The present petitioners filed suit for possession against the respondents regarding Plot No.698/B-VI measuring about 18 Marlas, situated at Talagang. The detailed description and location of the property is given in the plaint. The petitioners/plaintiffs claimed ownership of the suit land on the ground that they are successors-in-interest of Fazal Elahi son of Karam Elahi, who (was the husband of plaintiff No.1 and father of plaintiffs Nos.2 to 6), purchased the property in upon auction.
Allegedly this property was evacuee. It was put to open auction. The previous number of this property was B-1/194 as per entry in the Excise Department.
2. According to the plaint, cause of action accrued- to the plaintiffs on the ground that being predcessors-in-interest of Fazal Elahi deceased who died about 6/7 years ago, gave the disputed plot to Itebar Khan and his son Iftikhar Khan on rent. After the. Death of Itebar Khan, his business of wooden .Tall was closed. The plot then remained vacant.
3. A year prior to the institution of this suit, the defendants conspired with each other and took over the possession of the plot illegally and started business of wooden Tall. The plaintiffs objected to their illegal possession but all in vain. As per version of the plaintiffs, the defendants refused flatly one month prior to the institution of the suit to vacate it. Thus they were compelled to file the present suit in December, 1983.
4. The defendants/present respondents filed written statement and raised number of preliminary objections. Denied the contents of the plaint but para. No.2 of the plaint was accepted/admitted in the written statement. The contention of the defendants/respondents is that they became owners of this property through civil decree passed in their favour. This assertion was agitated only orally and no documentary evidence was produced. The defendants did not bother to place on record copy of the judgment and decree passed in their favour in support of their claim.
5. On the pleadings of the parties, following issues were framed by the learned Civil Judge:---
(1) Whether the plaintiffs are owners of the suit plot? OPP
(2) Whether, the suit is hit by principle of res judicata? OPP
(3) Whether the plaintiffs are estopped to file this suit? OPD
(4) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction, if so, what is correct value? OPD.
(5) Whether the suit property has not correctly been described in the plaint? OPD
(6) Whether the defendants are entitled to any special cost? OPP
(7) Relief.
6. After framing the issues, the parties were directed to produce their evidence.
On behalf of the plaintiffs, one of the plaintiffs Mst. Niaz Begum appeared as P.W.1 and placed on record copy of Jamabandi for the year 1981-82 Pl, PT-I Forms P2, P3 and P4 and closed their evidence.
On behalf of he defendants, Qazi Miran Bakhsh D.W.1, Maqbool Elahi D.W.2, Haji Gul Muhammad D.W.3, Muhammad Iqbal D.W.4 and Altaf Malik, Advocate, D.W.5 made their statements to support the defendants, An affidavit on behalf of Karamat Hussain son of Fazal Elahi was also placed on record as Exh.Dl.
The learned Civil Judge, Talagang, ultimately dismissed the suit of the plaintiffs vide his judgment and decree dated 15-4-1987. Against the judgment and decree, appeal was preferred before the learned District Judge, Chakwal. The same was rejected by the learned Additional District Judge vide his judgment and decree dated 26-5-1990.
7. Through the present Civil Revision, the petitioners have challenged the judgments and decrees of both the lower Courts on the following grounds:---
(i) that both the lower Courts have improperly appreciated the claim of the defendants to the effect that they had purchased the suit property through decree of the Court. Copy of that judgment and decree had not been placed on record. Thus, the findings of both the Courts on issue No.1 are not maintainable;
(ii) that the petitioners led cogent evidence in proof of their title/ownership especially with reference to para. 2 of he plaint which has been admitted by the defendants. In the eyes of law it is an admission through pleadings which is conclusive proof of the fact. As such, the plaintiffs are the owners of the suit property unless it is otherwise proved by the defendants; and
(iii) that both the lower Courts have given undue weight to the affidavit of Karamat Hussain which was placed on record by the defendants. The placing of affidavit in the form ad manner is not only illegal but also inadmissible. Both the lower Courts have illegally taken it, into account, while deciding the suit. The principle of res judicata has wrongly been applied, especially when copy of the judgment and decree allegedly passed in favour of the defendants have not been placed on record.
8. Learned counsel for the parties were provided opportunities to argue this case at length. With their help, judgment and decree of both the lower Courts, pleadings of the parties, evidence brought on record by them have critically been looked into, with a view to arrive at a just decision.
