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Civil Revision No.1832/ D of 1986, decided on 9th June, 1987.

---S.115--Finding of fact--Finding of fact--No misreading of evidence or any other defect justifying interference with concurrent finding of fact was pointed out--Petition dismissed.

M. Pervaiz Akhtar for Petitioner.

Date of hearing: 9th June, 1987.

This judgment shall dispose of Civil Revision No.1832/D of 1986 as well as Civil Revision No.1833/D of 1986.

2. Facts giving rise to these civil revisions are that on 9th September, 1975, a house was sold by Masood Ahmad Bajwa and others in favour of Mst. Kalsoom Bibi daughter of Lai Din, by means of sale-deed, copy Exh.D.l. Subsequently, sale-deed, copy Exh.D.2, was executed on 1st June, 1980, showing that said Mat. Kalsoom Bibi had sold the above house to Mst. Khurshid Bibi. It was on the basis of the sale-deed in her favour that Mst. Khurshid Bibi brought a suit against two persons, namely, Saleem and Lai, alleging that they had forcibly occupied the house without any title. On the other hand, Mst. Kalsoom Bibi filed a suit against Mat. Khurshid Bibi and one Manzur Husain for a declaration to the effect that the sale in favour of Mst. Khurshid Bibi did not affect her rights in the disputed house inasmuch as it was without consideration and that the sale-deed regarding that sale was a forged and fabricated document. She also prayed for a permanent injunction restraining the defendants from alienating the house or interfering with her possession over the house. The said Manzur Husain identified the executant of the sale-deed in favour of Mst. Khurshid Bibi at the time of its registration. Plea raised by Mst. Kalsoom Bibi was that she never executed the sale-deed in favour of Mst. Khurshid Bibi or appeared before the Sub-Registrar for its registration. Mst. Kalsoom is married to Muhammad Tufail. It was disclosed by her that as Lai Din son of Fateh Muhammad, who was elder brother of her (Mst. Kalsoom Bibi's) husband, was issueless, he lived with Mst. Khurshid Bibi and her husband, Ghulam Husain. Due to this, Mst. Khurshid Bibi developed intimacy with her (Mst. Kalsoom Bibi) and came to know of the place where the sale-deed in her (Mst. Kalsoom Bibi's) favour was kept. Taking advantage of this knowledge, she stole away the said sale-deed, copy Exh.D.1, and forged the sale-deed, copy Exh. D.2, executed in her favour and got it registered.

3. The said two suits were consolidated. The Civil Judge, who heard the suits, found that Mst. Khurshid Bibi had a daughter from her husband, Ghulam Husain, whose name was also Kalsoom Bibi. By exploiting her name, therefore, she got the sale-deed, copy Exh.D.2, executed by her daughter, although she had no title to the house in question. As stated above, Mst. Kalsoom Bibi, who had purchased the house by means of sale-deed, copy Exh. D.1, was daughter of Lal Din, but Ghulam Hussain is father of Mst. Kalsoom Bibi who is daughter of Mst Khurshid Bibi. At the trial, this was confirmed by the daughter of Mst. Khurshid Bibi when she entered the witness-box as D.W.2. She admitted having executed the sale-deed, copy Exh.D.2, in favour of Mst. Khurshid Bibi. As for her right to do so, it was explained by her that, in fact, it was she who had purchased the house from Masood Ahmad Bajwa and others by means of sale-deed, copy Exh.D.1, but since she had been adopted by Lal Din she was shown as daughter of Lal Din. Her plea did not find favour with the Civil Judge, who decided the suits. The conclusion reached by him was that sale-deed, copy Exh. D.1, was executed in favour of Mst. Kalsoom Bibi daughter of Lal Din and that since sale-deed, copy Exh.D.2, was not executed by her, the latter did not confer any title on Mst. Khurshid Bibi. Resultantly, he dismissed the suit of Mst. Khurshid Bibi and decreed the suit of Mst. Kalsoom Bibi daughter of Lal Din. Mst. Khurshid Bibi filed appeals against the judgments and decrees passed in two suits but in vain. She has, therefore, come up in revision to this Court.

