On 5th of May, 1975 a suit for declaration claiming ownership and possession of property in dispute which was mentioned in the plaint as a house comprising three rooms, Deori, Chobara etc., situate in Abadi Mauza Waso, Tehsil Phalia, District Gujrat and permanent injunction was riled by respondent Siraj Din against Ismail appellant. In the plaint it was averred that the plaintiff--- respondent was the transferee of the house m dispute and was in its possession as owner which was being disputed by the appellant who was bent upon interfering in the possession of the respondent which compelled him to file the suit. This position was denied by the appellant who in his written statement pleaded that he was in possession of the property in question as owner on account of an allotment made in his favour in 1948 by the Settlement Department. According to his case originally Mehr Singh son of Sukha Singh an evacuee was the owner of the house which comprised of two units, one out of which was transferred to the appellant and the other to the respondent and the parties were in occupation of their respective portion as owners. After trial of the suit, the learned trial Court came to the conclusion that the house in dispute consisted of two portions, one of which had been allotted to the appellant and the other to the respondent. The appellant was held to be the owner of portion marked AEFD on the site plan and the Chobara and the suit to this extent was dismissed. However, the suit with regard to portion marked ABCD was decreed on the finding that the respondent was the owner in possession of this part of the property on 20-7-1978.
2. Both the parties felt dissatisfied by the decision of the trial Court and filed two separate appeals which were heard and decided by Ch. Anwar A.I, Additional District Judge, Gujrat on 3rd of January, 1980. The learned lower appellate Court came to the conclusion that the respondent was the owner of the entire property claimed by him and the appellant had no title to any part of it. He, therefore, dismissed the appeal filed by the appellant and while accepting the appeal of the respondent decreed his suit in its entirety. This judgment and decree of the Additional District Judge has been assailed m this regular second appeal.
3. The learned counsel appearing in support of the appeal has contended that the Additional District Judge has misread the evidence on the record and acted illegally in decreeing the suit of the respondent. The learned counsel has a also contended that in the plaint the respondent had claimed ownership only with respect to 3 rooms but the Additional District Judge has passed a decree in respect of 7 rooms which could not be done.
4. The learned counsel for the respondent has defended the decision of the Additional District Judge and has contended that no misreading of evidence has been pointed out by the learned counsel for the appellant and the finding of fact recorded by the Additional District Judge cannot be interfered with in this second appeal under section 100 of the C.P.C.
5. It is correct that ordinarily in law the finding of fact reached by the first appellate Court, will prevail but since the finding is at variance with that of the trial Court, I have respectfully following the law declared by the Supreme Court in Madan Gopal v. Maran Bepari (PLD 1969 SC 617) compared the two findings for their comparative merits in the light of the facts of the case and the reasons on which the two different findings, have proceeded. The finding of the lower appellate Court is substantiated by the record and has been supported by logical reasoning taking into account the material evidence.
6. According to the order of the Assistant Settlement Commissioner dated the 3rd of October, 1967 copy of which has been produced as Exh. P. 1 the house belonging to Mehr Singh son of Sukha Singh evacuee comprising of 7 rooms and a Chobara was transferred to Siraj Din respondent. It was admitted in the written statement that the property in dispute belonged to Mehr Singh son of Sukha Singh. The finding of the lower appellate Court that the respondent was the transferee of this property, appears to be unexceptionable in view of the order Exh. P1. The appellant in support of his claim has relied upon the order of the Assistant Commissioner dated 18th of January, 1968 Exh. DB.
As observed by the learned Additional District Judge the description of the property given in this document is not in accord with the property in dispute. Even otherwise if the property already stood transferred to the appellant, vide order Exh. P. 1, on 3rd of October, 1967 the same or any part thereof could not be transferred to the respondent subsequently on 8th January, 1968 and no rights can be founded on the basis of this subsequent order of transfer. The learned Additional District Judge has also noticed the Revenue record especially the Jamabandis which read alongwith the statement of P.W. 1 Allah Ditta, P.W. 2 Sain and P.W. 3 Salehoon fully supported the case of the respondent. The learned trial Court while deciding the suit had not adverted to this evidence and had relied upon the report of Local Commissioner alone. This report even if taken to be correct does riot concern itself with the question of ownership at all.
7. The other contention of the learned counsel for the appellant that though in the plaint the claim was made to three rooms only but the decree has been passed by the Additional District Judge with respect to 7 rooms, is without any merit. In this behalf the plaintiff/respondent had claimed to be the owners of the entire house which was, however, stated to comprise of three rooms, Deori, Chobara etc., as shown in the site plan annexed with the plaint. The boundaries of the property were also mentioned. The petitioner was as such claiming the entire house and not a part thereof.
Even otherwise from a comparison of the site plan annexed to the plaint with the site plan Exh. DB prepared by the Local Commissioner would show that the area in both the plans is the same but the Veranda and Deori shown as such in the earlier plan, had been converted inter rooms which are shown as such in the plan prepared by the Local Commissioner. It is for this reason that there was a difference regarding number of rooms in the house. No interference is called for in the findings of the Additional District Judge.
For the foregoing reasons this appeal fails and is dismissed with no order as to costs.