1976 PLP 376 (SCMR)

SALAHUDDIN AHMAD, J,‑The dispute between the parties is over a site upon which Jumma Ji, predecessor‑in‑interest of Muhammad Ismail had constructed a house as a tenant of one Sarwar Shah. Habibullah Shah is brother of the said Sarwar Shah, and the petitioners are sons of Habib ullah Shah. It appears that on the basis of different registered sale deeds Sarwar Shah had sold the lands including the disputed site to the four different occupants of the land, namely, Jumma Ji, Haji Nur Muhammad. Ch. Ramzan and Abdul Hamid, in September 1908. The petitioners have claimed that all the four vendees of Sarwar Shah including Jummn Ji again sold the lands to the said Habibullah Shah, brother of the said Sarwar Shah, by an unregistered sale deed dated the 15th of August 1909 for a consideration of Rs. 99 only. It may be stated here that the lands had been sold by Sarwar Shah to the said vendees for au amount of Rs.360." In the year 1970 Ismail son of Jumma Ji wanted to reconstruct the house on the disputed site, but this was objected to by the petitioners. The petitioners, accordingly, filed a suit on the 24th of July, 1970, against Muhammad Ismail, Mat. Farooq Jan, wife of Muhammad Ismail and his four sons, namely, respondents Nos. 1 to 4 (Muhammad Jamil, Muhammad Khadim, Muhammad Sharif and Muhammad Saeed), and respondent Syed Abdullah Shah, son of the said Habibullah Shah, for a declaration that the plaintiffs were the owners of the site and for a perpetual injunction and for possession of the site. The trial Court decreed the suit and the appeal preferred by the defendants was dismissed by the learned District Judge. The defendants preferred a second appeal before the High Court and it was accepted by a learned Single Judge of the Peshawar High Court. The learned Single Judge set aside the judgments and decrees of the two courts below the High Court and remanded the case back to the trial Court for deciding the case afresh on issues already framed in the suit as well as on two further issues framed by the learned Single Judge these additional "were as follows:‑-- (1) Whether sale deed dated 15‑8‑1909 was forged and fictitious? (2) If it was held that plaintiffs were the owners of the site underneath, whether they could get possession from the defendants or the defendants had still to remain in possession on payment of certain dues, if any? If appears from the defence set up by the defendants that the of, genuineness and validity of the sale deed dated the 15th of August, 1909, was very much in issue and yet there was no issue framed on the question As regards the second additional issue it appears that Jumma Ji, father of Ismail, had already constructed a house on the disputed site which Jumma Ji had been occupying under Sarwar Shah even before Jumma Ji purchased the site of the house from Sarwar Shah in September 1908. The two additional issues, therefore, were material to the disposal of the petitioners' suit on merits. Wet accordingly, see no reason to interfere with the impugned order of the learned Single Judge of the High Court. The petition is, accordingly, dismissed. Petition dismissed.