2009 PLP 574 (YLR)

MAULVI ANWAR-UL-HAQ, J.

This judgment shall decide C.R. No.361/02 and C.R. No.2669/01 as they proceed against a common judgment.

2. On 29-11-1995 the petitioners filed a suit against the respondents. In the plaint, it was stated that Allah Ditta son of Ahmad Yar, the predecessor-in-interest of the petitioner was the owner of the land described in paras-1 and 2 of the plaint and on his death it was mutated in favour of the petitioners or their predecessors vide inheritance Mutation No.231 attested on 12-8-1941. It was then stated that the defendant No.1 Hassan Din deceased (represented by the respondents Nos.1 to 3 as LRs) was a clever person who managed to get Mutation No. 232 attested on 28-8-1941 purporting to be the sale of 88 Kanals and 9 Marlas out of the said land in his favour. He made further alienation as detailed in para-5 of the plaint. According to them, they are in joint possession and came to know about the said facts a month before the institution of the suit. They accordingly sought a declaration that they are co-owners in the suit-land to the extent of 2164/5454 share and the said mutation and further alienations are void. It was stated that Muhammad Anwar petitioner was minor at the relevant time. The suit was contested by the said Hassan Din and his transferees including his children and wife and they claimed a valid sale in their favour and at the same time claimed to be in adverse possession and have mutated their title. The suit was stated to be barred by time. The factum of minority of Muhammad Anwar was not denied. Following issues were framed by the learned Trial Court:

(1) Whether the suit is not maintainable in its present form? (2) Whether the plaintiff are estopped by their words and conduct to file this suit? OPD. (3) Whether the defendants have become owners on the basis of adverse possession? OPD (4) Whether the suit is bad for mis joinder and non-joinder of parties? OPD. (5) Whether the plaintiffs are owners in possession of disputed land upto the extent of 2164/5454 share measuring 108 Kanals 4 Marlas? OPD. (6) Whether the plaintiffs are entitled for issuance of permanent injunction as prayed for? OPD. (7) Relief. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 9-5-2000. A first appeal filed by the petitioners was partly allowed by a learned ADJ, Sheikhupura, on 29-11-2001 inasmuch as he set aside the transaction vis-a-vis Muhammad Anwar petitioner.

3. Against the said judgment and decree of the learned ADJ, the petitioner have filed C.R. No.361/02 praying that the entire suit be decreed while respondents have filed C.R. No.2669/01 praying that the entire suit be dismissed.

4. Syed Kaleem Ahmad Khurshid, Advocate/learned counsel for the petitioners contends that there is not an iota of evidence on record to prove a valid sale having been made by the petitioners in favour of the said Hassan Din. According to him, admittedly, it was a joint land and possession was of no relevance and as such the suit has wrongly been held to be time barred. Agha Intizar Ali Imran, Advocate/learned counsel for the respondents; on the other hand, contends that since, admittedly, his clients continued in possession and the same being adverse, the suit was barred by time. According to him, it was for the petitioners to disprove the sale. Alternately contends that a chance be given to his clients to prove a valid sale in their favour as issues were not happily worded. He, however, has not much to say about the transaction stated to be entered into by Muhammad Anwar when he was a minor.

5. I have gone through the copies of the records, appended with both these civil revisions, with the assistance of the learned counsel for the parties. There is no denial of the fact that Muhammad Anwar was a minor at the time of alleged sale and this fact has been admitted by Hassan Din defendant appearing as D.W.4, I am, therefore, not at all inclined to interfere with the judgment of the learned ADJ holding the transaction to be void to the extent of the said petitioner.

6. Regarding the remaining petitioners, I have already noted above that they had denied having sold the land to Hassan Din. Conversely, Hassan Din pleaded a valid sale in his favour by the petitioners. I have examined the evidence on record and do agree with Syed Kaleem Ahmad Khurshid, Advocate, that there is no evidence whatsoever on record of any valid sale having been made by the petitioners in favour of Hassan Din. Learned counsel for the respondents could only point out to the statement of Hassan Din in the witness-box but nothing turns on the same as the same stands rebutted by the said denial on the part of the petitioners in the plaint as well as in the witness box. Needless to state that a mutation does neither confer any title nor, in fact, is evidence of title. In case of dispute the beneficiary has to prove the transaction as a fact. Reference by made to the cases of Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729) and Aurangzeb through L.Rs. others v. Muhammad Jaffar and another (2007 SCMR 236).

7. Similarly, the plea of adverse possession and the plea of title in the same breath are mutually destructive. Admittedly, the land is joint and actual possession is not of any relevance.

8. I may further note here that in his written statement Hassan Din stated that even Allah Ditta, the predecessor-in- interest of the petitioners was not in possession. Nothing, therefore, turns on the said possession which for all purposes injures for benefit of the petitioners as well till such time the partition is effected. Reference be made to the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245.

9. I am, however, inclined to grant a chance to the clients to Agha Intizar Ali Imran, Advocate, to prove a valid sale as possibility cannot be ruled out in view of the peculiar circumstances of the present case that they were mis-led by the form of the issue.

10. For all that has been discussed above, C.R. No.2669/01 is dismissed and the impugned judgment of the learned ADJ holding the transaction to be void vis-a-vis Muhammad Anwar, petitioner/plaintiff is affirmed. However, the remaining matter, namely, C.R. No.361-02 is remanded back for a decision on the following issue No.6-A

"6-A. Whether Hassan Din validity purchased the suit-land from the petitioners or their predecessors-in -interest? OPD-1. " The parties shall appear before the learned Senior Civil Judge, Sheikhupura, on 29-10-2007. A copy of this judgment be immediately remitted to the said learned Senior Civil Judge who shall requisition the records and proceed to undertake the said exercise and to take all steps to the decide the matter before the Summer Vacations, 2008. No orders as to costs. H.B.T./M-387/L Order accordingly.