On 9-5-1983, Muhammad Rasheed, petitioner No,1 filed a suit against respondent No,1 (Ghulam Rasool), respondent No,17 and respondents Nos. 9 and 10 seeking a declaration that he is the owner in possession of the suit land to the extent of 1/3rd share and that the sale agreement, dated 26-4- 1961 is bogus and fictitious and is without consideration. This was followed by a suit filed by respondents Nos. 1 to 16 against the petitioners and respondents Nos. 18 to 23 for the specific performance of the said agreement, dated 26-4-1961 on 14-6-1983. Respondents Nos. 2 to 4 also filed a suit on 24-'2-1985 claiming the same relief as was claimed by Muhammad Rasheed petitioner in his suit. All these suits pertain to land measuring 200 Kanals comprised in Lot No,4 in Chak No, 691T.D.A., Tehsil Bhakkar. Admittedly this land was allotted to Muhammad Rasheed, petitioner No,1, Muhammad Ishaque, the predecessor-ininterest of petitioners Nos. 2 to 4 and Muhammad Yaqoob, predecessor-in-interest of respondents Nos. 18 to 23, Respondents Nos. 1 to 16 claimed that the said allottees had agreed to sell the said land to the said plaintiff/respondents by means of an agreement, dated 19-4-1961. This agreement was attested by a Magistrate, Bhakkar on .264-.1961. The possession was delivered to the said plaintiffs/respondents who made the land cultivatable and also complied with the terms of the agreement and paid all the instalments of the price/Government charges; that the petitioners and the other defendants in the suit have refused to perform the agreement and have started denying the same after they had obtained the proprietary rights. With these averments the decree or specific performance was sought. The petitioners denied the said allegations in lines with the plea taken in their respective suits. All the three suits were consolidated by the learned trial Court and issues were framed. Evdience of the parties was recorded. The learned trial Court decreed the suit for specific performance of the said agreement and dismsised the suit of the petitioners by means of a consolidated judgment and decree, dated 26-3-1989. Against the said consolidated judgment and decree a first appeal was filed by the petitioners which was heard by a learned Additional District Judge, Bhakkar who dismissed the same on 11-3-1993.
2. The learned counsel for the petitioners argues that the plaintiffs/ respondents had, failed to prove the execution of the said agreement Exh. Di 1. According to the learned counse1,1 there is no evidence of the execution of the said document on record. Fruther contends that the evidence on record has been misread and wrong inferences have been drawn therefrom by the learned Courts below while passing the impugned judgment and decrees. The learned counsel for the contesting respondents, on the other hand, argues that the evidence on record and the circumstances reflecting therefrom do support the , conclusion arrived at by the learned lower Courts.
3. I have gone through the copies of the Record appended with this civil revision, with the assistance of the Learned counsel for the parties. It may be noted that consolidated proceedings were conducted in the case filed by Muhammad Rasheed, petitioner No, 1 . The agreement in question is on record, as Exh.D-1. It narrates that the suit land measuring 200 Kanals stands allotted to the said three sons of Jamal Din; that the price of the land is to be paid in instalments and that they have made the payment of Rs,3,485 on 21-5-1960; that the land. Has been sold to Messrs Barkat. Ali, Faz41 Din and Ghulam Rasool sons of IMAM Din and that they have received the said amount of Rs,3,485 and now it will be liability of the said vendees to pay the price and to comply with the conditions of the allotment and in case of default by-them they will be responsible for the consequences . The agreement then narrates that the said promissors are bound to transfer the land by executing a sale-deed when the limitations on transfer are removed. The agreement is dated 19-4-1961 and bears signature of Muhammad Ishaque, Muhammad Yaqoob and Muhammad Rasheed, vendors and of Malik Fateh Sher and Abdul Raheem as witensses. The documents is scribed by Muhammad Nawaz. Now it is a matter of record that apart from the said Muhammad Rasheed, petitioner No,1 all other signatories of this document were dead by the time the suits were filed and the trial commenced. In the said background the plaintiffs/respondents produced Jamshed-ur-Rehman, D.W.3 who is son of Abdul Raheem witness. He stated that his father died in January, 1983 and he was Lumbrdar and that he identifies his signatures as witness to the document. Malik Aurangzeb, D.W.5 is the son of Malik Fateh Sher witness who has identified the signatures of his dead father on Exh.D-1, after stating that his father died in the year 1971-72.
