2006 PLP 730 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.-- This petition for leave to appeal has been filed against the judgment, dated 24-5-2001 passed by Lahore High Court, Lahore whereby the civil revision instituted by the respondent has been allowed.

2. Precisely stating the facts of the case are that vide registered sale-deed dated 15th December, 1976 petitioners purchased 169 Kanals, 16 Marlas of the land from respondent out of the property, specification of which was mentioned therein totally measuring 424 Kanals, 9 Maras. However, mutation entries were not attested by the Revenue Department in favour of the petitioners for the reason that the area which was sold by the respondent to petitioners was less than the area sold by him i.e. 87 Kanals, 12 Marlas as per Revenue Record. It so happened that subsequently vide Mutation No.1351, dated 5-12-1981, respondent inherited 58 Kanals, 7 Marlas from his brother. On this petitioners again moved for the attestation of mutation entry in their favour as he became owner of the land almostly equal to the land purchased by petitioners from him i.e. 169 Kanals, 16 Marlas. The Authorities, however, vide Mutation No.1734 attested entry in favour of petitioners vide Exh.P./6 on 3rd December, 1982 only to the extent of 87 Kanals, 12 Marlas. As such, under these circumstances they preferred a suit on 12th November, 1983, which was decreed by Civil Judge on 24th November, 1987. Appeal filed by the respondent challenging the judgment/decree of the trial Court was dismissed by Additional District Judge on 17th March, 1988. As such the respondent approached the High Court by invoking its revisional jurisdiction which has been accepted by means of impugned judgment, dated 24-5-2001.

3. Learned counsel for the petitioners contended:-- (i) Under the principles of section 43 of the Transfer of Property Act the respondent had an obligation to satisfy the claim of the petitioners to the extent of 169 Kanals, 16 Marlas the land which he has sold to the petitioners vide registered sale-deed dated 15th December, 1976. (ii) The respondent vide a registered sale-deed dated 15th December, 1976 had sold 169 Kanals, 16 Marlas being his stare to the extent of 2/5 out of 424 Kanals, 7 Marlas and he had received the amount of Rs.25,000 towards the total sale consideration as such he was under obligation to satisfy the claim on acquiring 58 Kanals, 7 Marlas through inheritance because originally he by misrepresentation sold 169 Kanals, 16 Marlas knowing well that he is not its owner therefore, the learned High Court had not attended this aspect of the case properly.

4. On the other hand learned counsel for the respondent contended as under:-- (1) The petitioner in fact by their active connivance got entered 169 Kanals, 16 Marlas of land in sale-deed dated 15th December, 1976 knowing well that the share of the respondent is only to the extent of 87 Kanals, 12 Marlas and such specific assertion was made by the respondent in the written statement on which an issue was framed and the learned High Court after having taken into consideration this aspect of the case has rightly concluded that petitioners are not entitled for the satisfaction of their claim in view of the principles of section 43 of the Transfer of Property Act. (2) The petitioner himself admitted in the plaint that possession 169 Kanals, 16 Marlas has been taken from the respondent, therefore. according to him at that time the petitioners were quite satisfied and did not file any suit but subsequently, when the share of the respondent was worked out, it was found that he was entitled only m the extent of 87 Kanals, 12 Marlas, therefore, for such reason the respondent was not obliged to satisfy the claim of petitioners. (3) The petitioners even now are not in possession of 169 Kanals, 16 Marlas because he is in possession of land to the extent which was owned by respondent i.e. 87 Kanals, 12 Marlas, therefore, the respondent cannot be called upon to further satisfy the claim of the petitioners according to the principles of section 43 of the Transfer of Property Act.

5. We have heard learned counsel for the parties and have also gone through the relevant provisions of law i.e. section 43 of the Transfer of Property Act as well as the judgment in the ease of Suba through his 8 L.Rs. v. Mst. Fatima Bibi through her L.Rs. and others A 1992 SCMR 1721. Therefore, inter alia to examine the respective contentions of the teamed counsel for the parties leave to appeal is granted.

6. The petitioners shall continue in possession of the property pending decision of appeal. M.H./R-27/SC???????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.