MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, has been directed against the judgment of the High Court, dated 22-11-1997, whereby the revision petition filed by the appellant, herein, was dismissed.
The brief facts of the case are that the plaintiff-respondent filed a suit under section 9 of the Specific Relief Act, in the Court of Sub-Judge, Mirpur, alleging therein that the land measuring 2 Kanals and 2 Marlas, comprising old Survey No. 188, (new Survey No. l), situate in village Lehri, was in the ownership and possession of his father who had transferred it to him vide the gift-deed, dated 3-10-1992, and the possession of the same was delivered to him. On the basis of gift-deed a mutation was also attested in his favour. It was alleged that one week prior to the institution of the suit the defendant-appellant forcibly occupied the land and raised some illegal construction over there. The stand of the defendant-appellant in the written statement was that in fact the suit land is not comprised of old Survey No. 188, (new Survey No. l), of Village Lehri, but the same was comprised of old Survey No. 1631 in Village Khumbal (new Survey No.24). According to the defendant-appellant the aforesaid land was transferred by him on 25-5-1985, by a gift-deed in favour of one Arshad Mahmood, his son, who had mortgaged the same with the Industrial Development Bank of Pakistan. The Trial Court framed the following issues arising out of the pleadings of the parties:------ " (i) Whether the plaintiff has a cause of action? O.P.P.
(ii) Whether the suit cannot proceed? O.P.D (i.e) Whether the suit is within time? O.P.P
(iv) Whether all the owners are necessary party? O.P.D
(v) Whether the Revenue Record is fictitious? O.P.D.
(vi) Whether the defendant recently occupied the suit land and raised construction of 3 rooms and a wall on the land owned and possessed by the plaintiff? O.P.P:
3. The plaintiff-respondent, in support of his claim, got his own statement recorded as a witness and produced the documentary evidence Exh.P.A., gift---deed, Exh.P.A./1 copy of Misl-e-Haqiat for the year 1991-92, Exh.P.B. Copy of Mutation No.65, Exh.P.C. Copy of Misl-e-Haqiat for the year 1991-92 and Exh.P.D. Copy of Khatooni in support of his claim. The defendant-appellant in support of his assertion got recorded his own statement as a witness in addition to producing the documentary evidence Exhs.D.A., D.A./1, D.A./2, D.A./3, copies of Khasra Girdawari, Exh.D.B., certified copy of the gift- deed Exh.D.C. Certified copy of the mutation, Exh.D.D., certified copy of Misl-e-Haqiat, certified copy of the site plan, Exh.D.E., mortgaged-deed, Exhs.D.F. And D.G., copies of Mussavies 'of Villages Khumbal and Lehri. The plaintiff in rebuttal of the defendant's evidence also produced Exh.P.E., copy of report of Patwari and Exh.P.F., copy of the gift-deed. The Trial Court after recording the evidence of both the parties and after hearing them proceeded to pass a decree in favour of plaintiff- respondent. The revision petition filed by the appellant before the High Court also failed vide the impugned judgment of the High Court, dated 22-11-1991. It is the aforesaid judgment of the High Court-which is the subject of present appeal.
4. Raja Muhammad Siddique, the learned counsel for the appellant, in support of appeal vehemently contended that the Trial Court as well as the High Court fell in error in passing the decree in favour of plaintiff respondent. According to the learned counsel the High Court and the Trial Court misread and mis-appreciated the evidence. The learned counsel further contended that as the suit was filed under section 9 of the Specific Relief Act, thus, it was to be filed within a prescribed period of six months from the date of dispossession. The learned counsel strenuously argued that the Trial Court as well ass the High Court decreed the suit of plaintiff-respondent on the basis of the title which was hardly the requirement of section 9 of the Specific Relief Act.
