2002 PLP 1121 (CLC)

MUHAMMAD YUNUS SURAKHVI, J.

This second appeal, with the leave of the Court, has been directed against the judgment and decree passed by the High Court on 4-5-2,000, whereby the appeal filed by the appellant herein was dismissed and the cross-objections filed on behalf of defendant-respondents were accepted. The order of costs of improvements awarded by the District Judge amounting to Rs.6,000 was also set aside.

2. The necessary facts, giving rise to the present appeal, are that the plaintiff-appellant filed two suits seeking declaration for the land measuring 9 Kanals, 15 Marlas, comprising Survey No.100 min, Khata No. 38, Khewat No. 14 and land measuring 9 Kanals, 6 Marlas comprising Survey Nos. 101 min and 81 min, Khata No. 35, Khewat No. 13, situate in village Shalabagh, Tehsil and District Muzaffarabad, alleging therein that the plaintiff-appellant was owner of the aforesaid land on the basis of mortgage-deeds, which were, as a matter of fact, sale-deeds but were executed as mortgage-deeds in view of law prohibiting the sale for more than 1/4th of the total estate, in the Court of Sub-Judge, Muzaffarabad. Both the suits were consolidated. The defendant-respondent repudiated the claim of plaintiff-appellant by filing the written statement. The trial Court framed as many as 12 issues including the one for relief. The evidence was led by both the parties and after hearing them the learned Sub-Judge dismissed the suits and appeal filed with the District Judge was also dismissed. However, the District Judge awarded the costs of improvements of Rs.6,000 to plaintiff-appellant. The judgment and decree passed by the District Judge were assailed by filing a second appeal before the High Court. Cross-objections were also filed by the defendants-respondents under Order XLI, C.P.C. The High Court also dismissed the second appeal and set aside the order passed by the District Judge granting Rs.6,000 as improvements to the plaintiff-appellant. It is the aforesaid judgment and decree of the High Court passed on 4-5-2001 which is the subject-matter of present appeal.

3. In support of appeal it was vehemently contended by Raja Muhammad Hanif Khan, the learned counsel for the appellant, that both the Courts below as well as the High Court failed to appreciate the documents Exhs. "PA" and "PB" which were in fact sale-deeds but due to law prohibiting the sale for more than It14th of total estate the same were executed as mortgage-deeds. However, the nature and contents of documents fully support the claim of appellant, wherein if was mentioned that after the repeal of the aforesaid law the same would be treated as sale-deeds. The learned 'counsel contended that Habibulalh, deceased defendant, was owner of land in dispute who transferred the land measuring 9 Kanals; 19 Marlas, through a sale-deed executed on 31-1-1956. for a consideration of Rs.500 as such alienated the land measuring 19 Kanals, I 1 Marlas, through two conditional mortgage-deeds against the consideration of Rs.1,

000. The law prohibiting the sale-deeds having ceased to exist the mortgage-deeds were to be treated as sale deeds. It was strenuously argued by the learned counsel for the appellant that evidence led by the parties, particularly that of plaintiff-appellant, was not appreciated in its true perspective thus wrong conclusions were drawn. 1t was further argued by the learned counsel that during the pendency of suit the suit land was transferred through a gift deed executed on 11-3-1979 which was illegal and not maintainable for the reasons, (i) that under section 52 of Transfer of Property Act the transfer during the pendency of suit did not create arty right whatsoever in favour of respondents and (ii) that admittedly the suit land was in possession of plaintiff-appellant as such the execution of gift deed was not complete and it had no legal sanctity. The learned counsel also contended that the plaintiff-appellant made improvements over the suit land to the tune of Rs.3,80,000 which is abundantly proved by the statement of Commission appointed by the Court but the trial Court did not 'advert to the aforesaid claim. The Distract Judge allowed the claim to the extent of Rs.6,000 which was also against the evidence produced by the plaintiff-appellant. The learned counsel for the appellant in support of his contentions relied upon Talib Hussain v. Babu Muhammad Shafi and 2 others PLD 1987 Lah. 4 wherein it was observed that where purchaser of property had acted in good faith by taking all reasonable care to ascertain title of his vendor who was continued to be shown in Revenue Record to be the owner of land', such transaction would be protected under section 41 of Transfer of Property Act, 1882.

