' This judgment shall dispose of Regular Second Appeal No, 77 of 1981 as also the cross objections.
' The appellants had sued Hafiz Wahid Bakhsh and his brother Hafiz Abdul Majid, both of whom died during the pendency of litigation and respondents Nos.1 to 4 being their legal heirs continue to oppose them in this appeal.
3. The suit was for partition of a house and a shop situate in Ward No,8, Multan Town, as described in the head note of the plaint. The appellants had claimed the ownership of a moiety in this property after conceding that the remaining half thereof belonged to their opponents. They alleged that their share of property was in possession of Wahid Bakhsh defendant pursuant to a rent deed, dated 13-12-1949, executed by him in favour of their predecessor Hassan Bakhsh.
4. Hafiz Wahid Bakhsh and Hafiz Abdul Majid defendants had resisted the suit and in their respective written statement denied the title of their opponents in the disputed property. The former, however, conceded that the rent deed was executed by him in favour of the predecessor of the plaintiffs (appellants) but asserted that he had got that document gangly executed from him and he did not accept the terms and conditions embodied therein because its contents had been materially altered by tampering with. He also raised preliminary objections regarding description of the property, limitation and valuation of the suit for the purposes of court-fee and jurisdiction.
5. On the pleadings of the parties the trial Court framed the following issues:--
(1) Are the plaintiffs in possession of the property in dispute and is this suit maintainable in the present form?
(2) Is the property in dispute correctly described in the plaint, if not, what is its correct description?
(3) Have the plaintiffs been in possession of the property in dispute within 12 years before this suit?
(4) Is the suit time barred?
(5) Is this suit properly valued for the purposes of court-fee and jurisdiction, if not, what is its right valuation?
(6) Is the rent deed dated 13-12-1949 mentioned in para of the plaint inadmissible in evidence?
(7) Have the plaintiffs any share in property in dispute, if so, what share?
(8) Relief.
6. After recording the evidence of the parties and hearing their counsel, the learned trial Judge decided issues Nos. 1, 2, 3, 4 and 5 in favour of the plaintiffs and issue No,6 against the defendants.
With regard to issue No,7 he came to the conclusion that the plaintiffs were owners of half of the disputed property. Accordingly he granted preliminary decree for possession by partition in favour of the plaintiffs vide his judgment and decree, dated 2-5-1975. Aggrieved by these findings the opposite party went up in appeal which was partly accepted by a learned Additional District Judge, Multan, vide his judgment and decree, dated 15-7-1981, after reversing the findings of the trial Court on issue No,3 and on Issue No,7. Relying on a certified copy of gift deed (Exh.D2) he held that the disputed house belonged to Hafiz Abdul Majid defendant in its entirety and the plaintiffs had no, share therein. He, however, affirmed that the plaintiffs had 1/2 share in the disputed shop and they were entitled to its partition. As a result, he modified the decree of trial Court accordingly.
Aggrieved by this decision where the plaintiffs came up in second appeal, the defendants filed cross-objections.
7. With regard to issue No,3 it is argued on behalf of the plaintiffs-appellants that Hafiz Wahid Bakhsh defendant-respondent had taken on rent the share of the father of the plaintiffs-appellants in the disputed property and since the rent deed, dated 13-12-1949, was, as per findings on issue No,6, concurrently held to be a genuine document and issue No,4 had already been decided in favour of the plaintiff-appellants, issue No,3 should have been decided in their favour and the findings of the learned Additional District Judge thereon are erroneous. Therefore, Hafiz Wahid Bakhsh defendants-respondent being in possession of half of the property as tenant, originally under the landlord ship of the father of the plaintiffs-appellants and, after his death, under the landlord ship of the plaintiffs-appellants themselves, they are obviously in constructive possession of their share in the property through their tenant. According to the learned counsel, the plaintiffs- appellants being otherwise co-owners in the property, they would be deemed to be in possession of their share unless their complete ouster therefrom was alleged and proved by their opponents but no such ouster was alleged and proved by them.
8. The learned counsel for the defendants-respondents contends that the plaintiffs-appellants and their predecessor had never been in possession of the disputed property during the last 12 years prior to the institution of the suit and their suit was time-barred.