According to the learned counsel the only points to be looked into by the High Court and the Trial Court were whether the plaintiff was in possession of the suit land six months prior to the institution of the suit and whether the suit was brought within a period of six months from the date of his dispossession but the Trial Court as well as the High Court embarked upon the question of title and on its basis decided the question of possession. The learned counsel submitted with vehemence that where the defendant-appellant raised the construction that was Survey No.24 of Village Khumbal, Tehsil Mirpur, whereas it was wrongly described as Survey No. l of Village Lehri. The point in issue, according to the learned counsel for the appellant, becomes clarified by the reports of the Patwaries of the abovementioned both the Villages Khumbal and Lehri, which were submitted to the Trial Court. These reports, according to the learned counsel, though form part of the record, were neither taken into consideration nor they find any mention in the impugned judgment as such the suit was not maintainable. The learned counsel argued that the entries made in the Revenue Record during the recent settlement were false and fictitious and the defendant--/respondent had raised a specific objection in this regard in his written statement but the said point was not attended to by the Trial Court as well as the High Court.
5. Controverting the arguments raised by the learned counsel for the appellant, Ch. Muhammad Azam Khan, the learned counsel for the respondent, submitted that the Trial Court as well as the High Court committed no illegality and the decree in favour of plaintiff-respondent was passed after due appreciation of facts and law involved therein. The learned counsel further maintained that the suit of the plaintiff-respondent was filed within a week from the date of his dispossession which was sufficiently explained in the pleadings as well as in the evidence for which no rebuttal was made by the defendant/--appellant. The learned counsel strenuously argued that the assertion of the appellant claiming the suit land as Survey No.24 of Village Khumbal is without any substance as evidence produced by the plaintiff-respondent and also the evidence brought on record by the defendant-appellant prove the fact that the suit land was comprised of Survey No.1 of Village Lehri, Tehsil Mirpur. With regard to reports of Patwaries the learned counsel elaborated that there was nothing in reports submitted by the Patwaries which may go against the claim of the respondent. According to the learned counsel on the other hand these reports of Patwaries on critical examination advance the case of plaintiff-respondent.
6. We have heard the learned counsel for the parties and given our due consideration to the arguments advanced at the Bar and made the careful perusal of the record as well. In the first instance it may be pointed out that the Trial Court as well as the High Court unnecessarily went on to determine the question of title which was not at all a relevant factor while deciding a suit filed under section 9 of the Specific Relief Act. The learned Sub-Judge as well as the High Court were in a total misconception about what they were required to proceed in a suit tiled under section 9 of the Specific Relief Act. What they were required to do was to attend to the question whether the plaintiff had been dispossessed from the suit land within six months prior to the filing of the suit and if the A finding was in the affirmative they were bound under law to put the plaintiff back in possession not withstanding any title that may be set up in such a suit. Our aforesaid view is supported by a reported case of this Court title Mst. Jhali (widow) and 6 others v. Lal Khan and another 1992 CLC 2320. The objection thus, raised by Raja Muhammad .Siddique to the above extent that the Trial Court and the High Court should have proceeded to decide the question of possession and the institution of suit within a period of six months from the date of dispossession as is the requirement of section 9 of Specific Relief Act, appears to be correct.
7. However, it may be pointed out that when the issues were framed in the case the learned Sub- Judge clearly conformed to the requirement of the suit, under section 9 mentioned above. Out of six issues framed none related to title. Both the important issues with regard to the suit of the plaintiff being within time and whether the defendant recently occupied the land and raised construction of 3 rooms and a wall on the land possession by the plaintiff were framed. In the light of these issues the parties led their evidence. A perusal of evidence led by the parties also clearly shows that the parties led evidence only to the related issues framed and conformed to the requirements of section 9 of the Specific Relief Act. So, not withstanding the findings of title recorded by the Trial Court as well as the High Court we confine ourselves to decide the question as to whether the plaintiff was in possession of the suit land six months prior to the institution of the suit and whether the suit was filed within a period of six months and the same is within time. The findings, thus, recorded by the Trial Court as well as the High Court on the question of title shall stand deleted and be deemed as non-existent wherever they appear in the judgment of the Trial Court and the High Court. Any party aggrieved by the question of title may go to the civil Court for the redress of his grievance.
