2003 PLP 425 (MLD)

2. The suit was resisted by the petitioner. It was contended that he had purchased the disputed property from Muhammad Ramzan, son of Ismail, the allottee on 25-2-1974 and had raised construction thereon. The sale-deed was also attacked as forged and fictitious. It was also averred that the suit was barred by time.

3. Necessary issues were framed and' the suit was tried. The learned trial Court found that the suit was within time but it was held that the plaintiff-respondent was not able to prove his title. Therefore the suit filed by the respondent was dismissed vide judgment and decree dated 6-1-1987. 3-A. The respondent took an appeal before the learned District Court which was allowed vide judgment and decree dated 4-6-1990 and the suit filed by the respondent was decreed. The learned First Appellate Court found that Khushi Muhammad, the vendor from whom the respondent had purchased the land was the sole heir of Muhammad Ramzan and on his death a mutation of inheritance had already been entered in favour of aforesaid Khushi Muhammad. Therefore, the property in question had devolved upon Khushi Muhammad. It was further held that the petitioner could not claim any right on the basis of an agreement to sell. The said Judgment and decree is the subject-matter of this revision petition.

4. The learned counsel for the petitioner contends that it was not established on the record that title of the property vested in Khushi Muhammad to be validly passed on to the plaintiff-respondent and the mere entry of mutation of inheritance in favour of Khushi Muhammad did not establish that he was the sole surviving heir of Muhammad Ramzan. According to him it was not even the case pleaded by the plaintiff-respondent nor was there any evidence on the record that Khushi Muhammad inherited the property in dispute from Muhammad Ramzan, its allottee.

5. On the other hand, the learned counsel for the respondent contends that the registered sale-deed Exh. P.3 read with the entries of Khatuni Exh. P.2 clearly established the title of the plaintiff-respondent on the land in dispute and the learned First Appellate Court had rightly set aside the judgment and decree of the learned trial Court.

6. Since it was a judgment at variance the entire evidence produced in the case was carefully examined. Ghulam Rasool Patwari Halqa was examined as P.W.1: He stated to have prepared the encroached plan Exh. P.1 according to which Raja Maqbool Ahmad, the petitioner, was in possession of an area of 13 Marlas of Khasra No.748 (the total area of the said Khasra No. is 5 Kanals and 14 Marlas). The plaintiff appeared as P. W.2 and claimed to have purchased the land in dispute. He admitted that Ramzan son of Ismail was the original owner of the land in dispute. The plaintiff-respondent tendered in evidence Khatuni Exh. P.2 and copy of the sale-deed as Exh.P.3.

7. On the other hand, Amir Hamza, D. W. 1 stated that the petitioner had purchased 10 Marlas from Ramzan for consideration of Rs.3,000 vide Exh.D.1. The petitioner appeared as his own witness and claimed to have purchased the land in dispute from Muhammad Ramzan through the document Exh.D.1. Documents Exh.D.2 to Exh.D.7 were also placed on the record.

8. The main question requiring determination is whether the plaintiff-respondent was able to prove his title to the land in dispute. It was not the case pleaded in the plaint that Khushi Muhammad was the sole heir of Muhammad Ramzan the allottee. The learned First Appellate Court relied on an entry in Parcha Khatuni Exh.P.2. The notes in, column 5 (ﺖﻳﻔﻳﻜ) show that Mutation No.9 of transfer of proprietary rights was emended in favour of Muhammad Ramzan son of Ismail in respect of the entire land of Khasra number 748 on 24-1-1980. Mutation No. 10 of inheritance of Muhammad Ramzan in favour of Khushi Muhammad was also entered on the same date. Undisputedly neither the mutation of inheritance showing Khushi Muhammad as the sole heir of Muhammad Ramzan the transferee, nor any other evidence to establish that Khushi Muhammad, had inherited the estate of Muhammad Ramzan as his sole heir was produced on the record. Mere entry of mutation of inheritance in favour of Khushi Muhammad did not establish that he was the heir of Muhammad Ramzan and had inherited the property he sold to the plaintiff-respondent. Therefore, unless title to the disputed property of Khushi Muhammad was established he could not lawfully pass any title to the respondent.

9. There is yet another aspect of the matter Perusal of Exh. D.1, dated 25-2-1974, which duly stood proved on the record shows that house measuring 10 Marlas was sold by Muhammad Ramzan in favour of the petitioner and according to a recital of Exh.D.1, a mutation had also been entered in his favour and that possession of the house had already been transferred to the petitioner. This agreement has been ruled out from consideration by the learned First Appellate Court on the ground that a. mere agreement does not create any right, title or interest in the property. While recording this conclusion the provisions of section 53-A of the Transfer of Property Act were ignored from consideration according to which the petitioner could defend his possession under Exh. D.1 and in the absence of any plea that the plaintiff-respondent was a bona fide purchaser without notice the proviso to the aforesaid section was also not applicable. 9-A. For what has been stated above, this revision petition is allowed. The impugned judgment and decree of the learned First Appellate Court is set aside as with the result that the suit of the respondent stands dismissed. No order as to costs. H.B.T./M-1597/L Petition allowed.