2005 PLP 1383 (YLR)

Muhammad Akbar Yousaf Zai, petitioner herein impugns the judgment, dated 14-12-2004 passed by the learned Additional District Judge, Attock upholding the judgment and decree, dated 16-7-2003 passed by the learned Civil Judge, Attock whereby, he decreed the suit for declaration and possession filed by the plaintiffs/ respondents Nos. 1 and 2 Muhammad Sabir etc. against the petitioner and respondents Nos. 3 and 4.

2. The relevant facts for disposal of the present Revision Petition are that Muhammad Sabir and Muhammad Arif, Plaintiffs-respondents Nos.1 and 2 filed a suit for declaration to the effect that they are owners of the property known as Umair Jewellers bearing Excise and Taxation No. B-III/47-RH and Municipal No.C/153 'C'-Block, Attock. The description of the property was mentioned in the head note of the plaint as well as in the site plan annexed with the plaint. They also prayed for decree for possession of the property.

3. The suit was resisted by the defendants Nos. 1 and 3 and also by the petitioner by filing their separate written statements while ex parte proceedings were initiated against defendant No.2, Adnan Shaukat, From the divergent pleadings of the parties the learned trial Court framed the following issues:-- (1) Whether the plaintiffs are owners of the suit shop and entitled to get its possession? OPP (2) Whether plaintiffs have got no cause of action? OPD (3) Whether the defendant No.3 is not necessary or proper party to the suit? OPP (4) Whether the suit cannot proceed under section 11 of C.P.C? OPD (5) Deleted. (6) Whether the suit of the plaintiffs is not properly valued for the purposes of Court fee and jurisdiction? OPD-1. (7) Whether suit is false, frivolous and vexatious and defendant is entitled to special costs under section 35-A, C.P.C.? OPD (8) Relief.

4. The learned trial Court relied on the sale-deed Exh. P-1 according to which the plaintiffs purchased the property in dispute from Adnan Shaukat. The plaintiffs-respondents were paying the tax of the Property bearing No.B-III/47-RH. Exh.P-2 and Exh. P-9 also indicate that the tax is being paid by the plaintiffs-respondents. The sale-deed has not been denied by the petitioner. The trial Court rejected the version of the petitioner-defendant that the property purchased by the plaintiffs is not the shop in dispute. The trial Court held that it is also admitted that Adnan Shaukat defendant No.2-vendor had purchased the Sakni ( ) plot from Muhammad Akbar Yousaf Zai defendant No.1/petitioner, vide registered sale-deed No.3386/1 (Exh. D-2), dated 21-12-1988. The sale-deed also contains a note/statement of Adnan Shaukat that the shop had already been constructed. The trial Court also proceeded to hold that the boundary description as well as the measurement of both the properties is the same. Further it was held that the petitioner specifically alleged that the property sold by him through the registered sale-deed Exh.D-2 was different other than the suit property and it was an open plot. After affirmative evidence of the plaintiffs, the onus was shifted to the petitioner/ defendant to prove his contention by way of solid evidence but he has failed to prove that he had sold an other property through Sale-deed No.3386, dated 21-12-1988 and the property sold by him in favour of Adnan Shaukat defendant No.1 is any other property than the shop in dispute as per appellant's own version. On the basis of the above, the learned trial Court proceeded to record findings on Issues Nos.1 and 2 in favour of the plaintiffs/respondents, and decreed the suit vide judgment, dated 16-7-2003, the same was affirmed by the learned Additional District Judge, Attock by dismissing the appeal vide judgment, dated 14-12-2004, hence, this revision petition.

5. The learned counsel for the petitioner contends that the property sold by the petitioner to Adnan Shaukat through the registered sale-deed i.e. Exh.D-2 was different than the suit property and it was an open plot. Further contends that the petitioner-defendant claimed to be the owner of the shop in dispute on the basis of sale-deed Exh.P-1 which has not been considered by the two Courts below and thus the judgments rendered by the Courts below are the result of non-reading of the evidence. Finally it has been contended that the judgment, dated 19-6-1998 passed in S.A.O. 11/98 of the High Court has been ignored. According to the learned counsel the finding in the judgment of the High Court, dated 19-6-1998 was that "the document Exh.D-2 indicates that Adnan Shaukat sold the shop in issue in favour of respondent and that for doing so he based his claim of title on Exh.D

1. Exh.D.1 did not indicate if any shop was purchased by Adnan Shukat and in this view of the matter he could not possibly claim any title qua the shop" and in this back ground the appeal (SAO No.11/98) filed by the petitioner Muhammad Akbar Yousafzai was decided through order, dated 19-6-1998, (Exh.P.11) was accepted and it was held that judgments of both the Courts below are set-aside and the case was remanded to the Rent Controller to decide it afresh. The respondent may file a separate suit and raise the plea of title.

