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Civil Revision No.805-D of 1984, decided on 11th February, 1987.

---Ss.151, 115 &, 24 Consolidation of suits--Power of Courts Matter of consolidation of suits to be death with by Courts in their inherent jurisdiction--Circumstances of case fully justifying trial of both suits together as analogous cases so as to avoid possibility of passing conflicting judgments-Consolidation of suits was ordered by Trial Court at stage when only judgment was to be delivered in each suit--No prejudice had been caused to petitioners by consolidation of two suits--No valid objection to such consolidation, held, could be raised by petitioners in revision before High Court as petitioners ire both suits claimed ownership in respect of one and some property, especially when plea that consolidation has caused prejudice to petitioners was neither raised before Appellate Court below nor in memorandum of revision filed before High Court.

---Arts.85 & 89--Public documents, proof of--Certified copies of registered sale-deeds executed by respondent, were exhibited on record subject to objection of petitioners--No valid objection, held, could be raised to reception of such documents on record as same were certified copies of sale-deed, which formed part of public record, especially when petitioners having opportunity to rebut evidence on record including such sale-deeds failed to avail of such opportunity.

Mian Saeed-ur-Rehman Farruk for Petitioner.

Ch. Ghulam Haider for Respondent.

Date of hearing: 11th February, 1987.

This revision petition under section 115, C.P.C. was directed against the judgment and decree, dated 12-4-1984 of the learned Additional District Judge, Faisalabad, whereby the appeal filed by the petitioners was dismissed and the judgment and decree, dated 25-6-1983 of the learned trial Court dismissing the suit of the Petitioners was maintained.

2. The facts necessary for the disposal of this petition are that Faqir Muhammad petitioner filed a suit for declaration to the effect that he is owner of th share out of land measuring 9 marlas, on which house bearing No.P-211-1, street No.4, Mohallah Muhammadpura, Faisalabad, stands constructed and mutation No.22023, dated 13-4-1980 having been fraudulently procured is liable to be cancelled and the respondent be permanently restrained from interfering in the ownership and possession of the- house in dispute. The present petitioners thereafter filed a suit for possession of house comprising 2 marlas situated in khasra No.60/19/12 and bearing property No.P-211, street No. 4, Mohalla Muhammadpura, Faisalabad, with the assertion that father of the petitioners was in possession, control and management of the suit house as well as other portion of the land under the authority of the previous owner; that their father died 7 years prior to the institution of the suit but the said house was transferred by the previous owner in favour of the petitioners and as such they were the owners of the suit land over which the house stands constructed. It was further asserted that the respondent temporarily entered into the premises exerting undue influence over their father who was a simpleton. It was also alleged that at that time there existed only one kacha kotha on the land and that after the death of their father the respondents have refused to deliver possession of the premises back to the- petitioners. Both these suits remained pending .in one and the same Court which after framing issues in both the suits, proceeded to try the same separately. The parties leis separate evidence in both the suits. In the suit filed by the petitioners the trial ended on 13-3-1983 and the suit was then adjourned for argument's on 5-4-1983 when after hearing arguments the matter was fixed for judgment on 3-5-1983. In the other suit filed by Faqir Muhammad the evidence was concluded on 19-2-1983 and the suit was adjourned for arguments to 13-3-1983. The arguments were also heard on 5-4-1983 and the suit was fixed for judgment on 3-5-1983. On this date an application for consolidation of the two suits was filed by the respondents. This application was resisted by the petitioners but the learned Court vide order, dated 24-5-1983 consolidated both the suits and the issues framed in the suit filed by Talib Hussain and others, the petitioners, were transferred to the file of the other suit. It was further observed that the evidence recorded in this suit will also be read in the other suit. The matter was then adjourned for-arguments of the parties to 12-6-1983. The learned trial Court ultimately vide judgment and decree, dated 25-6-1983 dismissed both the suits. The petitioners then filed an appeal challenging the judgment and decree of the learned trial Court so far as it related to the suit filed by them. Faqir Muhammad respondent, however, did not challenge the dismissal of his suit. The appellate Court vide judgment and decree, dated 12-4-1984 affirmed the findings recorded by the learned trial Court and thus dismissed the appeal filed by the petitioners. This led to the filing of the present revision petition.

3. It will be pertinent to note at this stage that the plea that consolidation of the two suits has caused prejudice to the petitioners was neither raised before the learned appellate Court nor in the memorandum of revision filed in this Court. This plea appears to have been taken only while arguing the revision petition at the time of preliminary hearing.

