' CH. MUHAMMAD ARIF, J.---Through this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 leave is sought against judgment, dated 27-7-1999 passed in Civil Revision No,2047 of 1986 allowing the same with the result that the judgment and decree of the learned Additional District Judge was set aside and that of the Trial Court, dated 29-1-1984 was restored with costs throughout.
2. Briefly stated the facts leading to the instant petition are that Allah Ditta, predecessor-in-interest of Shabbir Ahmad along with one Sultan Ahmad purchased land measuring 2 Kanals, 10 Marlas from Abdul Kamir son of Muhammad Nawaz vide a registered sale-deed, dated 1-4-1949 in equal shares. The eastern half belonged to Allah Ditta while the western half belonged to said Sultan Ahmad and Allah Ditta got a building plan sanctioned from the Municipal Committee, Bhakkar on 24-4-1954 and raised construction on his half portion of the suit plot. On 16-3-1973 the premises were rented out to Amir Haider petitioner who executed a rent note in favour of respondent Shabbir Ahmad now represented by his L.Rs, against payment of Rs,50 per month. On the petitioner committing default in payment of rent he was sued before the Rent Controller, Bhakkar on 17-1-1981.
On 31-5-1981 Peer Khan made a statement before the Rent Controller that he was a tenant under Shabbir Ahmed deceased since four years before the said date but is no longer a tenant as he is not in possession of the disputed premises. It was also stated that Shabbir Ahmad sold the premises to some other person on 6-6-1981. Petitioner Amir Hadier filed an application before the Rent Controller claiming that he is the owner in possession of the suit house and that he should be impleaded as party. This application was allowed by the Rent Controller on 15-7-1981. On 5-8-1982 Peer Khan again got recorded his statement to the effect that he had vacated the suit house whereafter deceased Shabbir Ahmad had sold the same and that he had never been a tenant in the house. The ejectment petition was allowed on 22-5-1982. Petitioner Amir Haider filed an appeal before the learned Additional District Judge, Bhakkar which was dismissed on 9-1-1983. Amir Haider petitioner then filed Writ Petition No,325 of 1983 in the Lahore High Court which was dismissed in limine on 25-1-1983.
3. Petitioner Amir Haider filed the present suit on 13-1-1983 claiming a declaration that he is the owner of the suit house and that the ejectment order, dated 22-5-1982 and also its confirmation on 9-1-1983 are illegal and void. He also claimed permanent injunction restraining deceased Shabbir Ahmad from interfering with his possession on the basis of the said order. The averments in the plaint were that land measuring 1 Kanal, 2 Marlas was purchased by him from Malik Karim and Malik Atta Muhammad vide a registered sale-deed, dated 31-3-1981 and that with the permission of the vender he had constructed the house thereon 6/7 years before the registration of the sale- deed. It was pleaded that deceased Shabbir Ahmad in collusion with Peer Khan had filed the 'ejectment petition with the above result. Deceased Shabbir Ahmad contested the suit by filing a written statement denying the averments made in the plaint. The respective pleas of the parties are duly reflected in the issues struck by the trial Court, which reads as under:-- "(1) Whether the Civil Court has got no jurisdiction to try the present suit? OPD.
(2) Whether the suit is barred by res judicata? OPD.
(3) Whether the suit is bad for non-joinder of necessary parties? OPD.
(4) The suit has been brought in order to hamper the proceeding of execution of an ejectment decree? If so, to what effect? OPD.
(5) Whether the suit has been wrongly in order to purpose of the Court filed? If so, what is the correct valuation? OP Parties.
(6) Whether the suit is not competent under the law? OPD.
(7) {7) Whether the plaintiff is the owner of the disputed house? OPD.
(8) Whether the predecessor of the defendant No,1 purchased the suit property from one Abdul Karim? OPD.
(9) Whether the impugned orders of the ejectment, dated 22-5-1982 and 9-1-1983 passed by the Rent Controller, Bhakkar and the learned Additional District and Sessions Judge, Bhakkar respectively are against law, without authority and void? If so, to what effect? OPP.
(10) Relief."