8. To resolve the aforesaid proposition we have to critically examine the evidence led by the parties in this regard. Muhammad Nasir Bashir while appearing as his own witness deposed in the Court that he had filed a suit for possession of the land measuring 2 Kanals and 2 Marlas, comprising old Survey No.188 (new Survey No.1) of Village Lehri, which was owned and possessed by his father Muhammad Bashir. His father transferred this land by executing a gift-deed in his favour on 7-2- 1992. On the basis of said gift-deed Mutation No.65 of the same was attested in his favour. After executing the gift-deed his father and Patwari on the spot handed over the possession of the gifted land to the plaintiff. Thereafter, in the month of Ramzan 1993, probably it was March, when he went on spot and saw that a construction was going on in his owned and possessed land upon which he enquired as to who was raising the construction when a person standing on the spot told him that he was raising the construction and on enquiring he told his name as Sakhi Muhammad.
He forbade the man from raising the construction but despite his forbidding the man went on raising the construction. This witness further stated that when the possession of the suit land had been delivered to him by his father, his father had fixed the stones in the land. The statement of this witness was not seriously questioned in the cross-examination by the learned counsel for the appellant. As this witness was not suggested in the cross-examination that the land wherein the construction was being raised by the appellant was not in fact Khasra No. l of Village Lehri and that his father had never delivered the possession of the gifted land to him nor it was suggested to the witness that 'he ever went to the spot in March, 1993 and saw the construction raised by the appellant. In this view of the matter when the points relating to an issue are deposed in the evidence and the opposite party does not cross-examine that witness on those points, by now it e is a settled law, that such portions of the statement of the witness shall be deemed to have been admitted by the opposite side. The plaintiff also produced a copy of Misl-e-Haqiat 1991-92, wherein old Khasra No. 188, (new Khasra No. l) measuring 2 Kanals, 2 Marlas, of the kind of "Plot ghair mumkin", situate in Village Lehri, Tehsil Mirpur, is shown in the exclusive possession of Muhammad Bashir, the father of respondent. The gift-deed was executed in favour of respondent on 7th of September, 1992, whereas the mutation was sanctioned on 3rd of October, 1992, which forms part of the record as Exh.P.B. According to the Revenue Record Exhs.P.A., P.A./1 and P.B. It stands proved that the suit land comprises of Survey No. l of Village Lehri and not Survey No.24 of Village Khumbal, Tehsil Mirpur. The aforesaid fact stands further clarified from the documents Exhs.D.F. And D.G., the certified copies of Mussavies of both the Villages Khumbal and Lehri, wherein both the survey numbers are shown to appear in different directions in their respective villages. The curve shown in both the Mussavies further clarifies the position and shows a lot of distance between both the survey numbers. It is not the case of the defendant-appellant that he was in possession of Survey No.1 of Village Lehri. In our view there is nothing on the record which may contradict the plaintiff's point of view. The evidence brought on record by the defendant does not relate to the suit land rather it relates to Khasra No.24 of Village Khumbal, therefore, it can safely be held that after the execution of gift-deed the plaintiff was handed over the possession of the suit land and subsequently the illegal construction was raised by the defendant-appellant in the month of March, 1993. The suit was filed by the plaintiff on 30-3-1993, and it was averred in the plaint that a week prior to the institution of the suit the defendant had illegally raised construction in the suit land so he filed the suit after a week. Ch. Muhammad Azam Khan, the learned counsel for the respondent, contended that the mutation was attested in favour of plaintiff-respondent on 3-10- 1992, and even if we take the limitation from the said date the suit is well within period of limitation of six months. '