9. The learned Additional District Judge reversed the findings of the trial Court on issue No,3 but maintained its findings on issue No,4, observing at the same time that decision of this issue in fact hinged on the findings of ownership of the disputed property. The reversal of findings on issue No,3 made them contradictory with his findings on issue No,4 and to that extent he seems to have erred but such reversal remained inconsequential because in a suit for partition of the joint property it is not necessary for a co-owner to prove that he had been in possession of the property within 12 years prior to the institution of the suit. The decision of the case would ultimately depend upon the decision of issue No,7 and it is immaterial whether issue No,3 is decided in affirmative or negative.
10. With regard to issue No,7 it is contended on behalf of the plaintiffs appellants that they examined as many as nine witnesses besides Mushtaq Hussain plaintiff-appellant, who appeared as his own witness, in addition to bringing on the record as many as 23 documents, including a document exhibited as P-9/A, while in rebuttal of this evidence there is a solitary statement of Hafiz Wahid Bakhsh defendant in support of his own case and Hafiz Abdul Majid defendant. Produced four witnesses in addition to recording his own statement besides placing on the record two documents. Commenting on the documentary evidence produced by Hafiz Abdul Majid defendant, the learned counsel submits that the learned lower appellate Court, in coming to the conclusion that the disputed house belongs to Hafiz Abdul Majid defendant, placed reliance on a copy of property tax register of the year 1963-64 (Exh.D1) pertaining to property No, 3258, 3259 showing the ownership of both the defendants as also on gift deed (Ex.D2) dated 25-7-1933, whereby his father Muhammad Bakhsh had allegedly gifted some property in their favour. According to the learned counsel, neither of these two documents was relevant nor did they possess any evidenciary value because the document (Ex.D1), besides being a document pertaining to some different property, was prepared in the year 1963-64 when the suit had already been brought on 15-2-1962 and it was obviously hit by the principle of lis pends and the document (Exh.D2) was copy of gift deed which fact had never been alleged by the defendants in their written statement nor this document was relied upon in the list of reliance and it was suddenly produced during the course of evidence in the trial Court. Dilating on this point, the learned counsel further submits that the original of this document (Exh.D2) was not produced by Hafiz Abdul Majid (DW.6) and after the conclusion of his statement his counsel brought its certified copy on the record as (Ex.D2). In his opinion, this document could not be brought on the record nor it could be exhibited because the original was in the possession of Hafiz Abdul Majid defendant No,2 as it appears from. His own statement in the cross-examination, nor it was earlier relied upon nor permission to lead secondary evidence was sought from the Court.
11. In support of his contention that this document could not be brought on the record, the learned counsel has referred to Khan Muhammad Yousaf Khan Khatak v. S.M. Ayub and others (PLD 1973 SC 160). In the alternative he pleads that even if this document is held to have been lawfully admitted in evidence even then it cannot be taken into consideration because the defendants in their pleadings did not take any plea to the effect that the house had been gifted to them by their father and in the absence of any assertion in the pleading no evidence could be led. In this connection he refers to Siddik Mahomed Shah v. Mt. Saran and others (AIR 1930 P C 57), Iftikhar Ahmad v.
Amiruddin and another (1986 SCMR 804) and S.K. Abdul Aziz v. Mahmoodul Hassan and 3 others (1988 CLC 337). With reference to the statement of Hafiz Wahid Bakhsh defendant appearing as DW1, the learned counsel argues that he did not even mention in his statement that the disputed house had been gifted to him and his brother Hafiz Abdul Majid by their father at any time despite the fact that the so-called gift deed (Exh.D2) contains a recital to the effect that the property had been alienated by way of gift to both the brothers, It is further urged that the property described in the document (Exh.D2) does not seem to have any nexus with the disputed house if description of both the properties be compared minutely. Finally, it is urged that even if this document is considered to be a genuine one, the doner had no right to gift away half of the house which belonged to the father of the plaintiffs-appellants and for that reason too it does not take effect so far as half of the property is concerned.
