1. ' In March, 1969, a suit was filed by the respondent/plaintiff against appellant/defendant for possession of a portion of the house situated in Shahi Bazar, Mirpur Khas, District Tharparkar.
2. According to the respondent, the entire house had been transferred to him by the Settlement Department and PTD had been issued to him in 1961 and that the appellant, a relation of the respondent's wife, wanted some accommodation and as such in 1966 the respondent allowed the appellant to stay in a portion of the said house for sometime till he was able to get some other accommodation. Later on, according to the respondent, as the appellant refused to vacate the premises, the respondent had to file a suit for possession. A written statement was filed in July, 1969, by the appellant, in which he took the plea that the transfer of the house in the name of the respondent was "benami" and in fact both the parties had purchased the said house and the appellant had paid half of the price. It was averred in the written statement that the appellant was in occupation of the entire house since 1948 and later on the house was got transferred in the name of the respondent from the Settlement Department and respondent purchased Compensation Book for payment of the price of the house, for which half of the amount was paid by the appellant. It was then averred in the written statement that in 1964, the parties appointed some arbitrators, who partitioned the house and partition wall was raised and since 1964 the appellant was in occupation of his portion as owner and although the respondent had promised to convey that portion through a registered sale deed to the appellant, later on he turned dishonest.
3. In para-7 of the written statement it was submitted that the appellant was in possession of the house as owner and as such the question of vacating the same did not arise. The following issues were settled by the learned Civil Judge on 15-9-1969:-
(1) Whether the' Court can entertain plea of benami raised by the defendant? If yes, whether the transfer in favour of the plaintiff was benami to the extent of share (i.e, half share) of the plaintiff?
(2) Whether the matter was referred to arbitrators and whether there was any award? If so, what is the effect?
(3) What should the decree be?
4. ' The respondent did not lead any evidence but closed his side subject to the right of the leading evidence in rebuttal. The appellant examined himself and three other witnesses and his side was closed 22-7-1970. The respondent then in rebuttal examined himself. By Judgment, dated 31-8- 1970, the suit of the respondent for possession was decreed. On issue No,(1) the learned Civil Judge took the view that plea of benami could be raised by the appellant but came to the conclusion that the transfer of the entire house in the name of the respondent was not benami. It was found that the respondent had purchased the house in his own name and the version advanced by the appellant that half portion of the house had been purchased by the respondent as benami was not true. On issue No,(2) the learned Civil Judge came to the conclusion that the evidence adduced by the appellant that the dispute was referred to the arbitrator was vague and unbelievable. On issue No,(3) the finding of the learned Civil Judge was that the appellant was allowed to occupy the premises temporarily and he had no right or title either as a landlord or even as a tenant. It was observed in the judgment by the learned Civil Judge that the appellant had not alleged that he had any tenancy rights in the house- but had alleged his ownership, which was not substantiated.
5. ' Against the judgment, dated 31-8-1970, the appellant filed first appeal but by judgment, dated 24- 3-1972, the said first appeal was dismissed by the learned District Judge, Tharparkar. Being aggrieved, the appellant has filed the present second appeal. I have heard Mr.Muhammad Sharif, learned counsel for the appellant and Mr. A.Q.Halepota, learned counsel for the respondent.
2. Mr.Muhammad Sharif, learned counsel for the appellant, did not seriously press the case of the appellant on the ground of benami transaction and on the ground of award given by the arbitrators. Even otherwise, the findings of the two Courts below on these two questions are not liable to interference. The findings on such questions are based on the evidence on record and no misreading of evidence was pointed out by the learned counsel for the appellant.
6. ' It was, however, contended by the learned counsel for the appellant that proper issues had, not been framed by the trial Court, which has caused miscarriage of justice and serious prejudice to the appellant. According to the learned counsel for the appellant, in view of the averments contained in the written statement of the appellant, an issue about possession should have been framed by the trial Court and if such issue had been framed and finding had been that the appellant was. In possession since prior to 21-12-1958, the suit would have been liable to be dismissed by operation bf law, as in that case the appellant would -have been found to be statutory tenant and his ejectment could not have been ordered through a civil suit. It was further argued that before the First Appellant Court an application under Order 41 Rule 27 C.P.C. Had also been filed for additional evidence but the same was wrongly disallowed by the learned District Judge, Tharparkar. It may be observed that in support of the application under Order 41 Rule 27 C.P.C. The appellant had filed his affidavit, dated 20-5-1971 and pares 2, 3, 4. & 5, of this affidavit are reproduced hereinbelow:- "2. That the case of the respondent/plaintiff is that he had handed over the possession of the premises to mein the year 1966. The documents accompanying with this 'application will show' that I am in possession of it much before 1966.
7. 3.That the documents are certified copies issued by Municipal Committee, Mirpur Khas and Deputy Settlement commissioner, Tharparkar, Mirpur Khas and there cannot be any doubt about its genuineness.
8. 4.That these documents will enable this Honourable Court to do justice properly and pronounce judgment.
9. 5.That I have obtained these documents recently and I am producing these documents without delay."
10. ' By order, dated 6-8-1971, the learned District Judge, dismissed the application for additional evidence. According to Mr.Muhammad Sharif, learned counsel for the appellant, this application should have been allowed by the First Appellate Court and such additional evidence if allowed to be taken on record, would have shown that the appellant was in possession of the premises from a date much prior to 21-12-1958. It was also argued by Mr.Muhammad Sharif that the plea of the appellant of being owner of a portion of the house and the plea that he was a statutory tenant of the respondent were not destructive of each other. According to the learned counsel, the Court was required by law to frame an issue as to when the appellant had come into possession in view of the contents of the pleadings of the parties relating to the time the appellant came into possession.