' After trial, Issues Nos.1, 2, 5 and 6 were answered against Shabbir Ahmad deceased. However, on the remaining issues the findings were recorded in his favour and as a result of the latter findings the suit of Amir Haider was dismissed. This happened on 29-1-1983.
4. Petitioner Amir Haider successfully challenged the judgment and decree of the trial Court, dated 29-1-1984 in Appeal before the District Judge, Bhakkar and a learned Additional District Judge, Bhakkar passed a decree in his favour by setting aside the judgment and decree of the trial Court, dated 29-1-1984, on 14-6-1986.
5. The learned Judge in Chambers allowed Civil Revision No,2047 of 1986, brought by the successors-in-interest of deceased Shabbir Ahmad against the petitioner (and Peer Khan), vide the impugned judgment, dated 27-7-1999 with, among others, the following observation: "4. I have gone through the record of the learned trial Court which was summoned, with the assistance of the learned (counsel) for the parties. The facts narrated about are supported by documents on record. Exh.D.7 is the sale-deed 1-4-1949 containing the recitals mentioned above Exh.D.5 is the approved plan, dated 16-3-1977 executed by Exh.D.2 is the statement of respondent No,2 made by him on 31-5-1981 while Exh.3 is the statement made by him on 8-5-1982. Exh.P.7 is the ejectment order, dated 22-5-1982 Exh.P.2 is the judgment of the Appellate Authority, dated 9-1-1983 Exh.D.4 is the judgment of this Court in W.P. No,325 of 1983, dated 25-1-1983, Exh.P.13 is application, dated 6-6-1981 of respondent No,1 for being impleaded as a party to the ejectment proceedings.
Exh.P.14 is the various events took place have already been detailed above. It was in these circumstances that the learned Appellate Authority vide judgment Exh.P.2 observed as follows:-- "The appellant Amir Haider has fabricated the evidence showing the ownership over the disputed house subsequently to the filing of the application for ejectment against the respondent No,2 Peer Khan. The sale-deed Exh.P.2 in favour of the appellant. This document shows that it was executed on 22-3-1981 and it was registered on 31-3-1981 while the application for ejectment was filed on 17- 1-1981., It clearly shows that this document was prepared with the sole purpose of frustrating the ejectment application filed by respondent No, 1."
' This Court concurred with the said observation of the learned Additional District Judge in judgment Exh.D.4 in the following words:-- "In order to show his title on a sale-deed of 22-3-1981 which was registered on 31-3-1981, the ejectment application was filed on 17-1--1981. The view expressed by the learned Additional District Judge that Amir Haider fabricated evidence showing the ownership over the disputed house subsequent to the filing of the ejectment application is, therefore, borne out from the record." the learned Additional District Judge in his belaboured judgment has gone miles out of way first to create controversy as to the identity of the suit property, and then running, about himself and also sending a Girdawar to look for the same. Had he cared to read the file of the trial Court he would have found the answer to all queries from the same. As stated above, the property is situated within the Municipal limits of Bhakkar. A plan was sanctioned for construction as far back as the year 1957 by Allah Ditta, the father of the petitioner. The construction was raised and since it was an urban area the property was entered in the record prepared for the said rating area by the competent Authority Exh.D.9 is a certified copy of the PTT for the year 1977-78.
' The property is numbered as 43-A as residential house located in Ward No,6 of rating area Bhakkar. It is recorded to be in occupation of this property subject to payment of Rs,50 per month as rent respondent No,1 himself produced Exh.P.8 which is a copy same document for the year 1983-84 for the same rating area in the ward and the same residential House No,43-A is recorded to be owned by respondent No,1 in my opinion these two documents were same sufficient to prove the crude attempt made by respondent No,1 to grab the property of the petitioner and at the same time to save his brother from imminent ejectment. Learned counsel for respondent No,1 was unable to say anything in support of the judgment and the hypothesis contained therein when confronted with the said two documents. It was the petitioner's house which respondent No,1 tried to grab and on the basis of the document which, in the word of the Appellate Authority in Exh.P.2 and this Court is Exh.D.4, he fabricated, he got this inserted against the suit house.
