This second appeal arose out of a suit filed by the appellant for declaration that the Verandah on the ground floor and two rooms on the first floor (hereinafter to be called the disputed property) were part and parcel of House No.425 owned by him and Danial the deceased defendant now represented by the respondents, his legal representatives has no right or claim over them. As a consequential relief permanent injunction restraining the defendant from treating or claiming himself as owner of the disputed property or from interfering in any manner with his lawful possession of House No.425 was also prayed for. It was averred in the plaint that Property Nos. 425 and 425-A situated in R.A. Bazar, Lahore Cantonment were originally a single compact unit bearing Property No.425 only and was owned by one Ram Devi. It was further alleged that in the year 1942 a separate tenement was created and for the purpose of separate assessment it was allotted No.425-A which property comprised two rooms only on the ground floor and the same was transferred by the Settlement Department to Danial the deceased defendant while Property No.425 which included the disputed property was transferred to Noor Muhammad his predecessor-in- interest. It is also averred in the plaint that the heirs of Noor Muhammad sold the House No.425 to the plaintiff-appellant through registered sale-deed dated 4-9-1975 and thereby the plaintiff- appellant became the exclusive owner of the full unit bearing No.425. The defendant died during the pendency of the suit and his legal representatives were brought on record as defendants. The case of the defendants on the other hand was that the disputed property was not transferred to Noor Muhammad and as such the plaintiff-appellant was not the owner of the same. The learned trial Court framed the following issues:-----
(1) Whether this Court has no jurisdiction to try this suit? O.P.D.
(2) Whether the plaintiff has no locus standi to file this suit and it has been filed without any cause of action? O.P.D.
(3) Whether the suit is bad for misjoinder and non-joinder of necessary parties? O.P.D.
(4) Whether the suit is barred by time? O.P.D.
(5) Whether the verandah on the ground floor and two rooms on the first floor are part and parcel of House No.425 owned by the plaintiff and the defendant has no right or claim over these premises? O . P . D .
(6) Whether the plaintiff is entitled to the relief claimed for? O.P.P.
The learned trial Court after perusal of the evidence produced on record decreed the suit vide judgment and decree dated 11-10-1980 but this decree was set aside by the learned first appellate Court and the suit was dismissed vide judgment and decree dated 18-10-1981. This led to the filing of the present second appeal under section 100, C.P.C.
2. During the pendency of this appeal the appellant submitted two applications, one for amendment of the plaint under Order VI, rule 17, C.P.C. So as to include the prayer for possession on the ground that at the time of the institution of the suit the predecessor-in-interest of the appellant-plaintiff was in constructive possession of the disputed property through tenants but subsequently the tenants acting in collusion with the respondents have handed over the possession to them. So in these circumstances, it has become essential for the appellant to claim relief of possession as a consequential relief. The respondents-defendants opposing this application maintained that neither the appellant nor Noor Muhammad, the original transferee was in constructive possession of the disputed property through tenants. They claim that the two rooms were in possession of one Ram Din who was statutory tenant of their predecessor-in- interest and who voluntarily delivered the possession of these rooms to the deceased-defendant.
They also denied the allegations that through collusion they obtained the possession of the two rooms. It was also added that had the prayer of possession been included in the suit they would have pleaded that the suit was deficiently valued for the purposes of court-fee and jurisdiction and that the suit was barred by time and that the plaintiff was estopped to claim the ownership of the disputed property. The other application under Order XLI, rule 27, C.P.C. Read with section 151, C.P.C.
Was moved for seeking permission to produce copies of the judgment and decree as well as the registered rectification deed as additional evidence contending that the production of these documents is necessary for a just decision of the controversy between the parties. The judgment and the decree sought to be produced as additional evidence was passed on 31st March, 1981 in a suit filed by the appellant against the vendors from whom he had purchased the Property No.425, R.A. Bazar, Lahore Cantonment. In pursuant to this decree a registered rectification deed was executed and registered on 24-1-1982 in favour of the appellant. The case of the appellant is that the necessity to file the suit and to obtain the rectification deed arose as in the judgment dated 18- 10-1981, the learned Additional District Judge observed that according to the sale-deed, Exh. D.1, the appellant-plaintiff only purchased two rooms on the upper portion and four rooms and a courtyard on the ground floor and that he was in possession of all the property so purchased.
