P L D 2011 Supreme Court 161 (PLP)

MIAN SAQIB NISAR, J.

The suit for possession, filed by the respondents, was decreed on 25-9-1991 inasmuch as that the appellants were directed to remove the superstructure raised by them on the suit plot. The appeal of the appellants failed on 12-12-1995 and their revision was dismissed on 27-7-2005. All the three forums below have categorically held that the plaintiff-respondent is the owner of the suit plot, which was allotted to him against the claim of his father, the parents of the respondent died when he was quite young, he was brought up by the appellants, who were his close relatives. The primary plea/defence of the appellants that the respondent had sold the suit plot to them for an amount of Rs.9,000, has not been accepted by all the forums, as the plea having not been proved on the record and the findings in this regard are based upon appreciation of evidence, which are not shown to be the result of any error of misreading or non-reading. The High Court has come to the conclusion that Fakhar-ud-Din, the attorney of the respondent-plaintiff, has appeared in the witness box; he has deposed about the ownership of the respondent and in the lengthy cross examination, conducted upon him, it was not even suggested if the respondent had either agreed or sold the suit plot to the appellants; in addition the contradictions in the statement of appellant No.2 which are highlighted in the impugned judgment depicts the vanity/hollowness in the defence of the appellants. At the best, the appellants are able to show some back transaction of an amount of Rs.9,000 qua the respondent, but they have not been able to establish if the amount was credited to the latter and more so, if it was paid as a sale consideration pursuant to any sale transaction. There is no documentary evidence about the sale, which obviously could not be legally concluded except in accordance with Section 54 of the Transfer of Property Act, 1882 and 17 of the Registration Act, 1908. Moreover, even no oral independent evidence has been led by the respondent to establish the exact day, date, month, year, the venue as to when the sale transaction was allegedly negotiated and finalized between the parties and in whose presence.

2. Be that as it may leave to appeal was granted on 25-1-2006 in the following terms:

"Learned counsel for the parties have been heard at some length. We grant leave to appeal to consider, inter alia, whether the impugned judgment of the High Court suffered from misreading and non-reading of evidence on record, as well as; the effect of section 51 of the Transfer of Property Act, 1882. The status quo shall be maintained in respect of the suit property till final disposal of the main appeal."

3. We as stated earlier are not convinced if the factual findings of the fact given by the three courts below suffer from any misreading or non-reading of the evidence. For the proposition based upon section 51 ibid without dilating much about the scope of the section, suffice it to say that it is not attracted to the instant case, because in order to enforce the provision, a specific plea thereunder has to be taken in the written statement, an issue should be joined and evidence to that effect must be led. In the absence of the above requisites being accomplished in the seriatim, no benefit can be attained under the said law. From the record, it transpires that all the above stated ingredients are conspicuously missing in the present case. We are not impressed that the application of section 51 ibid is a question of law simpliciter which can be agitated at any stage of the proceeding, rather in our considered view the factual foundation within the parameters of the provisions has to be laid at the very inception of the case i.e. in the pleadings of the parties so that the right conferred thereby could be legally enforce. Therefore, we do not find any merit in this appeal which is hereby dismissed. M.A.K./N-1/S Appeal dismissed.