' This first appeal arises out of the judgment and decree dated 12-2-1985 passed by the Additional District Judge I Quetta in Civil Suit No, 1 of 1982 whereby the suit of the respondent for possession in respect of a plot of land bearing No, C-24 measuring 1000 sq. Ft. Situate in the Railway Housing Society, Quetta has been decreed and the defendant/appellants have been directed to remove the superstructure, if any, over the plot within two months and hand over the possession to the plaintiff/respondent.
2. The plaintiff/respondent filed a suit on 5-8-1979 in the Court of the Senior Civil Judge, 1st Class, Quetta which was later referred to the Additional District. Judge 1, Quetta. It was alleged in the plaint that the plot bearing No, C-24 measuring 1000 sq. Yards situate in Railway Housing Society Quetta stands duly entered in the records of rights as belonging to the Railway Employees' Co- operative Housing Society Ltd. Quetta (hereinafter referred to as Society) and the plaintiff has been transferred the said plot by the Society. The sketch of the plot was annexed with the plaint. It was further averred in the plaint that the said Co-operative Society had permitted the defendants as licensees to occupy the land temporarily on the understanding that the plot would be vacated when it is transferred to any of the members of the Society and on this understanding the defendant raised some Katcha temporary superstructure on a portion of the land. Since the plot has now been transferred by the society, to the plaintiff who intends to construct a bungalow upon the said plot he requested the defendants to hand over the vacant possession. This request ion of the plaintiff has not been heeded to since 1-7-1979, hence the suit.
3. The defendants after service on them of summons appeared in Court and obtained adjournments for one reason or the other which was allowed and ultimately the written statement was filed on 19-5-1980 wherein besides the preliminary objection it was stated that the plot of land was obtained by defenant No, 1 (Mrs. Rozi Johnson) through one Syed Qasim All Shah in the year 1963 but in $ 964 one Mirza Ishaque claimed the ownership of the said plot and desired that since he was going to retire he would dispose of the plot. The defendant No, 1 therefore agreed to purchase the plot on the sale consideration of Rs, 6,500 out of which she had then paid Rs, 5,000 and for the balance of Rs, 1,500 it was stipulated that it would be paid when the plot is formally transferred to her. The said owner did not turn up thereafter and the defendants have raised superstructure on the land and as such the defendants are in occupation in their own right as owners and not as licensees. The right of the plaintiff to possession was repudiated.
' The following issues were framed on 7-6-1980:
(1) Whether the suit is barred by time?
(2) Whether the defendants are in occupation of the plot in dispute since last 17 years adverse to the plaintiff ?
(3) Whether the plaint is liable to be returned to the plaintiff in view of preliminary objection B of W.
S. ?
(4) Whether the suit is liable to dismissal in view of preliminary objection C of W. S. ?
(5) Whether the defendants are occupying the plot in question in their own right?
(6) Whether the plaintiff has no locus standi to file the suit?
(7) Whether the suit is properly valued, if not what should be the valuation for purpose of court- fees?
(8) Whether the suit needs amendments in view of preliminary objection H of W. S. ?
(9) Whether the plaintiff is legal owner and entitled for the relief claimed ?
(10) Relief?
4. The plaintiff examined witnesses and produced documents. The evidence consists of the Chairman of the Railway Co-operative Housing Society Ltd. Who testified about the transfer of the plot to the plaintiff and also proved documents relating thereto. These documents are exhibited and brought on record without any objection and are Exhs. P/1 to P/9. One Khudai Dost appeared as P. W. 2 and confirmed that before the purchase of the plot of land by the plaintiff he was the transferee and the transfer has been duly recognized by the Co-operative Society and the necessary entries have been made in the record maintained by the said Society. This witness further testified that he had transferred this plot to the plaintiff in exchange of a property received from the plaintiff, the estimated value thereof was Rs, 10,000. The plaintiff also affirmed the contents of the plaint. The evidence of the plaintiff was closed on the affirmative side on 20-6-1982. The defendants did not file any list of their witnesses nor produced any witness and have been successful in delaying the proceedings. In spite of opportunities having been afforded to them, they did not produce evidence and ex parte decrees were passed against the defendants/appellants. Each time on the applications, made for the setting aside the EX parte Decree the plaintiff showed magnanimity and allowed the defendants to contest the suit on merits but in spite thereof, no evidence was produced by the defendants and the only evidence on record is the solitary statement of the defendant No, 2 who has appeared for himself and as attorney of the defendant No, 1 (his mother).
5. The trial Court after assessing the evidence on record decreed the suit on 12-2-1985 and ordered the defendants to hand over the possession of the land in suit by removing the superstructure, if any thereon within two months. This judgment and decree has been impugned in this appeal and the learned counsel for the appellant has urged only the following grounds before me:-
(a) That the Issues Nos. 1 to 8 were treated as preliminary issues and decided on 12-6-1984 at the time of passing the Ex parte Decree by the Predecessor-in-Office of the A. D. J. Which Ex parte Decree was later set aside. These issues were not dealt with by the trial Court, as provided under Order XX, rule 5, C. P. C. And for that reason it has been urged that the case be remanded and has placed his reliance on some precedents of the superior Courts.