3. For the decision of these two applications as well as the second appeal it appears appropriate to recapitulate that House No.425 was transferred to Noor Muhammad and the fact that the legal heirs of said Noor Muhammad had sold House No.425 to the appellant was not denied. The suit of the appellant-plaintiff was decreed by the learned trial Court but the said decree was set aside by the learned Additional District Judge relying upon the description given in the sale-deed (Exh. D.1) of the property sold. The learned Additional District Judge observed that the plaintiff was to prove that the disputed verandah and the rooms were part and parcel of House No.425 owned by him and that the arguments advanced by the learned counsel for the respondent were to the effect that the disputed property was not the part of House No.425-A and as such these would be presumed to be the part of House No.425. He added that no such presumption can be raised in this matter in favour of the plaintiff-appellant who was bound to prove his case from his own evidence and who cannot take benefit from the weakness of the defendant's case. The documentary evidence viz., copies of the assessm ent registers Exhs. P.4/1 to 6 which showed that the Property No.425-A was a single-storeyed building comprising two rooms only and that Property No.425 was a double-storeyed building containing rooms on the first as well as on the ground floor were not gone into in detail. The P.T.D. Issued to both the parties on record as well as the judicial orders passed by the Settlement Authorities in pursuance of which these documents were issued were also not gone into. For a just decision of the controversy raised in the suit it will be necessary to go into the documents as the Settlement Department had transferred the properties with reference to their property assessm ent numbers and had charged the price also on the basis of the said assessm ent. The fact cannot also be lost sight of that in the sale-deed Exh. D.1 executed in favour of the plaintiff-appellant the property sold has been described by its property number as well in addition to the description of the rooms and the accommodation it contained. Noor Muhammad the original allottee was transferred the property by giving its property number and in these circumstances the rectification deed dated 21-4-1982 was obtained to show that all that property which was transferred to Noor Muhammad was sold to the appellant-plaintiff. The production of the rectification deed, the judgment and the decree is, therefore, in the facts and circumstances of this case, necessary for a just decision of the controversy. The respondent-defendant will haves to be provided an opportunity to take pleas and to adduce evidence in' rebuttal on the question of affect of these documents on their rights. The application for production of additional evidence subject to right of rebuttal is therefore, allowed.
4. Now the second- application seeking permission to add the prayer for possession may be attended to. It is pertinent to note that the suit has been originally filed for declaration and permanent injunction. The respondents did not take the objection that the suit was not maintainable as the relief for possession was not sought. The statutory tenant was admittedly in possession of the rooms in question and the verandah is in the joint possession of the parties. The amendment prayed for will not alter the nature of the suit. It only brings in an additional relief which the appellant claims became available to him during the pendency of the suit and ever since the institution of the suit the appellant has consistently been asserting his own right in the property in dispute. The permission to add the relief of possession will also save the parties from multiplicity of the proceedings. Following the view taken in Karamat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191, I am inclined to grant the permission to amend the plaint by adding prayer for possession and to pay the additional court-fee as in a suit for possession subject to the condition that the appellant shall pay to the respondents their cost both in this Court as well as in the Courts below as a condition precedent. For this purpose the suit is remanded to the learned trial Court for enabling the appellant to make necessary amendment in the plaint and thereafter for disposal of the suit in accordance with law and in the light of the observations made above. If the respondents wish to put in written statement and to contest the suit on the question of possession, limitation and court-fee, they will be at liberty to do so. All the pleas available to the respondents shall remain available to them and the parties shall also be provided opportunity to lead evidence on the additional issues arising out of the pleas now to be taken by the respondents.
5. For the reasons given above, I allow this appeal, set aside the judgment and decree of the learned Courts below and remand the suit to the learned trial Court.
6. The parties to appear in the Court of Senior Civil Judge on 4-12-1985 to which Court the record shall be forwarded immediately.