P L D 1978 Karachi 458 (PLP)

The first appellate Court forhied the view that all the documents relating to attachment and sale of the property by way of auction and the oral evidence led at the trial clearly showed that the 3 shops were included in the property attached end sold to the auction‑purchaser Kazi Muhammad Taqi and thus concurred with the finding of the trial Court arid dismissed the appeal. Hence this second appeal. During the pendency of The appeal, Kazi Muhammad Tag! died and was substituted by the present respondents as his L. Rs. Mr. Qadeer Beg, learned counsel for the appellant, contended that both the Courts below wrongly held that the 3 shops were included in the auction sale. He argued that it was the Dirham Mill which was the subjeot matter of the execution and not the survey numbers, which were mentioned is "the relevant documents only to identify the Mill premises and, consequently, only the Mill and the land on which it stood were attached and sold to the auction‑purchaser Kasi Muhammad Taqi and not the three Katcha Shops which bad nothing to do with the said Mill and in support of his contention referred to the execution application (Exh. 27), list of properties (Exb. ?8), writ of attachment (Exh. 42), maahlrnama of attachment (Exh. 29), proclamation of sale (Exb. 41), mas6irnama of auction (Exh. 64), confirmation of sale (Exb. 43), sale certificate (Exb. 62), writ of possession and washlrnama of possession (Exh. 51). He submitted that against column ll of the execution application, the decree‑holder had sought execution in part (1) by the attachment and sale of Dirbam Oil Mills, all machinery fittings and furniture etc, while in part (2) be sought 'attachment and sale of plots of lands bearing City. Surveys Nos. 293/1, 301, 302, 303 and 304 on which Dirham Oil Mill was situated', and also in the application (Exh 30) made by the attorney of the decree‑holder, sale of Dirbam Oil Mills, machinery, fittings and furniture, etc. alongwith the land and building thereon was sought to be published in newspapers aid even on the notice of sale (Exb. 41) same description of the property was given, so that, it was only the mill, machinery, fittings and fixtures and furniture etc. and the building of the mill situated on the plots of land tearing City Surveys Not. 293/1, 301, 302, 303 and 304 were sold at the auction sale, and not the three shops in question, particularly when none o! the aforesaid documents referred to the three shops in question. Learned counsel next eontecded that the sale certificate (Exh. 621 issued by the Court had declared the auction‑purchaser Kazi Muhammad Taql as purchaser of t e plots of land bearing City Surveys Not. 293/1, 301, 302, 303 and 304 alongwith all the construction ttereon which was called Dirbams Oil Mills. and the auction‑purchaser getting only what is attached and sold, the writ of possession could not validly pass on to the purchaser more than what was attached and sold and mentioned in the sale certificate, consequently, delivery of possession of the three shops made by the bailiff to the purchaser Kasi Muhammad Taqi could not vest him with the title over the shops in question, and in support relied upon A I R 1925 Pat. 615 and A I R 1944 Nag.

302. He lastly contended that plaintiff's witness Bilawal, who was employee cf decree‑holder Habib Bank ought not to have been disbelieved by the trial Court, as the decree having been satisfied, he bad no interest in speaking falsehood. Mr. Yusuf Raft, learned counsel for the respondents, in reply submitted that the survey numbers having bees attached and sold at the auction, the three Katcha shops were included in the sale and that survey numbers were not mentioned only to identify the mill premises, for, had that been so. the description would have been somewhat like'Dirbam Oil Mills bounded on north by city survey numbers to and so, on the east by survey numbers so and so on the north by street so many feet wide etc., and, secondly, whenever survey numbers are mentioned only to identify, they do not form pout of the sale whereas in this case it is an admitted position that the major portion of the 5 survey numbers was sold with the mill. He next submitted that whenever land is sold with survey numbers, whatever construction is built thereon is also sold to the auction‑purchaser 1 unless expressly excluded. Accordingly, all the survey numbers having been attached and sold in the instant case, the three shops, which were only small Kateha shops, built on the two survey numbers, were also included in the sale. In support, learned counsel relied on P L D 1976 Lah. 1923, Broo m's Legal Maxims, page 262, Black's Law Dictionary (4th Edn.), page 76, column 2, and Osborne's Concise Law Dictionary, page

