SAVED NAJAM-UL-HASSAN KAZMI, J. -- This judgment will dispose of Civil Revision No. 1398-D of 1997 and Civil Revision No. 006-98 as the same arise out of common judgment.
2. Abdul Wahid respondent No. 1, filed a suit for declaration with permanent injunction, against Mst.
Aisha and Faisalabad Development authority, respondents Nos. 2 and 3 in Civil Revision No. 1398-D of 997. Declaration was claimed to the effect that respondent No. 1 was allottee/owner in possession of Quarter No. 241-N Allam Iqbal Colony, Faisalabad and that Faisalabad Development Authority (FDA) was bound to ansfer formal ownership rights in his favour and also that Mst. Aisha ihi, respondent No. 2, had relinquished her rights iii the superstructure in Property No. 15/189 Kachi Abadi, Factory Area in favour of respondent o. 1 (Abdul Wahid). It was claimed that through an agreement, Mst. Aisha Bihi, had transferred for possessory rights in House No. 15/189 kachi Ahadi, Factory Area, Faisalabad in favour of Abdul Wahid Respondent No. 1, and in lieu of those rights, Quarter No. 241/N Allama Faisalabad was allotted and also that respondent No. 1 was entitled to the conferment of formal proprietary rights in the said quarter. The suit was resisted by Faisalabad Development Authority on the ground that in the record of Faisalabad Development Authority, neither respondent No. 1 nor respondent No. 2 figured anywhere and that the quarter question was auctioned on 20.10.1987 in favour of Mst. Mussarat Bibi petitioner herein, who had deposited 1/4th of the auction price and w entitled to the conferment of proprietary rights. On an application unde Order I Rule 10 of CPC moved by Mussarat Bibi, petitioner, she w impleaded as defendant in the suit on 25.4.1990. Later respondent No. 1 applied for amendment in plaint, for converting the suit for declaration int one for specific performance of an agreement, dated 12.12.1976 wi respondent No. 2,, Mst. Aisha Bibi. This application was allowed, suit wa converted into one for specific performance, tried on merits and ultimately dismissed by the learned Civil Judge, Faisalabad vide judgment, dat 14.9.1995.
3. Feeling aggrieved, respondent No. I (Abdul Wahid) went appeal which was allowed by the learned Additional District Judge Faisalabad by his judgment, dated 5.7.1997.
4. In both these revisions, the judgment of the Appellate Court ha been called in question. One revision has been filed by Mst. Mussarat Bibi (Civil Revision No. 1398-D of 1997) while the other has been filed by Faisalabad Development Authority (Civil Revision No. 1006-D of 1998).
5. Civil Revision No. 1398-D of 1997 is within time while an office objection as to the limitation has been raised in Civil Revision No. 1006-D of 1998. An application u/S. 5 of Limitation Act for condonation of delay has been moved on the ground, that the certified copies of the judgments were supplied later, as the same were not supplied in time by the Copying Agency and that in any case, the matter has to be decided on merits as the other revision against the same judgment is pending in this Court. In the first instance, the revision does not appear to be suffering from any bar of limitation as the same was filed on 10.10.1997 while the impugned judgment was passed on 5.7.1997. It appears that the certified copy of the judgment of the Appellate Court was applied on 8.7.1997 which was supplied on 1.9.1997 and on supplying of certified copies, the same were filed to complete the revision, so as to remove the office objection. In this way, the revision petition does not appear to be barred by limitation. Be that as it may, the propriety demand that the case should be decided on merit, as the other civil revision against the same judgment, is within limitation and has to be decided on merits. This being so, the two revisions are being heard and decided on merits.
6. Learned counsel for the petitioner argued that respondent No. 1 claimed to have acquired possessory rights from Mst. Aisha Bibi respondent No. 2 vide agreement, dated 12.12.1976 but no such agreement was placed on record. It was further contended that respondent No. 1 relied on Exh.P-9 and Exh.P-10 to allege that F.D.A. Had recognized the possessory rights and agreed to make allotment but these documents were never proved by producing the author of the documents and by production of relevant record. It was added that the Assistant Director of F.D.A. Did appear in the witness-box but was never confronted with these documents and the documents being not admissible per se, no reliance could be placed thereupon. Learned counsel submitted that the suit was barred by time as the alleged agreement with respondent No. 2 was claimed to be dated 12.12.1976 while the suit was filed on 18.10.1987 i.e. After 11 years.. It was vehemently stressed that three years period of limitation was prescribed in law but the learned Appellate Court completely misapplied the law and misread the record while reversing the judgment of the Trial Court.
7. Learned counsel for respondent No. 1, argued that the agreement with Mst. Aisha Bibi could not he produced in evidence inadvertently and that the respondents should be allowence an opportunity to prove Exh.P-9 and Exh.P-10, since the matter relates to the proprietary interest. It was added that Saeed Ahmad Assistant Director was author of the Ex.P-9 while the Ex.P/10 was issued by different Officers and that the respondent, if allowed to produce the record will be able to prove these documents.