4. It was contended by learned counsel for the petitioner (Mst. Khurshid Bibi) that Mst. Kalsoom Bibi daughter of Ghulam Hussain had actually purchased the disputed house from Masood Ahmad Bajwa and others and, therefore, sale in favour of the petitioner, which was, actually made by her (Mst. Kalsoom Bibi daughter of Ghulam Hussain) was a valid sale. This plea was repelled by the learned Civil Judge while deciding Issue No.2, relating to the averment of the plaintiff (Mst. Kalsoom Bibi daughter of Lal Din) that the sale-deed in favour of Mst. Khurshid Bibi was illegal and void, and thus ineffective upon her rights. Relevant extract from his judgment, in the suit brought by Mst. Kalsoom Bibi daughter of Lal Din, is reproduced below:--

" ..It is the version of the plaintiff that she purchased the disputed plot in consideration of Rs.3,000 in the Bajwa Colony Okara, and then constructed a house on it. Her version is that the defendant No.1, obtained a fraudulent sale-deed No.2416, dated 1-6-1980, for the suit house. The plaintiff appeared as P.W.1, and corroborated her plaint. On, the other hand it is the version of the defendants in their written statement that the plaintiff Mst. Kalsoom Bibi appeared before the Sub-Registrar at the time of execution of the sale-deed Exh.D.2. But it is again pertinent to note that in the evidence the defendants introduced entirely a new case. D.W.2, Mst. Kalsoom Bibi, is the daughter of defendant No.1. She deposed that she sold the said plot to the defendant No.1, her real mother, in consideration of Rs.3,000/- vide registered sale-deed Ex.D.2. It is again pertinent to note that the said Kalsoom Bibi D.W.2, is the daughter of Ghulam Hussain, but in the said sale-deed Exh. D.2, the father's name of Kalsoom Bibi is mentioned as Lal Din. I am surprised that in the written statement it was the version of the defendant No.1 that she purchased this plot from the plaintiff Kalsoom Bibi and she received the consideration amount from her, but in evidence another Kalsoom Bibi came to picture and a new story has been built up by the defendants. The plaintiff produced a copy of Nikah Nama of D.W.2, which is Exh.P.3. This document shows that Mst. Kalsoom Bibi. D.W.2, is the daughter of Ghulam Hussain and she is married to one Mubarak Ali resident of District Vehari. This fact is also admitted by the D. W. 4, Ghulam Hussain, the father of the D.W.2. In view of the evidence produced by the defendant, it is crystal clear that the defendant has tried to retract from her pleadings. It is a well-settled law that parties cannot go beyond their pleadings. A party is bound to prove the case which is alleged by him in the pleadings. A party can only succeed according to what it has alleged and proved. A party cannot succeed in a case not agitated in pleadings and cannot be allowed at the trial to change his case or to set up a case different from one set up in pleadings. The whole evidence of the defendants is on those pleas which were never raised in their pleadings. The defendant must have proved that she purchased the said plot from the plaintiff as alleged in her written-statement. In view of the version set up by the defendant in her evidence, there is no need to discuss the other details of this case. The defendant has tried to get advantage for similarity of name of her daughter D.W.2, with the plaintiff. It is deposed by the D.W.2, that at the time of execution of the sale-deed, she told the Sub-Registrar that the actual name of her father is Ghulam Hussain but in the sale-deed it is shown as Lal Din, but D.W.3 Manzoor Hussain, Numberdar, who is an attesting witness of this sale-deed deposed that the D.W.2, never told her real paternity to the Sub-Registrar. The evidence produced by the defendant shows that the defendant has tried to make out a concocted story. I am of the considered opinion, that the sale-deed No.2416, dated 1-6-1980 is a result of fraud and mis-representation and the sale-deed is liable to be cancelled. The plaintiff has valid title and possession of the disputed house."

This finding, which is on a question of fact, namely, whether the house in dispute was purchased by Mst. Kalsoom daughter of Lai Din from Masood Ahmad Bajwa and others and then sold to Mst. Khurshid, was also upheld by the learned Additional District Judge. Thus, there is concurrent finding against the petitioner. No misreading of evidence or any other defect justifying interference with the above finding was pointed out by her learned counsel. I am, therefore, unable to disturb it.

5. There is no merit in the two civil revisions mentioned at the outset. They are, therefore, dismissed in limine.

M.A. K. /K-32/L Petition dismissed.

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