60. Learned counsel next submitted that in the execution application the mode in which assistance 'of the Court was sought in part (1) of column li, was by attachment and sale of movable property of Dirham Oil Mills, and in part (2) attachment * and sale of tt:e plots of land bearing survey numbers 2Y3/1, 301, 307, 303 and 304 on which Dirham Oil Mills was situated, and even in the writ of attachment and proclamation of sale, the property to be attached and sold bore the same description, which clearly showed that both, the mill as well as all the 5 survey numbers in their entirely were sold at the auction and therefore the three Katcha shops built on two of the five survey numbers were also included in the property sold to Kazi Muhammad Taqi, and if the small portion of survey numbers on which‑ the shops stood was intended to be eacluded,,such mention would have been made in the execution , application and the other documents. He next submitted that the fact that' these three shops were included in the sale stood further substantiated by very important circum stantial piece of evidence, namely, that after the sale, no rent was admittedly realized by the appellant from the tenants, who admittedly, used to pay rent to the defendant Kazi Muhammad Tacli after the sale, which showed that even the appellants themse;ves treated the shops . to be included in the property sold at the auction, and in . support referred to the admission made by P. W. Mushtaq Ali, Director of the appellant‑Corporation, in his evidence that the survey numbers mentioned in the suit were the stme on which Dirham Oil Mills was constructed and thit he used to receive rent from the tenants but of or the auction in favour of derendant Qazi Muhammad Taqi, he did not realise any rent of the ahors in dispute. The karne3 counsel lastly contended that under Order XXI, rule 65 l2), Cr. P. C , sale proclamation is prepared after notice to the judgment debtor. and in the notice it was clearly mentioned that the Dirham Oil Mills alongwith its machinery fittings and furnitures and fixtures and the survey numbers on which the mill was situated were in!endej to be sold. Accordingly, if the judgment‑debtor treated the shops to be separate. he ought to have raised objec,ion and taken steps at the tide of drafting of the proclamation to get the shops excluded but nothing of this sort was done which clearly showed that even the appellant had not treated the shops as separate and excluded from the sale. The only question for consideration in this second appeal Is whether the three shops situated on City Survey Nos. 303 and 304 were Included in the property sold to Kasi Muhammad Taqi, predecessor of the respondents, in public auction held by the Court in execution of the decree passed against the appellant judgment‑debtor. Since this was suction sale held by the Court, the answer will depend, as Lord Watson observed in Peltachl Chettlar v. Sanlll Virapandha Chunnat amblar (1), on "what did the Court intend to sell and what did the purchaser understand that he bought". The relevant documents in this connection are the execution application (E:h. 27), list of properties (Exh. 28), writ of attachaent (Esh. 42), mashlrnama of attachment (Exh. 29), proclamation of sale, writ of delivery of possession (Exh. 51) and the sale certificate (Exh. 62~ (1;)1 A 84 the most important documents, however, being the writ of attachment and the proclamation of sale, for, to a judicial sale, only that property is sold which is attached and advertised for sale. In column It of the execution application. the mode in which the decree‑holder sought the execution read as under :‑ "

11. Mode in which the assistance of the Court !s required.‑(1) By attachment of sale of Dirham Oil Mill of Messrs Zamindar Corpora tion, Judgment‑debtor No. 1, all machinery fittings and furniture ere. at Shahdadpur in District Sanghar. West Pakistan on the plots of land bearing Survey Nos. 293/1, 301, 302, 303 and 304 under Order XXII, rule 43, C. P. C. (2) By attachment and sale of the plots of lands bearing Surveys Nos. 293/1, 301, 302, 303 and 304, on which Dirham Oil Mills Judgment‑debtor No. 1 is situated at Shabdadpur in District Sanghar under Order XXI, rule 54, C. P. C. In the writ of attachment (Exh. 42) also the property that was to be attached and sold was described as "Dirbam Oil Mill of Meters Zaminda Corporation site axed at Shabdadpur. Dietrlct Sangbar on the plots bearing Survey Nos 293/1, :01, 302, 303 and 304 and the Surrey Nos. 293/1, 301, 301, 303 and 304 on which Dirham Oil Mills was situated" and endorsement of the bailiff. at the back of the writ Is to the effect, that Dirbam Oil Mill and The survey numbers mentioned in the writ wera attacbel by him. Ttereafter, in the proclamation of sale (Exb. 41) also the property notified for sale at the public auction~was deecr,bed as "Dirbam Oil Mill of Messr 't Zamindar Corporation situated at Shahdadpur, District Sanghar on the plots of land bear'.ng Survey Noa. 293/1. 301, 302. 