1999 PLP 2195 (MLD)

(2) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction ? O.P.D. (3) Whether the suit is barred by res judicata ? O.P.D. (4) Whether the suit is mala fide ? O.P.D. (5) Whether the suit is barred by time ? O.P.D. (6) Whether these suit cannot proceed under the law ? O.P.D. (6-A) Whether the plaintiff is in possession of the disputed property as owner ? O.P.P. (Sh. Abdur Razzaq, J) (7) Whether the order of ejectment, dated 15-7-1974 against Muhammad Sharif is void, ineffective and not enforceable against the plaintiff ? O. P. P. (8) Relief. In support of their respective stand, both the parties adduced their evidence. The learned lower Court decreed the suit of plaintiff-petitioner vide judgment and decree, dated 29-5-1991. The defendant-respondent assailed the said judgment and decree, dated 29-5-1991. His appeal was accepted by the learned Additional District Judge vide judgment and decree, dated 31-3-1996. Hence the instant civil revision.

4. As both the civil suit and objection petition have been disposed of by the trial Court and appellate Court vide judgments, dated 29-5-1991 and 31-3-1996 respectively, so another Civil Revision No. 1226 of 1996 has also been filed wherein the orders passed in respect of objection petition have been assailed. As both these revision petitions arise out of the same judgment, so these are being disposed of by the single judgment.

5. It is submitted by learned counsel for the petitioners that they have been non-suited by the. Courts below as they failed to prove their title over the suit property, that the appellate Court held that as the title of defendant-respondent Mst. Momina Khatoon was prior in time, so the subsequent title acquired by the petitioners is of no legal consequence, that this finding has been returned while discussing issue No.6-A, that no such finding could be given regarding the title of parties, as the suit did not relate to that aspect and it was filed assailing the order of ejectment, dated 15-7-1974 only. He next urged that even if it is presumed that title of the parties was relevant, even then plaintiff-petitioners had brought on record sufficient evidence to prove their title, that defendant respondent Mst. Momina Khatoon has no concern with the property purchased by them from Mst. Sughran Begum, and which was in their possession. He further contended that Mst. Momina Khatoon had launched criminal prosecution under section 447, P.P.C. against Mst. Sughran Begum, Muhammad Imtiaz Farooqi and two others which was decided in her favour vide order, dated 20-4-1963 by the Conciliation Court. However, in revision, the said order was set aside vid$ order, dated 2-7-1963 Exh.P.4, that Mst. Momina Khatoon filed Writ Petition No.40 of 1963 against order, dated 2-7-1963 but the same was dismissed on 21-12-1972, that dismissal of the writ petition clearly shows that Mst. Sughran Begum and others remained in possession of the property which she had purchased from Mst. Maasooma Begum, that as Mst. Sughran Begum was the owner in possession of the property and the plaintiff -predecessor in-interest of the petitioners derived his title from her, so Mst. Momina Khatoon has no concern whatsoever with the suit property.

6. Conversely, the stand of learned counsel for the defendant-respondent is that Inayat Masih (predecessor-in-interest of petitioners) claims to have purchased property from Mst. Sugrah Begum vide sale-deed, dated 16-2-1974, that Mst. Sughran purchased the same from Mst. Maasooma- Begum vide mutation No. 1483, dated 20-1-1963, that said mutation was never attested as the said land has already been sold out vide sale-deeds, dated 6-11-1954 and I 1-10-1954, that as such no valid title was transferred by Mst. Sughran Begum vide sale-deed, dated 16-2-1974 in favour of Inayat Masih, that property purchased by Mst. Momina Khatoon was rented out to Muhammad Sharif in 1968, that an application was filed against him and he was ejected vide order, dated 15-7-1974, that Inayat Masih (predecessor-in-interest of the petitioners) filed an objection petition against the said order which was dismissed on 22-7-1976, that even an appeal filed by Muhammad Sharif was dismissed on, 31-3-1977 that if Muhammad Sharif had been in possession of the property belonging to Inayat Masih plaintiff-predecessor-in-interest of the petitioners, why he did not agitate this fact during the year 1968 to 1977 and why he preferred to file this suit after Muhammad Sharif failed in the appellate Court. He further contended that the appellate Court has rightly adjudged that the plaintiff-predecessor-in-interest of the petitioners had failed to prove that he is in possession of the suit property being its owner and has reversed the findings of the lower Court, that there is no force in the revision petitions and the same be dismissed.

