' The applicant brought a suit for declaration and permanent injunction in the Court of Senior Civil Judge, Karachi South against the respondents which was dismissed by judgment, dated 24-7-1989 and decree, dated 2-8-1989 passed by learned 1st Senior Civil Judge, Karachi, South and the appeal preferred by the applicant was also dismissed vide judgment, dated 29-5-1995 and decree, dated 6-8-1995 by learned Vth Additional District Judge, Karachi South. He has assailed the above judgments and decrees through This revision application under section 115, C.P.C.
2. The case of applicant, as stated in the plaint, is that he is an old occupant of a piece of plot of land measuring 120 sq. Yds. In Kumbarwara, Lyari Quarters, Karachi belonging to the Karachi Metropolitan Corporation respondent No,12 which he has been using for residential purpose and has raised two huts thereon. In the year 1963 a survey was made by Excise and Taxation Department (respondent No,11) and the said plot was entered in the record under number AK-8-4- S/12 and PTI was issued in favour of the applicant. According to applicant the Excise and Taxation Department entered the adjoining plot measuring 24 sq. Yds. Under the number viz. AK-8-4-S/10 in the name of one Anwar son of Ahmed and PTI was issued in favour of the latter. The position remained same in the second survey conducted by the Excise and Taxation Department in the year 1968. The applicant let out the bigger hutment of the said property to one Ahmed son of Noor Muhammad (predecessor-in-interest of respondents Nos.1 to 10), the occupant of adjoining Plot No,AK-8-4-S/10, but the latter in collusion with officials got the aforesaid hutment assessed in the name of his son in the record of Excise and Taxation Department, the applicant was, therefore; left with the remaining smaller hut. The applicant's father died in January, 1972 and for funeral expenses he and his two brothers obtained loan of Rs,2,000 from Ahmed who obtained their signatures on a stamped paper representing to the applicant and his brother that it was an agreement of loan. In early 1978 the applicant applied to K.M.C. Respondent for lease of his plot which was declined on the ground that the plot in question had been amalgamated with the plot of Ahmed who had claimed purchase of the same on the basis of sale agreement. In March, 1978 the Excise and Taxation Department respondent No,11 served notice on the applicant for mutation of the property from the name of applicant to respondent No,
1. The applicant, later on, came to know that in respect, of the amalgamated plot the Excise and Taxation Department had made entries in the name of respondent's son Muhammad Saleem. He, therefore, tied the suit seeking declaration that he is entitled to the lease of Plot No,AK-8-4-S/12 having area of 120 sq. Yds. And that the same may be assessed in his name. He also sought a declaration that the alleged sale agreement as also the lease deeds dated 8-1-1976 and 9-1-1976 be declared as illegal, void and of no legal effect. He prayed for possession of the portion of his plot and also claimed mesne profits. A prayer for mandatory injunction was also made for entering his name in the property register.
3. The respondents Nos.1 and 2 filed their joint written statement wherein they denied the claim of applicant and stated that the Property No,AK-8-4-S/12 consisted of two hutments and the applicant and his brothers, in presence of witnesses Ismail and another, sold the structure to late Ahmed for consideration of Rs,2,500 through sale agreement, dated 19-4-1972 and possession was handed over to Ahmed who enjoyed peaceful possession thereof and got the same amalgamated with the Property bearing No,AK-8-4-S/10 which was recorded in the name of his son Anwar. They clarified that the area of last mentioned property was 267 sq. Yds. And not 24 sq. Yds. According to them, Ahmed got the property entered in the name of his son Anwar during his lifetime and that the competent Authority executed lease deeds on 8-1-1976 and 9-1-1976 in the name of Ahmed and respondent No,
1. They denied the allegation of fraud and manipulation and took further legal pleas that the suit was not maintainable and suffered from misjoinder/non-jonider of necessary parties and that it was hit by section 42 of the Specific Relief Act.
4. The trial Court framed issues on the basis of pleadings of parties on which the applicant examined himself and two witnesses and also produced relevant documents. A clerk of Sub- Registrar Office was also examined on his side. The respondents did not lead evidence and in particular the witness for K.M.C. Filed a statement that the office record has been burnt, therefore, he was unable to give evidence. Learned trial Court, on assessment of the evidence, dismissed the suit with no order as to costs and the appeal against the judgment and decree also failed. In this Court, the respondents were served and an Advocate was engaged by respondents Nos.1 to 10 'who appeared for some time but then he remained absent. The Court was left with the only alternative to hear the arguments of the Advocate for applicant.