4. In reply Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, by controverting the arguments advanced by the learned counsel for the appellant, vehemently contended that the documents Exhs. "PA" and "PB" on the basis of which two declaratory suits were filed on behalf of plaintiff-appellant were mortgage-deeds which were executed as such and could not be stretched as sale-deeds in any manner. The learned counsel contended that the plaintiff-appellant failed to prove the fact of documents Exhs. "PA" and "PB" being executed as sale-deeds in view of their, contents. The learned counsel has pressed into service the submission that the contents of documents show beyond any manner of doubt that the same were mortgage deeds for all intents and purposes. The learned counsel emphasized that .the plaintiff-appellant failed to produce any law prevailing at the time prohibiting the alienation which led the executants to execute the mortgage-deeds. The learned counsel further contended that the transfer of suit land through a gift-deed did not affect in any manner the rights of plaintiff-appellant 'as such his claim of same being registered against the law had no substance. It was also contended by the learned counsel that the executant of gift-deed, the donor and donee, were owners in the Khewat as such it was not required that physical possession of suit land should have been transferred to donee. Even otherwise no such condition was 'necessary for the completion of gift deed in the circumstances of the case. The learned counsel strenuously argued that both the Courts below as well as the High Court have concurrently held that the mortgage-deeds Exhs. "PA" and "PB" were not in any way proved to be the sale-deeds nor the intention of parties was to execute the sale-deeds. The transfer of the suit land through gift-deed was also held valid as such the contention of the appellant was repelled. Therefore, no illegality or misreading or non reading of evidence worth interference was pointed out by the learned counsel for the appellant. It was also argued by the learned counsel that the trial Court after due consideration of facts disallowed the claim of improvement of tile plaintiff-appellant. The District Judge erroneously allowed the costs of improvements of Rs.6,000 to be paid to the plaintiff appellant and the same is against the facts and not tenable. The. learned counsel in support of his contentions referred to reported cases titled Fazal Haque and others v. M.D. Afan and another PLD 1971 Dacca

158. Maulvi Abdul Saboor v. Said Mir and 9 others PLD 1983 SC (AJ&K)

63. State Bank of Pakistan v. Khaledar M.A. and others PLD 1963 Dacca 844 and unreported cases titled Abdul Rehman and another' v. Alif Din and others.Civil Appeal No. 144 of 1998, decided on 25-2-1999 and Mir Matiullah and others v. Ch. Ahmad Misri and others Civil Appeal No. 185 of 1998, decided on 16-2-1999.

5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the plaintiff-appellant in order to prove his case produced Muhammad Hussain, Kh. Abdus Samad, petition-writer, Muhammad Yaqoob Khan, Sahrif-ud-Din, Mastan Khan and got his own statement recorded. In addition to the oral evidence the documentary evidence Exhs. "PA", "PB", "PC" and "P2/1" was also produced by the plaintiff-appellant while the defendant-respondents brought on record the evidence 'of Sakhi Hussain Shah, Shah Jahan, Attaullah Khan and Ali Akber, one of the defendants, also appeared as witness in addition to the documentary evidence gift-deed Exhs. "DA" and "DC'. The oral evidence led by parties is not of much significance, however, the documentary evidence would be discussed in the later part of this judgment.

6. The controversy which requires determination between the parties is related to two documents Exhs. "PA" and "PB" which are claimed by plaintiff-appellant to be sale-deeds in view of their contents and attending circumstances. It was urged by the learned counsel for the appellant that Habibullah, deceased defendant, executed a sale-deed against a consideration of Rs.500 in favour of plaintiff-appellant which according to him was 1/4th of the total land belonging to him as such he could not alienate further land in view of law prevailing at the relevant time prohibiting the alienation of more than 1/4th, therefore, it was asserted that mortgage-deeds were executed against a consideration of Rs.1,000 and this consideration amount was the same as was fixed in the sale-deed. We have carefully perused the documents Exhs. "PA" and "PB" which on the face of it, are mortgage deeds. However, it was stipulated in the mortgage-deeds that after the removal of restriction those would be treated as sale-deeds. It was also incorporated therein that the land in dispute was mortgaged for a period of 21 years and the mortgagor shall have right to redeem it after the aforesaid period on payment: of consideration amount failing to do so mortgage-deeds would be treated as sale deeds.

7. The first question that needs consideration is whether any such law restricting the transfer or alienation of land more than 1/4th was in i force at the relevant time when the aforesaid mortgage-deeds were executed,, The learned counsel for the appellant referred to section 5 of Azad Jammu and Kashmir Alienation of Lands Act, 1995 B.K. In support of his contention but the same being irrelevant is not applicable in the instant case. In the aforesaid section it is nowhere provided that alienation of more than 1/4th of the land was prohibited in the State of Jammu and Kashmir.

