' This judgment will dispose of C.R. No,170 of 1993 as well as these two cases raise common questions of law and fact and arise out of two suits between the parties. One filed by Sardar Ali petitioner for possession of the disputed property while the other was filed by Muhammad Akram etc. Respondents (hereinafter called the rival plaintiffs).
2. The facts of the case are that Property No,21/50, which is a shop was jointly transferred by the Settlement Department in favour of the petitioner and Muhammad Din, his real brother, who sold his share to the petitioner through sale-deed registered on 29-6-1976. Noor Din was transferee of property No,21-49-51-52. On 17-1-1984, through registered conveyance deeds (Exhs.D.16 to D.20) the respondents and Muhammad Islam purchased the said property from Noor Din aforesaid. The case of the petitioner in his suit for possession was that the respondents had illegally occupied the room over the shop transferred to him after purchasing property of Noor Din. In the suit filed by the respondents they had claimed that they were the vendees from Haji Noor Din of Property No,21/49- 51-52 while the petitioner was transferee of Shop No,21/50. On the southern side of the shop of the petitioner there was a staircase and a wall which was owned by the rival plaintiffs. They had prayed that the petitioner be restrained from demolishing the said wall and to include the space under the staircase in his shop and be further restrained from interference in the use of the said space by the rival plaintiffs.
3. The petitioner contested the suit of the rival plaintiffs, while in the suit filed by them. Haji Noor Din and Muhammad Islam (co-purchaser with the plaintiff) who were also arrayed as defendants confessed judgment. Necessary issues were framed and the suits were tried. On the basis of statement of P.W.1 Noor Din, the predecessor-in-interest of the rival plaintiffs and Ikhlaq Ahmed P.W.2 (who appeared as witnesses of the rival plaintiffs) to the effect that the stairs opened in the shop of the petitioner and if the shop was closed, the stairs could not be used and admission of Noor Din that the stairs case was not allotted to him, the suit filed by the petitioner was decreed on 2-2-1991, while the suit filed by the rival plaintiff was dismissed on the ground that the suit was not maintainable in the form it was filed for the reasons that the rival plaintiff ought to have claimed a declaration regarding the stairs. It was also held that the stairs and the disputed wall were not owned by the rival plaintiffs.
4. Against the aforesaid judgments and decrees two appeals were filed by the rival plaintiffs. The learned first Appellate Court declared that the disputed room over the shop of the petitioner was owned by the rival plaintiffs. Accordingly, both the appeals filed by Muhammad Akram etc. Were allowed vide separate judgments and decrees, dated 26-11-1992. The suit of the petitioner was dismissed while the suit of the rival plaintiffs was remanded with the direction that they should be allowed to amend the plaintiff as the learned First Appellate Court found that admittedly the appellants were not in possession of the stairs.
5 Civil Revision No,117 of 1993 arises out of the suit of the rival plaintiffs while C.R. No,170 of 1993 arises out of the suit of the petitioner.
6. The learned counsel for the petitioner has contended that Property No,21/50 was transferred as a shop and unless the transfer documents so clearly specified it will be deemed to have been transferred from bottom to the sky. Therefore, the rival plaintiffs could not have been declared as owners of the room over petitioner's shop. He vehemently contended that there was no evidence that the room over the shop was owned by the rival plaintiffs. His further contention was that the evidence of P.W.1 and P.W.2, which was relied upon by the learned Trial Court, was altogether ignored by the learned First Appellate Court.
7. On the other hand, the learned counsel for the rival plaintiffs has submitted that the matter stands concluded by a finding, of fact and no interference is called for in exercise of revisional jurisdiction. He next contended that the rival plaintiffs had purchased the property, vide registered sale-deed (Exhs.D.16 to D.20) which includes the disputed stairs and unless sale-deeds were challenged, the petitioner was not entitled to claim possession of the room over the shop. He next contended that the sale in favour of the rival plaintiffs was challenged by the petitioner in five separate pre-emption suits (plaints of which had been placed on record Exhs.D.1 to D.5). The petitioner had preempted the sales which included two 'Chobaras' and the staircase in Property No,21/49-51-52. In the said suits the petitioner had claimed his superior right, inter alia, on the ground that one room was situated on the roof of the shop of the petitioner. This, according to the learned counsel for the respondents, was a clear admission by the petitioner that the 'Chobara' over the shop of the petitioner and the stairs were part of the property transferred to Noor Din. He further contended that the pre-emption suits were dismissed on 1-2-1987 (Exhs.D.6 to D.10) and it was only thereafter that the present suit for possession was filed. He also relied on the statement of D.W.3, the Deputy Settlement Commissioner, to contend that the petitioner was the transferee of the shop only. He next contended that Noor Din, the predecessor-in-interest of the rival plaintiffs was issued PTD in his favour in 1964 and remained in possession of the disputed property till 1984 when he alienated it to the rival plaintiffs but the petitioner had never questioned his possession over the room on the roof of the shop. He next contended that since the dispute as to title was raised, the petitioner could not maintain suit for possession unless he had claimed a declaration.
He also contended that in the suit filed by the rival plaintiffs for injunction, the petitioner had not even mentioned that he was transferee of the 'Chobara'.
