PLJ 2022 Lahore (Note) 116
Specific Relief Act, 1877 (I of 1877)--
----Ss. 42 & 54--Suit for declaration and permanent injunction--Closing of right of defence of defendants--Non-producing of evidence by defendants--Dismissal of suit--Temporarily allotment of suit land--Confirmation of allotment of predecessor Plaintiff No. 2 to 6--Refugees from J.K.--Pedigree table--Challenge to--Only allotment in favour of Ismail and Shah Muhammad was confirmed against their share of 208 units--Onus was shifted upon petitioners to prove that entries in revenue record; were wrong or there is any subsequent order of competent authority through which Defendants No. 1 to 10 were also allotted land in question, but neither they produced any oral nor documentary evidence in this regard--Averments made in written statement are to be proved through cogent evidence and if a party does not produce evidence to support contents of its written statement, such averments cannot be treated as evidence--In event of conflict of judgments, findings of appellate Court are to be preferred and respected, unless it is shown from record that such findings are not supported by evidence. [Para 4 & 5] A, B, C & D
PLD 2010 SC 604, 1988 MLD 1122 & 2008 SCMR 398 ref.
Mr. Muhammad Aslam, Advocate for Petitioners.
Mr. Salman Nasrullah Warraich, Advocate for Respondents.
Date of hearing: 22.6.2022.
PLJ 2022 Lahore (Note) 116
Present: Ch. Muhammad Iqbal, J.
AMAN ULLAH etc.--Petitioners
versus
MUHAMMAD BOOTA, etc.--Respondents
C.R. No. 2077 of 2014, decided on 22.6.2022.
Judgment
Through this civil revision, the petitioners have challenged the validity of the judgment & decree dated 09.04.2014 passed by the learned Addl. District Judge, Sialkot, who accepted the appeal of the respondent/plaintiff Muhammad Boota etc. and set aside the judgment and decree dated 16.09.2010 passed by the learned Civil Judge, Sialkot, and decreed the suit of the respondents/plaintiffs.
2. Brief facts of the case are that the respondents/plaintiffs filed suit for declaration and permanent injunction alleging therein that late predecessor of the Plaintiffs No. 2 to 6 namely Muhammad Ismail got his allotment confirmed on the basis of his 1/4 share against claim units, whereas Defendants No. 1 to 19 in connivance with the revenue staff got entered their names in the revenue record as owners alongwith plaintiffs, whereas they were having no legal right to do so. It was prayed that the plaintiffs alongwith Defendants No. 20 to 26, 30 to 36 be declared owners of the suit property and entry in the revenue record regarding names of Defendants No. 1 to 19 as co-sharers in the Suit property be declared illegal and void. Defendants No. 2 to 11, 13 to 18 filed joint written statement controverting the allegations whereas Defendants No. 20 to 23, 25 to 28 submitted conceding written statement. The learned trial Court framed issues, the plaintiff got recorded oral as well as documentary evidence, whereas the petitioner/ defendants did not produce their evidence and their right was closed under Order XVI Rule 3 CPC. The learned trial Court vide judgment and decree dated 16.09.2010 dismissed the suit of the respondents/ plaintiffs. The respondents assailed the said judgment through filing appeal, which was accepted by the learned Addl. District Judge, Sialkpt, who while setting aside the aforesaid judgment and decree, decreed the suit of the respondents/plaintiffs vide judgment and decree dated 09.04.2014, hence the present revision petition.
3. I have heard the learned counsel for the parties and gone through the available record with their able assistance.
4. The suit land was initially temporarily, allotted to seven persons being refugees from Jammu & Kashmir, but subsequently names of Muhammad Ishaq son of Sahib Din and Mst. Barkat Bibi wife of Muhammad Ishaq were also included in the allotment. In initial allotment, names of Shah Muhammad father of Plaintiff No. 1, Muhammad Ismail and Mst. Shan Begum father and mother of Plaintiffs No. 2, 4 to 6 Were included. As per pedigree table drawn in Para 4 of the plaint Muhammad Ismail, Muhammad Din, Ilam Din and Ibrahim were the sons of one Nasar Din, who migrated from the State of Jammu and Kashmir. The pedigree table is reproduced as under:
The factum of temporary allotment in favour of (i) Ismail (ii) Muhammad Iqbal (iii) Dilawar Hussain (iv) Muhammad Mustafa (son) (v) Shamim Begum (daughter) (vi) Shah Muhammad (nephew) (vii) Mst. Shan Begum (wife of... Ismail, (viii) Muhammad Ishaq son of Sahib Din, (ix) Barkat Bibi wife of Muhammad Ishaq. The predecessor of the petitioners Muhammad Ismail alongwith others also applied for the allotment. Ibrahim and Ismail equally shared 278 units. Shah Muhammad and Khan Muhammad have 139 Units and Muhammad Siddique has 139 units. As per Ex.P1 (photocopy of record of Khata No. 91 RL II) out of total 555 Units Shah Muhammad and Ismail were entitled to 69 and 139 Units respectively and in this way they jointly entitled to 208 units out of total of 555 Units and accordingly they were allotted land mentioned in Ex.P1 against their respective 208 units vide order dated 15.05.1964. Ex.P1 also shows that only allotment in favour of Ismail and Shah Muhammad was confirmed against their share of 208 units. In this way the plaintiffs/ respondents discharged the initial onus to prove that only Ismail and Shah Muhammad got confirmed their allotment to the extent of 1/4th share in their favour regarding the suit land in exclusion of other claimants and possession was taken. In view of the above, onus was shifted upon the defendants/ petitioners to prove that entries in revenue record were wrong or there is any subsequent order of competent authority through which the Defendants No. 1 to 10 were also allotted the land in question, but neither they produced any oral nor documentary evidence in this regard. As per record, the other persons in the pedigree table had also got allotted land in different mozas.
It is well established principle of law that the averments made in the written statement are to be proved through cogent evidence and if a party does not produce evidence to support the contents of its written statement, such averments cannot be treated as evidence. Reliance is placed on cases cited as Federation of Pakistan through Secretary Ministry of Defence and another vs. Jaffar Khan and others (PLD 2010 SC 604) and Muhammad Noor Alam vs. Zair Hussain and 3 others (1988 MLD 1122).
Further the petitioners/ defendants were obliged to prove their stance taken in the written statement through oral as well as documentary evidence to the effect that their names were incorporated in the revenue record against the allotment order Ex.P1, but they failed to do so through oral as well as documentary evidence. As such the learned Addl. District Judge rightly passed the impugned judgment and decree and no illegality or jurisdictional defect has been pointed out by the learned counsel for the petitioner.
5. The learned counsel for the petitioners has failed to point out any illegality or material irregularity in the judgment of the learned appellate Court which is supported by the evidence produced by the respondents/plaintiffs and rightly set aside the perverse judgment of the learned trial Court based on mis-reading and non-reading of evidence as well as the mis-application of law. It is well settled that in the event of conflict of judgments, findings of appellate Court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence. Reliance is placed on the case titled as Muhammad Hafeez & another vs. District Judge, Karachi East & another (2008 SCMR 398).
6. In view of above, this civil revision is dismissed being devoid of any merits. No order as to costs.
(Y.A.) Civil Petition dismissed
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