Brief facts giving rise to this R.S.A are: Amroo Khan appellant filed a declaratory suit on 3-11-1966 to the effect that he was the lawful transferee of the house in dispute situate In village Satreh, Tehsil, Daska, District Sialkot, an evacuee property since 1947. By way of consequential relief it was prayed that the respondent be permanently restrained from interfering in his possession. Since the respondent was also claiming to be the allottee of he house in question a prayer was also made that the said allotment may be declared to be illegal void.
2. The claim of the appellant was based on his alleged possession over the house in question since 1947 which, according to him, had ripened into ownership by operation of law, i.e. Settlement Scheme NO.VIl.
3. Written statement was filed and the suit was contested. The main plank of the claim of respondent was the allotment chit (Exh.D-1) dated 19-11-1966, in his favour qua the house in question.
4.The following issues were framed by the learned Civil Judge:-- (1)Whether the plaintiff is in continuous possession of the suit house since the year 1947? OPP (2)Whether the defendant holds a valid allotment order in respect of the said house in his favour and to what effect? OPD (3)Whether the plaintiff became owner of the house in dispute under Settlement Scheme NoNIt?
OPP (4)Relief.
5. The learned Civil Judge, after recording evidence, decreed the suit, as prayed for. He, inter alia, held that the appellant had become owner of the house in question by operation of law, i.e. Settlement Scheme No.VII, being in its exclusive possession after the partition of the sub-continent.
The allotment order procured by the respondent (Exh.D-1) was declared to be illegal and of no legal effect. This judgment was passed on 22-2-1969.
6. Feeling aggrieved, the respondent filed an appeal, which was decided by the learned District Judge, Sialkot, on 20-3-1970, and two-fold result flowed there from:-- (i)suit of the appellant was dismissed thereby holding that the claim of the appellant that he had become owner of the house in question being in its possession before the target date, i.e. 1-1-1961 in terms of relevant provision of Settlement Scheme NO.V1I was not proved; and (ii)the allotment of the respondent was also held to be illegal. .
7. It is the appellant alone who has filed this regular second appeal. The respondent has not filed any cross-objection.
8.1 have heard both the learned counsel and with their assistance gone through the entire record of the case.
9. In the plaint of the suit instituted by the appellant it was averred vide para. 2 thereof that the appellant had become the owner of the disputed evacuee house in terms of Settlement Scheme NoVIl, and now the house was not available for allotment. It was contended that the respondent was said to be claiming that the same house had been allotted to him by the Tehsildar and was time and again hurling threats to evict the appellant. The appellant was, therefore, under obligation to prove that the conditions laid down in Settlement Scheme No.VII for conferment of proprietary rights upon him qua the house in question stood fulfilled. Prior to that he was also required to establish on record that he was in possession of the house in dispute prior to the target date. In case, the appellant is found to have established his right of ownership over the house in question, the allotment of the respondent, which is of much later date, i.e. 19-10-1966 (Exh.D/1) would be rendered to be of no legal effect.
10. In support of his case the appellant has produced six witnesses, inclusive of himself, and has also brought on record rent note (Exh.P-1) dated 7-6-1958, executed by -him in favour of one Rashid Ahmad, Head Constable (P.W.5). On the contrary, the respondent has produced five witnesses, inclusive of himself, and has also placed on record the following documents:-- (i)copy of allotment order dated 19-10-1966 (Exh.D-1).
(ii)copy of report No.177 in Roznamcha Waqiati for the year 1966-67, made by Shahab Din Girdawar (Exh.D-2). '
(iii)Copy of the original application moved by the respondent before the Chairman, Union Council, informing him about the allotment of the house in question in his favour and asking for his help, with- an endorsement of the Chairman of the Union Council certifying that the house in question belonged to the respondent.
(iv)Copy of the F.I.R. dated 6-9-1966 under sections 452/440, P.P.C., registered at Police Station Satreh, at the instance of one Nazir Khan, Moharrir Head Constable.