9. The learned counsel for the petitioners gave much stress on the point that the plaintiffs stand absolved of discharging the onus to prove Issues Nos.1, 2, 6 and 7 when para. 2 of the plaint was admitted by adversary through written statement. The onus shifted after admission by pleadings, on the defendants to prove the following facts:---
(a) that they purchased the suit property through the judgment and decree as alleged by them;
(b) that their possession was legal and proper being owners; and
(c) that according to law enunciated by the superior judiciary of Pakistan, the best possible evidence should have been brought on record, which in the present case was copy of the judgment and decree on the basis of which the defendants claimed their right and title but they failed to do so. The presumption goes against them. They failed in rebutting the case of the plaintiffs, which stood proved by the clear cut admission. The admission of para. 2 in the written statement does not require the petitioners to produce copy of PTO or PTD.
10. The placing of affidavit on record allegedly on behalf of Karamat Hussain is negation of section 139 and Order XIX, C.P.C.
11. On the other hand, learned counsel for the respondents stated that two Courts below gave findings in favour of the respondents involving the question of fact which cannot upset through the present civil revision. The onus was on the plaintiffs to prove their rights. And title on the property but they failed. The failure on the part of the plaintiffs leaves no room for them to pray that the suit be decreed in their favour.
12. Keeping in view the arguments advanced by the learned counsel for the parties, I perused the judgments of both the lower Courts with special reference to the evidence made foundation for the dismissal of the suit. Issue No.2 dealt with the principle of res judicata has been decided, by the learned Civil Judge with the observations that no copy of that suit or any decree or order had been placed on record. In the written-statement it had not been specifically alleged that what type of suit was instituted by Fazal Elahi. There was no proof that suit was instituted for the disputed property and that decree was binding over the parties. These observations of the learned Civil Judge are sufficient to say that principle of res judicata was not applicable. The requirements of res judicata under section 11 of C.P.C. Stand non-complied, with regard to, the parties to the suit, nature of the suit, property involved in the suit, and nature of controversy between the parties. Thus there is no hesitation to say that principle of res judicata was not applicable
13. Learned Civil Judge went further to decide the issue in favour of the defendants on the ground that oral statement/evidence produced by the defendants has not been rebutted by the plaintiffs.
The learned Civil Judge committed error in failing to note the contents of para. 2 of the plaint and admission made by the defendants in the written statement. The outcome of that admission is that the claim of the plaintiffs stood admitted. Onus was on the defendants to prove the title by producing best evidence on record. Oral evidence whether stood rebutted or not is not sufficient in the eyes pf law to override the admission made in the pleadings. Section 58 of he Evidence Act of 1872 (now Article 113 of Qanun-e-Shahadat) reads as follows:--- "Facts admitted need not be proved.---No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing they agree to admit by any writing under their hands or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
Section 31 of the Evidence Act (presently Article 45 of Qanun-e---Shahadat Order) is also quoted below:--- "Admission not conclusive proof but may estop.---Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions hereinafter contained."
14. Section 58 of the Evidence Act (Article 113 of Qanun-e-Shahadat) applies to the admissions made in the pleadings while section 31 of the, Evidence Act' (Article 45 of Qanoon-e-Shahadat) applies to evidentiary admissions. There are two types of admissions: one embodied in section 58 of the Evidence Act which is a rule of procedure while section 31 of the Evidence Act is to give effect through the rule of evidence. Admissions in the pleadings are conclusive but not the others. In the present case, the admissions in the pleadings have overriding role which does not permit that admissions through evidence or un-rebutted statements be made basis of adjudication in exclusion to the pleadings' admissions. Thus, the learned Civil Judge committed error in not applying the law properly in the matter.
15. The onus regarding Issue No.1 is on the plaintiffs to prove their ownership. In fact, keeping in view the admissions in the pleadings, the form of issue No.1 should have been otherwise and the onus to prove should have been on the defendants. The case as it may be, the plaintiffs' job to prove the ownership ends successfully when admission of their ownership had been made in para. 2 of the written statement by the defendants. There is no need to dilate on this question any more because of the observations already made above in this regard. The plaintiffs were not required to place on record copy of PTO and PTD. As against this, it was the bounden duty of the defendants to bring on record copy of the judgment and decree, which finds mention in his statement. Production of documentary evidence in the form of primary evidence was essential for the just decision and for the success of the defendants. Oral statement cannot be of any value by not producing available documentary evidence.
16. As far as Issue No.3 is concerned, when title is claimed the plea of adverse possession cannot be put forth. Defendants' illegal possession of ownership falls down when proof of ownership is lacking.
Thus, finding on Issue No. 3 is improper.
17. Issue No-4 concerns value of the suit for the purposes of court-fee and jurisdiction. In the plaint, suit was valued at about Rs. 15,000. There is nothing in the evidence to say that any of the parties stated that value of the suit property vis-a-vis for the purposes of court-fee and jurisdiction exceeded to the extent where court-fee stamps are to be levied. Learned Civil Judge presumed the value keeping in view the prices increased with the passage of time. This presumption is not permissible in the eyes of law. Such a presumption cannot be made and enforced legally and judicially in all the cases when there is no evidence to that effect. The findings on issue No.4 are, therefore, not maintainable. Learned Civil Judge decided issues Nos.5 and 6 against the defendants.
