2006 PLP 645 (CLC)

JAWWAD S. KHAWAJA, J.

Respondents Nos.1 and 3 are represented. The names of their learned counsel have duly appeared in the cause list. Respondent No.2 has been served and due intimation was given to it for today's hearing. None has appeared on behalf of the respondents despite repeated calls. They are, therefore, proceeded against ex parte.

2. Muhammad Nawaz (petitioner/defendant) impugns the appellate judgment and decree dated 19-6-2001 whereby the decree of the learned trial Court dated 20-12-1995 was set aside and a declaratory suit filed by Ghulam Farid (plaintiff/respondent No.1) was decreed.

3. The facts of this case are simple. The petitioner Muhammad Nawaz is the brother of Ghulam Farid respondent. The dispute between them relates to one shop measuring 100 sq. ft. This shop, admittedly, was owned by the Province. Through a registered sale-deed, dated 8-8-1991 (Exh.P.38) the Province had conveyed title in the suit shop to the petitioner.

4. Shortly thereafter the respondent/plaintiff filed a declaratory suit on 6-10-1991. In this suit, he has not challenged the sale-deed (Exh.P.38) nor has he sought its cancellation. Instead it is the case of the respondent/plaintiff that he was entitled to the transfer of the suit property because he was in possession of the same and, according to the relevant Government Policy, the occupant had the right to conferment of proprietary rights. The suit was resisted by the petitioner/defendant on the ground that he was in possession and that title had been properly conveyed to him.

5. Issues were framed by the learned trial Court on which both parties led evidence. The learned trial Court dismissed the suit but, as noted above, the learned appellate Court had decreed it. Learned counsel for the petitioner has firstly, reiterated that considering the conveyance of title by the admitted owner, namely, the Province, in favour of the petitioner, there is no scope left for any declaratory suit. This contention B is well-founded and is in accordance with law. If at all the respondent asserts any right under any Government Policy for the purpose of possession, he could not do so without seeking cancellation of the sale-deed (Exh.P.38).

6. More importantly, learned counsel for the petitioner has pointed out that even the assertion of the respondent that he was in possession of the shop, is belied by the evidence on record. In support of this contention, learned counsel has referred to testimony of Muhammad Ran-man who is the brother of the parties inter se and appeared as D.W

2. This witness has, in categorical terms, deposed that the respondent Ghulam Farid being elder brother had forcibly taken possession of the shop after the filing of the suit. He testified that the petitioner Muhammad Nawaz had deposited the price and was in possession of the shop previously. It is not only the above witness but even the petitioner's own witness Maqhool Ahmed (P.W.4) who clearly C stated that the petitioner had obtained proprietary rights after paying the price of the disputed property. In response to a suggestion, he deposed that Ghulam Farid (respondent/plaintiff) had placed his lock on the disputed shop after the filing of the suit. The testimony of P.W.4 and D.W.2, as discussed above, is conclusive even as to the question of possession. This evidence unfortunately has not been considered by the learned appellate Court.

7. For the above reasons, I find that the impugned appellate decree is a result of non-reading of relevant evidence and a failure to apply the law. The impugned decree is, therefore, set aside. As a result, the decree of the learned trial Court dated 20-12-1995 stands restored. H.B.T./M-1291/L??????????????????????????????????????????????????????????????????????????????? Revision allowed.