8. The next question arises whether a document executed as mortgage-deed could be termed or treated as a sale-deed in view of any condition inserted in it against the law. In the unreported case titled Mir Matiullah and others v. Ch. Ahmed Misri and others Civil Appeal No. 185 of 1998, decided on 16-2-1999 this Court in paras. 6 and 7 of the judgment made the following observations while dealing with almost similar proposition:-- "

6. We have given due consideration to the arguments raised at the Bar and we are of the opinion that under section 10 of the Ordinance, a usufructuary mortgage which is 20 years old or the period for which the property was mortgaged had expired, the Collector had the power to order the restoration. For the sake of convenience, section 10 of the Ordinance is reproduced as under: `The mortgagor of any subsisting usufructuary mortgage not less than twenty years old, or of any 'usufructuary mortgage the period whereof has expired, may present a petition to the Collector for the restitution of possession of the mortgaged land.'

7. As in the instant case, the mortgage was 21 years old, i.e. more than 20 years, the Collector had the jurisdiction to order the restoration of the same and the argument that it could not be restored or redeemed before the expiry of 90 years is not tenable and is hereby repelled. In another case titled Abdul Rehman and another v. Alif Din and others Civil Appeal No. 144 of 1988, decided on 25-2-1999 this Court in para. 14o.8 of the judgment gave the verdict which is reproduced as under:

"

8. After giving our Me consideration to the arguments raised at the Bar, we are of the opinion that under section 10 of the Azad Jammu and Kashmir Redemption and Restitution of Mortgaged Lands Ordinance, 1969, a usufractuary mortgage which is 20 years old or the period for which the property was mortgaged had expired, the Collector had the power to order the restoration. For the sake of convenience, section 10 of the said Ordinance is reproduced hereunder:

The mortgagor of any subsisting usufractuary mortgage not less than twenty years old, or of any usufractuary mortgage the period whereof has expired, may present a petition to the Collector for the restitution of possession of the mortgaged land.' As in the instant case the mortgage was more than 60 years, the same could have been redeemed. Therefore, the argument that it could not be restored or redeemed before the expiry of 90 years is not tenable and is hereby repelled." Reference may also be made to a case reported as Maulvi Abdul Saboor v. Said Mir and 9 others PLD 19$3 SC (AJ&K) 63 wherein it was observed as follows:

"Any condition imposed in the deed of mortgage which places any restriction on right to redeem the mortgage is a clog on the equity of redemption and is repugnant to law."

9. Relying upon the aforesaid authorities it can safely be concluded that the conditions incorporated in the mortgage deeds would not change their basic character. Therefore, there is no substance in the contention of the yearned counsel for the appellant claiming these documents having been registered as sale-deeds. It may also be pointed out that under Articles 102 and 103 of the Qanun-e-Shahadat no evidence could be given in proof of terms of disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Evidence Act. Articles 102 of the Qanun-e-Shahadat reads as under:

When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall j be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself or secondary evidence of its contents in cases in which' secondary evidence is admissible under the provisions hereinbefore contained. . Section 103 of he Qanun-e-Shahadat is couched in a following manner:

"Exclusion of evidence of oral agreement.

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been provided according to the last Article, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in -interest for the purpose of contradicting, varying, adding to, or subtracting from, its term: xxx xxx lxxx lxxx xxx."

10. Keeping in view the aforesaid provisions of the Qanun-e- Shahadat the basic requirement of .law is to see the terms incorporated in the documents which show beyond any manner of doubt that both the documents Exhs. ' PA' and ' PB' were in fact mortgage-deeds and by no stretch of imagination could be construed to be sale-deeds.

11. The contention raised by the learned counsel for the appellant that the gift-deed: was not complete as the possession was not delivered to the donee is without any substance. It would be sufficient to point out that taking possession of subject-matter of gift by donee either actually or constructively completes the gift. It may also be added that the suit-land was mortgaged, as such constructive possession was sufficient for the satisfaction of necessary conditions required for a valid gift. The donor and donee were also owners in the same Khewat. It would also not be out of place to mention that the mortgagee had no legal right to challenge the gift-deed."

12. So far as the question of claim of improvements by the appellant is concerned, in our view, the costs of those improvements are awarded to a particular party which makes improvements in good faith but in the instant case on the basis of mortgage-deeds the plaintiff-appellant has asserted his title by alleging that mortgage-deeds were in fact sale-deeds and as such he may be declared to be the owner of the land mortgaged to him. In this view of the matter, the plaintiff-appellant is not entitled to claim any costs for improvements on the suit-land. Both the Courts below and the High Court have concurrently held that the documents Exhs. "PA" and "PB" were mortgage-deeds and could not be construed as sale-deeds. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with costs. H.B.T./294/SC(AJ&K) Appeal dismissed.