8. Learned counsel for F.D.A. Adopted the arguments of learned counsel for the petitioner and maintained that the record of F.D.A. Did not show the existence of any interest in favour of, either Mst. Aisha Bibi or Abdul Wahid. Learned counsel submitted that the property was validly auctioned and, therefore, the petitioner was entitled to the conferment of proprietary rights.
9. I have given my anxious consideration to the submissions made.
10. From the judgment of the Appellate Court it is discernible, that the learned Additional District Judge was mainly influenced by the documents Exh.P-9 and Exh.P-10 from which it was assumed that the possessory rights vested in respondent No. 2, qua the house in Kachi Abadi and that respondent No. 2 had assigned her interest in favour of respondent No. 1 who was allegedly recognized by F.D.A. Deeper study of the evidence indicates that these two documents were never proved. The case of respondent No. 1 was that the possessory rights of the house in Kachi Abadi as per survey, vested in respondent No. 2, who allegedly surrendered her interest in favour of respondent No. 1, for the purpose of getting alternative allotment, in lieu of the house in Kachi Abadi.
For this purpose, it was necessary for respondent No. 1 to prove, firstly, that the possessory rights existed in favour of respondent No. 2, her name was entered in the survey, she could transfer that the possessory rights in law, there was a valid agreement for the transfer of possessory interest qua house in Kachi Abadi, the F.D.A. Recognized the alleged transfer of proprietary rights, the allotment and allocation of the disputed quarter was made in favour of respondent No. 1, in lieu of the alleged possessory rights of the house in Kachi Abadi and that a valid order of allotment was passed by some competent Officers of the F.D.A. The perusal of Exh.P-9 and Exh.P-10 would show that these documents were never proved. These documents were not admissible per se and had to be proved by resorting to the normal course. The author of these documents was never produced, original record was never requisitioned and yet the learned Additional District Judge, in his own wisdom, accepted the two documents to assume transfer of possessory rights and allocation of alternative Court in favour of respondent No. 1. It is alleged that one document was signed by Saeed Ahmad, Assistant Director of F.D.A. While the other was signed by another official, whose name learned counsel for respondent No. 1 was unable to disclose as he submitted that it was not legible. None of these two persons were ever summoned nor the documents were proved from the original record. So much so, Assistant Director of F.D.A. Appeared as DW-1 and deposed that respondent No. 1 or respondent No. 2 did not figure in their record. Even these documents were not confronted to DW-1. Similar survey record showing the name of respondent No. 2 as occupant of house in Kachi Abadi was not produced. The alleged agreement of respondent No. 2 with respondent No. 1 dated 12.12.1976 was also not tendered in evidence. In this way, the material evidence was withheld while the two documents which were basis of the suit was never proved.
The plea that respondent No. 2 did not deny the agreement was imaterial as any alleged admission by one of the: defendants would not be binding on the codefendants. If the document or its effect has been denied by the defendant who is legally concerned with it, then any alleged admission by the codefendant, for any extraneous purpose, would neither be relevant nor operative against the other co-defendants particularly when they wer independently claiming their title in the property. The learned Additional District Judge, erroneously assumed that the alleged admission of defendant No. 2 would exonerate respondent No. 1 from proving the document by any independent evidence. In this scenario, it is evident that the findings recorded by the learned Additional District Judge are patently against law, suffer from perversity of reasoning, based on extraneous consideration and inadmissible evidence and, therefore, the same cannot sustain. Even otherwise, learned counsel for respondent No. 1 could not support the impugned judgment and requested for opportunity to produce the two officials of F.D.A. And 'also the relevant record, in an attempt to prove the plea raised in the plaint. Learned counsel for the petitioner has not seriously opposed this request.
11. It has been observed that even findings on the question of limitation, recorded by the learned Additional District Judge, appears to have been returned being oblivious of the true import of Article 113 of the Limitation Act, -
12. In view of the facts noted supra, I am of the view, that on the existing evidence, respondent No, I could not succeed. Since the petitioner has not opposed the request of learned counsel for respondent No. 1 about an opportunity of producing primary evidence, therefore, the case will have to be remanded. Even otherwise, the production of the two officials of F.D.A. And also the original record, will he necessary to enable the Court to determine the controversy, effectively. Law favours, adjudication on merits. To do complete justice- between the parties, it will be appropriate that respondent No. I be allowed to summon and produce two officials of F.D.A. Alongwith the original record with a right to the petitioners to lead evidence in rebuttal.
13. Resultantly these two revisions are allowed, the judgment, dated 5.7.1997 of the learned Additional District Judge, Faisalabad is set In consequence, the appeal filed by respondent No, 1 will be deemed to he pending . The learned Additional District Judge will allow respondent No. 1 to produce additional evidence of two officials of F.D.A. Respondent No. 1 will be entitled to summon these two officials alongwith the original record. Mst. Mussarat Bibi and F.D.A., petitioner herein while be entitled to cross-examine these witnesses and will also be at liberty to produce evidence in rebuttal if so desired. Pendency of the appeal will not debar the F.D.A. From confirming auction in favour of petitioner. After completing evidence, the appeal will be decided in accordance with law and on merits, within three months with intimation to the Registrar of this Court.