12. Adverting to the evidence produced by his own clients, the learned counsel submits that Hafiz Wahid Bakhsh defendant had, in his written statement, with some reservations conceded the execution of the lease deed, dated 13-12-1949 (marked 'A') in favour of the predecessor of the plaintiffs-appellants and in this document he had admitted that half of the disputed shop belonged to the lessor. According to the learned counsel, in the ejectment proceedings initiated by the plaintiffs-appellants against Hafiz Wahid Bakhsh defendant it was conceded by him in his written reply (Exh.P.I) that half of the shop belonged to them and the remaining half to him and his brother Hafiz Abdul Majid and since it was a joint property, he could not be ejected therefrom under the rent laws until it was partitioned. He contends that in fact it was in view of this objection that the suit for partition was brought and now they cannot deny the title of their opponents in the disputed shop. Regarding the ownership of a moiety in the disputed house, he submits that the predecessors of the parties had been litigating and eventually the half of the disputed shop and the house had fallen to the share of the predecessor of the plaintiffs-appellants and remaining half to the lot of the predecessor of the defendants-respondents. In this connection he refers to the copy of preliminary decree (Exh.P.18), copy of final decree (Ex.P.19), copy of the report of Local Commissioner (Exh.P.20) and copies of plans (Exh.P.21) and (Exh.P.22) in the partition suit.
13. On the other hand, it is argued on behalf of the defendants-respondents that the plaintiffs- appellants have no share in the disputed property which in its entirety belongs to the defendants- respondents. According to the learned counsel for the defendants-respondents, this property belonged to the father of defendants-respondents who vide gift deed (Exh.D.2) had gifted it in their favour and since then they have been in its possession as donees and this fact has been conceded even by Mushtaq Hussain plaintiff-appellant in his statement while appearing as his own witness before the trial Court. He contends that the plaintiffs-appellants cannot take advantage of the so-called written reply (Exh.P.I) of Hafiz Wahid Bakhsh defendant-respondent filed by him in the ejectment proceedings admitting the ownership of the plaintiffs-appellants to the extent of one-half of the disputed shop as he was never confronted with this document or with its original during the course of his statement as his own witness nor the original of this document was formally proved by calling its author. He argues that the lease deed, dated 13-12-1949 (Mark 'A') was not executed by Hafiz Wahid Bakhsh defendant-respondent in favour of Hasan Bakhsh, the predecessor of the plaintiffs-appellants, and it was in respect of a different property and it has been materially altered in order to make it a document relating to the disputed one. Even the decree-sheets (Exh.P.18) and (Ex.P.19), the report of Local Commissioner (Exh.P.20) and copies of plans (Exh.P.21) and (Exh.P.22) relate to different properties, he adds. Finally, it is urged that the trial Court as well as the lower appellate Court have erred in coming to the conclusion that the plaintiffs-appellants, as per findings of the former, were owners of a moiety of the disputed shop and house, and they were, as per findings of the latter, owner of one-half of the disputed shop because they did not own any share in the disputed property and they, in view of the cross objections, need to be non-suited.
14. Hafiz Wahid Bakhsh defendant in his written statement, dated 25-6-1962, had, in reply to para 2 of the plaint, stated that the father of the plaintiffs-appellants had wrongly got the document (lease deed) executed from him and its contents he did not admit and since they (plaintiffs) and their predecessor had made material alterations therein, for that reason too it was not admissible in evidence. Thus he admitted the execution of lease deed (Mark 'A') but denying its contents, tried to wriggle out of its binding effect and even alleged material alterations therein. Its execution was proved by Nazar Hussain (PW.4) and Maluvi Abdullah (PW.5). During the course of his statement Hafiz Wahid Bakhsh (DW.1), contrary to what he had stated in his pleadings, chose to deny his thumb mark or signatures on this document (Mark 'A').
15. This is an old document having no alteration, cutting or erasure therein. It is a genuine document for all intends and purposes and its execution, which was admitted in his pleadings by Hafiz Wahid Bakhsh defendant, was later falsely denied by him during the course of evidence.