9. In rebuttal Sakhi Muhammad, defendant-appellant, got his statement recorded in the Trial Court wherein he deposed that the land which was in his possession is situated at Village Khumbal and not at Village Lehri. The witness further deposed that he was in possession of the said land since the time of his forefathers. The witness further deposed that in 1982 he had gifted the said land in favour of his son Arshad Mahmood who built -a few rooms and a shed on the land and mortgaged it to the Industrial Development Bank of Pakistan. In the cross-examination the defendant categorically deposed that he had no concern with the land pertaining to old Khasra No. 188 (new Khasra No. l) of Village Lehri. It was also stated by the witness that Khasra No. l is neither in his ownership nor in the possession of his son Arshad Mahmood. The learned counsel for the plaintiff- respondent in the cross-examination clearly put a suggestion to the defendant as to whether it is correct that he was in possession of Khasra No. l of Village Lehri to which the witness denied and deposed that he was in possession of Khasra No. 1631 of Village Khumbal. He further denied the suggestion that he had raised construction of some rooms and a wall in Khasra No. l of Village Lehri. The above portion of the statement of the witness has been lime lighted just to point out that plaintiff-respondent duly put his case to the witness and made him aware of the case of the plaintiff but the defendant categorically denied it. So, after perusing the statements of both the plaintiff and the respondent we have reached the positive conclusion that the defendant could not effectively rebut the assertion of the plaintiff that he was handed over the --possession of Khasra No. l of Village Lehri after the execution of gift in his favour by his father Muhammad Bashir and soon after the possession of the said Khasra number was illegally taken away by the defendant and in this way the plaintiff was dispossessed from Khasra No. l of Village Lehri, as such the suit filed by the plaintiff for dispossession of the defendant from the suit land being within a period of six months from the date of dispossession could not be said to be beyond the period of limitation.
10. So far as the reports of both the Patwaries of Villages Lehri and Khumbal are concerned, we have also examined these reports carefully. In our view there is nothing in these reports which may support the contention of the learned counsel for defendant-appellant. Moreover, these reports were submitted on 22-10-1995 and 24-11-1996, which do not relate to the period when the possession of the suit land was delivered by the father of respondent to the respondent and subsequently was forcibly taken over by the appellant. However, it may be clarified that the report submitted by Patwari of Village Lehri on 24-11-1996, shows that the possession of Khasra No. l of Village Lehri, on the land measuring 2 Kanals, 2 Marlas, is shown in favour of Arshad Mahmood, son of Sakhi Muhammad, the appellant, whereas the case of appellant, as said earlier, is not that he was in possession of land comprising Survey No.1 of village Lehri but his claim tests on the fact that his possession was on Khasra No.24 of Village Khumbal. This report in our view does not advance the case of appellant rather goes in favour of respondent.
11. It was also contended by the learned counsel for the defendant-appellant that the plaintiff in other to prove his case should have produced the best available evidence as his claim is that possession of the suit land was handed over to him after the execution of the gift-deed on the spot in presence of Muhammad Bashir, his father, and Patwari of Village Lehri. According to the learned counsel the plaintiff having not produced Muhammad Bashir, his father, and the Patwari of Village Lehri as his witnesses, failed to prove his case. In so far as the principle of law is concerned there is no cavil with the above stated proposition but the fact remains that the plaintiff himself stated as a witness in the Trial Court that possession of the suit land after the execution of the gift---deed was handed over to him on the spot in presence of his father and Patwari of Village Lehri. This assertion made by the plaintiff went unchallenged as the defendant did not choose to cross-examine him on the said point. In this view of the matter his statement shall be deemed to have been admitted by the defendant---appellant.
12. Another objection raised by the learned counsel for the defendant--/appellant is that entries of recent settlement shown in Misl-e-Haqiat for the year 1991-92, wherein old Khasra No. 188 (new Khasra No. l) of Village Lehri, land measuring 2 Kanals and 2 Marlas showing the father of respondent in exclusive possession were false and fictitious. An objection to the above effect has been taken in the written statement by the defendant but when the defendant appeared as his own witness, he did not utter even a single word with regard to the entries of the new settlement record as being false and fictitious. Thus, there being not an iota of evidence on the record regarding the above allegation, we cannot ignore the entries made in the Misle-Haqiat for the year 1991-92 made in favour of father of the respondent, being in exclusive possession of old Khasra No. 188 (new Khasra No. l) of Village Lehri.
13. For the aforesaid reasons, finding no force in the appeal, it is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.