Anwer Iqbal, D.W.6 is the son of Muhammad Nawaz scribe and he has identified the writing and signatures of his father. He has also produced the Entry No,455 in the Register of his father. D.W.4 is Muhammad Saleem who has stated that he was present When the sale was negotiated; that the said plaintiffs/respondents had paid Rs,3,485 and they were delivered possession and then they remained in possesison. Exh. D-2 is a compromise deed executed by the said Muhammad Yaqoob, acknowledging the said agreement, dated 19-4-1961 and conceding the decree in terms thereof to this extent. It appears that this compromise agreement was filed in this very suit, however, by the time the evidence commenced, Muhammad Yaqoob had died and perhaps that necessitated the production of said witness Muhammad Saleem to prove the said document. D.W.9 is one of the plaintiffs/respondents, namely, Ghulam Ahmed who has made a statement in accord with the plaint for the specific performance suit.
4. Before I proceed to discuss the evidence of the petitioners, I deem it proper to refer here to the pleadings. Now petitioners Nos.2 to 4 in their suit have stated categorically that the possession had never been delivered to the said plaintiffs/ respondents and that they were in possession of the land. Muhammad Rasheed petitioner No,1 in his suit has stated that a week ago the said plaintiffs/respondents had declared themselves to be owners of the land and are trying to take possession of the land. As stated by me above this suit was filed on 9-5-1983.
5. Out of the petitioners only Muhammad Rasheed petitioner No,1 has appeared in the witness-box as P.W.2. In his examination-in-chief he states thus {{URDU TEXT}} ' In his cross-examination he states "
1 {{URDU TEXT}} ' At a later stage he states" {{URDU TEXT}} ' When one reads the said statement in the light of the said terms of the agreement already stated by me above, one can reasonably draw the conclusion that the instalments of the price of the land were paid by the said plaintiffs/respondents who were also paying the land revenue. This is further to be seen in the light of the said averments in the respective plaints of the petitioners where it has been stated that it is the petitioners who are in possession and that the said plaintiffs/respondents have never been in possession or are making attempts to take possession. Further the inability on the part of the petitioner No,1, who is only original allottee alive to tell as to how much land is being cultivated leads only to the inference that he had never seen the land and his version (against the said pleadings), taken in the said statement that the plaintiffs/respondents would render accounts and then he will tell them to pay the price instalments or the land revenue, is false.
6. Now the contention of the learned counsel for the petitioner cannot be said to be wholly unfounded when he says that there is no evidence of the execution of the agreement on the record inasmuch as neither marginal witness nor scribed come forward or could be produced in this case as they were dead and this case lacks the said conventional evidence of the execution of a document. However, when the Courts are faced with such a situation particularly in civil lis, they tend to go by probabilities and if reasonable probability of the existence or absence of a relevant fact exists then to my mind the case can be decided on the said probability and in such an event the probability itself will constitute evidence of the fact. Chief Justice, Muhammad Afzal Zullah (as his Lordship then was) in the case of Fazle Ghafoor v. Chairman, Tribunal Land Disputes, Dir, Swat at Chitral at Mardan and 6 others (1993 SCM R 1073), thus observed at page 1077 of the report that "the word evidence has been defined but the word "matters" which could include evidence as defined as well as other matters did not fall strcitly within the scope of evidence. In the cases like the present one the matters would include that material as well which would fall within the scope of mixed facts and law. Amongst others, they will also inlcude documents, presumptions, statements, which might otherwise be not included in the strict scope of evidence. The selection of word "matters" instead of evidence when defining proof, by the Legislature in its wisdom, was perhaps to decide a large number of cases of this nature wherein evidence in stricto senso would not be available. Applying the above mode of assessment of material in this case, we proceed to answer the questions arising therein. True there is no direct evidence nor any has been relied upon by the learned, counsel for the appellant that Sambali Khan was the real owner of the suit land and that the Ruler had not any superior right therein. Yet one can easily visualise a strong probability that a prudent man in the circumstances of this case, on account of conduct of the parties, could act on the supposition that the exclusive proprietary right in the property did belong to Sambali Khan on the basis of the conduct of the parties, themselves. Now in the present case it stands established that it stands admitted on record that ever since 1961 the respondents/ plaintiffs are in possession of the land; that they have paid the entire price of the land in instalments and that they are paying the land revenue. This conduct of the parties (the conduct of the petitioners in the absolute absence of interest in the affairs of the land) can make a prudent man to act on the supposition that the agreement had been entered into and was performed by the respondents. In this view of the matter, it cannot be said that the learned Courts below have misread or failed to read the evidence on record, properly. This civil revision accordingly fails to make out a case for interference with the impugned judgments and decrees and is accordingly dismissed, leaving the parties to bear their own costs.
