1997 PLP 974 (SCMR)

(b) Transfer of Property Act (IV of 1882)‑‑‑ ‑‑‑‑S. 54‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Acquisition of title through sale‑deed ‑‑‑Sale deed reflected in mutation‑‑‑Suit for possession of land through partition of joint land decreed by Trial Court‑‑‑Decree of Trial Court was set aside by Appellate Court as also by the High Court in revision‑‑‑Validity‑‑‑Sale‑deed in question, was neither produced nor tendered in evidence‑‑‑Mutation of land in question, on basis of sale‑deed was, however, produced in Court which showed that plaintiffs had purchased share of land in question‑‑‑Copy of sale‑deed was produced for the first time before Supreme Court which looked into the same in the larger interest of justice‑‑‑Sale‑deed contained site plan with specific measurement‑‑‑Sale‑deed contained recital that physical possession of land had been delivered to plaintiffs and they occupied the entire land purchased by them‑‑‑Question whether plaintiffs had purchased share in land or specific land being question of fact, two Courts below had concurrently found such question against plaintiff; that they had purchased land, site plan whereof was attached with sale‑deed‑‑‑Interference in the judgment of High Court by Supreme Court was not warranted‑‑‑Leave to appeal was refused in circumstances. Muhammad Munir Peracha, Advocate instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioners. Nemo for Respondents. Date of hearing: 31st October, 1995 MUHAMMAD MUNIR KHAN, J.‑‑This petition directed against order dated 9‑4‑1995 of Lahore High Court, Multan Bench, Multan, arises from the facts that on 6‑12‑1988, Muhammad Ishaq and Muhammad Abbas Khan petitioners filed suit for possession of four Marlas of land through partition of joint land measuring 1 Kanal 17 Marlas situate at Mauza Neel Kot, District Multan, on the basis of title, against Mst. Gazala Riaz and others respondents, in the Court of Senior Civil Judge, Multan. It was averred in the plaint that they had purchased land measuring 15 Marlas through registered sale deed dated 12‑10‑1985 from Sh. Abdul Majid and others but due to clerical mistake, instead of 15 Marlas, 14 Marlas was written in the sale‑deed. Consequential mutation of the transaction was attested on 27‑1‑1986. It was further averred that the vendors delivered possession of 11 Marlas which was in their occupation and the remaining four Marlas of land. could not be delivered to them as the same was' in possession of defendants‑co‑sharers. The suit was resisted. Both the parties led evidence. Learned Civil Judge, vide his judgment dated 16‑12‑1990 passed preliminary decree in favour of the petitioners holding that the petitioners were co‑sharers to the extent of 14 Marlas in land measuring 1 Kanal 17 Marlas which was a joint property. The appeal filed by the respondents against judgment and decree was accepted by Additional District Judge, Multan on 25‑7‑1993 holding that the nature of the suit‑property was never joint as it was a housing Colony divided into plots and sold as such to different persons and that the petitioners‑plaintiffs had purchased specific plot with specific measurement and constructed boundary wall around it. He accordingly set aside the preliminary decree and dismissed the suit. Feeling aggrieved thereby, the petitioners filed revision in Lahore High Court, Multan Bench, Multan, which too has been dismissed vide impugned judgment observing that "it is noteworthy that the petitioners‑plaintiffs have not produced the sale‑deed in evidence but have relied upon the consequential mutation. As pointed out by the learned counsel for the respondents this has been done to withhold the information from the Court that the subject‑matter of sale‑deed is the specific plot according to the site plan given therein and not a share in the joint property. Somehow mutation shows the transaction in share and hence the plaintiffs have relied upon the p, mutation only. It is well settled that mutation is not a document of title. It was imperative for the plaintiffs to have produced the sale‑deed itself for showing to the Court as to exactly what they had purchased".

2. Learned counsel for the petitioners has relied on mutation to contend that the petitioners‑plaintiffs had purchased share in the joint land and not specific land, so the finding arrived at by the Additional District Judge and the High Court as well that they had 'purchased specific plot with specific measurement was based on misreading of evidence.

3. We have considered the submission made by the learned counsel with care. We do not agree with him. The petitioners had not produced the sale‑deed on basis whereof the suit for possession, was filed by them, before the trial Court. The mutation on which the learned counsel for the petitioners has relied to argue that the plaintiffs had purchased share and not specific and has not been placed on record of this petition with the result that we are not to a position to examine the same. The question whether the petitioners had purchased a share or specific land is a question of fact. The two Courts below have concurrently found this fact against them. The petitioners have placed copy of the sale‑deed dated 12‑10‑1985 at page 74 of the Paper~ok. Although the sale‑deed was not proved or tendered in evidence before the trial Court and for the first time it has been placed on record of this Court, yet in the larger interest of justice we have looked into the same. The portion of the sale‑deed appearing at page. 78 of the Paper Book contains site.plan with specific measurement, It is also stated in the sale‑deed that the physical possession of the land purchased by the petitioners has been delivered to them and they have occupied the entire land purchased by them. We do not, therefore, see any infirmity warranting interference by this Court in exercise of its powers under Article 185(3) of the Constitution. of the Islamic Republic of Pakistan, 1973.

4. Leave to appeal is. thus refused and the petition is dismissed. A.A. /M‑3193/S Leave refused.