2006 PLP 659 (CLC)

MIAN SAQIB NISAR, J.- Land in dispute is about 1 Kanal, 8 Marlas; respondent filed a suit for possession against the appellant on the - basis of title. This suit was contested by the appellants, issues were framed, parties were put to trial and the learned Civil Judge on 23-9-1980 dismissed the suit, holding that the suit for possession was not maintainable because the respondent should have filed a suit for declaration as well. Against the above, respondent preferred an appeal, which was accepted on 14-7-1982 and the case was remanded. On remand, the learned Civil Judge, decreed the suit on 12-11-1987, finding that the respondent has been able to prove his title to the property and thus, was entitled to the decree of possession. Against the above, the appellants preferred an appeal, but without any success. There are concurrent findings of fact, recorded by the two Courts below, that the respondent is the owner of the suit property and the transaction claimed by the appellants in their favour on account of certain mutations, has not been proved on the record, thus, those mutations were declared to be result of fraud and misrepresentation.

2. Learned counsel for the appellants argued, that the suit for possession without asking for the declaration, was not maintainable. It is further submitted, that the respondent, in fact, was challenging the sale mutations in favour of the appellants, but had not questioned the documents in his suit, this was fatal to the case of the respondent. Reliance, in this, has been placed upon Muhammad Bashir v. Mst. Sattar Bibi and another PLD 1995 Lah. 321.

3. Conversely the learned counsel for the respondent states, that the appellants were simply asking for the possession on the basis of their title to the suit property and it is the respondent, who had set up the plea, that he had purchased the suit property from the appellants through the sale mutation. Thus, it is for this reasons, that the trial Court, had framed two issues, which are "(1) whether the plaintiff is the owner of the land and has leased out the same to defendants? And (2) whether the defendants are the owners in possession of the suit-land?" Admittedly, the property in question was owned by the respondent and it is proved on the record, that he had leased out the same to the appellants, but the appellants through fraud and misrepresentation manoeuvred fictitious and fraudulent entries in the Revenue Record pertaining to the sale of the property. In view of the above, the onus to prove, that the transaction of sale in favour of the appellants, was valid, was on tint shoulders of the appellants, which they have failed to discharge. In this behalf, reliance .has been placed upon Hakim Khan v. Nazeer Ahmed Lughmani and 10 others 1992 SCMR 1832 and Tooti Gul and 2 others v. Irfanuddin 1996 SCMR 1386. It is also submitted, that the transaction of sale and the mutations are two separate events, and simply on account of alleged sale mutations, the appellants were not entitled to become the owners of the suit property until and unless, it was independently proved on record by the appellants, that they had purchased the property prior to the mutations. In this behalf, support is drawn from the judgment reported as Muhammad Iqbal Khalid v. Chairman P.L.A.T. and others 1994 PLC 535.

4. I have heard the-learned counsel for the parties. Admittedly, the appellants were the owners of the suit property, they had asked for the possession on the basis of their title; it is the appellants, who had set up the plea, that they had purchased the suit property from the respondent by virtue of the mutations in their names, therefore, it was for the appellants to prove the plea, that the appellants have failed to prove the transactions of sale in their favour; the person who had allegedly identified the respondent at the time of the mutations, has not been examined, so as to substantiate the valid transaction of sale. Moreover, there is nothing on record, that prior to the entry or attestation of the mutations, there were any sale negotiations between the parties and the bargain was finalized and that the appellants paid any price to the respondent for the said sale. There is nothing misreading or non-reading of evidenced on record, in this behalf, and both Courts below have concurrently found, that the appellants have miserably failed to establish valid sale and. mutations on the basis of the same. It may also be pertinent to state here, that no objection was taken by the appellants about the maintainability of the suit of the respondent, on account of non-challenging to the mutations, nor there was any issue framed in this behalf, besides, there is no ground of appeal, filed by the appellants before the First Appellate Court.

5. In the light of above, at this later stage, the appellants cannot be allowed to raise a new plea. Thus, there is no merit in this appeal, which is hereby dismissed. H.B.T./R-107/L?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.