SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree passed by the High Court on 2-2-2000, whereby the appeal filed by the respondents, herein, was accepted.
2. The necessary facts giving rise to the present appeal are that the predecessor-in-interest of the respondents filed a suit for possession of the house situated in Survey No,3115, Village Goi, Tehsil and District Kotli. The claim of the plaintiffs-respondents was that a single room (Katcha Dhara), siutuated in Village Goi, Teshil and District Kotli, belonged to one Pahri, who was succeeded by two daughters and a nephew, namely Mirbaz. On 10-7-1977, through a written agreement, the said Mirbaz sold the said 'Dhara' to the appellant, herein. On 17-2-1985, the said Mirbaz executed an affidavit that he had not executed any document in favour of appellant and the house in question in fact belonged to one Rajoo the predecessor-in-interest of real respondents. On 25-2-1985, just a week after the execution of the affidavit, the said Rajoo filed a suit for possession of the house on the basis of ownership against the appellant and pro-forma-respondents. The defendants filed their written statements. The trial Court accepted the plea of ownership of the plaintiff and decreed his suit on the payment of costs of improvements to the tune of Rs,2,00,000. The plaintiff-decree- holder filed an appeal before the District Judge and the appellant, herein, also filed cross- objections. On 17-6-1997, the District Judge set aside the judgment and decree and remanded the case to the trial Court for ascertaining the costs of improvements made in house. The respondents filed an appeal to the High Court against the remand order which was accepted and the order of the payment of compensation was set aside.
3. Raja Muhammad Siddique Khan, Advocate, the learned counsel for the appellant, has argued that cross-objections were filed by the appellant, herein, before the District Judge but the same were not decided while disposing of the appeal filed by the respondents. He has contended that as the District Judge remanded the case for ascertaining the improvements which were made in form of constructing the additional rooms in the house in dispute, it would be deemed that the cross- objections filed were dismissed. The learned counsel has contended that the District Judge has committed an error in ignoring the cross-objections because if the house in dispute came in the possession of the appellant, herein, on the basis of document, Exh.PA, which was executed in his favour by Mirbaz, the possession of the appellant would be deemed adverse to the respondents on the basis of an illegal transfer. He has further submitted that it was amply proved on the record that the costs of the additional rooms which were constructed by the appellant was not less than rupees two lacs. According to the learned counsel, Ali Haider, one of the witnesses or the appellant, has stated that the costs of newly-constructed rooms was not less than rupees two lacs but he was not cross-examined by the respondents. Thus, according to the learned counsel, it would be deemed that the plaintiffs-respondents have accepted the costs of newly-constructed rooms to be rupees two lacs.
4. In reply, Ch. Muhammad Sharif Tariq, Advocate, the learned counsel for the respondents, has contended that it has not been specifically pleaded in the written statement by the appellant that he had added any additional rooms to the house in dispute. The learned counsel has argued that even otherwise, as has been held by the Courts below, Mirbaz had no title to the house in dispute and thus, he was not competent to transfer the house to Tassawar Hussain Shah, appellant, which belonged to Rajoo, plaintiff. He has submitted that the Courts below have rightly held that even otherwise the aforesaid document whereby the title in the house is purported to have been transferred by Mirbaz in favour of Tassawar Hussain Shah was denied through an affidavit sworn by Mirbaz on 17-2-1985. The learned counsel has submitted that all the Courts below have come to the conclusion that Mirbaz who was given possession of the house temporarily had no title to the house, and thus, it cannot be said that he was competent to transfer the house in favour of Tassawar Hussain Shah. He has submitted that an illegal transfer of title would have given rise to the adverse possession only if Mirbaz would have any title to the house which is not the case. In alternative, he has submitted that if a party makes improvements over the land belonging to some other person, such improvements cannot be deemed to have been made in good faith. He has referred to section 51 of the Transfer of Property Act and has contended that the costs of improvements, even if proved, cannot be awarded if the same are not shown to, have been made in good faith. He has cited cases reported as Mst. Yasim Akhtar v. Mukhtar Hussain alias Abbas Hussain 1989 CLC 2066 and Allah Ditta v. Muhammad Ziaul Haq 1985 CLC 2020 in support of his contention that if a construction made over an immovable property is not bona fide, its costs cannot be awarded in case of ejectment of the person who made the same.
5. We have given due consideration to the arguments raised at the bar. So far as the finding that Tassawar Hussain Shah, appellant herein, has no valid title to the house in question, that has attained finality because the case was remanded by the District Judge on appeal filed by the respondents for ascertaining the costs of the improvements allegedly made in form of the addition of the rooms to the house in dispute; the cross-objections filed would be deemed to have been dismissed by the District Judge as has also been contended by the learned counsel for the appellant. However, the appellant, herein, did not challenge the .Remand order made by the District Judge before the High Court, it were the respondents who challenged the order of remand contending that no costs of improvements were proved and, thus, the District Judge was not justified to remand the case to the trial Court to fill in the lacuna in the case. In other words, the dispute regarding the title 'of the plaintiffs-respondents decided by the trial Court and the District Judge was not challenged before the High Court by the appellant. Thus, the appellant cannot dispute the title of the respondents to the house in the present appeal. He can only show that the High Court was not justified to hold that the appellant has failed to prove that he had made any improvements by adding additional rooms to the house in dispute. The contention of the learned counsel for the appellant that as one of the witnesses has stated that the appellant had added additional rooms to the house in question but was not cross-examined, has no legal significance for the simple reason that it has not been specifically pleaded by the appellant in his written statement that any additional rooms were added to the house. Even otherwise, when the appellant had no title to the house in question, it cannot be said that he made any addition or alteration in the house with bona fides. It is well-settled principle of law that costs of improvements can be awarded only if it is shown that the same were made on the land to which the concerned party has title and were made in good faith. In the instant case it cannot be said that the appellant- defendant constructed any additional rooms of the house in good faith for which he is entitled to receive the compensation. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.