5. Main contention in support of the revision application was that the deposition of applicant and his witnesses had gone unchallenged as they were not cross-examined by the defendants/respondents, therefore, the facts stated by them shall be accepted as true. In view of this, the oral evidence produced on behalf of the applicant coupled with documentary evidence to prove the case of applicant. Reliance was placed on Nur Jehan Begum v. Mujtaba Ali Naqvi 1991 SCM R 2300. Further, referring to Messrs Shalimar Ltd., Karachi v. Raisuddin Siddiqui 1979 CLC 338 it was contended that the defendants/respondents did not lead evidence, their written statement alone was no substitute for substantive evidence. As regards the alleged sale agreement he urged that it was never brought on record, the trial Court and the 1st Appellate Court had committed a serious error in assigning importance to it. Furthermore, admittedly, it was not a registered document and did not create any right/title. Sh. Manzoor Ahmed v. Mst. Iqbal Begum 1989 SCM R 949, Muhammad Yousif v. Syed Wali Muhammad Shah 1994 CLC 132 and Orient Match Company (Pvt.) Ltd. v. Banking Tribunal for Karachi and Sukkur 1996 CLC 1718 were cited on this point. It was submitted that the property, even now stands in the name of applicant in the official record of Excise and Taxation Department and the lease deeds in favour of Ahmed and his son Muhammad Saleem were executed fraudulently and without notice to applicant, who is admittedly a lessee/owner of property.
6. I have carefully examined the above contention in the light of material placed on record.
7. The applicant had examined. Himself and produced the attested copies of the relevant documents. He examined two witnesses Karim and Karoo on the point of possession. In this way he based his case on his oral evidence and the documents such as PT-i Forms and payment of certain taxes etc.
8. The trial Court as also the First Appellate Court examined the documentary evidence and the oral testimony of applicant together with the version of official witness but they wholly ignored the deposition of witnesses produced by the applicant such as P.W.2 Karim and P.W.3 Karoo. Learned counsel for applicant was justified in contending that the Courts below have committed a grave legal error by overlooking the admitted position that the evidence of applicant Ghulam. Rasool and his witnesses had gone unchallenged, therefore, in law the facts stated by them were to be taken as admitted by the opposite side. Secondly, this A was a case of non-reading of evidence, as the uncontroverted oral testimonies of supporting witnesses who deposed about the fact of possession namely Karim and Karoo have neither been examined nor discussed at any stage. The principle enunciated by the Honourable Supreme Court in Noor Jehan Begum's case 1991 SCM R 2300 fully supports this plea. In the cited case 11 precedents' were discussed and it was held that if the witness has not been cross-examined on material part of the evidence it may be inferred that the truth of such statement has been accepted. The principle deducible from this authority is that IB statement of a witness which is material to the controversy of the case particularly when it states his case and same is not challenged such an unchallenged statement should be given full credit and accepted as true unless displaced by reliable, cogent and clear evidence.
9. For the purpose of application of the above principle the noteworthy aspect that comes to surface is manifest from the deposition of applicant Ghulam Rasool. Applicant Ghulam Rasool was examined in chief on 17-3-1985 and on the request of Advocate for defendant/ respondent his cross-examination was reserved. The matter came up before the learned Senior Civil Judge again on 22-5-1985 for cross-examination but the applicant could not be cross-examined as the respondents/defendants and their Advocate were called absent. The respondents, ex facie, had chosen. Not to controvert the evidence by cross-examining the applicant, although, their Advocate had got the matter once postponed on his request. It is again of much significance to point out that later on applicant Ghulam Rasool was examined on 8-3-1988 wherein he produced documents Exhs.P.2 and P.3 being the copies of lease deeds obtained by him from the office of Sub-Registrar and he deposed that he was adopting the previous evidence, which was already on record. The deposition shows that on that day, too, the respondents did not cross-examine the applicant.
10. It is worth mentioning here that earlier deposition of applicant ID covered all material points of fact. He had entirely put up his case by stating that the premises AK-8-4-S-12 consisted of two huts, constructed by him and its area 12 sq. Yds. He stated that on survey conducted by Excise and Taxation Department in the year 1963 he was shown as owner, in proof whereof he produced certified copy of Form PT-I, issued by Excise and Taxation Department as Exh.4/1. He also produced Form PT-I (Exh.4.2) in respect of the adjoining premises AK-4-S-10 having its area of 24 sq. Yds. He produced Form PT-I (Exh.4/3) in respect of year 1968 and onwards showing the applicant as owner, forming the same position as in the year 1963. He also stated that suit plot is still in his name in the Excise and Taxation Department record and that he has been paying taxes to K.M.C. For which he produced Tax Payment Challan of K.M.C. (Exhs.4/6 to 4/13). He has also produced the order of the Excise and Taxation Department Office (Exh.4/7), wherein it has been mentioned that the matter is disputed, therefore, the parties should approach the Court of law and get the title of ownership decided. In order to place his case fully before the Court the applicant also made efforts and obtained the copies of the lease deeds, executed by K.M.C., which he produced as Exhs.P.2 and P.3, as already stated. The entire evidence went unchallenged as such stood admitted.
11. Incidentally, the most controversial document namely the alleged sale agreement on the basis of which the disputed portion of plot of applicant was treated to have been sold out and then amalgamated with the adjoining plot, could not come on record. The explanation in this regard has been recorded in the trial Court judgment wherein it has been mentioned that the witness of K.M.C.
