2003 PLP 1349 (MLD)

(6) Relief. Evidence of the parties was recorded. Issues Nos. 1 and 2 were answered against the petitioner while remaining issues were found in his favour. The suit was dismissed vide judgment and decree dated 3-9-1998. A first appeal filed by the petitioner was dismissed by the learned Additional District Judge, Gujrat, on 14-6-1999.

2. Mr. Faisal Zaman, learned counsel for the petitioner contends that learned Courts below have failed to read evidence on record while finding the said Issues Nos. 1 and 2 against his client. According to the learned counsel it stood admitted by the respondent No. 1 in his pleadings in an earlier case that house belonged to the father of the said parties. Learned counsel for the contesting respondent Mr. Muhammad Ashraf Tanvir, on the other hand has tried to support the impugned judgments and decrees with reference to reasoning stated in the impugned judgment.

3. I have gone through the copies of the record appended with this civil revision, with the assistance of the learned counsel for the parties. I have already referred to the respective pleadings of the parties above. Now the case of the petitioner was that property was owned by Muhammad Ramzan the father of the said parties. The case of respondent No.2 Muhammad Yaqub was that half of the property was purchased by him from Nizam Din while the remaining half he purchased in the name of mother who gifted the same to her. The case of the vendee respondent No.8 is that these are two properties one property was purchased by respondent No.2 from Nizam Din and the other property was transferred to Sardar Begum the mother of respondent No. 2.

4. Now the gift-deed executed by respondent No.2 in favour of his wife respondent No. 1 is Exh.D.17. Respondent No. 2 has stated himself to be the exclusive owner of the said property. However, there is no reference at all as to how title was acquired. Sale-deed by Naseem Akhtar in favour of respondent No.8 is Exh.D.18 and of course this document has been executed with reference to said gift-deed Exh. D.

17. Now Exh.D.2 is the document of sale allegedly executed by Nizam Din in favour of Muhammad Yaqub respondent No.2 This is unregistered document whereby a house with following boundary was sold:-- North: Shop of Muhammad Hussain Lodhi, South: House of Muhammad Ramzan, East: House of Sardar Begum. West: House of Haji Imam Din. This document is dated 3-1-1969. Thus the property purchased under the said deed is surrounded by said houses and said shop. Now in the gift deed Exh.D.17 the boundaries are as under: North: Main Bazar Jalalpur Jattan, South: Blind alley, East: Blind alley and shop of Eid Muhammad, West: House of Bashir Ahmad and Naseem Akhtar. Now this more or less is the description as given in para. 2 of the plaint. To my mind there is no nexus between the said Exh.D.2 and suit property. Now the said contesting respondents have themselves produced a PTD in favour of Sardar Begum and according to this PTD it is a Shop No.452-A Jalalpur Jattan that was transferred in favour of said Sardar Begum.

5. On he other hand the petitioner produced certified copy of plaint dated 12-3-1989 in a suit titled "Muhammad Yaqub v. Mst. Tajia Perveen etc." Now in para. 1 of this plaint Exh. P.2 it has been stated as follows:-- The plaint is signed and verified by Muhammad Yaqub respondent No.2. He entered the witness-box as D.W.1. He was confronted with the said document and his response as follows:--

6. Learned counsel for the respondents says that this suit was ultimately withdrawn. This may be so but the withdrawal of the suit would not at all have any effect on the said admission contained in said plaint. Needless to state that by now it is well-settled that a party' is entitled to withdraw all admissions or to prove that the admissions are wrong except those made in the pleadings. Reference be made to the case of Ahmad Khan v. Rasul Shah and others (PLD 1975 SC 311).

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.

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 3-1-1969) and said PTD 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.

9. As a result of above discussion, the civil revision is allowed and judgments and decrees of both the learned Courts below are set aside. Declaration prayed for is accordingly granted to the petitioner and preliminary decree is passed. The deceased Muhammad Ramzan was survived by 4 sons and three daughters. The share of each son including the petitioner is 2/11 each while share of each daughter is 1/11 each. The said gift-deed and the consequent sale-deed would take effect only to the extent of 2/11 share of Muhammad Yaqub in favour of respondent No.8 vendee. The case is remanded back to the learned Senior Civil Judge where the parties shall appear on 15-10-2002. The learned Senior Civil Judge shall proceed further in the matter for passing final decree. H.B.T./M-1458/L Revision allowed.