P L D 1999 Peshawar 75 (PLP)

Through this civil revision, the petitioner has challenged the judgments and decrees of the two Courts below, whereby suit of the respondent was decreed.

2. The brief background of this civil revision is that one Sarbuland son of Sarfraz Khan was predecessor‑in‑interest of the petitioners /defendants, who had transferred an area of 82 Kanals, 8 Marlas in old Khata No.960 out of the total area of 329 Kanals, 11 Marlas in favour of Ghulam Rasool, predecessor‑in -interest of respondents/plaintiffs and a sale Mutation No. 1286 was attested in favour of Ghulam Rasool/vendee on 20‑2‑1954. The possession of the purchased property was handed over to the said Ghulam Rasool.

3. The father of the defendants, namely, Sarbuland, inherited the said property through an inheritance Mutation No. 10681 attested on 26‑5‑1946 from one Wazir Azam son of Saadullah. This inheritance mutation was, however, subsequently challenged by Saifullah Khan, the son of Wazir Azam, by way of civil suit in the Court of Civil Judge, Lakki Marwat and in the said suit, besides Mutation No.10681. Mutation No. 12186 attested in favour of Ghulam Rasoo( was also challenged. The suit of Saifullah Khan was dismissed by the trial Court on 24‑6‑1979 and the appeal also failed vide judgment and decree dated 23‑6‑1982 passed by the Additional District Judge Lakki Marwat. However, a revision petition filed by the said Saifullah Khan in this Court was accepted on 28‑1‑1985 and, as such, 7/8th share of the suit land was given to Saifullah Khan, being the son of Wazir Azam as his entitlement by way of inheritance.

4. On the strength of the judgment of this Court, Mutation No.21241,was attested on 19‑9‑1985, whereby an area of 44 Kanals, 12 Marlas was mutated in the name of Saifullah Khan and in this way an area of 20 Kanals, 12 Marlas was deducted from the share of Ghulam Rasool, in favour of Saifullah Khan, due to which the plaintiffs/respondents lost the abovementioned area of land.

5. Aggrieved by the said deduction and loosing of an area of 20 Kanals, 12 Marlas, the plaintiffs/respondents, being the successors of Ghulam Rasoool, brought a suit against the petitioners claiming that since they have lost an area of 20 Kanals, 12 Marlas due to the defective title of Sarbuland, therefore, this loss was to be made good from the remaining property of Sarbuland inherited by the petitioners. It was prayed in the plaint that the loss caused to the plaintiffs should be recovered from the other property of Ghulam Rasool. In the alternative that in case the decree for the possession of 20 Kanals, 12 Marlas could not be passed for any reason, then they should be paid the price to the extent of their loss at the prevailing market rate. The suit was contested by filing written statement and pleading of the parties were reduced in the framing of the following issues:‑‑ Whether the plaintiffs have got a cause of action? (2) Whether the suit is within time? Whether the transaction has taken place between the predecessor of the parties? If so, its effect? (4) Whether the right of defendant protected under section 41 of Transfer of Property Act? (5) Whether the plaintiffs are estopped to bring the present suit? (6) Whether the suit is hit by doctrine of res judicata? (7) Whether the suit is defective in its present form and so not maintainable? (8) Whether the plaintiffs are entitled to the declaration as prayed for? (9) Whether the plaintiffs are entitled to the specific performance of contract as prayed for? (10) In alternative whether the plaintiffs are entitled to the recovery of price of the suit land? (11) Relief?

6. The parties adduced their respective evidence of their own choice and the trial was concluded. The learned trial Judge passed a decree in favour of the plaintiffs with the following observations:‑‑ "The sum and substance of above discussion is that the plaintiffs succeed in proving their case against the defendants. As a result decree is granted in their favour against the defendants. However, the plaintiffs are already in possession of the land what has been decreed out from them. They are entitled to retain its possession computing it toward other property of the defendants in the said khata. This is envisaged by the decree granted by the Honourable Peshawar, High Court, D.I.Khan Bench."

7. The said judgment and decree were, however, challenged by the petitioners before the learned Additional District Judge Lakki, but their appeal was also dismissed vide judgment and decree dated 25‑3‑1996. Hence this civil revision.

8. Learned counsel for the petitioner contends that the property which is decreed by the Courts below is not the inherited property of petitioner and is not the property which was covered by Mutation No. 12186 attested on 202‑1954 and, as such, the judgments and decrees of both the Courts below are erroneous and not warranted by law, He further contended that the judgment of the trial Court is violative of Order 41, Rule 31 of Code of Civil Procedure, as all the issues have not been discussed, and thus, the findings of the lower Courts are the outcome of misreading and non‑reading of evidence which, according to him, calls for interference by this Court in exercise of its revisional jurisdiction.

9. On the other hand, the learned counsel for respondents has vehemently defended the judgments and decrees of the Courts below and submits that these are concurrent findings of the two Courts and there is no jurisdictional defect of the nature of misreading or non‑reading of evidence within the spirit of section 1 15 of Civil Procedure Code arid, as such, there are no legal grounds warranting interference by this Court in its revisional jurisdiction.

