2010 PLP 1726 (MLD)

CH. MUHAMMAD TARIQ, J.

This civil revision has been directed against the judgment and decree dated 15-10-2001 passed by the learned Additional District Judge, Attock who accepted the appeal and set aside the judgment and decree dated 3-5-1999 passed by the learned Civil Judge, Attock.

2. Brief facts of the case as narrated in the plaint are that the plaintiffs and defendant No.9 are the owners of Haveli comprising of three rooms with courtyard fully described in the plaint. The originally disputed haveli was owned by one Aman Khan son of Painda Khan who sold the same on 28-11-1940 through a stamp-paper in favour of Amrood Khan and Munawar Khan sons of Faqir Khan for a total consideration of Rs.99.

3. That the plaintiffs and defendant No.9 are the legal heirs of Amrood Khan and Munawar Khan. At the time of purchase of disputed haveli, Alaf Din and Yaseem sons of Mustaqeem were in possession as tenant at haveli. Yasin died issueless whereas defendants Nos.2 to 8 are legal heirs of Alaf Din.

4. That defendants Nos.2, 3 and Feroze Din, the predecessor of defendants Nos. 4 to 8 alienated the disputed haveli through two sale deeds dated 15-6-1986 and 14-9-1986 respectively in favour of defendant No.1 despite the fact that the vendors were not the owners of suit haveli and were tenant at will, therefore, the sale-deeds mentioned hereinabove be declared illegal, null and void, ineffective on the rights of the petitioners/plaintiffs and be declared as cancelled and delivered up.

5. That only the defendant/respondent No. 1 contested the suit while the remaining vendors never appeared and they were proceeded against ex parte.

6. That defendant/respondent No.1 filed written statement and out of the divergent pleadings of the parties, the following issues were framed:-- ISSUES:

1. Whether suit property was owned by Aman Khan deceased who alienated the same vide sale-deed dated 28-11-1940 to Amrood Khan etc. for a consideration of Rs.99 and the plaintiffs being successor of Amrood Khan are owners of the suit property? OPP

2. Whether the defendants Nos.2 to 8 were in possession as tenant and they had no right to alienate the suit property to defendant No.1 by sale-deeds dated 14-9-1986 and 15-6-1986 if so, whether the sale-deeds are illegal and ineffective on the rights of plaintiffs? OPP

3. Whether the plaintiffs have no locus standi to file the present suit. ? OPD

4. Whether suit is not maintainable in its present form? OPD

5. Whether suit is time-barred? OPD

6. Whether suit is not correctly stamped, if so, its effect? OPD

7. Whether suit property is not correctly described, If so, its effect?OPD

8. Whether defendant No.1 is protected under section 41 of T.P. Act? OPD

9. If issues No.1 and 2 are not proved whether the suit property was owned by Feroz Deen and Ghulam Sarwar who sold the same to defendant No. 1? OPD

10. Relief.

7. After recording of oral as well as documentary evidence of the parties, the learned Civil Judge, Attock decreed the suit filed by the present petitioners.

8. Aggrieved from the order of learned Civil Judge, the defendants/respondents filed an appeal, which was accepted on 15-10-2001 vide judgment and decree passed by the learned Additional District Judge, Attock hence, this civil revision.

9. Learned counsel for the petitioners/plaintiffs contends on the strength of oral as well as documentary evidence, that all the issues had been rightly answered in favour of the petitioners/plaintiffs by the learned trial court and reversal of the same was done without proper reading and appreciation of the evidence by the learned first appellate Court. Further contends that the impugned judgment and decree is against the law and facts. The learned first appellate court has not applied his judicial mind. Learned counsel further contends that the vendors of sale-deeds Exhs.P.2 and P.3 were not the absolute owners so without a clear title they were not entitled to alienate the suit haveli because the vendors were tenants at will. Therefore, sale-deeds Exh.P.2 and Exh.P.3 are nullity in the eye of law. Learned counsel further contends that sale-deeds Ex.P.2 and Ex.P.3 were executed in favour of respondent No.1 and others in the year, 1986. The petitioners/plaintiffs filed the instant suit on 2-2-1992 which is well in time, therefore, the impugned judgment and decree is not sustainable in the eye of law and is liable to be set aside on the grounds mentioned hereinabove. Learned counsel further contends that civil revision be allowed, impugned judgment and decree be set aside and the judgment and decree passed by the learned trial Court be restored.

10. Despite service, the respondents are not in attendance, therefore, they are proceeded against ex parte.

11. Arguments heard. Record perused.

12. Perusal of record shows that vide an unregistered sale-deed dated 28-11-1940, Aman Khan sold the suit haveli in favour of predecessor of the petitioners/plaintiffs despite the fact that sale-deed dated 28-11-1940 in favour of Amrood Khan and Munawar Khan is unregistered document but this document was executed about 70 years back so presumption of truth is attached to the entries recorded in this document. Even otherwise, there was no rebuttal against the sale-deed in favour of Amrood Khan and Munawar Khan.

13. The important questions at the time pertain to maintainability of suit for declaration and possession of suit haveli, Record reveals that P.W.2 in his examination-in-chief has categorically deposed that in the year, 1940, when suit haveli was sold, Alaf Deen the predecessor of respondents and Yasim were in possession of suit haveli. Further deposed that Alaf Deen and Yasin were the real brothers. Later on Yasin died issueless and the possession of suit haveli remained with Alaf Deen. Record further reveals that respondents who are legal heirs of Alaf Deen are still in possession of suit haveli. P.W.2 who is the plaintiffs witness has proved the factum of possession in favour of respondents who has frankly admitted that suit haveli is in possession of the respondents before 1940 there is no evidence on the file that respondent ever paid any rent to the petitioner nor the petitioners/plaintiff produced any evidence that respondents are tenant at will.

14. The period for filing a suit for declaration provided under the Limitation Act is 6 years. The possession of suit haveli has been claimed as consequential relief. Admittedly, respondent No.1 is in possession of suit haveli before 1940 which fact is corroborated from the statements of P.Ws. Therefore, suit for declaration and possession was not maintainable because it was badly barred by time.

15. Record further reveals that the suit haveli is situated in Abadi Deh of Mauza Pirdad, Hazro, Tehsil and District Attock. The possession of the respondents is admitted since 1940. P.W.2 has further deposed during his examination-in-chief that the petitioners are owners of ancestral property in the village while the respondents are Malyar by caste and they are landless people. In the light of statement of P.W.2, the provision of section 3 of the Punjab Conferment of Proprietary Rights on Non- Proprietors in Abadi Deh Act, 1995 shall be attracted which is reproduced as under:- "Section 3 of the of the Punjab Conferment of Proprietary Rights on Non-Proprietors in Abadi Deh Act, 1995:

Notwithstanding anything to the contrary in any law of for the time being in force or in any agreement, custom or usage or in any decree or order of any court or other authority. All rights title and interest whatever, in the land which is situated within the Abadi Deh and which is under a house owned by a non-proprietor shall, on the commencement of this Act, vest in the non-proprietor under whose house it is situate, free of charge and no compensation shall be claimed by or paid to any person or government affected by the vesture of proprietary right in a non-proprietor under this section."

16. In the light of above discussion, this civil revision is without merit. Same is dismissed, impugned judgment and decree dated 15-10-2001 shall remain intact and the suit of the petitioners/ plaintiffs is dismissed being barred by limitation. Further, the respondent No.1 on the basis of provisions of section 3 of the Punjab Conferment of Proprietary Rights on Non-Proprietors in Abadi Deh, Act, 1995 has also become absolute owners of suit haveli. No order as to costs. A.R.K./A-166/L Revision dismisse