2009 PLP 547 (YLR)

MUHAMMAD SAYEED AKHTAR, J.

The plaintiff/respondent No.1 filed a suit on 30-5-1985 against Muhammad Asif (the predecessor-in-interest of petitioners 1-A to 1-F) and others for declaration, possession and cancellation of sale-deeds dated 16-6-1982 in respect of property No.SE-IV-4, S-2 situated at Abdul Karim Road Qilla Gujjar Singh, Lahore and for recovery of Rs.12,500 for use and occupation of the property. It was averred that Mst. Shahzada Begum was the exclusive owner of the suit property. She died issueless and intestate on 13-5-1983 leaving behind the plaintiff and defendants 2 to 6 (respondents 2 to 6) as her legal heirs and only they were entitled to inherit her property. Defendants 2 to 6 had relinquished their respective share in the property in favour of the plaintiff vide relinquish deeds dated 25-7-1983 and 4-8-1984. Defendant No.2, Muhammad Asif, had no blood relationship with Mst. Shahzada Begum; he illegally claimed the ownership of the said property. Sale-deeds Nos.7334 and 7335, dated 16-6-1982 were" void, without consideration forged and fictitious documents. Hafiz Inayat, the previous husband of Mst. Shahzada Begum had adopted defendant No.1, Muhammad Asif, as his son. Defendant No.1 served a notified dated 1-1-1983 upon the plaintiff claiming himself as owner of the suit property to the extent of 1/2 share on the basis of aforementioned two sale-deeds and the remaining 1/2 as being the son of Mst. Shahzada Begum. The defendant No.1 we asked many a times to accept the right of the plaintiff but in vain. During the pendency of the suit Muhammad Asif, defendant, sold the 1/2 share of the house of Ata Elahi on 12-6-1986. He was impleaded as defendant No.7 (petitioner No.2). The suit was resisted denying all the allegations. It was alleged that the sale-deeds were genuine and that the defendant was in possession of the same as sole heir of Mst. Shahzada Begum. Out of the pleadings of the parties following issues were framed:

(1) Whether the suit has been improperly valued for the purpose of court-fee and jurisdiction? OPD. (2) Whether the suit is not maintainable in its present form? OPD. (3) Whether except particulars of fraud has not been given in the plaint? If so, its effect? OPD. (4) Whether instant suit is not maintainable in view of preliminary objection No.7 of written statement? OPD. (5) Whether plaintiff is owner of the suit property ? OPD. (6) Whether defendants Nos.2 to 6 have relinquished their respective shares in favour of the plaintiff vide relinquishment deeds dated 4-8-1984 and 25-7-1983 ? OPD. (7) Whether sale-deeds in favour of the defendant No.1 by Mst. Shahzada Begum dated 16-6-1982 is illegal, forged and ineffective upon the right of the plaintiff ? OPD. (8) Whether defendant No.1 was adopted son of Hafiz Inayat? (9) Whether relinquishment deed dated 25-7-1983 and 4-8-1984 are illegal void and inoperative and deficiently stand? (10) Whether defendant No.1 is liable to pay Rs.500 per month as use and occupation of the suit property? (11) Whether the plaintiff is entitled to recover suit amount Rs.12,500? (12) Whether plaintiff is entitled for possession of the suit property? (13) Relief. Learned trial Court after recording the evidence of the parties decreed the suit on 9-12-2000. The petitioners in their appeal before the learned Additional District Judge, Lahore remained unsuccessful on 2-4-2004.

2. Learned counsel for the petitioners contended that the suit was for cancellation of the documents as well as for possession, plaintiff was bound to pay court-fee on it. Learned counsel further contended that both the Courts below have misread the record. There are two sale-deeds Exhs.P.7 and P.8 dated 16-6-1982 regarding 1/2 share of the property in favour of Muhammad Asif (the predecessor-in-interest of petitioners 1-A to 1-F) but the same have been ignored. He urged that the petitioner No.2 purchased the, remaining 1/2 share of the property vide registered sale-deed dated 12-6-1986 for a consideration of Rs.60,000 from Muhammad Asif who was the sole heir of Mst. Shehzada Begum being her son. He urged that the deed writer Malik Khurshid Ahmad, appeared as D.W-1, and deposed that he had written the sale-deed in presence of the witnesses. Sale-deeds Exhs.P.7 and P.8 stand proved.

3. Conversely the learned counsel for the respondents submits that Muhammad Asif is- not the son of Mst. Shehzada Begum. He was adopted son of Hafiz Inayat, the previous husband of Mst. Shehzada Begum. He did not inherit the property of Hafiz Inayat. He further submitted that the alleged sale-deeds Exhs.P.7 and P.8 dated 16-6-1982 have not been proved as the marginal witnesses never appeared in the witness-box. He submitted that the plaintiff/respondent is prepared to pay the court-fee on the value of Rs.96,000 (price mentioned in the sale-deed).

4. I have gone through the judgments of the Courts below, perused the record and considered arguments of the learned counsel for the parties. Mst. Khurshid Begum, the daughter of Hafiz Inayat had filed a suit against Mst. Shehzada Begum claiming her share of inheritance in the property left by Hafiz Inayat, her father. The said suit was compromised vide judgment Exh.P.2 and P.3 the daughters of Hafiz Inayat were given their due share along with Mst. Shehzada Begum, the widow of Hafiz Inayat. In the said suit Muhammad Asif did not inherit as son of Hafiz Inayat. All the P.Ws. have deposed that Mst. Shehzada Begum had no issue. Only Mst. Nusrat Asif, the wife of Asif (the predecessor-in-interest of the petitioners 1-A to 1-F) appeared in the witness-box as D.W-2 and deposed that Asif was son of Mst. Shehzada Begum. There is no other evidence on the record to corroborate the same. It is thus clear that Asif was not off spring of Mst. Shehzada Begum and Hafiz Inayat.

5. The alleged sales in favour of Muhammad Asif vide sale-deeds Exhs.P.7 and P.8 dated 16-6-1982 are not proved on the record. Malik Muhammad Afzal and Muhammad Sharif Butt are the marginal witnesses, neither, of them appeared in the witness-box to prove the same. On the top of the alleged sale-deeds Exhs.P.7 to P.8 there is note that the original `Behi' does not bear the signatures of Sub-Register. The deed writer D.W-1 deposed that he wrote down the sale-deeds in presence of Mst. Shehzada Begum and marginal witnesses, however, he admitted that the register in which the contents of the sale-deeds were noted down had been lost. He further admitted that he had no document proving the loss of the register. Mst. Nusrat Asif, wife of Asif (vendee) appeared as D.W-2 and admitted in cross-examination that no consideration was paid to Mst. Shehzada Begum. The defendant was the beneficiary of the sales, the burden of proof shifted to him which he failed to discharge. In my view the alleged sales are not proved on the record. The sale in favour of Ata Elahi, petitioner, by Asif as sole heir of Mst. Shehzada Begum vide sale-deed dated 12-6-1986 was made during the pendency of the suit and the prevalence of the temporary injunction. It was in violation of section 52 of the Transfer of Property Act, 1882 and is hit by the principle of lis pendens. It has already been held that Asif was not the son of Mst. Shehzada Begum. Both the Courts below have concurrently decided against the petitioners. I do not find any fallacy in the same, therefore, dismiss this revision petition leaving the parties to bear their own costs.

6. The legal heirs Saeed Mirza (respondents 1 to 5) shall furnish the requisite court-fee on the value of the property given in the sale-deeds within one month of the receipt of the judgment of this Court. H.B.T./N-59/L Petition dismissed.