10. I have considered the arguments of the learned counsel for the parties and gone through record of the case with their valuable assistance. In their This position is undisputed that Sarbuland had sold and transferred land measuring 82 Kanals, 8 Marlas to Ghulam Rasool through Mutation No. 12186 attested on 20‑2‑1954 and the possession was also in the hands of vendee Ghulam Rasool. This was a full‑fledged sale for consideration. But due to the subsequent litigation by Saifullah, the son of Wazeer Azam,, as a fight for his rights in the inheritance of his father, he succeeded in getting the same at the High Court level vide judgment in Civil Revision No.45‑D of 1982, decided on 28‑1‑1985, which resulted in deduction of an area measuring 20 Kanals, `12 Marlas from the share of Ghulam Rasool. This deduction was obviously due to the defective title, to such extent, of Sarbuland. This fact is also worth noticing that Sarbuland and Mst. Spogmai had knowingly excluded Saifullah from the inheritance of his father Wazeer Azam by transferring 3/4th and 1/4th shares in their tames respectively through Mutation No.10681 attested on 26‑5.1946. This was obviously an illegal alienation opposed to all norms of fairness. However, this Court vide above referred ,judgment and decree elated 28‑1‑1985 accepted the claim of Saifullah Khan, who was declared owner in possession to the extent of 7/8th share‑ in the property left by Wazeer Azam‑ In the said judgment, (lie . following observations are significant: "it is not denied that Said Azam and Feroz have also inherited land in the same Khata from their father Sarbuland, who was owner in equal, share with Sadullah Khan, his father. For the reasons, the defendants vendees would be entitled to retain the land sold to them from the land so inherited by their vendor from Sarbuland."

11. This judgment remains in the field having not been challenged before the august Supreme Court of Pakistan, and thus, finality was attached to it. The quoted observations of this Court are determinative of the rights of respondents, who had suffered loss because of purchase from the ostensible owner, i.e. Sarbuland.

12. It is also a settled proposition of Jaw that a successor steps into the A shoes of his predecessor and the rights acquired by a `successor are pre‑written statements, the defendants have, vide preliminary objection No.2, admitted the transaction of sale, expressed in the following words:‑‑ dominantly subject to all the liabilities with which the predecessor was saddled. In the wake of this settled position of law, the contention of petitioner as it is evident from the written statement that the sale transaction was a matter between the predecessors of plaintiffs and defendants and that they (defendants) are not responsible for the same, is forceless. 13, The learned counsel for petitioner has argued that the land decreed vide the. impugned judgments is not inherited property from Sarbuland. 'This contention is incorrect, as from the Goshwara Intiqalat and statement of Patwari Halqa, Inayatullah Khan, it is evident that petitioner has inherited sufficient property from Sarbuland.

14. The petitioner has also tried to set up a case under the principle of Caveat emptor' by taking such ‑a plea in the preliminary objections of the written statement. Such a plea cannot be availed by the petitioner being seller of property, as it is opposed to all norms of fairness, equity and justice. It can be used by a third person having a conflict or interest on the same subject‑matter with respondent but petitioner cannot legally articulate on this plea. Moreover, the principle of Caveat emptor.is not approved by the Injunctions of Islam, as al vendor is required to disclose the defects in the sale commodities to the vendee.

15. In my view, besides, and over and above., the aforementioned legal and factual aspect of this case, such matters can be very fairly determined in the light of Quranic Injunctions; as the Holy Qur'an in very explicit terms says:‑‑ Woe to those who give short measure, those who, when they have to receive by measure from men, exact full measures, but when they have to give by measure or weight to men give less than due (Sura Mutaffifeen). This Quranic philosophy was applied by the Honourable Supreme Court in case of Government of N.‑W.F.P. v. I.A. Sherwani PLD 1994 SC

72. Their Lordships, observed as follows:‑‑ , "Although the word '.Tatfif' used in the Holy Verse literally means 'giving short measure' or 'short weight', yet, in the normal usage, it covers all the situations where a person gives too little and asked toe much. Maulana Mufti Muhammad Shafi, while explaining this Verse, writes in his Ma'ariful Qur'an:

16. In the instant case, Sarbuland, the predecessor of petitioner, had sold an area measuring 82 Kanals, 8 Marlas to Ghulam Rasool, predecessor of respondents for valuable consideration and mutation was also attested in favour of vendee, possession was delivered too. In all respects, the sale was completed and full amount for the purchased land was paid, as it is not the case 'of petitioner that any amount remained unpaid by Ghulam Rasool. therefore, his right over the purchased area was legally established and the vendor was legally bound to have given him the entire purchased area. The subsequent loss or deduction from the entitlement of Ghulam Rasool due to defective title of Sarbuland was required to be made good by Sarbuland and after his death, his legal heirs are bound to redeem such loss, failing which the petitioner shall be guilty of "Tatfif".

17. From the above discussion, I. am of the considered view that the suit of respondents has rightly been decreed, there is no infirmity in the judgments and decrees of the two Courts below, which could call for any interference by this Court. All the relevant and , material issues were meaningfully discussed by the trial Court which had arrived to a correct conclusion. This revision petition, therefore, fails which is dismissed. H_B T '413 / P Revision dismissed