2009 PLP 487 (CLC)

SYED MUSADIQ HUSSAIN GILANI, J.

Muhammad Younas, respondent No.1 instituted suit against Muhammad Ayub etc. petitioners, and Shaukat Ali, respondent No.2, for declaration to the effect that being legal heir of his father Muhammad Yousaf, he was owner in possession of the Property bearing No.1207/1-2, 1209, and 1209/1, Survey No.269/262, measuring 24' x 68', fully described in the heading of the plaint, known as Bano market situate at Sadar Bazar, Nowshera Cantt:, and petitioners were entitled to the remaining share in the suit property, and that registered sale-deed No.175, dated 5-4-2002, regarding suit property by respondent No.2, Shaukat Ali, in favour of petitioners, was void, illegal, and fictitious, as such, ineffective upon his rights. He also prayed for possession through partition of his share in the suit property, and grant of permanent injunction, restraining the petitioners from alienating the same. According to Muhammad Younas respondent, Muhammad Yousaf, his father and father of petitioners 1 to 9, and husband of petitioner No.10, was running a shop, known as Yousaf General Store at Nowshera Cantt. He was also owner of other property. He purchased the suit property in his life time from respondent Shaukat Ali, and also paid him sale consideration, but before registration of the deed, he died. On death of Muhammad Yousaf, he being his legal heir, to the extent of 14/144 shares, was also owner in the suit property, but petitioners when requested denied his rights in this regard.

2. The suit was contested by petitioners on the grounds, inter alia, that respondent No.1 had no cause of action, because the suit property was self acquired property of the petitioner, and Muhammad Yousaf, the predecessor of the parties, during his life time had given one shop, and plot at A.C. Centre No.41-A, Phase-I, to respondent No.1, besides Rs.1,30,

000. The shop and plots were sold by him.

3. The pleadings of the parties were reduced to the following issues, framed by the learned Civil Judge, Nowshera, on 25-9-2002:

(1) Whether the plaintiff has got a cause of action? (2) Whether the suit of the plaintiff is based on mala fide? (3) Whether the present suit is not maintainable in its present form? (4) Whether the suit property is the legacy of dead Muhammad Yousaf? (5) Whether the predecessor of the plaintiff and defendants Nos. 1 to 10 had purchased Bano market situated in main Bazar Nowshera Cantt. and had paid consideration? (6) Whether the market in question has been purchased by defendant No.5 alone? (7) Whether the plaintiff is entitled to the decree for declaration, as prayed for? (8) Whether the plaintiff is entitled to the decree for possession through partition as prayed for? (9) Whether the plaintiff is entitled to the decree for permanent injunction as prayed for? (10) Relief.

4. The pro and contra evidence of the parties was duly recorded, and after hearing the learned counsel for the parties, the learned Civil Judge held that respondent No.1, being legal heir of Muhammad Yousaf, who had purchased the suit property, was also entitled to inherit his share in the legacy of the father; Accordingly, the suit was decreed, vide judgment dated 14-3-2005.

5. Having felt aggrieved by impugned judgment and decree, petitioners preferred an appeal, which was dismissed by the learned District Judge, Nowshera, vide judgment dated 15-10-2002.

6. Dissatisfied with the judgments of the Courts below, petitioners have filed instant revision petition to this Court.

7. I have heard the learned counsel for the parties, and perused the record.

8. Learned counsel for the petitioners argued threadbare that the suit property was not ownership of Muhammad Yousaf, the predecessor of the parties, and in fact it was purchased by Muhammad Javed, Muhammad Tufail, and Muhammad Hanif, petitioners, from respondent No.2 Shaukat Ali, vide registered sale-deed dated 5-4-2002. He clarified that in fact an agreement to sell had taken place between Muhammad Javed petitioner, and respondent No.2 Shaukat Ali, initially, but later on the sale-deed was executed in the name of his two other brothers as well. He argued that the registration of the deed, and its execution was even not denied by respondent No.1, and except the testimony of highly interested witness P.W.5, Muhammad Farooq, no satisfactory oral or documentary evidence was produced by respondent No.1 in support of his claim.

9. On the other hand, learned counsel for respondent No.1, supported the impugned concurrent findings of both the Courts, and argued that Muhammad Yousaf was exclusive owner of the suit property, which he had purchased from respondent No.2, and the registered sale-deed executed during pendency of the suit, was an invalid document, and fabricated, just to deprive respondent No.1 of his right in the legacy of the father.

10. Learned counsel for respondent No.2 Shaukat Ali supported the claim of petitioners, by stating that in. fact the suit property was purchased by petitioners Muhammad Hanif, Muhammad Javed, and Muhammad Tufail from respondent Shaukat Ali, and they had also paid sale consideration to respondent No.2. He also drew attention of the Court to the affidavit of respondent No.2 in this regard.

11. The perusal of record would show that, except a bare statement of Muhammad Farooq, P.W.5, who admittedly had strained relations with the petitioners, no other strong, reliable and cogent, oral, or documentary evidence is available to prove that in fact Muhammad Yousaf had purchased the suit property from respondent No.2 Shaukat Ali. The statement of this witness is not reliable. Needless to say that P.W.5 Muhammad Farooq, and P. W.6 Muhammad Asif admitted in cross-examination that neither bargain was struck, nor sale consideration was paid in their presence. The affidavit of vendor respondent No.2 Shaukat Ali shows that deal regarding the suit property was not made with him by Muhammad Yousaf. The payment of sale consideration, which is a sine qua non for completion of sale, by Muhammad Yousaf to the vendor was also not proved. It was for respondent No.1 to prove the case, but he badly failed to discharge the onus in this regard. The sale transaction between petitioners and respondent Shaukat Ali regarding the suit property has been made vide registered sale-deed, to which presumption of truth is attached, in the absence of strong evidence in rebuttal. It is abundantly clear that this property is the self-acquired property of petitioners Muhammad Hanif, Muhammad Javed, and Muhammad Tufail, and not the legacy of Muhammad Yousaf, the common ancestor of the parties. In the circumstances, the Courts below failed, to appreciate the evidence on the questions of fact, and to interpret the law on the subject properly. The burden of proof was also wrongly allocated, which resulted in erroneous decisions. Consequently, the decisions warrant interference in revision. The registration of deed during pendency of suit would not affect the rights of the petitioners, because the agreement to sell was executed on 8-9-2000. Accordingly, this revision petition is allowed, the findings of the Courts below are set aside, and the suit of respondent No.1 is dismissed, leaving the parties to bear their own costs. H.B.T./44/P Petition allowed.