2012 PLP 629 (MLD)

KHALID MEHMOOD KHAN, J.

Through this revision petition, petitioner has impugned the judgment/decree dated 6-9-2006 passed by learned Additional District Judge-IV, D.I.Khan vide which the appeal of petitioners was dismissed and the judgment/decree passed by learned Senior Civil Judge, D.I.Khan dated 30-9-2002 vide which the suit of respondent/plaintiff filed for specific performance was decreed and to extent of recovery of Rs.72,000 dismissed, was maintained by the learned appellate Court.

2. Succinct facts of the instant revision are that respondents/ plaintiffs filed a suit for specific performance of contract, details of which has been fully described in the heading of the plaint. In the alternative the respondent/plaintiff has also sought for the recovery of Rs.72,000 from the petitioners/defendants. It had been mentioned in the plaint that the respondent/petitioner had purchased some property measuring 2 kanals 15 marlas jointly with defendant No.1 Ghulam Nabi and one Allah Bakhsh at the ratio of 1/4 share, 1/4 share and 1/2 share respectively vide Mutation No.5158 dated 25-7-1967 from one Qamaruddin, whereafter on the said property to the extent of 2 kanals 2 marlas all of them constructed house and subsequently the defendant No.1 Ghulam Nabi sold his entire 1/4 share to the, plaintiff against sale consideration at the rate of Rs.120000 per kanal out of which amount Rs.20,000 were paid to him as earnest money and in this respect an agreement to sell was executed on 25-2-1984, wherein they agreed with the remaining sale consideration would be paid to the defendant after obtaining guardianship certificate by the defendant regarding the suit property, which was already transferred by him to his minor sons (defendants Nos.2 and 3) and also handed over the possession of suit property to the plaintiff. Later on the remaining balance Rs.52,000 was also received by the defendant No. 1 from the plaintiff on proper receipt at the back of the agreement deed. Ghulam Nabi defendant No.1 after obtaining guardianship certificate in respect of suit property of his two minor sons was then bound according to the agreement deed to transfer the same to the plaintiff but instead of the fact he instituted a suit against the plaintiff for cancellation of said agreement and for recovery of possession. The defendant No.1 was asked time and again to comply with the agreement but in vain, hence the instant suit.

3. Petitioners/defendants contested the suit and filed written statement, raised so many legal and factual objections on the maintainability of suit. The learned trial Court reduced the conflicting pleadings of the parties to as many as six issues. Pro and contra evidence was recorded and after hearing the arguments from both sides the suit was decreed to the extent of specific performance vide judgment/decree dated 30-9-2002.

4. Petitioners impugned the judgment/decree of the trial Court before the learned District Judge, D.I. Khan, who was pleased to entrust the same to learned Additional District. Judge-IV, D.I. Khan for onward proceedings and decision in accordance with law, who after hearing arguments of both the sides dismissed the appeal of petitioners vide judgment/decree dated 6-9-2006 and maintained the judgment/decree of the trial Court, hence the instant revision petition.

5. Learned counsel for the petitioners argued that both the lower appellate Court have failed to appreciate the evidence properly. He contended that property transferred by Ghulam Nabi father of respondents Nos.2 to 8 was not a benami transaction in fact it was a gift mutation duly executed in their favour but the learned lower Courts below treated the same as benami transaction. He submitted that initially the property was transferred by Ghulam Nabi in favour of his minor sons, therefore, question of delivery of possession does not arise. In this regard he relied upon 2004 CLC

421. He submitted that the impugned agreement to sell has not registered as required by Registration Act in this respect he relied on 2007 YLR 2440. He, urged that after attaining the age of majority the minor respondents were entitled to transfer the same property on their own accord in favour of anyone. He lastly argued that in the present case Shah Nawaz and his brother have correctly transferred the suit property after attaining the age of majority in favour of the petitioners.

6. On the other hand, learned counsel for the respondents argued that respondents Nos.2 to 8 had initially contested the case and being the legal heirs of Ghulam Nabi who executed the said agreement to sell in favour of respondent No. 1 was a real and contesting party but they have not challenged the judgment/decree of the lower appellate Court. Petitioner has no locus standi to challenge the decree/decree passed by lower Court. He referred to the very portion of agreement to sell wherein it was clearly mentioned that after obtaining guardian certificate of his minor sons of defendant No.1 (now deceased), will transfer the suit property through mutation/registered deed in favour of respondent No.1. He also referred to the guardian certificate which has been exhibited during recording of evidence of respondents. He referred that the suit property has been transferred through a gift registered deed by the contesting respondents/defendants in favour of petitioner wherein it is mentioned that the suit property has been gifted out due to service and due to love and affection of the petitioner but nowhere in the entire evidence this fact has been mentioned. He submitted that the possession of the suit property is with respondent No.1 has been admitted by the petitioner and respondents Nos.2 to

8. Without delivery of possession the gift deed in favour of petitioner cannot be relied upon. He also insisted on the lis pending and relied upon a cases titled Ibrahim and another v. Muhammad Hayat reported in 2004 CLC 421, Sher Muhammad and 2 others v. Muhammad Ali and 11 others reported in 1990 MLD 232 (Lahore), Malik Muhammad Iqbal v. Ghulam Muhammad reported in 1990 CLC

670. He urged that being subsequent purchaser has no right to claim any right in the suit property. In this regard he relied upon Ali Akbar Khan v. Ghulam Sarwar and 19 others reported in PLD 1986 Peshawar 1.

7. Arguments heard and record perused in the light of which my finding is as under.

8. After hearing arguments of the counsels of the parties and perusing the record I have come to the conclusion that the property transferred by Ghulam Nabi father of the L.Rs. of respondents Nos.2 to 8 in their favour was a gift which was without possession and the possession of the suit property was handed over to the respondent No.1 at the time of execution of the agreement to sell deed. It is admitted fact that the petitioner has purchased the suit property during pendency of the case and the same is also not a sale but gift one. It is also admitted fact that the petitioner and respondent No.6 appearing on behalf of other respondents Nos.2 to 5 categorically admitted that the suit property is not in the name of petitioner rather the same is in the possession of respondent No.

1. It is clearly mentioned in the agreement to sell that after obtaining guardian certificate the suit property will be transferred in favour of respondent No.1. The guardian certificate has been produced before the trial Court which suggest whatever was mentioned in the agreement to sell was correct and possession of the suit property is with respondent No.1 from very execution of the said deed. Petitioner had not shown any cogent reason or ground that on what capacity the gift deed has been executed in his favour when not any relation with the respondents/defendants nor any plea of service rendered caused the execution of the registered deed even has been mentioned or proved before the trial Court. It is also proved on record that the sale consideration has been paid to Ghulam Nabi defendant and is clear from cross-examination of P.W.2. Principle of lis pendens applicant of the present case can transfer the property during pendency of the case. Respondent No.6 and Ahmad Nawaz L.Rs. of respondent 7/i to 7/vi were in now the proceedings, of the case can transfer the property because they were contested respondents but without any notice property has been gifted out in favour of respondent No.1 who has no relationship or proof of any right of service which seems to be based on mala fide.

9. In view of above findings, the petitioners have failed to prove any illegality or irregularity in the impugned judgments/decrees of the lower courts and resultantly, I dismiss the instant revision petition. S.A.K./334/P Revision dismissed.