2017 PLP 84 (CLCN)

ATIR MAHMOOD, J.

Brief facts of the case are that the respondent filed a suit for possession and recovery of arrears of rent against the petitioners with the averments that the suit shop along with adjacent house total area measuring 4-1/2 marlas as shown in the site plan annexed with the plaint was owned and possessed by Muhammad Yousaf and Mehboob Elahi sons of Haji Ahmad; that the said property was purchased by the plaintiff vide registered sale deed dated 18.06.2005; that the symbolic/constructive possession of the suit shop and actual possession of the suit house was handed over to the plaintiff being vendee by the vendors; that the defendants were in occupation of the suit shop as tenants under the previous owners and after purchase of the suit shop they automatically became tenants under the plaintiff; that plaintiff served notice upon the defendants that they should pay the rent from 18.06.2005 onwards to him at the rate of Rs.500/- and also hand over the vacant possession of the same to the plaintiff for reconstruction of the shop but they refused while asserting their right of ownership of the suit shop; that the defendants being defaulters in the suit shop are liable to eviction; that earlier to this suit, an ejectment petition was filed by the plaintiff which was dismissed as withdrawn as the suit shop situated in rural area and the Urban Rent Restriction Ordinance, 1959 was not applicable.

2. The petitioners resisted the suit by filing written statement. Out of divergent pleadings of the parties, issues were framed and evidence led by both sides was recorded. Thereafter, learned trial court decreed the suit of the respondent vide judgment and decree dated 27.07.2011. The petitioners feeling aggrieved filed appeal which was dismissed by learned Additional District Judge, Chakwal vide judgment and decree dated 28.09.2012. Hence this civil revision has been filed by the petitioners-defendants.

3. Learned counsel for the petitioners inter alia submits that the suit for possession and recovery of arrears filed by the respondent was not maintainable as the petitioners had purchased the suit property from one of legal heirs of Haji Ahmad namely Mst. Anar Begum to the extent of her share; that the respondent had badly failed to prove that the petitioners were inducted into suit shop as tenant; that earlier, the plaintiff filed two suits and one ejectment petition for eviction of the petitioners from the suit property which were dismissed, therefore, the instant suit was not maintainable on this account as well; that since the petitioners have purchased the property through agreement to sell (Exh.D1) with payment of whole consideration amount coupled with receipt of possession from the very date, protection of section 53-A of Transfer of Property Act, 1882 is available to them; that the impugned judgments and decrees passed by learned courts below are against law and fact, therefore, this civil revision be allowed, the impugned judgments and decrees be set aside and the suit of the respondent be dismissed. He has placed reliance on the law laid down in cases reported as Muhammad Sabir Khan v. Rahim Bakhsh and 16 others (PLD 2002 SC 303), Manzoor Ahmad and 9 others v. Ghulam Nabi and 5 others (2010 CLC 350 Lahore), Dilawar Khan and others v. Fazal Hadi and others (2013 CLC 97 Peshawar), Mushtaq Ahmad and others v. Muhammad Saeed and others (2004 SCMR 530), Muhammad Aslam v. Mst. Ferozi and others (PLD 2001 SC 213), Javaid Iqbal v. Abdul Aziz and another (PLD 2006 SC 66), Sultan Mahmood Shah through LRs and others v. Muhammad Din and 2 others (2005 SCMR 1872), Falak Sher v. Mst. Kanzeez Bibi (2005 YLR 388) and Abdur Rehman and 4 others v. Abdus Sammad Khan through LRs and 4 others (2012 YLR 818 Peshawar).

4. On the other hand, learned counsel for the respondent has vehemently opposed this civil revision and fully supported the impugned judgments and decrees while submitting that the agreement to sell in favour of the petitioners is an unregistered document, therefore, it attaches no authenticity; that the petitioners have failed to produce any documentary evidence in support of their assertion of having purchased the suit property from Mst. Anar Begum; that the alleged agreement to sell could not be proved by the petitioners being beneficiaries thereof as required by law. He avers that this civil revision has no substance, hence merits dismissal.

5. Arguments heard. Record perused.

6. According to contents of the plaint, when the plaintiff purchased the property from sons of Haji Ahmad through registered sale deed, the petitioners were enjoying possession of the suit shop as tenants under the vendors. Therefore, the petitioners after purchase of suit property by the plaintiff automatically became tenants of the plaintiff. This was his whole stance for getting possession from the petitioners. Perusal of record reveals that the plaintiff badly failed to prove that the petitioners were inducted into the suit shop as tenant as no evidence in this regard could be produced by the plaintiff. There is even no receipt of payment of rent to the original owners or to the plaintiff by the petitioners nor any rent agreement is available on record, as such, the relationship between the parties as that of landlord and tenant could not be established. In this view of the matter, the main stance taken by the plaintiff for possession of the property was disbelieved by both the learned courts below which was not challenged by the plaintiff before any forum, as such, the impugned judgments and decrees to this extent attained finality. When the plaintiff has failed to prove that the petitioners were inducted into the suit shop as tenants, the plea taken by the petitioners that they were owners in possession of the suit shop seems to be true as it was the onus upon the plaintiff to prove as to how the petitioners were inducted into the suit property if not as alleged by the petitioners.

