah Rakha had made a crude attempt to grab the property on the basis of the so-called writing, dated 7-11- 1963. No justifiable exception can be made to the concurrent findings recorded by the learned two Courts below. The appeal, therefore, fails and is dismissed with costs.