1994MLD461 (PLP)

This judgment will dispose of two connected civil revisions, as the common questions of law and fact involved in both the civil revisions are the same. Facts of the case out of which these two civil revisions have arisen are that land measuring 15 Marlas out of Khasra No. 2300 situated in Chakwal District Jhelum was purchased by Abdul Rauf respondent from the petitioners in this petition vide a Court decree dated 5-11-1971 for an amount of Rs.3,

740. Subsequently he filed a suit seeking possession of the land in question alleging therein that having sold the property, the defendants who are petitioners before this Court, had demarcated the same and thereafter he had constructed a Pucca "Satbandi around the plot and as he is living in Rawalpindi in connection with his service, the defendants took forcible possession thereof and constructed a Baithak over northern-western corner thereof although they are not entitled to do so hence, a prayer has been made for grant of decree for possession. The petitioners filed a declaratory suit alleging therein that they have never sold the land in question and therefore, they may be declared as owners in possession thereof. Both the suits were contested by the defendants and the various consolidated issues framed. After recording of evidence the learned trial Court decreed the suit filed by Abdul Rauf respondent and suit filed by Nazar Hussain petitioner No.1 was dismissed. Aggrieved of this judgments and decrees, two separate appeals were filed one against the decree of the dismissal of his suit and the other against the decree for possession granted in favour of the respondent. These appeals were filed in District Court of Chakwal. The appeals have been heard and decided by the learned Additional District Judge, District Chakwal vide judgment and decree dated 4 9-1988 and decree passed by the learned trial Court has been modified to the extent that a decree of symbolic possession shall be passed in favour of the respondent, hence, these two civil revisions have been filed by Nazar Hussain and others with a prayer that the suit filed by the petitioners should have been decreed whereas the suit filed by the respondent should have been dismissed.

3. Mr. Ajmal Kamal Mirza, Advocate has appeared on behalf of the petitioners in both the civil revisions and has argued that the two Courts below have illegally ignored the report of Zaka Ullah the handwriting expert who was got appointed by the other side and have illegally relied upon the result of comparison made by the Court itself and, therefore, have exercised jurisdiction illegally and with material irregularity. Learned counsel however has conceded that the Court has jurisdiction to compare the handwriting while taking a decision as to whether the said handwriting is of the person concerned or not. Learned counsel has further contended that as the land is situated within the municipal limits the sale was not possible except by a registered sale-deed and, therefore, the decree Exh.P5 being nullity in the eyes of law, no title can be claimed by the respondent on basis thereof. In this behalf learned counsel has placed reliance on case of Talib Hussain v. Babu Muhammad Shafi and 12 others PLD 1987 Lahore 4 (DB). It is further contended that the possession of the petitioner over the land in question is as a co-sharer therefore, the decree for possession could not have been passed in favour of the respondent because he has a remedy to file a suit for partition. In support of his contention learned counsel has placed reliance on case of Fazil etc. v. Manzoor Hussain etc. PLD 1979 Note 9 at p. 6.

4. I have considered the arguments addressed by the learned counsel for the petitioner and have also gone through the record. Two learned Courts below have concurrently held that the land in question was sold by the petitioner is favour of the respondent vide a decree of the Court dated 5-11-1971 which is Exh.P5 on the record. It is established proposition of law that a transaction reflected through a decree of the Court does not require registration. Therefore, the case cited by the learned counsel is not attracted to the facts and circumstances of this case. Arguments of the learned counsel to the effect that the two Courts below could not have ignored the report of handwriting expert is also misconceived. The said report is nothing but an opinion and is not binding upon the Courts. It has not been relied upon by the Courts below for sufficient reasons and result of comparison of signature being v permissible under the law, it cannot be said that the mode adopted by the Courts below is erroneous in law. Argument of the learned counsel to the effect that petitioners' possession being that of co-sharers, a suit for partition or a suit under section 9 of the Specific Relief Act could only have been filed is also misconceived. Decree granted in favour of the respondent is for symbolic possession and, therefore, even if the petitioners are in possession of the property in question as co-sharers they cannot object to the decree which has been granted in this case. Even otherwise the plot having been demarcated the objection raised by the petitioners is not available to them as decree dated 5 11-1971 has been held to be lawful and valid. Resultantly I see no force in these two civil revisions. The same are, therefore, dismissed in limine. H.B.T./N-188/L Revision dismissed.