' Mst. Mumtaz Begum, respondent/plaintiff filed suit against the petitioners/defendants in the Court of Civil Judge. Charsadda for possession of a house described in the heading of the plaint. She also prayed for grant of decree for recovery of Rs,3,000 price of Khakshora from 1985 to 1987 against the petitioners/defendants. The suit was resisted by the petitioners/defendants by filing written statement. The learned trial Court after framing as many as 11 issues dismissed the suit vide judgment and decree, dated 13-5-1996. Being aggrieved with the said judgment and decree, she filed Appeal No,184/13 of 1996. The appeal was accepted vide judgment and decree, dated 9-3- 1998 and the suit filed by the respondent/plaintiff was decreed in her favour to the extent of relief "Alif". Being aggrieved with the said judgments and decrees, the petitioners have filed the revision petition in hand.
2. Mr. Muhammad Amin Khattak, the learned counsel for the petitioners argued that the petitioners had proved through cogent evidence that they were in possession of the house in dispute for the last 30/40 years as owners and there is no evidence on record to show that the house in dispute was constructed by Sarfraz Khan, father-in-law of Mst. Mumtaz Begum plaintiff/respondent.
3. There is nothing on record to indicate that the petitioners were inducted in the house as tenants on payment of Khakshora. In fact Sarfraz Khan and Nazeef Khan, petitioner No,1 are real brothers and it cannot be imagined that daughter-in-law of one brother would induct the other brother in house as tenant on payment of Khakshora. The Courts below have concurrently held that respondent/plaintiff has failed ,to prove this fact.
4. It was also argued that entries made in the Revenue Record would confer no title upon a person because such entries are made for fiscal purposes. Except the statement of Patwari Halqa there is nothing on record to prove title of Mst. Mumtaz Begum.
5. On the other hand Mr. Ziaur Rehman, Advocate the learned counsel for the respondent argued that the respondent/plaintiffs proved the ownership of house in dispute. In fact Sarfraz Khan father- in-law of Mst. Mumtaz Begum, respondent/plaintiff was the owner of land comprising Khasra No,1196. He alienated the said land in favour of his wife Mst. Sari Jana vide Mutation No,1973, dated 7-11-1955. She further transferred her share in the name of her son Faqir Jan vide Mutation No,2793 attested on 14-3-1974 Exh.P.W.1/8, who transferred the said land in the name of Mst. Mumtaz Begum, his wife vide Mutation No,2797 attested on 14-3-1974 Exh.P.W.1/9. In the subsequent 'Jamabandies Exh.D.W.1/D-1 Mst. Mumtaz Begum has been shown as owner. Khasra Girdawaries (Exh.C.W.1/7) which pertains to the year Kharif, 1983 to Kharif, 1994 show that Mst. Mumtaz Begum was the owner in possession of the disputed property. Haji Bahadur P.W.1 and Muhammad Tahir, Patwaries Halqa Utmanzai was examined as P.W.1 affirmed the above position in. Their statements recorded in Court. Muhammad Nazeef petitioner No,1 had nothing to do with the property in dispute and he was not co-owner for the said property.
6. It was further argued that the petitioners placed on record the documents regarding the property situated at Anwar Kalay which shows that Sarfraz Khan and Muhammad Nazeef were co- sharers in the said Mauza and the learned trial Court was influenced by the said record and it was presumed that since the above named brothers are co-owners in Mauza Anwar Kalay, therefore, they would be co-owners in Mauza Utmanzai also.
7. The crucial question, it was argued, in this case is that the relationship of landlord and tenant exists between the parties or not.
8. The learned counsel argued that Muhammad Nazeef petitioner No,1 in his written statement filed on 3-11-1988, did not take up the plea that he had transferred the suit property in the name of Mst.
Sultana, his wife. Subsequently while filing amended written statement, he took up the plea that the house in dispute stood transferred to Mst. Sultana in lieu of her dower, but Mst. Sultana when examined as D.W.4 put up new plea in which she admitted that Mst. Sari Jana was owner to the half extent of the suit property and that her husband got her share in exchange which pleas were never taken up by both the defendants in written statement. Muhammad Nazeef when examined as D.W.2 did not take up the plea that he had acquired the property in dispute through exchange.
