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Regular First Appeal No. 212 of 1984, decided on 3rd February, 1987.

---S. 96--Qanun-e-Shahadat Order (10 of 1984), Art. 117--Suit for possession--Entitlement to property--Grant of decree in favour of plaintiff wherein evidence do record was neither thoroughly examined nor properly understood by Trial Court--Effect--Mutation, Tatimma, report of Patwari and that of Local Commissioner on which decree of trial Court was based, held, were of no assistance besides being inconclusive as drawn by incompetent officials--Failure on the part of plaintiff to produce sale-deed or P.T.D. issued in favour of his predecessor-in-interest was quite material--Noticeable inconsistency in plaintiff's documents and plaint wherein quite perceptibly attempt was made to progressively increase area of plaintiff's entitlement--High Court in exercise of its appellate jurisdiction set aside judgment and decree of Trial Court which was based on misreading of documents and wrong appreciation of evidence.

Ch. Mazharul Haq Bhatti with Hanif Chaudhry for Appellant.

A.G. Chaudhry with Miss Angela Marks for Respondent.

Date of hearing: 3rd February, 1987.

--The regular first appeal has been directed against the judgment /decree, dated the 18th of November, 1984, of the learned Civil Judge Ist Class, Lahore, whereby the suit of the respondent-plaintiff Messrs Schazoo Laboratories Limited for possession was allowed to the extent of 1 Kanal 4 Marlas 210 Sq. Ft. as against their claim of 1 Kanal 14 Marlas 190 Sq . Ft.

2. They alleged that Evacuee Property No. SE.I-R-88. G.T. Road, Lahore, Measuring 6 Kanals in all, having been earlier transferred permanently to defendant No. 2 Pirzada Sharif Ahmad, was purchased by them from him vide registered sale-deed, dated the 13th of May, 1966, for a sum of Rs.70,000 and that they had even obtained its possession. They added that out of the total area thereof, I Kanal 10 Marlas were built up whereas the remaining 4 Kanals 10 Marlas were lying vacant; that defendant No. 1 Ch. Sardar Muhammad trespassed on it in March, 1967, to the extent of 1 Kanal 14 Marlas 190 Sq.Ft. and that despite demands, he refused to vacate it resulting in the present suit.

3. The appellant Sardar Muhammad contested the suit seriously pointing out that it by limitation; was hit by section 11, C.P.C., inasmuch as even earlier a suit brought on the point by the respondent was dismissed upto the High Court; was under-valued for court-fee as well as jurisdiction; and was quite vexatious. He denied having committed any trespass upon the respondent's property explaining that his own Bungalow bearing No. SE. I-R-90/5 and that of the respondent were independent evacuee properties and were on such transferred separately. He further denied if the respondent', property was 6 Kanals in area pointing out that it had only 3 Kanals.

4. The following issues were framed by the trial Court:

(1) Is this suit time-barred

(2) Does any previous litigation between the parties operate as res judicata

(3) What is the market value of the suit property

(4) Is this suit not properly valued for the purposes of court-fee and jurisdiction

(5) What property was purchased by the plaintiff from defendant No. 2 and what is its area

(6) Is defendant No. 1 in possession of any property belonging to the plaintiff

(7) Is this suit false and vexatious, if so, is defendant No. 1 entitled to any special costs under section 35-A. C. P. C. , if so, to what amount

(8) Relief.

5. Relying primarily on mutation (Exh. D.1) and its Tatimma (Exh. D.A/1-A) describing the area of the appellant's house bearing No. SE. I-R-90/5 to be only 2 Kanals 84 Sq.Ft. and his statement that he was occupying 3 Kanals 5 Marlas 69 Sq. Ft., the trial Court held that the difference of 1 Kanal 4 Marlas 210 Sq.Ft. was not a part of the appellant's house and that instead being a portion of the respondent's house, it was encroached upon. It accordingly- decreed the suit to that extent.

6. Mr. Mazharul Haq Council for the appellant was quite bitter, in urging that a number of public documents, giving comparatively a clearer description of the areas of the respective houses were totally left out of consideration and that the mutation or its Tatimma were no original documents as compared particularly to P.T.D. etc. issued by the Settlement Department. He further submitted that the respondent-plaintiff was duty bound to have prod- ed the gale-deed under which he purchased the contiguous house from defendant No. 2 and also the P.T.D. issued in iris favour. He strongly disputed if the appellant ever admitted that his house measured 3 Kanals 5 Marlas 69 Sq.Ft., and highlighted that while in the plaint the respondent stated the area of his house to be 6 Kanals, his documents Exh. P.5 showed it to be 3 Kanals, 16 Marlas 144 Sq.Ft. and Exh. P.4 recorded it to be 3 Kanals 18 Marlas 204 Sq.Ft.