During the course of ejectment proceedings initiated by the plaintiffs-appellants against him in respect of the disputed shop he had, in his written reply (Exh.P1), conceded that half of the share belonged to them and the remaining half to him and his brother Hafiz Abdul Majeed defendant but he took up the defence that he could not be ejected therefrom until it was regularly partitioned. It was in view of this objection that the plaintiffs-appellants had to institute this suit for partition of the shop as also for the house. The learned counsel for the defendants-respondents has, with reference to certain authorities, tried to argue that the written reply (Exh.P.1) was not legally proved but his contention has no force. In his statement Hafiz Abdul Majeed defendant admitted that his opponents had brought ejectment proceedings against him in respect of the disputed shop but he was evasive when he was asked about his written reply and its contents. By denying the execution of the lease deed (mark 'A') and expressing lack of knowledge about his written reply (Exh.P1), he discredited himself and it can safely be said that he was not a truthful person. These documents clearly indicated that Hafiz Bakhsh defendant-respondent had obtained the disputed shop on rent from the father of the plaintiffs-appellants and he continued to occupy it first under his landlord ship and, after his death, under the landlord ship of the plaintiffs-appellants, his legal heirs, He and his brother Hafiz Abdul Majid defendant-respondent, after the death of their father, were the owner of its moiety and the plaintiffs-appellants frankly conceded that their opponents were owner of half of it but they continued to deny their (plaintiffs-appellants) title to the extent of half of it, falsely and unreasonably. There are concurrent findings of both the Courts below that the B plaintiffs- appellants are owners of the disputed shop and no fault can be found with these findings.
16. Now I take up the question of entitlement of the parties in the disputed house. Like the disputed shop the claim of the plaintiffs-appellants with regard to half of the disputed house is also based on the plea that these properties besides some others were jointly owned by the ancestors of the parties who were closely related to each other and half of the disputed shop and the house had fallen to the share of their (plaintiffs-appellants) father as a result of the partition proceedings amongst their predecessor, la support of their contention they have brought on the record the certified copies of the judicial record relating to the partition proceedings. These are (Exh.P.18) to Exh.(P.22). They have also placed on the record the certified copies of the record of property tax (Exh.P.12) to (Exh.P.15). These documents indicate that the predecessors of the parties jointly owned certain properties. As already indicated, the learned counsel for the defendants-respondents has tried to belittle the evidentiary value of these documents by contending that neither the certified copies of the property-tax registers nor the certified copies of the judicial record relating to the partition of joint property relate to the property now in dispute but he has not succeeded in eroding their effect, particularly of the certified copies of the record concerning the partition of the joint properties belonging to the predecessors of the parties. As against this evidence the main reliance of the defendants-respondents is on the certified copy of the gift deed (Exh.D.2), dated 25-7-1933, whereby their father had allegedly gifted some property in their favour. Its production and evidentiary value has been seriously disputed by the learned counsel for the plaintiffs-appellants with the help of the case-law, as already referred to, but since this document was exhibited, it has to be read in the evidence of the defendants-respondents, more so when Mushtaq Hussain plaintiff-appellant appearing as (PW.10) admitted that father of the defendants-respondents had gifted the disputed property in their favour by this document. Learned counsel for the defendants- respondents has tried to make much capital out of this document in support of his contention that.
Mushtaq Hussain plaintiff-appellant had conceded that his clients, by virtue of this document, were the sole owners of the disputed property and as such their opponents are liable to be non-suited but I do not see much substance in this argument. This document constitutes an admission in their own favour which cannot bind the plaintiffs-appellants. Similarly, the defendants-respondents cannot derive any benefit from the statement of Mushtaq Hussain plaintiff-appellant who said nothing except admitting the fact of defendants-respondents' father gifted the disputed property in their favour. He could gift his own property and not that of his opponents and if he did so, it was without lawful authority and with no legal effect.
17. For various reasons stated above, I come to the conclusion that the plaintiffs-appellants are owners of half of the disputed property consisting of the shop and the house, as exhaustively described in the plaint. The findings of the learned Additional District Judge on issue No,7 are therefore modified so far as they relate to the disputed house and those of the learned trial Judge are restored. However, his findings regarding the disputed shop, which in turn approve the findings of the Court below, are affirmed and consequently it is held that the plaintiffs-appellants are owners of half of the disputed shop as well as the disputed house. The issue is decided accordingly.
18. As a result, the appeal is accepted and the impugned judgment and preliminary decree of the learned Additional District Judge, is modified to the extent of disputed house and the same are affirmed to the extent of the disputed shop. Resultantly the cross-objection filed by the defendants-respondents are dismissed. Parties shall, however, bear their own costs. The trial Court shall now proceed to pass the final decree and it shall do so promptly as the matter is quite old.