2002 Y L 12 1624 [Lahore] Before Tanvir Bashir Ansari, J PEER BAKHSH---Petitioner versus NABI BAKHSH and others---Respondents Civil Revision No, 104-D of 1983/BWP, heard on 29th January, 2002.
Punjab Alienation of Lands Act (XIII of 1900)--- ----Ss.3, 6 & 14---Specific Relief Act (I of 1877), S.42---Bar of Ss. 3, 6 & 14 of the Punjab Alienation of Lands Act, 1900-- Scope---Suit for declaration---Status of vendee as non-agriculturist, determination of---Claim of plaintiffs was that they being vendees of suit land from predecessor- ininterest of defendants were continuously in undisputed possession of the same'as owners since its sale in their favour---Defendants denied sale of suit land in favour of plaintiffs and contested suit---Trial Court and Appellate Court below concurrently decreed the suit---Defendants challenged concurrent judgments and decrees of Courts below on basis of bar contained under provisions of Ss.3, 6 & 14 of Punjab Alienation of Lands Act, 1900 alleging that plaintiffs were nonagriculturists---Defendants in their written statements did not raise any specific plea regarding status of plaintifs as being nonagriculturists---No material was on record which could suggest that plaintiffs were nonagriculturists---Defendants neither had specifically pleaded that plaintiffs were non-agriculturists nor they were able to prove such allegation through any admissible material on record---In order to attract bar contained in Ss.
3. 6 & 14 of Punjab Alienation of Lands Act, 1900 it was necessary as a pre-condition to prove that plaintiffs/vendees were non- agriculturists---In absence of any such proof, Ss.3, 6 & 14 of Punjab Alienation of Lands Act, 1900 would not be attracted-- Concurrent findings of fact of two Courts below based on evidence on record could not be interfered with by High Court when defendants had not been able to point out misreading or non-reading of any material evidence on record. [pp. 1625, 1626, 1627, 16281 A, B, C, D, E, F, G,11&l Alaf v. Mardana and others PLD 1965 (W.P.) Lah. 611; Muhammad Bux and others v. Ghulam Mustafa PLD 1956 (W.P.) Lah. 461; Din Muhammad and another v. Subedar Muhammad Zaman 2001 SCM R 1992; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCM R 336; Province of Punjab v. Malik Ibrahim & Sons and another 2000 SCM R 1172 and Abdul Karim v. Mirza Bashir Ahmed PLD 1974 SC 61 ref. S.M. Anwar Shah for Petitioner. Sheikh Najam Ali for Respondents. Date of hearing: 29th January, 2002.
The suit land bearing Khata No,122/10 (old) and. Khata No, 71/68 (new) popularly known as Jhullar Wali, fully described in the headnote of the plaint was originally owned by the predecessor- ininterest of the petitioners namely Jindwadah and Khan Muhammad sons of Muhammad Bux.
Nabi Bux and others, respondents filed a suit for declaration that they are owners in possession of the suit land having purchased the same from the aforesaid predecessor-ininterest of the petitioners. The plaintiffs/ respondents contended that they have been continuously in undisputed possession of the suit land as owners since the sale in their fal:,our and that the claim of the petitioners/defendants to the contrary, was illegal.
2. The suit was contested. The sale through different deeds by Jind Wadah and Khan Muhammad in favour of the plaintiffs was denied. The possession of the plaintiffs was admitted. However, it was contended that they were tenants on the suit land and had been paying their share of the prdouce but had stopped the same prior to tile filing of the suit.
