' On 26-10-1993 Mumtaz Khan and 60 others filed suit in the Court of Senior Civil Judge, Nowshera against Muhammad Zubair Khan and 20 others for declaration that a Hujra built on four Kanals of land was owned jointly by the plaintiffs and defendants; the plaintiff owning 23/25 shares therein. A prayer for partition and consequent possession of the said share was also made alongwith a prayer for permanent injunction against defendants Nos.1 to 14 to restrain them from carrying out construction in the Hujra. The parties to the suit are the defendants of one Azad Khan, who passed away more than one hundred years ago and left behind five sons, Dalil Khan, Ibad Khan, Hastam Khan, Akram Khan and Amir Khan. The plaintiffs are the descendants of Ibad Khan, Akram Khan and Hastam Khan. Dalil Khan had five sons, one of whom was Mir Hassan Khan. Three written statements were filed, one by defendants Nos.1 to 6 and 14, the other by defendants Nos.7 to 13 and the third by defendants Nos.15 to 21.
2. The plaintiff's case is that the Hujra in question was owned by Azad Khan, and therefore, inherited by his five sons jointly and resultantly by the plaintiffs and the defendants in joint ownership.
Defendants Nos.7 to 13, who are the legal heirs of Mir Hassan Khan, have pleaded that the Hujra as owned by Dalil Khan, which was gifted by him to his son Mir Hassan Khan through gift deed, dated 20-1-1933, from whom the said defendants inherited. Defendants Nos.1 to 6 and 14 supported defendants Nos.7 to 13 and in their written statement stated that the Hujra was constructed by Dalil Khan and the other sons of Azad Khan had no concern with it. Defendants Nos.15 to 21, however, supported the plaintiffs case.
3. Issues were framed on the pleadings of the parties, evidence recorded and the Civil Judge on 12- 3-1995 dismissed the suit, holding that the plaintiffs had failed to establish through documentary evidence that they were joint owners of the Hujra, whereas on the other hand defendants Nos.7 to 13 had, through the gift deed, dated 20-1-1933 and other documents proved that the Hujra was originally owned by Dalil Khan and subsequently gifted to his son Mir Hassan Khan. The plaintiff's appealed and the District Judge on 4-7-1995 reversed the findings of the trial Court and decreed the suit of the plaintiff in the terms that the Hujra in question being the property of Azad Khan was to be divided between the parties in accordance with their Shari share. Defendants Nos.7 to 13 have now filed the present civil revision calling into question the judgment and decree of the Appellate Court.
4. The learned counsel representing the petitioners submitted that it was the burden of the plaintiff to establish that the Hujra originally belonged to Azad Khan. That this burden was not discharged as no evidence in support of the plaintiff's claim was produced. The learned counsel pointed out that according to the evidence the property left behind by Azad Khan had been partitioned between his five sons and there was no evidence that the Hujra had remained partitioned. The learned counsel then referred to an F.I.R. And a judgment given in the year 1915 by a Magistrate in support of his contention that the Hujra has always been referred to as Hujra of Mir Hassan Khan. It was next contended that the gift deed was more than thirty years old document and coming from proper custody was admissible under Article 100 of the Qanun-e-Shahadat Order, 1984. As regards the statement of one of the defendant witness, Rehan (D.W.2), in which he had conceded that the Hujra originally belonged to Azad Khan, the learned counsel argued that a party is not bound by the statement of its witness. Reliance was placed on the case of Jalal Din and another v. Nawab and others AIR 1941 Lah.
55.
5. On behalf of the contesting respondents/plaintiffs the learned counsel representing them submitted that the gift deed was excluded from consideration by the trial Court and since there was no cross-objection made by the petitioner-defendants before the Appellate Court, the finding of the trial Court on this point had attained finality. With reference to the evidence of the parties, it was contended that the Hujra in question did belong to Azad Khan and there is no documentary proof that the same had been purchased by Dalil Khan or his successor-in-interest. It was pointed out that the petitioner-defendant's own witness had admitted that the Hujra was owned by Azad Khan and, therefore, the party producing the evidence is bound by the statement. The learned counsel placed reliance upon the judgment of this Court in Allah Dad v. Government of Pakistan 1989 M LD 4037.
6. The controversy between the parties can be resolved by finding out as to whether the Hujra was owned by Azad Khan or had been acquired by his son Dalil Khan from whom the petitioner- defendants claim title. The gift by Dalil Khan to his son Mir Hassan Khan would not be relevant in that if it is established that Azad Khan owned the Hujra, his son Dalil Khan could then only he a joint owner on the basis of inheritance and, therefore, he could only transfer by way of gift only his share in the property.
7. The plaintiffs had produced Faridullah Patwari as P. W.1, who had stated in cross-examination that the sons of Azad Khan had partitioned the property of their progenitor in the year 1928-29. In cross-examination, however, he clarified that Khata No,1298 was still jointly owned by the brothers.