9. I have heard the learned counsel for the parties and perused the record.
10. In order to prove her case, the plaintiff examined Haji Bahader Khan, Patwari Halqa Mauza Utmanzai, who appeared as P. W.1 and placed on record Fard Jamabandi for the years 1977-78 and 1982-83 in respect of Khasra No,1196. The same were exhibited as Ekh.P.W.1/1 and Exh.P.W.1/2. He was directed to produce record regarding Mauza Anwar Kallay. He produced Fard Jamabandi for the year 1926-27 of Mauza Anwar Kallay Exh. P. W .1/D-1, Exh . P. W . 1/D-2, Jamabandi for the year 1985- 86 Exh.P.W.1/D-4 Khasra Girdawari from Kharif, 1978 to Rabi, 1990 Exh.P.W.1/D-5. He stated that Mst.
Mumtaz Begum was shown as owner in Khasra No,1196 and land measuring 3 Kanals was underneath the Abadi. The rest of the land was under cultivation of Faqir Jan in capacity of "Bila Lagan Bawaja Shohari Faqir Jan, attorney of plaintiff was examined as P.W.2, who placed on record power of attorney as Exh.P.W.2/1 and site plan of the house in dispute as Exh.P.W.2/2. Ashraf Khan was examined as P.W.3 who stated that the house in dispute was constructed by Sarfraz Khan.
11. In rebuttal Aziz Khan appeared as D.W.1 who stated that the petitioners/defendants were in occupation of the suit property for the last 30 years as owners. Muhammad Nazeef appeared as D.W.2 and stated that he was residing in the suit house for the last 33 years being its owner. He was not inducted in the house by Mst. Mumtaz Begum and he never paid her Khakshora. Muhammad Shah was examined as D.W.3, who stated that the suit house was owned by defendant No,1 and defendant No,3 (Mst. Sultan Begum) was residing with her husband. Mst. Sultan Begum appeared as D.W.3 and Ihsanullah appeared as D.W.4 who stated that Nazeef Khan was residing in the suit house since 1956, who had constructed the same.
12. The above discussed evidence would show that Sarfraz Khan was owner of land comprising Khasra No,1196. He transferred the said land to Mst. Sari Jan, his wife vide Mutation No,1973 attested on 2-11-1955 in her favour. Thereafter, Mst. Sari Jan transferred the abovementioned land in favour of Faqir Jan, her son vide Mutation No,2793 attested on 14-3-1974 Exh.P.W.1/.8. Faqir Jan transferred land mentioned above in favour of Mst. Mumtaz Begum, his wife vide Mutation No,2797 attested on 14-3-1974 Exh.P.W.1/9. Nazeef Khan, petitioner No,1 and Mst. Sultana his wife, petitioner No,3 do not figure anywhere in the Revenue Record as owners. When Mst. Mumtaz Begum filed suit for possession against Muhammad Nazeef, he filed written statement in which he did not take up the plea that he had transferred the suit property to Mst. Sultana his wife in lieu of her dower.
Subsequently, Mst. Sultana made application for her impleadment. She was impleaded as defendant. She filed her written statement in which she took up the plea that the suit property was transferred to her in lieu of her dower vide dower deed Exh.D.W.1/1, but when she appeared as her witness as D.W.3, she took up altogether a new plea in her statement. In examination-in-chief she stated that the suit house was owned by her husband. Mst. Sari Jan also had a share in the said house and her husband got share of Mst. Sari Jan in exchange. He transferred land in Mahal Shahidan to Mst. Sari Jan, his mother, therefore, he became sole owner of the house 14/15 years back he fell sick, therefore, she demanded that she should be given her dower upon which her husband executed dower deed on 1-6-1977 Exh.D.W.1 /1. She stated that the house was constructed by her husband by spending Rs,4/5 Lakh and they were residing in the suit house for the last 40 years. It is settled law that a plea has to be taken in the pleadings before it can be allowed to be proved and if in a case the plea is not taken in the pleadings, the party would not be allowed to lead evidence in support A thereof and even if some evidence is allowed, the same would not be looked into Reliance in this regard can be safely placed on Amir Shah v. Ziarat Gui 1998 SCM R 593 and Siraj Munir through L.Rs, and 3 others v. Rai Sarwar Khan 2001 CLC 1059.
