1989 PLP 3080 (MLD)

On 25-9-1973, Mst. Azeem Khatoon and Zaman Mal petitioners filed suit for .4cclaration to the effect that they were owners in possession of the suit land and mutation No. 253 dated 22-12-1944 in favour of Wahid Bux the predecessor-in- interest of Muhammad Amin, Mst. Ashoo and Mst. Khatoon respondents, was fictitious, without consideration, void and ineffective as against their rights. As a consequential relief they prayed for injunction restraining respondents/defendants from interfering with their possession of the disputed land. The suit was resisted, whereon five issues were framed. The parties led evidence. The trial Court dismissed the suit on 16-12-1976. The appeal filed by the petitioners against this judgment and decree was dismissed by the learned District Judge, Bahawalpur on 11-7-1977, hence this revision.

2. Before me, the learned counsel for the petitioners has challenged the findings of the Courts below on issue No. 4 only which is as under:- (4) Whether the plaintiffs are owner in possession of the suit land and the sale mutation No. 253, dated 22-12-1944 is fictitious, illegal and without consideration ?

3. Learned counsel for the petitioners submitted that the sale price of the disputed land sold through Mutation No. 253 being more than Rs. 100 the sale was compulsorily registerable a/s. 54 of the Transfer of Property Act and as such it was no sale in the eye of law and that the Courts below have not properly considered the oral and documentary evidence produced by the petitioners. The learned counsel for the respondents has supported the impugned judgment and decrees.

4. I have considered the submissions made by the learned counsel with care. I have not been able to persuade myself to agree with him. I find that the mutation of sale was attested in favour of Wahid Bux the predecessor-in-interest of the respondents in the year 1944. The disputed land was sold by the original owner the predecessor-in-interest of the petitioners. The predecessor-in-interest of the petitioners had not questioned the sale on any ground during his lifetime; that since the sale price was paid to the predecessor-in-interest of the petitioners and the physical possession of the land was delivered to the predecessor-in- interest of the respondents who are in physical possession thereof, therefore, it cannot be said that the sale which was otherwise complete in all respects, was no sale in the eye of law. The Courts below have concurrently found that the petitioners/plaintiffs were not in possession of the suit land at the time of the institution of suit. This fact was also admitted by the witnesses produced by the plaintiffs. The finding of the Courts below on issue No. 1 i.e. whether the suit is not maintainable in its present form has not been challenged before me.

5. That being the position, this revision can be rejected on the short ground that the petitioners not being in possession of the suit land at the time of the institution of the suit, the suit itself was not maintainable in its present form. The Courts below have given sound and cogent reasons in support of their findings on issue No.

4. The revenue record supports the defendants. The learned counsel has not been able to point out any misreading or non-reading of evidence by the Court below. I do not see any legal infirmity in tree impugned judgments which also do not suffer from illegality, irregularity or jurisdictional defect.

6. For what has been said above, the petition is dismissed leaving the parties to bear their own costs. M.Y.H./A-674/L Petition dismissed.