303 and 304, and the survey numbers on which Dirham Oil Mill is situated". Given the above description, the only leg timato inference that can be drawn is that what the Court intended to sell and what the auction‑purobaser understood that b was bu; ing was the Dirham Oil Mills as well as whole of the five survey numbers. The learned counsel for the appellant has however contended that only major port'on of the Survey Nos. 303 and 304 on which the Mill was situated was included in the sale while the small portion of these survey numbers on which the three Katcha Shops were built was excluded and that the survey numbers were mentioned only to identify the mill premises. I regret I cannot agree with the learned counsel. It having been conceded that major portion of the survey numbers in question was included in the property sold at the auction, it cannot be legitimately urged that a small portion of the survey numbers on which the three Katcha Shope were built was excluded and that the five survey numbers had been mentioned only to identify the Mill, as, firstly, the description given in the writ of attachment as well as in the sale Proclamation, read fairly, clearly suggested that the entire survey numbers were to be sold and, secondly if any portion of the survey numbers was to be excluded it would have been so mentioned in the documents and the description of the property given in the documents would have been worded differently. Further, if only a portion of the survey num bers was intended to be sold, it could be done only after getting it partition from the Revenue authorities but it ie.nobody's cane that the survey numbers were got partitioned before the sale which would raise a presumption that the survey numbers stood as they were and were, therefore, sold as a whole. Further, the subsequent events and the conduct of the appellant would a show that the shops were included in the earn and this position was accepted even by the appellants themselves. Sale proclamation is prepared after notice to the judgment‑debtor and such notice was indeed issued to the judgmentdebtor in which the given description of the property proposed to be attached and sold clearly suggested that the mill and all the five survey numbers as a whole were to be sold. Consequently, if the appellant treated the three shops to be excluded, he would and ought to hav seen that the shops were excluded from the sale. But nothing of the sort was done by him. Then, after the auction sale was confirmed by the learned Additional District Judge and writ of possession was issued, the bailiff in pursuance of the writ delivered possession of the property to the auction‑purchaser Kazi Muhammad Taqi; under a mashfrnama dated 13‑2‑1964. In this mashirnama it is clearly mentioned that the bailiff in presence of witnesses handed over possession of the mill situated on the plots of land bearing City Survey Nos. 293/1, 301, 302; 303 and 304 and whatever construction existed on those survey numbers, but the appellant still did not take any step in getting the shops excluded if they genuinely thought that the shops were not included in the sale. Further, mashir Bherumal, one of the persons In whose presence possession of the property was delivered, deposel in his evidence that possession of the shops was also delivered to the purchaser Qazi Muhammad Tali and evidence of this witness has been believed and relied upon by both the Courts below and I see no reason to disagree with them. All this would clearly show that the shops were included in the property sold to the said purchaser Qazi Muhammad Taqi and that this position was accepted even by the appellants themselves. Yet another important circumstance which goes a long way to prove that the three shops were included in the property sold to Kazi Muhammad Taqi is that. it is an admitted position that after the confirmation'of the auction sale on 13‑2‑1964, the tenants of these shops started paying rent to the purchaser/respondent Kazi Muhammad Taqi. Tenant Suleman paid rent to the respondent up to 31‑y‑19 ~5, Abdul Samad paid rent up to October 1965, and tenant Fazal Muhammad paid rent up to June 1964, se shown by the receipts Exhs. 58/1 to 24 produced at the trial and this fact was also admitted by the tenants to their plaints in the suits filed by them against the purchaser Kaai Muhammad Taqi for restraining him from dispossessing them, and indeed, witness MushtaQ Ali, Director of the appellant‑Corporation, also admitted in his evidence that he did not realise the rent from the tenants nor did he ever make demand of rent from them after the auction. This clearly shows that the tenants had recognised the respondent Kazi Muhammad Taqi as the owner of the shops after the auction and even the appellant accepted this position. That being so, the Coutta below wero simply justified in finding that the three shops were included in the property sold to and were the property of Ka:i Muhammad Taqi. predecessor‑in‑title of the respondents, and their finding does not call for interference. For the aforesaid reasons, I see no merit in this appeal which is dismissed with accts. a. A. s. Appeal dismtsstd.