P..W.2 Sher Bahadur, plaintiff No,61, alleged that the Hujra was originally owned by their predecessor-in-interest Azad Khan and had not been partitioned. In cross-examination, he admitted that Azad Khan died about 120 years earlier. He conceded that he had no documentary evidence to show that the Hujra was owned jointly. He further stated that apart from the Hujra the property of Azad Khan had been divided between his legal heirs. The witness for the defendants, Rehan, P.W.2, supported in cross-examination the plaintiff's case to the extent that the Hujra originally belonged to Azad Khan.
8. The star-witness of the defendant is D.W.1 Kifayatullah. He stated that according to his information the suit property was exclusively owned by Dalil Khan, who gifted it to his son Mir Hassan Khan. In support of the claim of ownership by defendants Nos.7 to 13 of the Hujra, he pressed into service a judgment of the Magistrate, dated 5-5-1915, an F.I.R. Registered in the year 1937, and the orders of the Magistrate in the criminal case, to show that the Hujra in question has always been referred to as that of Mir Hassan Khan. The witness also claimed that the legal heirs of the sons of Dalil Khan other than Mir Hassan Khan had never questioned the ownership of the Hujra of Mir Hassan Khan on account of the gift deed executed in favour of Mir Hassan Khan. The witness, however, was unable to explain as to whether the Hujra was purchased by Dalil Khan or inherited by him from his father.
9. The plaintiffs have asserted that except for the Hujra, the remaining property of Azad Khan was distributed amongst his sons. There is no documentary evidence produced by the plaintiff to show that the Hujra originally belonged to Azad Khan nor is there any documentary evidence to establish that the Hujra had been acquired through purchase or otherwise by Dalil Khan, from whom the petitioners claim the Hujra. The plaintiffs had made oral assertion that all the property of Azad Khan had been divided between the sons except the Hujra. This oral assertion of the plaintiff finds support from the defendant's own witness D.W.2 Rehan. There is no suggestion that he is an interested witness nor had he been declared hostile by the defendants. This Court has in the case of Allah Dad, (ibid), held that a party is bound by whatever deposition its witness makes and that he cannot turn around and claim that adverse statement given by its witness be excluded from consideration, particularly when the witness has not been declared hostile. The learned counsel for the petitioner has relied upon judgment from Indian jurisdiction in the case Jalal Din, (supra), where it was laid down that there is no rule of law that a party must be bound by the statement of its witness though the belief in such a rule is not uncommon and does create harm in judicial trial in some of the subordinate Courts. The case of Allah Dad v. Government of Pakistan, being judgment of this Court is obviously to be followed in preference to the judgment from Indian jurisdiction. Furthermore, the case of Jalal Din, (ibid), turns on its own facts. In that case, the statement of a witness in favour of the party producing him was not believed as the Court found that on the face of the story given by the witness there was no reason for the witness to support the defendants merely because he was called by them. The Court, however, proceeded to decide the case on the premises that even this fact was not relevant. In the present case, D.W.2, who is 80 years of age, was produced by the defendants with a view that being of old-age he would be able to depose about old events. In his examination-in-chief, he did state that the Hujra was owned and possessed by Mir Hassan Khan son of Dalil Khan. It was in cross-examination that he disclosed that the Hujra originally belonged to Azad Khan. There is no reason to disbelieve the testimony of this witness. Even D.W.1, Kifayatullah in cross-examination stated that he did not know whether the Hujra was purchased by Dalil Khan or was inherited from Azad Khan.
10. On the other hand, it is neither the case of the petitioner/ defendants nor have they produced any document to show that they, or their predecessor-in-interest, Dalil Khan had purchased the Hujra, or for that matter any other property. Thus, there is no evidence that the Hujra had been acquired by Dalil Khan by purchase or any other means. No doubt, in the order of the Magistrate, Nowshera, dated 3-4-1915, there is a reference, in some other context, to the Hujra of Dalil Khan, Zaildar as well as in the order of the Magistrate, dated 20-1-1987, where reference is made to the Hujra of Mir Hassan Khan, Zaildar (son of Dalil Khan). In the said judgments, the controversy was not regarding the ownership of the Hujra, and therefore, the same cannot be cited as evidence of title.
It is common knowledge that Hujra owned by Families jointly are called after the name of the eldest male member. Dalil Khan was the eldest son of Azad Khan whereas Mir Hassan Khan was the eldest son of Dalil Khan. Reference to the Hujra in their names would not necessarily mean that it was exclusively owned by them. The same goes for the electricity meter in the name of Mir Hassan Khan.
11. In the light of the foregoing discussion, the Appellate Court has not fallen into any error by holding that the Hujra was owned by Azad Khan, and therefore, all his successor-in-interest would be entitled to their Shari shares in it. The impugned judgment and decree of the Appellate Court is, therefore, upheld and the civil revision is dismissed with no order as to costs.