P L D 2003 Peshawar 196 (PLP)

4. On the other hand, Mr. Attaullah Khan Tangi, the learned counsel representing the respondents, argued that the revision petition filed by the petitioner is barred by two days, hence deserves dismissal.

5. It was also argued that the predecessor of respondents, namely Fazal Karim deceased had purchased half share of the suit property from Ali Akbar vide unregistered sale-deed dated 26-2-1953 Exh.D.W.1/4. Thereafter, Muhammad Anwar his son purchased half-share in the adjacent house vide deed dated 5-9-1995. He made exchange of the half share with Fazal Akbar, therefore, Fazal Karim and Muhammad Anwar became owners of the house in dispute. The sale in their favour was duly proved by examining the scribe and marginal witnesses of the deed.

6. It was also argued that the petitioner/plaintiff claimed to have purchased the property in the year 1972 whereas as per terms, the mortgage expired in the year 1976 but he kept mum and filed the suit in hand on 15-12-1990. There is no explanation available on record as to why he remained quiet for sufficient time.

7. It was further argued that the learned Courts below have rightly appreciated the evidence available on record and the concurrent findings of fact recorded by the Courts of competent jurisdiction need no interference.

8. I have heard the arguments of the learned counsel for the parties and perused the available record. I admit the revision petition to regular hearing as per request of the learned counsel for the parties and proceed to decide the same.

9. In order to prove his case, the petitioner/plaintiff appeared as P.W.1 and reiterated the same facts mentioned in the plaint. He placed on record copy of the mortgage deed EXh.P.W.1/1. He also placed on record copy of the sale-deed in his favour Exh. P.W.1/2 and the site-plan Exh. P.W.1/3 , Faridoon was-examined as P.W.2 who stated that Ali Akbar and Fazal Akbar sold their rights in the property in dispute to the petitioner/plaintiff vide deed Exh.P.W.1/2 and he was marginal witness to the same. He owned his signature on the said deed to be correct. Muhammad was examined as P.W.3 who is also marginal witness to the deed Exh.P.W.1/2. Ali Akbar, one of the vendors, was examined as P.W.5 who stated that he and his brother Fazal Akbar had sold the suit property to the petitioner/plaintiff. He admitted his thumb-impression on Exh.P.W.l/2 to be correct. Liaqat Ali was examined as P.W.6. He is the son of Fazal Akbar. He also admitted that his father had sold his share to the petitioner/plaintiff.

10. So far as the factum of mortgage of the property in dispute is concerned, it is on record that the property in question was mortgaged with Fazal Karim predecessor of the respondents vide registered mortgage deed dated 28-9-1948 Exh.P.W.1/1 for a period of twenty-eight years. None of the parties has raised any objection with regard to the mortgage of suit property, therefore, in absence of any objection from either side, it stands proved that the suit house was mortgaged with the predecessor of respondents.

11. The controversy in this case is that the petitioner/plaintiff claimed to have purchased the suit property vide unregistered sale-deed dated 7-2-1972 Exh.P.W.1/2 whereas the respondents also claimed to have purchased the suit property vide unregistered sale-deed dated 26-2-1953 Exh.D.W.1/4 and the remaining half share was exchanged with Fazal Akbar by Muhammad Anwar son of Fazal Karim deceased.

12. So far as the case of petitioner/plaintiff with regard to purchase of the property vide deed dated 7-2-1972 Exh.P.W.1/2 is concerned, the petitioner/plaintiff has established his case through reliable and convincing' evidence. When examined as P.W.1, he stated having purchased the suit property from Ali Akbar and Fazal Akbar. To substantiate his claim, he examined Faridoon and Muhammad P.Ws.2 and 3 respectively. Both are marginal witnesses of the said deed Exh.P.W.1/2. They owned their signatures on Exh.P.W.1/2 to be correct. Not only the petitioner/plaintiff but also the marginal witnesses of Exh.P.W.1/2 proved that the suit house was purchased by the petitioner. In addition to the said evidence, the petitioner also examined Ali Akbar as P.W.5 who stated having sold his share to the petitioner. Likewise, Liaqat Ali P.W.6 stated that his father Fazal Akbar and uncle Ali Akbar had sold the suit house to the petitioner. On a question put during cross-examination, to Ali Akbar P. W .5 about the execution of deed dated 26-2-1953 Exh.P.W.5/D-1, he denied the execution of the same and when the said deed was confronted to him, he declared it fictitious. The vendors also confirmed having sold their shares to the petitioner/plaintiff.

13. So far as the sale-deed dated 26-2-1953 Exh.D.W.1/4 whereby the respondents claimed to have purchased half share of the suit property is concerned, though the marginal witnesses of the said deed were examined but the vendor did not admit its execution and as mentioned above, when the said deed was confronted to Ali Akbar, he declared it fictitious.

14. The stand taken by the respondent/defendant was that his son Muhammad Anwar had purchased half share in the adjacent house and that the said half portion was exchanged with the half-portion/share of Ali Akbar but not a single witness in this respect was examined by the respondents/defendants. Neither any exchange deed was placed on record nor any other proof with regard to the said exchange was available on record. It is also on record that Muhammad Anwar has filed Suit No.42/1 of 1991 against Liaqat Ali etc. seeking possession through partition of the half share C in the adjacent house, boundaries whereof have been mentioned in the heading of the suit. If the half-portion/share purchased by Muhammad Anwar was exchanged by him with Fazal Akbar then why Suit No.42/1 which is still pending adjudication was filed by Muhammad Anwar, which is a question to be answered by Muhammad Anwar in the case in hand but he has failed to answer the same. The institution of Suit No.42/1 by Muhammad Anwar for possession through partition of the half-portion/share in the adjacent house/makes the case of the respondents very weak. They have not been able to prove the purchase of the suit house in question.

15. Resultantly, the learned Courts below have failed to appreciate the evidence on record properly. I, therefore, allow the revision petition in hand, set aside the impugned judgments and decrees passed by the, learned Courts below on 8-11-2000 and 16-7-2002 respectively and decree the suit of the petitioner/plaintiff. There shall be no order as to costs. M.B.A./868/P Petition allowed.