4. The questions which require determination are whether the consolidation of the two suits has caused any prejudice to the petitioners and whether the trial Court acted illegally or with material irregularity in consolidating the two suits and in disposing them of by one and the same judgment. I have gone through the record of the two suits and have also heard the learned counsel for the parties. In my view, no -prejudice has been caused by consolidating the two suits. In the facts and circumstances of this case no valid objection to the consolidation of these two suits can be raised as the parties in both the suits laid claim of ownership in respect of one and the same property. It is true that in the suit filed by Faqir Muhammad besides the petitioner three other persons were arrayed as respondents but in fact relief was claimed as against the petitioner only. -The question as to who out of the rival parties is owner of the house in dispute requires determination in both the suits. The matter of consolidation of suits is to be dealt with by the Courts in their inherent jurisdiction vesting under section 151, C.P.C. The whole question to be considered is whether or not in the long run it would be expedient and advantageous to all concerned to have the two suits tried together as analogous cases. The circumstances noted above fully justified the trial of both the suits together as analogous cases so as to avoid the possibility of passing conflicting judgments. In these suits consolidation was ordered at the stage when only judgment was to be delivered in each suit. The parties prior to consolidation, produced evidence in 'each suit separately but the judgment -passed, as the suits had then been consolidated, proceeded on the entire evidence available on record of both the suits. It may be noted that on consolidation of the two suits issues framed in the suit filed; by -the petitioners were transferred to the file of the suit of. Faqir Muhammad. None of the parties at this stage sought opportunity to lead further evidence. Such an opportunity was also not sought in the. first appeal filed by the petitioners. However, in this Court the petitioners submitted an application (Civil Miscellaneous No.2407 of 1984) for permission to produce as additional evidence the receipt of payment of District Council fee and a copy of jamabandi for the year 1955-56 showing Mst. Jhando as owner of the khasra number in question. This application does not appear to have been pressed at the time of admission of the revision petition. Learned counsel did not press this application even before me for the apparent reason that both the documents are not sufficient to establish title of the petitioners in the house in question. The evidence on record in the context of the assertion contained in the pleadings may now be gone into. The petitioners in the plaint took the stand that father of the petitioners was in possession and control of the suit property under the authority of the previous owner who later on transferred the land in question in favour of the petitioners and thus the petitioners became the owners of the same on which the house stands constructed. Alongwith the plaint a photo copy of mutation register pertaining to mutation No.22023, dated 13-4-1980 was filed. According to the entry recorded in one of the columns of this copy the sale of land was effected through registered sale-deed No.775, dated 2-2-1960. Talib Hussain one of the petitioners entered the witness box and in his examination-in-chief deposed that the petitioners were owners of the suit property. He did not state as to how the petitioners came to acquire title and ownership of the land and the house in question. He, however, produced a copy of register Haqdaran Zamin for the year 1979-80 (Exh.P.l). He deposed that father of the petitioner died in 1974. In cross-examination Talib Hussain stated that the sale-deed from Mst. Jhando was obtained by their father. He refuted the suggestion that the sale-deed referred to by him was not that of Mst. Jhando but pertained to some other property. He further deposed in cross-examination that he was not aware that Mst. Jhando had disposed of the land in question through two sale-deeds, each pertaining to 41 marlas. He refuted the assertion that bogus mutation was got entered through fraud and added that the sale-deed was not available with them as the same was not returned by the patwari to whom it was handed over for entering the mutation Except for the sole testimony of Talib Hussain and production of a copy of Record of Rights no other oral or documentary evidence was produced by the petitioners. As against this Faqir Muhammad appeared as D.W.1 and in his examination-in-chief he stated that he had three brothers, namely, Faiz Muhammad, Fateh Muhammad and Hafiz Nazir Ahmad and that Talib Hussain petitioner was the son of Hafiz Nazir Ahmad; that on migration to Pakistan all these brothers occupied the plot of land measuring 9 marlas which was partitioned amongst themselves and they then built their own houses thereon. He produced two sale-deeds, dated 3-4-1946 Ex D-1 and Ex. D-2 purportedly executed by Mst. Jhando in favour of Dayal Chand and Sardar Dhian Singh, the evacuees. These two sale-deeds pertained to the land in question over a part of which the house in question stands constructed. Learned counsel submitted that these two sale-deeds should not should not have been read into evidence as these were not initially relied upon by the respondents in the list of reliance filed by them. He pointed out that these documents were exhibited on record subject to the objection of the petitioners. No valid objection, however can be raised to the reception of these two documents on record as these were certified copies of the sale-deeds which formed part of the public record. The petitioners had the opportunity to rebut the evidence including the sale-deeds produced by the respondents but this opportunity was not availed. One of the petitioners appeared as a witness but he failed to disclose the basis on which ownership was claimed. No one else was produced to support the claimed title. Another important factor to be noted is that Talib Hussain petitioner in examination-in-chief asserted that the sale-deed was not returned to them by the Patwari to whom the same was handed over for having the entries recorded in the revenue record. Even if this assertion is true still a certified copy of the sale-deed could be produced especially when the respondents in the written statement had taken the plea that the sale-deed referred to in the mutation entered in the names of the petitioners does not exist at all. In these circumstances copy of Record of Rights produced by the petitioners cannot be pressed into service as a document conferring title. The evidence qualitatively as well as quantitatively is insufficient to provide a sound basis for upholding the plea of title of the petitioners. It is, therefore, apparent that the petitioners cannot succeed in the suit on the basis of the evidence produced by them even if the evidence produced in the other suit is kept out of consideration. It is also obvious that no prejudice whatever has been caused to the petitioners. Be that as it may no useful purpose will be served by remanding the case to the trial Court for delivering a judgment afresh at this stage as during all these years that the litigation has remained pending, copy of the sale-deed allegedly got executed by the father of the respondent in favour of the petitioners has not been placed on record.

5. For the reasons given above I do not find any merit in this revision petition and the same is, therefore, dismissed with costs.

H.B.T./F-17/L Revision dismissed.

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