3. From the pleadings of the parties, following issues were framed:--- ' ISSUES
(1) Whether the predecessor-in-interest of the plaintiffs Sonhara Khan and Hayat were owners of the suit land? OPP (1-A) Whether the plaintiffs have perfected their title in respect of suit land by remaining in adverse possession for the period of 12 years? OPP (1-B) Whether the sale-deed in respect of the suit land, dated 19-4-1926, 21-7-1931 and 14-9-1931 purporting to be executed by the predecessor-ininterest of the defendants are without jurisdiction, fictitious, collusive, illegal and ineffective on the rights of the plaintiff?
(2) Whether the plaintiffs are the owners in possession of the Alit land in shares described in the head note of the plaint?
(3)Whether the suit is not maintainable in its present form?
(3-A)Whether the suit cannot proceed in view of the provision contained in proviso to section 42 of Specific Relief Act? OPD
4. Whether the plaint is deficient in court-fee?
5. Whether the defendants are entitled to special costs under section 35-A, C . P. C .? OPD -
6. Whether the suit is time-barred? OPD
7. Relief.
4. It may be mentioned at this stage that the petitioners did not plead any objection either on the factual ground that the plaintiffs were non-agriculturists or that the sales in their favour were not absolute in view of the provisions of the Punjab Alienation of Land (XIII) Act of 1900. Obviously, no issue was struck in this behalf.
5. The trial Court held that the plaintiffs/respondents have successfully proved their title through the documents of sale placed on the record and that the petitioners/defendants had failed to prove through any reliable evidence that the plaintiffs were occupying the suit land as tenants under them. The total claim of the plaintifs was to the extent of 55 Kanals, 15 Marlas but as the plaintiffs themselves admitted that 11 Kanals out of the suit land had been excluded from the Khata, the trial Court decreed the suit to the extent of 45 Kanals, 15 Marlas (should correctly be read as 49 Kanals, 15 Marlas) vide judgment and decree, dated 13-6-1981. The petitioners preferred an appeal.
The learned Appellate Court reconsidered the entire evidence on the record and it was established that the plaintiffs/respondents were in possession of the suit land. This possession was linked to the sales which were executed in favour of the plaintiffs. The sale-deeds have been brought on the record as Exh. P.3, Exh. P.4, Exh. P.5 and Exh. P.6. All these documents are more than 30 years old and the learned Appellate Court concurred with the findings of the trial Court in placing reliance upon the same. It also found that besides the verbal assertion of the petitioners that the plaintiffs are their tenants, there was nothing on the record to establish this fact. Admittedly, the land revenue and the water tax had all been paid by the plaintiffs to the Government. It was also observed that in the Revenue Record comprising of Exh. P.7 and Exh. P.8 Jindwadah and Khan Muhammad had been recorded as vendors and Hayat and Sohandara has been incorporated as vendees from 1933 to 1973 continuously without any interruption. Concurring with the findings of the trial Court, the learned Appellate Court dismissed the appeal of the petitioners vide judgment and decree, dated 19-12-1982.
6. This civil revision is directed against the concurrent findings recorded by both the lower Courts.
7. Syed Muhammad Anwar Shah, Advocate for the petitioners has strongly challenged the impugned judgment on the basis of the bar contained under the provisions of Punjab Alienation of Land Act 1900 . The specific contention is that under section 3 of the Act of 1900, a permanent alienation of land by a Member of an agricultural Tribe in favour of a non-agriculturist shall not take effect as such unless and until sanction is given thereto by the Deputy Commissioner concerned. It is further contended that under section 14 of the Act, any permanent alienation hit by section 3 is not to take effect as such until sanction of the D.C. Is given thereto and shall until such sanction is given or if such sanction have been refused to take effect as a usufructuary mortgage in form (a) permitted by section 6 for such term not exceeding 20 years and on such conditions as the D.C. Considers to be reasonable. The learned counsel contended that even if the sale transaction by Jindwadah and Khan Muhammad are proved in favour of the respondents, yet these transactions, on account of the afore-said would not confer absolute title upon the respondents. He further contended that both the lower Courts have erred in law in placing reliance upon Notification No,657-R, dated 3-4-1950 issued by the Punjab Government under the Punjab Alienation of Land Act, 1900 as the said notification could not operate retrospectively. In support of his proposition, the learned counsel placed reliance upon Alaf v. Mardana and others PLD 1965 (W.P.) Lahore 611 and Muhammad Bux and others v. Ghulam MuStafa PLD 1956 (W.P. Lahore 461, wherein, it was held that the Notification No,657-R, dated 3-4-1950 did not operate retrospectively.
