1985 PLP 1391 (SCMR)

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 9‑‑Suit for possession‑‑Agricultural land‑‑Oral sale of entire allotted property supported by statement of Lambardar and witness and followed by entry and attestation of mutation‑‑Subsequent misdescription of property through entry of different Khasra numbers not to stand in way of plaintiff's claim‑ ‑Enforcibility of oral sale by Courts below being in conformity with requirement of law, upheld‑‑Leave to appeal refused. Kh. Muhammad Farooq, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record for Petitioners. S. Wajid Hussain, Advocate‑on‑Record for Respondents. Date of hearing: 6th March, 1985. SHAFIUR RAHMAN, J.‑‑The petitioners who are the unsuccessful defendants seek leave to appeal against the judgment of the Lahore High Court, dated 5‑11‑1978 whereby a regular second appeal filed by them, was dismissed. On the basis of an oral sale followed by the attestation of a mutation on 30‑9‑1967 the plaintiff‑respondents filed a suit for the possession of the disputed land. Their case was that Jodha the predecessor‑in‑interest of the petitioners who had been allotted the land against his verified claim had sold to them his entire allotted property but while getting mutation attested he in collusion with the revenue authorities had got some other Khasra numbers mentioned which was not his property. The plaintiff‑respondents wanted the possession of the property which had been sold to them and of which they had not been given the possession. Jodha died during the pendency of the suit and was succeeded by petitioner No. 1 who claimed to be the reversioner and petitioners 2‑6 claimed the same land on account of a will made by Jodha. The suit was fought, the plea of the petitioners prevailed and their suit was decreed. With slight modification with regard to the area, the judgment and decree of the trial Court was upheld in appeal and second appeal. The main contention of the learned counsel for the petitioners in all the three Courts was that if per allegation of the plaintiff- respondents the sale itself was fraudulent then the contract was void ab initio was unenforceable and on the basis of a fraud committed on them they could not claim a decree with regard to the ownership of the property which was not the subject‑matter of the mutation. This plea of the petitioners was repelled by all the Courts holding that the entry and the attestation of the mutation itself gave the indication that it was preceded by an oral sale and statement of the Lumberdar and the witness to that oral sale showed that Judha was selling his entire allotted property. Any subsequent misdescription of the property could not stand in the way of the plaintiff's claim. The learned counsel for the petitioners has reiterated the same submissions before us. We find that on the legal plane the view taken by all the three Courts with regard to the enforcibility of the oral sale which necessarily entails rejection of the defence of the petitioners appears to be in conformity with the requirement of law. There is no further question to be examined in this petition and hence leave to appeal is refused. M. I. Leave refused.