(v)Copy of the extract of Register pertaining to lease of houses in village Satreh, prepared under Settlement Scheme NONII.
11. The statements made by the appellant and his witnesses, coupled with the rent note, in my view, successfully prove that it is the appellant who was in possession of the house in question at all points of time, inclusive of the target date, i.e. 1-1-1961, either physically or through his tenant.
12. Surjan Khan (P.W.1) has deposed that the house in question was in possession of the appellant since after the creation of Pakistan. This witness was not seriously cross-examined so far as the possession of the appellant since 1947 was concerned. All that was brought out in the statement of this witness was that at the time of his statement the house in question had been given on rent to one Hawaldar, who was in possession thereof 4/5 years prior to 14th June, 1968. Mamman Khan (P.W.2) has also supported Surjan Khan in so far as the possession of the appellant over the house in question since after the creation of Pakistan was concerned. This witness has also stated that presently the house was in possession of one Hawaldar of Police. The appellant was stated to be residing in the upper storey while the ground-floor was in possession of the said official. Statement of Nazir Khan (P.W.3) also lends support to the plea of the appellant that he was in possession from the time the litigation was on between the parties. He has stated that from 1966-67 he has been in possession as a tenant. He was cross-examined to find out as to who was in possession prior to his occupation. The witness has deposed that it was one Muhammad Aslam, ex-Moharrir of Police Station who was earlier occupying the same house and after his transfer this witness came into possession. The statement of Muhammad Sadiq (P.W.4), Head Constable, is quite significant for the decision of the case. This witness has deposed that he had remained posted at P.S. Satreh from 3- 8-1959 to 16-8-1960 as a Moharrir and he was in possession of the house in question as a tenant under the appellant at a monthly rent of Rs.10. Rashid Ahmad, Head Constable (P.W.5) deposed that in 1958-59 he was posted as Moharrir at P.S. Satreh and he was living in the Chobara of the house in question as tenant on a rent of Rs.10 p.m. This witness had, in fact, executed rent note (Exh.P-1) in favour of the appellant. He identified his signatures on the rent note (Exh.P-1/A). The appellant appeared as P.W.6 and supported his stand as taken in the plaint.
13. From the perusal of the evidence produced by the appellant it is clear that his possession over the house in question could be traced to 1947-48 and he continuously had occupied the same. It is a strange coincidence that time and again either the whole house or a part thereof had been given on rent by him to various police officials, who came to be posted in Police Station Satreh.
14. On the other hand, the respondent has produced Muhammad Rashid Patwari as D.W.1, who deposed that according to Roznamcha Waqiati, the house in question was allotted to the respondent on 2-10-1966. This witness gave details of allotment/possession of some other house, but his evidence, in my view, does not advance the case of the defendant in any manner in so far as the house in question is concerned. Inayat Rasool (D.W.2) was Chairman of Union Council, Satreh, at the relevant time. According to him, the- defendant came to occupy the house in question in 1947 along with the members of his family. It is significant to mention that the defendant/respondent was himself a member of the Union Council. Abdur Rehman (D.W.3) has admitted that the house in question was in possession of the police official. This admission, on the part of the witness, when read with the statement of the police officials produced by the appellant, namely, Nazir Khan (P.W.3), Muhammad Sadiq (P.W.4) and Rashid Ahmad (P.W.5) go a long way to establish that it was the appellant who was in possession of the house in question, which was rented out by him on various occasions to police officials. Hakim Inayatullah (D.W.4) also admitted that the house in question was in possession of the appellant at the time of his statement. Dhanney Khan respondent appeared as D.W.5 and took up the position that he was in possession of the house in question since 1947. According to him, a Thanedar asked him to vacate the house in question for a few days to accommodate one Moharrir Head Constable. It is in this manner that he came to be dispossessed therefrom. However, sometimes later, the said Moharrir was transferred and he handed over the key of the house to him. He is an ex-Army personnel and on 27-10-1951 rejoined the Army, and at that time the police officials were occupying the house. In 1955 his wife died and in 1956 he came back after securing discharge from the Army. On his return he found that the police officials were in possession, and it was in September, 1966 that he asked Nazir, Moharrir Head Constable, to vacate the house, on which a dispute arose. From the statement of this witness also it is clear that the respondent was not in actual physical possession on the target date. The police officials, who, according to him, came to occupy the house in question, have not come forward to support him. On the other hand, as mentioned above, they have appeared in the witness box on behalf of the appellant and attorned to him.