Respondent No,12 filed a statement that since the record had been burnt he could not give evidence. In this manner, it was given out by the respondent K.M.C. That the so-called sale agreement on the basis of which they leased out even the plot in possession of applicant was not available perhaps on the ground that the records had been burnt.
12. It is surprising to note that the trial Court as also Appellate Court have put the entire burden on the applicant to prove that the said agreement of sale was a forged document. They had fallen into a grave mistake in overlooking the admitted point of fact that the applicant's oral testimony had gone unchallenged, he was not cross-examined by any of the defendants/respondents, as a result, in view of law laid down by the Honourable Supreme Court, cited above, the applicant's version that it was not a sale agreement but a document executed in token of loan of Rs,2,000 obtained by applicant and his brother from Ahmed the predecessor-in-interest of the respondents Nos.1 to 10 on the condition that in case of non-payment the amount would be adjusted towards the rent, payable by Ahmed in respect of disputed premises rented out to him, stood accepted for all practical purposes. In this view of the matter it was for the respondents Nos.1 to 10 to show that the sale agreement did exist. An equal burden lay on K.M.C. To come with the document purportmg to be sale agreement to show that they executed lease deed on the basis of such document, which they have utterly failed to discharge. It is a question apart that both the Courts below have admitted that legal position that it was not a registered document and was not adequate by itself to confer a title upon the promisee. Indeed, the legal position on this point has always remained clear and for the sake of reference the case 1989 SCM R 949 (951) may be cited with advantage. I fail to understand why the unrebutted evidence of applicant/plaintiff was taken G so lightly and on the contrary he was held to be responsible for not discharging the burden of proof in respect of said document.
13. On the same plane, it may be observed that there was no valid reason with the Courts below to ignore the evidence of witnesses Karim H and Karoo, produced by the applicant. It is interesting to point out that learned trial Court had observed, while discussing Issue No,9, that it was the policy of Government that lease of plot was to be granted in favour of the person who was found in possession of the premises and as such the fact of possession was eminently a relevant question.
But, when Karoo II deposed that he was in possession of a Jhuggi as tenant of applicant and on his vacating the said Jhuggi it was rented out by the applicant to Ahmed and in this way transfer of possession under the relationship of landlord and tenant, as deposed to by this witness, passed on from applicant to Ahmed, his evidence was ignored and not discussed at all. The other witness Karim also gave evidence on the same line, stating that the applicant/plaintiff rented out his but to one Ahmed but his evidence was also not touched. This is a glaring case of irregularity by way of non-reading of evidence on material points, rendered by two important witnesses who were not at all cross-examined by any defendants/ respondents.
14. On the whole, there was no material on record to rebut the vidence of applicant/plaintiff and his witnesses beyond the averments in the written statement. As held by Honourable Supreme Court in Khairul Nisa v. M. Ishaque PLD 1972 SC 25 which was followed by Division Bench of this Court in Shalimar Ltd. v. Raisuddin Siddiqui 1979 CLC 338, much reliance cannot be placed upon the written statement when the author thereof fails to appear before the Court. Learned counsel for the applicant is, therefore, correct in submitting that the written statement IL alone is not rebuttal of the evidence whatsoever placed on record by the applicant/plaintiff.
15. It is again surprising to note that the documents produced by applicant/plaintiff, in token of proof of payment of taxes, have been held to be managed documents but no justifiable reason has been assigned in M arriving at such conclusion and documentary evidence has been rejected on the basis of the conjecture that such payment was made at a late stage.
16. In view of the above, I am inclined to observe that undoubtedly the judgment of both the Courts below suffer from non-reading of evidence on material points and flagrant misreading of evidence on record, and their findings are manifestly perverse. No doubt there are N concurrent findings of the Courts below but in the aforementioned circumstances there is ample justification to interfere with the same in exercise of powers under section 115, C.P.C. Reliance in this regard may be placed on Abdul Hakeem v. Habibullah 1997 SCM R 1139; Kanwal Nain v. Fateh Khan PLD 1983 SC 53 and Anwar Bibi v. Abdul Hameed 2002 SCM R 144.
17. Consequently, the impugned judgments and decrees of the Appellate Court as also of the trial Court are set aside. However, it has been noted that the question of identity of the plot in dispute as regards its area and number assigned to it is yet to be determined by the trial Court. On the point of possession the entire evidence is to be appraised, keeping in view the rules of assessment of evidence. The entitlement to execution of lease is also to be considered in the perspective of relevant evidence on record. According to the written statement the alleged sale agreement was executed in favour of Ahmed but lease deed has been executed in the name of Muhammad Saleem alone; the parties can lead evidence to explain this position. Accordingly, the case is remanded to the trial Court for decision in accordance to law, on all points affording ample opportunity to parties to produce evidence if they desire so. There shall be no order as to costs.
' These are the reasons for the short order announced on 13-5-2002.