13. It is worth-mentioning that Muhammad Nazeef also filed amended written statement after impleadment of Mst. Sultan Begum, his wife and it was in amended written statement that he took up the plea that he had transferred that suit house to his wife vide Exh.D.W.1/1. Despite improvement made in the amended written statement, Muhammad Nazeef, and Mst. Sultana, the petitioners failed to establish their ownership over the suit house. On the contrary Mst. Mumtaz Begum, through oral and documentary evidence in the shape of Jamabandies proved her ownership over the suit house. Fard Jamabandies Exh.P.W.1/1 and Exh.P.W.1/2 prove Mumtaz Begum to be owner of the suit house. The argument of the learned counsel for the petitioners that entries in the Revenue Record would not give title to respondent as those entries aremade for fiscal purposes, has no force. Entries in Record of Rights are strong pieces of evidence in support of a person's title to immovable property and ought to be relied upon in absence of satisfactory evidence in rebuttal produced by opposite party. In this regard reliance can be placed on Manzoor Hussain and 3 others v. Muhammad Siddique 2000 CLC 623, in which it was held:-- "Presumption of correctness is attached to the entries of the Jamabandi wherein the donees were recorded as owners. A Jamabandi is a title document and very strong evidence was required to displace the title of the donees."
' Likewise in Nooruddin and others v. Pakistan and others 1997 CLC 1971 it was held that:-- "Nevertheless it is settled law that entries in Record of Rights are strong pieces of evidence in support of a person's title to immovable property and ought to be relied upon in the absence of satisfactory evidence in rebuttal produced by the opposite party."
14. Mst. Mumtaz Begum has, therefore, proved herself to be owner of the suit house.
15. The most important question in this case is as to whether a decree could be passed in favour of Mst. Mumtaz Begum, when she failed to prove that the petitioners/defendants were tenant under her on payment of Khakshora, the answer to this question is in the affirmative. Although the respondent/plaintiff could not prove that she has inducted the petitioners in the suit house as her tenant, but she successfully proved her ownership of the suit house. Therefore, she was entitled for grant of decree of possession. A similar proposition came up for hearing before the Sindh High Court in Mulibai v. Vassibai and another AIR 1926 Sind 98 in which it was observed:-- "Mr. Kundanmal relying on 27 MLJ 475, contends that the plaintiff, having failed to establish the particular tenancy at will referred to in the plaint, is not entitled to have the defendant ejected on the ground that she is a trespasser; for if he fails to prove the tenancy he is not entitled to eject defendant as a trespasser, See 21 I.C.
560. Mr. Kewalram, on the other hand, has cited the case of 25 All. 498, a case in which there was no specific issue as to title, but evidence was called on both sides as to title. It was there held that although the plaintiff had failed to establish a case of letting she was entitled to a decree on the basis of the title unless defendant could show a better title. This was followed in 3 IC 589; see also 25 All. 256 where it was held that the plaintiff was entitled to a decree for possession, notwithstanding that the suit was based on a tenancy. In 54 I.C. 645 the Calcutta High Court held that where the plaintiff sues for possession and makes out a prima facie case if the defendant sets up a title, the onus is on the defendant to prove his title; see also 7 SLR 23 and 17 AU 814."
16. Since Mst. Mumtaz Begum respondent/plaintiff has proved her ownership through reliable oral and documentary evidence and the petitioners/defendants have failed to rebut the said evidence and the documentary evidence placed on record by them pertains to Mauza Anwar Kallay, the said documents are not relevant for the purpose of this case, therefore, the findings of the learned Appellate Court are just, proper and based on proper appreciation of evidence and law applicable to the case. I have not been able to find out any misreading or non reading of evidence, any jurisdictional error or defence or material irregularity warranting interference by this Court in its revisional jurisdiction. I, therefore, dismiss the revision petition in hand alongwith C.M. With no orders as to costs.