7. Mr. A.G. Chaudhry for the respondent refuted these arguments but we are constrained to remark that the evidence on the record was neither thoroughly examined nor properly understood by the trial Court. Both the sides placed copies of assessment registers oft their respective houses. Copies (Exhs. D.5, D.7 and P.3) relate to the respondent-Plaintiff's house No. 88. In the former two, namely, for the years 1966-67 and 1976-77, the area of his house is shown to be 3 Kanals but in P.3 relating to the same year viz. 1976-77, it recorded the area of his house to be 4 Kanals 15 Marlas. Why two copies for the same year (1976-77) of the same house should give divergent account There was undeniably an increase in the area of 3 Kanals shown ten years ago in 1966-67 in D. 5. It needed an explanation which was conspicuously missing. Conversely the area of the appellant's house as shown in similar assessments (Exh. D.6) for 1966-67 and Exh. D.8 for 1971-72 was consistently recorded to be 31 Kanals. If the same register contained consistent entries about the appellant's house, it was supposed to have shown the same consistency even in relation to the respondent's house but unluckily in the later entry it increased his area from 3 Kanals to 4 Kanals 15 Marlas. As already pointed out, P.3 for the same year 1976-77 was discordant with D.7 and was of no evidentiary worth.

8. The Mutation D.1, its Tatimma D.1/A and the reports of the Patwari or even that of the Local Commissioner Mr. Ibrahim, Advocate, were of no assistance. They were inconclusive besides being drawn by incompetent officials. Demarcation has to be done by no official less than Girdawar but here Patwari P.W. had been making it in his' own way. He tried to connect Khasra Nos. 186/1 and 186/2 with the impugned site but failed to produce any field map to delineate the site.

9. The failure on the part of the respondent-plaintiff to produce the sale deed or the P.T.D. issued in favour of his predecessor-in-interest was quite material. It is not shown how much area may have been mentioned in his P.T.D. Exh. P.8 suggests that land in excess of three times the covered area was segregated from the property shown as SE. I-R-88 and was purchased by Pirzada Sharif Ahmad on payment of Rs.57,600. Counsel claimed that the sale in favour of the appellant was only of the covered area measuring 3 Kanals and that the rest for which Pirzada Sharif Ahmad respondent No. 2 had paid a huge amount, was not included in the transfer deed executed by him in favour of the respondent. This contention may not be the whole truth but the copy of the Appendix does reveal that the covered area of SE. I-R-88 was segregated from excess area thereof. It had to be established if the sale made in favour of the respondent included even that area but no attempt was made in this behalf. In a way, therefore, this document helps the appellant.

10. The appellant produced his P.T.D. (D.3) which transferred Bungalow No. 90/5 to him as one unit. Counsel adverted attention to the order of the Deputy Settlement Commissioner, dated the 12th of June, 1980, (D.4) by which the respondent's attempt to smuggle a fake site plan into the documents of the Settlement Department was foiled by the appellant's vigilance by bringing it to the notice of the Deputy Settlement Commissioner whereupon the smuggled site plan was scored out. Manifestly -the idea behind placing such a fake document on public record was a questionable attempt to claim increased area as compared to the original 3 Kanals mentioned in quite a number of scarosanet documents like the registers of assessment. We are not persuaded to agree with the reasoning adopted by the trial Court in preferring the Mutation D.1. It was misread to convey only 2 Kanals 84 Sq.Ft. Instead it conveyed 2 Kanals 14 Marlas 114 Sq.Ft. but then it was a sort of executory document which had to be correlated to some original order upon which it was based. The P.T.D. issued in favour of the respondent (D.3) was, of course, silent as to the area but the assessment registers, copies D.6 and D.8 described unmincingly the site under the appellant's house to be 3 Kanals. Further, there was noticeable inconsistency in the respondent's documents P.4, P.5 and the plaint in which quite perceptibly an attempt was made to progressively increase the area of his house. This incongruity looked odd, and since was left without explanation, there was every reason to prefer to rely upon the respondent's documents relating to both the houses:

11. In reply, Mr. A.G. Chaudhry had nothing much to say in support of the impugned decree. He tried to claim that both the houses were the same single property but there was no evidence to bear it out. When asked to explain the divergence in the two copies of the assessment register for the year 1976-77, namely, P.3 and D.7, he had nothing to state.

12. As a result of this discussion, we accept the appeal with costs throughout, set aside the judgment/decree of the Court below and dismiss the respondent's suit.

A.A./S-33/L Appeal accepted.

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