11. ' In support of his contentions, Mr.Muhammad Sherif relied upon the following reported judgments:-
(i) Noor Jahan v. Muhammad Ahsanullah khan PLD 1960 Lah.
12. 181.
(ii) Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690.
(iii) Jogash Chandra v. Emdad Meah AIR 1932 P C 28.
(iv) Lakshmanna v. Venkates AIR 1949-P C 78.
(v) Shaikh Makbool v. Union of India AIR 1960 Orissa 146.
(vi) Ananta Kumar v. Gopal Chandra PLD 1961 Dacca 65.
(vii) Hudha v. Ghulam Shah PLD 1968 SC 553.
3. Mr.A.Q.Halepota, learned counsel for the respondent, in reply first referred to the written statement filed by the appellant submitting that the entire case of the appellant was that he was the owner of half portion of the house. It was submitted that no plea had been taken by the appellant even in the alternative that he was a statutory tenant. It was contended that the Court does not take into consideration any evidence in support of a plea, which had not been taken in the pleadings. It was pointed out by Mr.A.Q.Halepota that the plea that is being raised now for the first time in the present second appeal that the appellant was the tenant of the portion of the premises in his occupation was not even taken in the memo of appeal before the First Appellate Court and it was, however, raised for the first time in the arguments before the First Appellate Court.
13. It was also contended that the two pleas i.e, the appellant was the owner of half portion of the house and the plea that he was the tenant of the respondent are destructive of each other.
14. Reference was made to section 115 of the Evidence Act for the proposition that a tenant cannot challenge the title of his landlord.
15. ' In support of his contentions Mr.A.Q.Halepota relied upon the following judgments : -
(i) Kanda v. Waghu AIR 1950 P:C 68.
(ii) 'Nandlal Rampratap Marwadi v. Dearao AIR 1940 Nag.
16. 94.
(iii) Hem Chand v. Pearey Lal AIR 1942 P C 64.
(iv) Budho v. Ghulam Shah PLD 1963,S ,C 553.
(v) Government of W.Pakistan v. Haji Muhammad PLD 1976 SC 469.
(vi) Bashir Ahmad v. Ahmad-ul-Haq Siddiqui 1985 SCMR 1232.
(vii) Ch.Bros Ltd. v. J.C. Coop Bank Ltd. 1968 SC M ft 804.
(viii) Ghulam Ali v. Muhammad Hussain Kathawala PLD 1985 Kar.
17. 152.
(ix) Nadir Ali v. Muhammad Adam Khan 1985 CLC 373.
(x) Amin Yousuf Nizami v. Rashid Rayon Mills PLD 1971 Kar.
18. 505.
(xi) Mumtaz v. Mian Khan PLD 1973 Lah.
19. 47.
4. The point, which requires consideration in the present second appeal, is whether on the pleadings of the parties the Court was required to frame an issue as regards the time when the appellant came into possession of the house. Learned counsel for the appellant is correct in his submission that in civil suits it is the duty of the trial Court to frame proper issues, which arise out of the pleadings of the parties. But this proposition does not help the appellant in the facts of the instant case.
20. A perusal of the pleadings shows that no plea was taken by the appellant that he was a statutory tenant in respect of the portion, which was in his occupation. If such a plea had been taken, then the trial Court would have been required by law to frame an issue about the time when the appellani came into possession of the house and in such a case another issue would have been framed about the maintainability of the suit. As observed earlier, no such plea about the appellant being a statutory tenant had been raised and as such under the law it was not necessary for the trial Court to have framed an issue about the exact time when the appellant came into possession of the premises.
21. ' A plea could have been taken by the appellant in the alternative in his written statement that his possession of the portion of the house in his occupation was independent of the possession of the respondent and he was in any case a statutory tenant of that portion. Such plea would not have been destructive of the plea raised by the appellant that he was the owner of that portion. In a suit a person can claim ownership of the property and in the alternative can claim that by operation of law in any case he is a tenant. As observed earlier, in my view, such pleas are not destructive of each other. However, in this case the plea that the appellant was in possession of the portion in his occupation in .His own right and that he was a statutory tenant under the settlement laws, has not been taken and as such the trial Court did not commit any illegality in not framing an issue, which did not arise out of the pleadings.
22. It may then be observed that without amendment of his written statement so as to add a plea about the appellant being a statutory tenant, a grievance could not be made that an issue regarding the time of possession had not been framed and as such there has been miscarriage of justice. The contents of the written statement of the appellant filed as far back as July, 1969, and even his memo of appeal before the First Appellate Court show that it was never the case of the appellant that he was a statutory tenant of a portion of the premises in question. Neither before the First Appellate Court nor even in the present second appeal any application was made for amendment of the written statement. In the circumstances, no case has been made out for setting aside the impugned judgments of the lower Courts and then remanding the case to the trial Court for recording further evidence and deciding the question whether the appellant is a statutory tenant or not.
5. I may refer to another argument raised by Mr.Muhammad Sharif, learned counsel for the appellant. It had been argued that in a case where a decree- for possession is sought, the plaintiff may not only be required to establish his title but he must also prove that he is entitled to immediate possession. It was contended by the learned counsel for the appellant that even if the title cf the respondent had been' established and appellant had not been able to establish his title, the respondent had not proved that he was entitled to immediate possession. On issue No,3 the finding of the learned Civil Judge is that the appellant was allowed to occupy the premises temporarily and he had no right or title either as a landlord or even as tenant. In view of this finding, 'the decree for possession was rightly granted by the learned Civil Judge to the respondent. It may again be observed that the entire case of the appellant was that he was the owner of half portion of the house in his occupation,~ which claim was not ,established.
7. As a result, Second Appeal No,174 of 1972 is dismissed with costs.