18. On appeal, learned Additional District Judge, Chakwal, dismissed the appeal vide his judgment dated 26-5-1990. Learned Additional District Judge referred the statement of Mst. Niaz Begum, plaintiff No.1, who appeared as P.W.1. She admitted in her deposition the passing of decree regarding the plot in favour of Muhammad Iqbal, defendant No.2. In the same statement, she again denied this fact. From the statement of Mst. Niaz Begum, it is very much clear that she is an illiterate lady having no sense to understand the meaning of legal words like decree etc. Her denial regarding passing of decree does not show the nature of proceedings and the controversy agitated between the parties in the alleged previous litigation. Learned Additional District Judge also attempted to deal with the question of affidavit got exhibited by the defendants as Exh. D1 and ultimately he relied upon that in favour of the defendants. In this regard, reference can be made to section 3(3) of the General Clauses Act, which provides that the affidavit shall be prepared/recorded in the affirmation and declaration, in the case the law allowed to affirm or declare it. The Act does not strictly apply in the case. Section 139 and Order XIX, C.P.C. Deal the civil cases. Section 139 of the C.P.C. Reads as follows:--- "Oath on affidavit by whom to be administered.---In the case of any affidavit under this Code---
(a) any Court or Magistrate, or
(b) any officer. Or other person whom a High Court may appoint in this behalf, or
(c) any officer appointed by any other Court which the Provincial Government has generally or specially empowered in this behalf, may administer the oath to the deponent:"
Order XIX, rules 1 and 2, C.P.C., are also quoted below:---
1. Power to order any point to be proved by affidavit.---Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable: Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit.
2. Power to order attendance of deponent for cross-examination.---(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or the Court otherwise directs."
19. From the above proposition of law, it is clear that certain formalities are to be adopted by the Court in order to have evidence in the shape of affidavit to prove certain facts. In the present case, no such mandatory requirements of law were fulfilled. Besides this Karamat Hussain was not produced as witness at the instance of the defendants when their evidence was recorded. No presumption can be drawn against the plaintiffs. Furthermore, the requirement of law (Order XIX, Rule 2, C.P.C.) is that an applicant can seek permission for producing such evidence (that is in the shape of affidavit) by submitting an application to the Court. In the present case, no such application was submitted by the defendants. Thereby, opportunity of hearing has been denied to the plaintiffs. Normally, when application is submitted, notice is given to the adversary and after hearing the arguments the fate of application is decided. In the instant case, documents had been placed on record in a manner which is not warranted by law and no value can be attached to this document/affidavit.
20. From the statement of P.W.1 Mst. Niaz Bibi, it is evident that she stated in her examination-in- chief that no decree was ever passed concerning this plot. She also stated so in her re- examination. Besides oral evidence, she produced copy of PTI Forms for some years which are Exhs.
P2 to P4 where in the relevant column of ownership shows the entry in the name of Fazal Elahi predecessor-in-interest of the plaintiffs. The claim of the defendants is that it was sold or transferred in some manner by Fazal Elahi in favour of the defendants and to that effect a judgment and decree was passed. On the other hand, oral statement of D.W.1 to D.W.5 have been critically examined. D.W.1 is related to Itebar Khan, who was originally tenant of the plot. He states that he is unaware of the ownership of the plot. D.W.2 is also ignorant of this fact. His simple a few words that Muhammad Iqbal is owner in possession of the plot is not sufficient to make that Muhammad Iqbal defendant No.2 is owner in possession of the disputed property. D.W.3 states that he is an owner of the adjacent property but unaware of the title of Muhammad Iqbal D.W.3 Muhammad Iqbal defendant, personally appeared and stated that he became owner of the property through civil suit which was filed in the year 1966. His statement regarding affidavit in question is of no value. In his statement there is an important admission that the suit property was originally evacuee. It was purchased by Fazal Elahi, husband of plaintiff No.1 and father of other plaintiffs; in general auction. According to him, Fazal Elahi expired in 1977-78.He further stated that he filed suit for declaration against Fazal Elahi, which was decreed in his favour. His statement is of vital importance because he admits that originally Fazal Elahi became owner of the property as auction purchaser and later on, he became owner of the property because of the judgment and decree passed in his favour, copies whereof should have been produced by him in the evidence, but he failed. Hence he is to suffer for that.
21. D.W.5 deposed regarding the writing of the aforesaid affidavit. The evidentiary value whereof has already been discussed above.
22. In view of the above, the judgments and decrees of both the lower Courts are not tenable, hence set aside. The revision petition is accepted and the plaintiffs/ petitioners' suit is decreed in their favour against the defendants. No order as to costs.