6. The respondents were asked to appear in pre-admission stage. In pursuance of the order they have put in appearance. The learned counsel for the respondents contends that the shop in dispute was rented out to Umair Jewellers/respondents. The petitioner filed a petition for ejectment under section 13 of the Punjab Urban Rent Restriction Ordinance, for seeking eviction of the respondents from the shop on the ground of default in the payment of rent. The ejectment petition was resisted by the respondents on the ground that the relationship of landlord and tenant did not exist and they have purchased the shop in dispute through a registered sale-deed (Exh.P-1). Since the Rent Controller was the Court of limited jurisdiction the Rent Controller could have not gone into "disputed question of title" as held in the case of Rehmatulah v. Ali Muhammad and another (1983 SCMR 1064) the orders of the learned Rent Controller in appeal were set aside on 19-6-1998 while disposing of the SAO No. 11/98 by this Court and when the matter came up for hearing before the Civil Court, being the ultimate Court of jurisdiction ,both the Courts below accordingly held that respondents-plaintiffs were the owners of the disputed shop on the basis of a registered sale-deed (Exh.P1) and the version of the defendant/petitioner that the property sold by him through the registered sale-deed Exh.D-2 was different than the suit property and it was an open plot has been rejected by both the Courts below by recording a concurrent finding of fact on the basis of the evidence which cannot be interfered by this Court in exercise of revisional jurisdiction under section 115, C.P.C.

7. I have heard the arguments of the learned counsel for parties and perused the record with their assistance.

8. The property-in-dispute bearing No.B-III/47/RH admittedly residential in its character, was owned by the present petitioner namely Muhammad Akbar Yousafzai. He transferred the same in favour of Adnan Shaukat son of Shaukat Hussain Khan vide sale, dated 21-12-1988 Exh.P-7 who further sold this shop/property vide sale-deed, dated 13th of December, 1997, Exh.P-1 in favour of respondents plaintiffs namely Muhammad Sabir son of Muhammad Rafique and Muhammad Arif son of Muhammad Younas for a consideration of Rs.1,25,

000. In Exh.D-2, the boundaries have been mentioned as under:-- North - House of Mst. Jannatul Firdous. South - Common street. East - Quarter of Muhamamad Fazil. West - House of Muhammad Akbar. There is a note on the registered sale-deed. In Urdu, which reads as under:

9. Admittedly, petitioner Muhammad Akbar Yousafzai filed SAO No.11 of 1998 which was decided on 19-6-1998 by this Court. It was held that "the document Exh.D-2 indicates that Adnan Shaukat sold the shop is issue in favour of respondent and that for doing so he based his claim of title on Exh.D

1. Exh.D1 did not indicate if any shop was purchased by Adnan Shaukat and in this view of the matter he could not possibly claim any title qua the shop". In this background the orders of the learned Rent Controller and the Additional District Judge were set-aside and the case was remanded to the Rent Controller to decide it afresh. The respondents were also allowed to file a separate suit to raise the plea of title. The above stated order of this Court, dated 19-6-1998 passed in SAO No.11-98 (Exp. P-10) presumably was passed by this Court on the mandate of the case reported as Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064). The honourable Supreme Court examined the provisions of West Pakistan Rent Restriction Ordinance (VI of 1959). Civil Procedure Code (V of 1908) and the case law and ruled that the Rent Controller need not go into "disputed question of title". Leading of evidence by the parties before the Rent Controller on issue of title" not desired. Proper course for the Rent Controller, in circumstances, would be to decide issue against landlord and advise landlord to get his "title" established from a Court of general jurisdiction. It was further ruled that landlord can re-agitate the matter again and decision of Rent Controller taken earlier would not constitute res judicata nor preclude him from re-agitating matter before him. In the case of Province of the Punjab through Education Secretary and another v. Mufti Abdul Ghani (PLD 1985 SC P-1) it was held that issue of ownership has to be dealt with in accordance with law as described in Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064). Now it is settled rule of law that Civil Court is the Court of general and ultimate jurisdiction as held in the case of Muhammad Jamil Asghar v. The Improvement Trust Rawalpindi (PLD 1965 SC 698).

10. So the Civil Court after elaborating inquiry and considering all the documents on the record including the sale-deed, Exh.D-1 (25-10-1976) of the petitioner through which he purchased the property (including this portion on which shop was constructed) from Mst. Jannatul Firdous, the original owner and thereafter transferred 200 square feet as open land through Exh.P-2 (21-12-1988) to Adnan Shuakat, who further transferred the property-in-dispute in favour of the respondents-plaintiffs. Though the property sold was shown an open area in sale-deed but in fact it is proved that the shop was already constructed and it had the survey number, the tax was also being paid. The boundary was mentioned not only in the plaint but in all the sale-deeds. The petitioner obtained the possession in execution of the eviction order. After affirmative evidence of the plaintiffs the onus was shifted to the petitioner-defendant to prove his contention by producing evidence that the property transferred by Adnan Shaukat through sale-deed, dated 21-12-1988 Exh.P-2 and further by the Adnan Shaukat in favour of the plaintiff-respondent through registered deed, dated 13-12-1997 Exh.P-1 was not the same property. The petitioner purchased the property through a registered sale-deed, dated 25-10-1976 and transferred disputed portion to defendant No.2 real nephew (son of the brother of the defendant-petitioner). Adnan Shaukat did not bother to appear before the Court to support the version of the petitioner. After decision of the High Court in the ejectment matter the defendants-plaintiffs filed a suit to establish his title qua the disputed property. The trial as well as the Appellate Court on the basis of the evidence, rightly decided that the respondents/plaintiffs are the owners of the disputed property. The findings of both the Courts below are the result of correct appraisal of evidence on the record. No misreading or non-reading has been pointed out by the learned counsel for the petitioner. Concurrent findings of fact recorded by the Courts of competent jurisdiction on the basis of evidence cannot be interfered with in exercise of revision jurisdiction of this Court. This petition fails and is dismissed with costs in limine. M.B.A./M-906/L Petition dismissed.