2009 PLP 759 (SCMR)

MIAN HAMID FAROOQ, J.

The petitioner seeks leave to appeal against judgment, dated 11-9-2002, whereby the learned single Judge of Lahore High Court at Lahore accepted the revision petition (Civil Revision No.1400 of 1999) filed by Muhammad Ayub and passed the preliminary decree.

2. Muhammad Ayub, plaintiff/respondent No.8, claiming to be co-owner in the disputed house (elaborately described in the plaint) along with other owners, having inherited it from his father, namely Muhammad Ramzan, filed the suit for declaration, against the respondents and the petitioner, inter alia, pleading that Muhammad Ramzan, his father, was the owner of the disputed house; respondent No.2 being one of the sons of Muhammad Ramzan was residing in the said house; respondent No.2 gifted the said house to his wife through registered gift deed dated 3-10-1993, and then his wife sold the property to the petitioner, vide registered sale-deed dated 28-6-1995. The plaintiff challenged the validity and legality of the said gift deed and sale-deed and also claimed possession of 2/11 share in disputed suit by way of partition. The suit was only contested by respondents Nos.1, 2 and the petitioner, while rest of the respondents furnished consenting written statement. It was the case of respondents Nos.1 and 2 that Muhammad Ramzan was not the owner of the property, rather half portion of the property was purchased by respondent No.2 from one Sufi Nizam Din, on 3-1-1967, while remaining half was purchased by respondent No.2 in the name of his mother Sardar Begum who subsequently gifted the same to respondent No.2. The petitioner claimed himself to be a bona fide purchaser. The learned trial Court framed the issues, recorded the evidence of the parties and ultimately dismissed the suit, vide judgment and decree dated 3-9-1998, which was upheld by the Appellate Court, when the appeal of Muhammad Ayub was dismissed by the learned Additional District Judge on 14-6-1999. Respondent No.8/plaintiff preferred the revision petition (Civil Revision No.1400 of 1999) and the learned Single Judge in Chambers allowed the same, reversed both the judgments and decrees and consequently, passed a preliminary decree, determined the shares of the parties and remanded the case to the learned trial Court for proceedings further in the matter for passing final decree vide judgment and decree, dated 11-9-2002, hence the present petition.

3. Learned counsel for the petitioner vehemently asserted that Muhammad Ramzan had no nexus with the property in question, which was exclusively owned by respondent No.2, who purchased half of the property from Nizam Din, while the remaining half was gifted to him by his mother Mst. Sardar Begum. He has added that the concurrent findings of fact was reversed by the learned High Court without giving any valid, legitimate and cogent reasons.

4. We have heard the learned counsel and examined the available record. The learned High Court, after adverting to the documentary as well as oral evidence on record, has repelled the contention raised by the learned counsel for the petitioner and has held that respondentNo.2 could not prove his ownership qua property in question. The learned High Court has held, and rightly so, that it is not clear as to how respondent No.2 derived title of the property though it has so been incorporated in the gift deed dated 3-10-1993. Exh.D.2, which is purported to be a document of sale allegedly executed by Nizam Din in favour of Muhammad Yaqoob, is an unregistered document, thus, it can neither create nor extinguish any rights qua the property. It is established on record, through the copy of the plaint dated 12-3-1989 (Exh.P.2), which was admittedly signed and verified by respondent No.2, that he acknowledged that Muhammad Ramzan was the owner of the disputed house. In view of the said admission of Muhammad Yaqoob, which document (Exh.P.2) was confronted to him, he cannot be allowed to make a summersault that the said admission was not binding upon him as he withdrew the suit. Learned High Court rightly came to the conclusion that there is no evidence on record to show that respondent No.2 either purchased any portion of property or his mother transferred any portion of the property to him. It appears appropriate to reproduce para.7 of the impugned judgment, which clinches the matter:

"(7) It is but apparent on the face of record and the impugned judgments that the learned lower Courts have completely failed to read the said evidence on record. There is no evidence that said respondent No.2 or his mother purchased or was transferred any portion of the suit property and there is a clear admission on the record by respondent No.2 long before he had gifted away the property to his wife for onward sale to respondent No.8 that the property is owned by his father and is joint property of the sisters and brothers."

5. As regards the case of the petitioner, the same has sufficiently been comprehended by the learned Single Judge in Chambers inasmuch as, it was held that the petitioner could not prove, from the evidence on record, that he is in fact a bona fide purchaser within the parameters set up by law. The categorical findings of the learned High Court are that the property gifted to wife by respondent No.2 and then sold to the petitioner has no nexus with the property mentioned in the said document. In this regard reproduction of para.8 of the judgment would further clarify the matter, which reads as under:

"(8) I find that although the respondent No.8 took the plea that he is bona fide purchaser yet he did not claim any issue and consequently did not press the said plea. Be that as it may, he has come out .with some what different version than that of the respondent No.2 regarding the source of title. Be that as it may, the said sale Exh.D.2 (dated 3-1-969) and said P.T.D. Exh.P.4 leave no manner of doubt that the property that was gifted to wife and then sold to respondent No.8 has no nexus whatsoever with the property mentioned in said documents even if these documents are assumed to be, correct and genuine. A plain reading of the said documents would lead to the said conclusion. Apparently respondent No.8 like learned Courts below did not care even to examine the said documents before proceeding to purchase the property. He cannot be termed as bona fide purchaser at all."

6. In the above perspective, we have examined the judgment and find that it does not suffer from any legal infirmity, rather it rectified the judgments and decrees passed by the two Courts below, as both proceeded contrary to the 'evidence on record. The findings of the learned High Court are in accordance with the evidence on record and no misreading and non-reading of the record has been pointed out, thus, we do not feel inclined to interfere in the judgment of the High Court. No case for grant of leave to appeal is made out.

7. In view of the above, the present petition is devoid of merits, thus stands dismissed and leave to appeal is declined. M.H./M-71/SC Petition dismissed.