7. From the fact stated above, it is clear that both the plaintiff- predecessor-in-interest of the petitioners and the defendant-respondent claim themselves to be owners of the suit property. The plaintiff-predecessor-in interest of the petitioners claims to have purchased property from Mst. Sughran Begum vide sale-deed, dated 16-2-1974. His contention is that Mst. Sughran Begum had purchased this property from Mst. Maasooma Begum vide sale-deed, dated 27-3-1959 for which mutation No. 1483 was entered. His further contention is that the property initially existed in the form of a plot upon which two big rooms and one small room were constructed by Mst. Maasooma Begum and later on he also carried out renovation of the same. On the other hand, the stand of the defendant-respondent is that she had purchased this property vide sale-deeds, dated 7-11-1954 and 11-10-1954 Exh.D.2 and Exh.D.3 and the total area of the suit property 11-1/2 Marlas for which mutation No. 1491 and 1492 Exhs.D.4 and D.5 were sanctioned. It is also /fact that Mst, Momina Khatoon rented out this property to Muhammad Sharif in the year 1968 arid later on filed an ejectment petition against him which resulted in her favour as is evident from order, dated 15-7-1974. It is also fact that Inhyat Masih filed an objection petition which was dismissed vide order, dated 22-7-1976, that even appeal filed by Muhammad Sharif failed as is evident from judgment, dated 31-3-1996. It has come on record that mutation No.1483, dated 20-1-1963 was entered regarding the purchase of property by Mst. Sughran Begum from Mst. Maasooma Begum vide sale-deed, dated 27-3-1959. However, it is fact that the said mutation was not attested. It is also fact that Mst. Sughran Begum did not agitate the matter regarding non-sanctioning of mutation on the basis of sale- deed, dated 27-3-1959 executed in her favour. Regarding this very property, sale-deeds Exh.D.2 and Exh.D.3 are on record which are prior in time as these pertain to 6-11-1954 and 10-11-1954. When the property claimed to have purchased by the plaintiff (predecessor-in-interest of the petitioners) from Mst. Sughran Begum who claims to have purchased from Mst. Maasooma did not exist in the name of Mst. Maasooma Begum, how could she pass on a better title in favour of Mst. Sughran Begum and finally in favour of Inayat Masih plaintiff (predecessor-in-interest of the petitioners).

8. Contention of learned counsel for the petitioners, that question of title could not be gone into in this suit, is devoid of force. The very title of this suit shows that the plaintiff (predecessor-in-interest of the petitioners) claimed himself to be owner of the property and thereby prayed that the defendant respondent be restrained from taking the possession on the basis of ejectment order passed in her favour and against Muhammad Sharif. The facts narrated A above clearly prove that the property in dispute was purchased earlier by Mst. Momina Khatoon and it did not vest in Mst. Maasooma Begum who is stated to be the owner of the property from whom Mst. Sughran Begum is alleged to have purchased the same and from whom the plaintiff (predecessor-in-interest of the petitioners Inayat Masih claims to have acquired. This being the factual position, the appellate Court was justified in reversing the findings recorded under issue No.6-A and thereby dismissing the suit of the plaintiff (predecessor in-interest of the present petitioners). There is no force in the instant civil revision petition and Civil Revision No.1226 of 1996 and both are hereby dismissed. Q.M.H./M.A.K./J-75/L Revision dismissed