(b) Even otherwise the trial Court has misread the evidence and the findings arrived at are not justified. The reversal of the decree was on that Court pressed.
6. I have heard Mr. Tariq Mahmood, Advocate for the appellants and Mr. S. A. M. Quadri, Advocate for the respondent at length.
' There can be no cavil with the proposition of law enunciated in the precedent cases: ' Muhammad Hayat and others v. Ali Muhammad and others 1982 CLC 2380 Ali Muhammad v.
Muhammad Hayat 1982 SCMR 816.
' The provision of law emphasized in the above authorities above quoted is Order XX, rule 5, C. P. C.
Which lays down that the judgment should contain a finding on all the issues separately and give reasons therefor. This provision is to obviate the necessity of a remand by the appellate Court. The contention of the learned counsel for the appellant does not advance his case. The appellate Court itself is invested with the same powers as the trial Court to decide issues which if have been left undecided by the trial .4 Court and these powers are contained in Order XLI, rule 24, C. P. C. The provisions of this rule provide an alternative to remand. In Hussain Bibi v. Zafaruliah Khan (I), the High Court instead of remanding the case disposed of case in the circumstances which are also found in the instant case. The authoritative pronouncement in this behalf is made by the Supreme Court in Nasir Ahmed v. Khuda flux (2). The burden of the Issues Nos. I to 8 lay heavily on the defendants/appellant. I have considered the entire evidence on record and am of the considered opinion that the solitary statement of the defendant on record is not sufficient to record the findings on these issues in favour of the defendants. This solitary statement says nothing on the objections raised in the written statement on the basis whereof these issues were framed. The appellant No, 2 has placed the entire case by appearing in the witnesses-box and no grievance could be reasonably made that they were not afforded proper opportunities or were in any way prevented to adduce any evidence; No list of witnesses on behalf of defendants/appellants was ever filed. The proceedings recorded by the Court demonstrate that ample opportunities were granted by the Court but were not utilized. This aspect remains unchallenged before me. The conduct of the appellants therefore does not entitle them to any further indulgence. The remand of the case in these circumstances would not serve the cause of justice. The Courts do not permit a party to patch up the lacuna. I, therefore, for the above reasons repel the contention of the learned counsel and hold that the evidence placed by the defendants/appellants is not sufficient to record the findings on the Issues Nos. I to 8 in their favour.
(1) P I. D 1967 Lab. 744 (?) 1976 SCMR 388
7. It has been vehemently urged by Mr. Tariq Mahmood the learned counsel for the appellants that the burden of Issue No, 9 was on the plaintiff and this has not been properly discharged and the ownership of the plaintiff is not established. With due respect to the learned counsel it is pointed out thin plea i. e. Defect of title/transfer in the plaintiff was neither agitated in the written statement nor any suggestion in that behalf was put to P. W. 1 the Chairman of the Society nor it is a ground in the memorandum of appeal before me. The reply of para. 1 of the plaint was that the possession was given to the defendants by one Syed Qasim Shah and Mirza Ishaque allowed the defendant to stay on and had agreed to sell the land in suit, so the plea is not that of adverse possession but of purchase which according to the defendant's own showing was not completed. The stand of the defendant was thus not proved. It is nobody's case that Mirza Ishaque was not the owner/allottee.
Both the parties claim through him. The transfer from the person claiming through him has been ratified by the society and the transfer in favour of the plaintiff has been recognized by the society and documents issued to him. The documents produced in this behalf were admitted in evidence without any demur. It is well-settled that once a document is allowed to be produced and exhibited, objection as to formal proof of documents cannot be taken and certainly not in appeal.
See Abdullah and 3 others v. Abdul Karim and others (1) and Malik Din and another v. Muhammad Aslam (2).
' The statement of John Anwar (defendant No, 2) does not support the case as set up in the written statement. The cross-examination of this witness exposes the hollowness of the stand taken by the defendants/appellants. It is stated by him:- {{URDU TEXT}} The uncle though living was not produced, no document was even obtained. This does not stand to reason. This statement has been rightly ignored. I have carefully weighed the reasons which led the trial Court to disbelieve this witness. Keeping in view the principles laid down by the Privy Council in Preen Singh v. Deb Singh (3), for the appreciation of the evidence, I find no reason to differ.
' I find no error in the appreciation of the evidence by the trial Court. The appeal therefore fails and is dismissed with costs.
' These are the reasons for the short order passed on 12-8-1985.
(1) PLD 1968 SC 140 (2) PLD 1969 SC 136
(3) PLD 1947 P C 293