8. I have considered the submissions made by the learned counsel for the parties. PTDs in respect of property transferred to the parties were placed on record as Exh.P.1 and P.2. Both these documents show that a shop each was transferred to the parties. In none of these transfer documents 'Chobaras' are mentioned'. P.W.1 and P.W.2, the two witnesses produced by the rival plaintiffs, categorically admitted that the stairs opened in the shop of the petitioner and if the shop was closed the stairs could not be used. From' their statements it is clear that these stairs were meant as an approach to the room over the shop of the petitioner. Therefore, I am of the view that the shop and one room transferred to the petitioner was one independent unit, while the shop and 'Chobara' transferred to Noor Din was another independent unit. Reference may be made to Nazir and others v. Syed Israr Ahmad and others (1981 SCM R 829) according to which unless the transfer documents so clearly specified the transfer of a property will include its transfer from the bottom to the sky. The learned counsel for the petitioner is quite right in contending that it was in fact a case of no evidence that the 'Chobara' over the roof of the shop of petitioner was owned by Noor Din. I have also taken notice of the statement of the P.W.4, Muhammad Akram respondent, recorded in the suit, of rival plaintiffs that the petitioner had dismantled the stairs and had taken possession of the space underneath. His statement shows that the stairs in fact, do not exist. With this statement it is clear that Muhammad Akram etc. Must have a different approach to their property.
Muhammad Akram admitted that on the back side of the building there was a 'Deorhi' and in the 'Deorhi' was a staircase. Property No,21/49- 51-52 is one shop and has been transferred as a shop and therefore, the room over his shop will be deemed to have been transferred to Noor Din. Thus, the claim of the rival plaintiffs that Noor Din was transferee of a shop with two 'Chobaras' is not established particularly in view of the evidence of P.W.1 and P.W.2.
9. The contention of the learned counsel for the rival plaintiffs that matter stands concluded by a finding of fact although at variance, and therefore, should not be interfered with has not impressed me. The evidence produced on the record has been misread by the learned First Appellate Court to reach the conclusion that the room over the shop of the petitioner was owned by the rival plaintiffs.
Reliance of the learned counsel for the rival plaintiffs on Exhs.D.16 to D.20, the sale-deeds in favour of the respondents, which include a staircase is also wholly inapt. Firstly, because the petitioner was not a party to these sale-deeds and secondly, P.W.4 has admitted that the stairs had been dismantled by the petitioner and the space underneath included in his shop. In these circumstances, Muhammad Akram etc., must be using the other staircase (referred to by P.W.4 in his statement) to approach the upper storey of their shop. Therefore, reference to the staircase in these sale-deeds does not necessarily mean the stairs which open in the shop of the petitioner.
9-A. As far the pre-emption suits are concerned, a perusal of the plaint shows that the one of the grounds urged to claim preemption was that, one room on the upper storey was situated on the roof of the property of the petitioner. This was pressed as an admission of title of the respondents to the disputed room. The petitioner appeared as P.W.6 who admitted having filed the suits but denied that the suit was also for the disputed room. The averment in the plaint was sought to be used as an admission, it was denied by the petitioner and, therefore, the respondents were under an obligation to have proved it. I may also observe that an admission in any previous proceedings may be relevant but it could not be taken as conclusive proof. An admission has to be viewed in the context of overall facts and circumstances of the case and the evidence produced on the record by the parties. It may also be observed that an admission which is made in ignorance of one's right or made on account of a mistake of fact can be shown to be wrong. However, this principle is not attracted because the so-called admission has not properly been proved. The learned First Appellate Court relied on the judgments and the decrees rendered in the pre-emption suits. The decree-sheet only reflected the suit property as indicated in the plaint. It could not be pressed as an admission by the petitioner of the title of Noor Din to the room in dispute unless it was properly proved as observed above.
10. As far as the statement of P.W.3 is concerned, he was the Deputy Settlement Commissioner who issued the PTD. According to him the property transferred to the petitioner was a shop. As observed above, the property transferred to the rival plaintiffs was also described as a shop. Therefore, if P.W.3 did not refer to a 'Chobara' on the shop of the petitioner; it could not be said that the said 'Chobara' was not part of the shop transferred to the petitioner or that it was transferred to the respondents. The next contention of the learned counsel for the rival plaintiff was that Noor Din has been in possession of this room since 1964 when PTD was issued in his favour and the petitioner had not challenged his possession. He perhaps wanted to apply the principle of estoppel. I am afraid, the petitioner could not be non-suited on his ground alone when his case was that after the purchase of the property from Noor Din, the rival plaintiff had illegally occupied the room over the shop of the petitioner. The form of the suit objected to by the learned counsel for the respondents has no merit either because the suit for possession was based on title.
11. The next contention, of the learned counsel for the respondents that in the suit filed by the respondents the petitioner had not claimed title to the 'Chobara' and, therefore, the suit filed by him was false, and frivolous has not either impressed me because the rival plaintiffs had filed suit only about the stair and the wall and the 'Chobara' was not in dispute in the said case.
12. The learned First Appellate Court evolved its own hypothesis to declare that Noor Din was the transferee of the room over the shop of the petitioner by saying that 49 was the shop while 51 and 52 were two rooms over the said shop which were transferred to Hafiz Noor Din. This is how, the property bearing No,21/49-51-52 was described by the learned First Appellate Court. This was not at all borne out from the evidence on the record. As against that, the PTD in favour of Noor Din showed that Property No,21/49-51-52 was a shop. Another consideration that weighed with the learned First Appellate Court was that the petitioner had purchased 1/2 share in the shop from his brother, who was a co-transferee, but this document did not mention the 'Chobara'. This sale-deed was based on the PTD which only showed transfer of the shop. Since I have already found that this was an independent unit with a room over in the omission to mention the room over the shop in the said sale-deed did not affect the title of the petitioner to the unit transferred in his favour.
13. For what has been stated above, both the revision petitions are allowed. The suit filed by the petitioner is decreed while the suit filed by the respondents is dismissed. The parties are directed to bear their own costs.