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 .. #EndJudgment