7. The petitioners have taken plea that they are owners in possession of the property on the basis of agreement to sell dated 18.10.1984 (Exh.D1) as they have purchased the suit shop after payment of whole consideration amount to one of LRs. of Haji Ahmad namely Mst. Anar Beguman coupled with possession, as such, they are protected under section 53-A of Transfer of Property Act, 1882. I have perused the agreement to sell. The same contains National Identity Card (NIC) Number of Mst. Anar Begum as well as her thumb impression. The plaintiff has not challenged anywhere that Mst. Anar Beguman was not amongst LRs of Haji Ahmad nor he made any effort to get compared her thumb impression with admitted ones which might be available on her NIC. As such, Mst. Anar Begum was one of LRs of original owner of property namely Haji Ahmad and after death of Haji Ahmad, she was entitled to get her legal share from the property left by Haji Ahmed. The property left by Haji Ahmad was admittedly 8/9 marla out of which Mst. Anar Begum, as per version of the petitioners-defendants has sold only to the extent of 3/4 marla which falls within the limit of her share.

8. In order to prove his assertion, the plaintiff has appeared himself and also produced Muhammad Yousaf, one of alleged vendors and daughter of Mst. Anar Begum namely Manzoor Fatima. The plaintiff appeared before the court as PW.1. During his cross-examination, he admits that Mst. Anar Begum being legal heir of Haji Ahmad was entitled to her legal share in the property. He shows his ignorance about sale of any property or about any family partition taken place in between LRs of Haji Ahmad. He has also admitted before the court that he filed two suits earlier which were dismissed. Muhammad Yousaf son of Haji Ahmed appeared before the court as PW.2. During his cross-examination, he does not deny his relationship with Mst. Anar Begum. He, however, takes plea that there was family partition amongst them but in the same breathe, he admits that neither the property was transferred by Mst. Anar Begum to him or his brothers by way of registered sale deed or gift mutation nor the family partition was got sanctioned from any court of law. He deposes that the property was surrendered by Mst. Anar Begum in favour of her brothers. He has also stated before the court that earlier, the plaintiff filed two suits which were dismissed. The other witness of plaintiff is Mst. Manzoor Fatima daughter of Mst. Anar Begum who appeared as PW.3. In her cross-examination, she deposes that share out of property left by Haji Ahmed was given to her mother Mst. Anar Begum who had not sold the same. She admits that the suit shop is being run by the petitioners but is ignorant of as to when they took over possession of the suit shop. She also did not know about as it was built by the petitioners or some other person. On the other hand, Khalil Akbar, defendant appeared before the court as DW.1 and also produced Mahboob Ahmed son of Muhammad Bakhsh as DW.2 and Abdul Rauf son of Abdullah Khan as DW.3. DW.2 and DW.3 are sons of alleged witness of agreement to sell (Exh.D1) in favour of the petitioners. Both the said DWs depose that they recognize signatures of their respective fathers which are the same as present on Exh.D1.

9. Perusal of above evidence reveals that the plaintiff filed three suits including the instant one. One of them was an ejectment petition which was dismissed as withdrawn as the suit shop did not fall within the limits of urban areas but there is no explanation by plaintiff side regarding other suit admittedly filed by him and was dismissed. Concealing of contents of said suit leads me to inference that the same was on the same subject and for the same cause of action, therefore, the plaintiff deliberately did not disclose its contents in order to avoid legal complications thereof. PW.3 Mst. Manzoor Fatima herself states in her examination-in-chief that her mother got share out of the property left by her maternal grandfather Haji Ahmad though she asserts that Mst. Anar Begum did not sell it. This is sufficient to contradict stance of PW.2 that there was any family partition in between LRs of Haji Ahmad.

10. Furthermore, the petitioners-defendants took specific plea that they had purchased the suit shop from Mst. Anar Begum after payment of whole consideration price and the possession of the suit shop was handed over to them since then. In order to prove this fact, since the witnesses of agreements to sell (Exh.D1) had died, the petitioners produced sons of witnesses of Exh.D1 who categorically stated that the signatures present on Exh.D1 are that of their respective fathers. In rebuttal to this evidence led by defendants, the plaintiff failed to produce any evidence. In absence of any evidence in rebuttal, the evidence led by the petitioners-defendants will be deemed to be true and believed upon.

11. In this view of the matter, I am of the opinion that the petitioners-defendants have proved their case in accordance with law. Mst. Anar Begum being one of legal heirs of Haji Ahmad had legal share in the property left by him and could sell it to the extent of her share although she could not sell a specific portion thereof. It is nowhere asserted by plaintiff side that the property in possession of the petitioners is beyond the share of Mst. Anar Begum or she was not legal heirs of Haji Ahmad. Therefore, there are sufficient reasons to believe that Mst. Anar Begum had sold her share to the petitioners vide agreement to sell Exh.D

1. Section 53-A of Transfer of Property Act, 1882 provides that where some immovable property is sold for consideration by a transferor to the transferee in writing signed by him/her and possession is also handed over to such transferee, such writing, though not registered, will not provide basis for dispossession of such transferee other than a right expressly provided by the terms of the contract. In the circumstances, the petitioners are protected to the extent of their possession under the said provision of law. Reliance is placed on the dictums laid down by the Hon'ble Supreme Court of Pakistan in case titled Javed Iqbal v. Abdul Aziz and another (PLD 2006 SC 66).

12. In the given circumstances, the only recourse available to the plaintiff, if they wanted to get specific portion of the property, was to file suit for partition while impleading all the LRs of Haji Ahmad which has not been done by him. Therefore, the suit for possession merely on the basis of registered sale deed from the very inception was defective in the eye of law, as such, it could not be decreed.

13. For what has been discussed above, both the learned courts below have committed material illegality while decreeing suit of the respondent-plaintiff. Therefore, this civil revision is allowed, the impugned judgments and decrees passed by learned courts below are set aside and the suit of the respondent-plaintiff is dismissed. ZC/M-203/L Revision allowed.