' The learned Additional District Judge also failed to take notice of the identity of the property mentioned in the rent note Exh.D.1 and the once described in sale-deed registered on 31-3-1983 in favor of the respondent No,1 i,e, Exh.P.1. Had he cared to read the two documents he would not have found the necessity to go running about looking for the property? Incidentally it may be noted here that even the inspection note prepared by the learned Additional District Judge on 19-12-1995 which is present on the Court file does not support his observations on the impugned judgment. In the very first para. Of the inspection note it is stated that the Imam Masjid informed him that a street on a side of the suit property was given by the appellant (present respondent No,1) whereas he was informed that in the record the owner is the respondent (the present petitioner) Had the learned Additional District Judge cared to go through the document Exh.D.8 he would have found that the said street was donated for the mosque by the petitioner and his co-heirs. Plan Exh.D.5 fully tallies with the boundaries stated in EXh.D.7. The said document pertains to the years 1951 and 1949. So far as the additional construction is concerned, even if the same there and it be assumed that respondent No,1 raised the same, that does not affect the title of the petitioner or his relationship with respondent No,2. So far as to the learned counsel for the petitioner as to the competency of the suit is concerned I feel that the judgments passed by the Rent Controller as also the learned Additional District Judge and this Court do give an impression that the question of title was left open to be decided in a Civil Court of the execution of the ejectment order passed by a Court of the competent jurisdiction and held by this Court to be with lawful authority for almost two decades and at this stage to dilate upon the subject .Would be only academic."
6. Hence this petition.
7. Malik Abdus Sattar Chughtai, learned Advocate Supreme Court appearing for the petitioner, was at his lowest in contending that the petitioner had established on the record that he is entitled to the suit property and, therefore, his suit was rightly decreed by the 1st Appellate Court.
' According to him, in the earlier round of litigation The High Court while disposing of W.P. No,325 of 1983 had directed his client to get his title resolved by the Civil Courts but when the litigation in the said suit came up for consideration before the High Court in C.R. No,2047 of 1986 the cause has been determined now through the impugned judgment, dated 27-7-1997 by treating the decision of the learned Rent Controller as res judicata. The ownership of the petitioner is based upon a registered document with the result that the onus to rebut the same was upon the other side which they failed to discharge. The petitioner is entitled to obtain leave to appeal against the impugned judgment for the reason that the above law-point was not considered by the learned Judge in Chambers while disposing of the matter as above.
8. Nobody has entered appearance on behalf of the respondents.
9. We have considered the arguments addressed at the Bar and are not inclined to the view that any case for grant of leave to appeal against the judgment, dated 27-7-1999 has been made out It is no doubt true that the judgment of the trial Court and the 1st Appellate Court are at variance with each other. The suit of the petitioner was dismissed by the former forum but decreed in appeal by the latter. A perusal or the impugned judgment, dated 27-7-1999 clearly brings it to the fore that the 1st Appellate Court had not read the file of the trial Court and failed to notice that (i) the disputed property is situated within the Municipal limits of Bhakkar; (ii) a plan for its reconstruction was sanctioned as far back as the year 1957 in favour of Allah Ditta father of deceased-Shabbir Ahmad; (iii) construction was raised in accord with the plan; (iv) the property was entered in the records of the concerned rating i,e, (Exh.D/9 a certified copy of PT1 for the year '1977-78); (v) the property bears No,43-A as a residential house located in Ward No,6 of rating area Bhakkar; (vi)
House No,43 is recorded to be owned by deceased Shabbir Ahmad; and (vii) that Exhs.P.8 and D.9 are sufficient to prove the crude attempt made by petitioner Amir Haider to grab the property of respondent deceased Shabbir Ahmad.
10. Confronted with the above, the learned counsel was unable to dislodge the case as unfolded by the impugned judgment.
11. It is not the case of the petitioner that the learned Judge in Chambers was not possessed of the jurisdiction under section 115, C.P.C. To reverse the decision of the 1st Appellate Court after reaching the conclusion that the, same was the result of misreading of the material evidence and also suffered from non-reading of material evidence on record. That being the position, no ground for grant of leave has been made out. Resultantly, the instant petition fails and is hereby dismissed.