8. On the other hand Sheikh Najam Ali, Advocate for the respondents contended that the petitioners in their written statement did not raise any specific plea regarding the status of respondents as being non-agriculturists. He submitted that the argument based upon sections 3, 6 and 14 of the Punjab Alienation of Land Act, 1900 is a mixed question of law and fact. Unless and until a vendee is alleged and proved to be a non-agriculturist no bar as contained in the Act of 1900 would be applicable.
9. He next contended that no evidence can be led on a plea not raised in the pleadings and which is not framed as an issue. According to him, there is no material on the record which could suggest that the respondents were non-agriculturists. In this context he placed reliance upon Din Muhammad and another v. Subedar Muhammad Zaman 2001 SCM R 1992, wherein, it has been ruled that a party cannot be allowed to make departure from his stand taken in the pleadings.
Unless and until the pleadings are allowed to be amended, no such departure is permissible. He further relied upon Binyameen and 3- others v. Chaudhry Hakim and another 1996 SCM R 336 wherein, it has been postulated that no evidence can be led or looked in support of a plea which had not been taken in the pleadings, also that the variation in pleadings was not permissible in law.
To the same effect, the learned counsel drew strength from the case of Province of Punjab v. Malik Ibrahim & Sons and another 2000 SCM R 1172 and Abdul Karim v. Mirza Bashir Ahmed PLD 1974 SC 61 to contend that parties are not entitled to set a case or to lead evidence on issues which do not arise from their pleadings. On the question of the effect of the provisions of Punjab Alienation of Land Act, 1900 barring the transfer of title from a member of an agricultural tribe in favour of a non- agriculturist he contended that firstly the status of the respondents as non-agricultrists was not proved and secondly there was nothing on the record that the vendors had at any stage accepted the alienees as usufructuary mortgagee. He further contended that even under sections 3, 6 and 14, there is no time frame within which the sanction of D.C. Is to be obtained. In any event, he contended it is not the case of the petitioners that such sanction has been refused.
10. Arguments have been heard and record perused.
11. It is borne out from the record that the petitioners as defendants did not challenge the status of the respondents as non-agriculturists either directly or even obliquely. Much less, no reference whatsoever was made to any purported bar under the Punjab Alienation of Land Act, 1900 . The entire defence of the petitioners was confined to the denial of the sale transaction made by their predecessor-ininterest and that the plaintiffs/respondents were in possession as tenants.
Obviously, the issues were framed in accordance with the pleadings of the parties upon which issues the parties went on trial.
12. In order to attract bar contained in sections 3, 6 and 14 of the Act of 1900 it was necessary as a per-condition to prove that the plaintiffs were non-agriculturists. In the absence of any such proof sections 3, 6 and 14 of Act of 1900 shall not be attracted.
13. A feeble reference was made to a copy of mutation placed on the file of the trial Court on 2- 3.1977. This mutation is neither exhibited on the record nor produced in the evidence in accordance with law. Even its number was not legible to the trial Court. Upon the strength of this document, it was urged that the plaintiffs/respondents had made a report to the Patwari that they have purcahsed the land but mutation could not be sanctioned because they were non-agriculturists. It appears from the record that no order was made on this mutation and the parties were referred to the Civil Court.
14. Such a document cannot be a proof of the status of the respondent particularly when nothing has been alleged or proved in this respect before the trial Court.
15. It is thus found that the petitioners have neither specifically pleaded that the respondents were non-agriculturists nor they were able to prove this allegation through any admissible material on the record.
16. The contention of the learned counsel for the petitioners that the Notification No, 657-R, dated 3- 4-1950 is not retrospective is supported by the dictum of a Division Bench of this Court in the case of Muhammad Bux and others v. Ghulam Mustafa Khan (supra). But this alone shall not advance the case of the petitioners as they have not been able to show that the respondents were non- agriculturists in the first place. The findings of fact recorded by both the lower Courts in as far as they relate to the sales in favour of the respondents are unexceptionable. The learned counsel for the petitioners has not been able to point out misreading or non-reading of any material evidence on the record. The civil revision is without merit which is hereby dismissed. Parties to bear their own costs
17. Civil ..