15. I have gone through the judgment of the learned District Judge and find that he has not considered the statements of the P.Ws. 1 and 5 at all. The statement of Mamman Khan (P.W.2) was discarded merely because, according to the learned Judge, there was discrepancy in his statement, inasmuch as, according to him, the appellant used to live in the Chobara, which fact was contradicted by the plaint. The judgment of the learned District Judge, in so far as it is partly based on non-reading of material evidence, therefore, in my view, is not sustainable. The result of my own appreciation of evidence on record is that the appellant has clearly succeeded in proving that he was in possession of the house in question on the target date, i.e. 1-1-1961, as specified under Settlement Scheme NO.VII.
16. When confronted with this situation, the learned counsel for the respondent tried to urge that in order to attract the provisions of Settlement Scheme No. VII so as to clothe himself with the title of ownership over the house in question, it was incumbent upon the appellant to establish
(i) that the house in question was in his possession before the target date;
(ii) the house was located in a village population whereof was below 3,000 and
(iii) the house was of the value of less than Rs. 10,000.
According to the learned counsel for the respondent the appellant has failed to specify in the plaint two important ingredients of his claim and, therefore, he is not entitled to ask for a decree in his favour.
I am afraid, this plea has no force. It was not necessary. for the appellant to complete the ingredients of the relevant provisions of Settlement Scheme No. VII in so many words in the plaint. It was sufficient what he had spelt out his plea in clear terms vide paragraph 2 of the plaint. One has to see as to whether the evidence brought on record by the appellant leads one to hold that the appellant had fulfilled the conditions for being declared to be the F owner of the house in question.
According to Sarjan Khan (P.W.1) the population of the village Satreh was one thousand to twelve hundred persons and the value of the house in question was Rs.6,000/7,000. Mumman Khan (P.W.2) has also given his estimate of the value of the house as five to six thousand of rupees. Both these witnesses have been cross-examined on this aspect and, therefore, in my view, the appellant, through their evidence, has succeeded in establishing that the house in question was located 'in the village of a population of less than three thousand persons and the value of the same was also below ten thousand of IF rupees.
17. It was lastly contended by the learned counsel for the respondent that the Civil Court lacked jurisdiction to adjudicate upon the controversy involved in the suit.
I am afraid, I cannot sustain this objection. The respondent had not raised this objection before the learned trial Court and willingly joined the proceedings. So much so, even before the learned lower appellate Court, this objection was not raised. In any case, the claim of the appellaing being that he had already become owner of the house in question w.e.f. 1-1-1961 by operation of law, any document brought into being by a public functionary, which cast cloud over his title of owner-ship, can be lawfully challenged by him before the Civil Court. He was fully competent to seek declaration for its annulment. In this view of the matter there is no force in the plea now being raised by the learned counsel for the respondent.
18. The judgment of the learned trial Court, in my view, has proceeded on correct principles regarding appreciation of evidence in a civil case. The learned District Judge, as pointed out above, has either not looked into part of the evidence at all, or has failed to appraise evidence in accordance with the settled principles relating to appreciation of evidence. There is overwhelming weight of evidence in favour of the appellant, and, in my view, he has successfully discharged onus on issues 1 and 3. He has established that he had become owner of the house in question by operation of law in terms of Settlement Scheme No. VII and consequently the allotment order obtained by the respondent (Exh.D-1) was clearly illegal and inoperative vis-a-vis the right of the appellant over the house in dispute.
19. The result it that this appeal succeeds, the impugned judgment and decree of the learned Distirct Judge are set aside and those of the learned trial Court dated 22-2-1969 are restored. No costs.