The judgment dated 8-2-1987 of the Additional District Judge, Kohat, whereby the appeal of the petitioner against the judgment and decree of the learned Senior Civil Judge Kohatdated 23-9- 1986 was dismissed, has been impugned in this revision petition with a prayer that the same be set aside and the suit of the plaintiff-respondent be dismissed with costs.
2. So far as the facts of the case are concerned, the brief account of the issue in controversy between the parties is that Mst. Wazir Jan, respondent herein, brought a suit before the learned Senior Civil Judge, Kohat, alleging therein that she was owner of 10 share in Khasra No.580 of Mauza Tappi on which she had constructed a house and that Mst. Rajmana, defendant-petitioner being her maternal-niece was allowed by the respondent to reside with her in the said house along with her husband. She has further alleged in her plaint that now about 5/6 months ago the petitioner defendant and her husband have turned her out of her own house. She, therefore, prayed for declaring her title over the suit house and possession also.
3. The defendant-petitioner, however, contested the suit by filing her written statement wherein she admitted that the plaintiff-respondent was the owner of the suit land but she had transferred the same to her by way of gift on which she has now constructed a house for a valuable consideration of Rs.40,000.
4. The learned trial Court framed as many as 10 issues in the case and after recording evidence of the parties, vide order dated 23-9-1986 granted a decree to the plaintiff-respondent as prayed for.
The defendant-petitioner went in appeal before the learned Additional District Judge, Kohat but her appeal did not find favour and resulted in dismissal vide dated 8-2-1987 of the learned Additional District Judge, Kohat. Hence this revision petition.
5. I have heard the learned counsel for the parties and have also perused the record of the case.
6. Though in the written statement the contention of the Gift Deed is mentioned, yet the petitioner has failed to produce the same either at the trial or at the appellate stage and even the same had also not been mentioned in the list of witnesses submitted by the petitioner in the trial Court.
Obviously, by not producing the Gift Deed, the respondent could not be confronted with the same document and the learned Courts below were, therefore, unable to take serious view of the matter on this side. The petitioners have for the first time attached the copy of the Gift Deed with this revision petition which cannot be taken note of at this stage for the reasons mentioned above.,
7. Regarding the argument of the learned counsel for the petitioner that the plea of Gift Deed was taken in the written statement but no issue was framed on the same, it may be mentioned that although no issue. Was framed with regard to the plea of gift but in spite of this the. Appellate forum has taken into consideration this aspect of the case in its discussion to the following effect:- "The two inconsistent defence pleas one taken at the time of filing the written statement and the other at the time of evidence, itself shows that neither the land was gifted to defendant No.l by the plaintiff nor it was sold to defendant No.2 by her."
I also find myself in agreement with the above finding of the learned appellate Court as the petitioner in her statement has stated that the land was given to her in gift by the respondent but as against this her husband had given quite different version about the land in question, as according to him he had purchased the same land from respondent Mst. Wazir Jan on payment of Rs.1,230, through I verbal transaction. Further, non-production of the gift deed at the trial or before the appellate Court and the availability of the said document at such a belated stage is sufficient to show bona fides of the petitioner against the respondent, who is still recorded in the Revenue papers as exclusive owner of the suit land. Likewise, Mst. Ajmana, petitioner No.l has also. Not appeared before the trial Court as her own witness. In Muhammad Nawab Khawaja Askari and others v. Maulvi Khurram Khan Panni PLD 1971 SC 82 the following observations have been made by their Lordships of the Supreme Court of Pakistan:- "Issues, omission to frame--Issues not framed but allegations made in plaint challenged in written statement--Court competent to allow parties to lead evidence on such point and give decision on it without framing issue: In spite of having full opportunity at the trial to produce evidence with regard to the plea, defendants-petitioners have failed to bring on record any cogent evidence with regard to the aforesaid contention.
8. After going through the record of the case very carefully, I am of the view, that the impugned judgments are suffering from no legal infirmity as both the learned Courts below have applied judicial mind to the facts of the case and the findings being concurrent in nature are, therefore, not open to any exception in the revisional jurisdiction of this Court. The revision petition being without any merit is hereby dismissed with no order as to costs.