2008 PLP 1018 (SCMR)

TASSADDUQ HUSSAIN JILLANI, J.

Petitioners seek leave to appeal against the judgment of the Lahore High Court, Multan Bench, Multan dated 16-12-1999 vide which the Court was pleased to allow respondents civil revision and thereby set aside the judgment and decree dated 28-3-1977 passed by Additional District Judge, Sahiwal and restored the judgment and decree of learned trial Court dated 23-1-1976.

2. Facts in brief are that respondent No.1/plaintiff filed a declaratory suit for the land subject-matter of the suit measuring 11 Marlas with consequential relief that the petitioners/defendants be perpetually restrained from interfering into his possession. It was averred in the plaint that the respondent No.1/defendant had transferred his share in the Ihata in dispute for a consideration of Rs. 1100 and possession was also delivered to him on 22-12-1966. Subsequently, however, one Muhammad Munawar, the attorney of Sammoon, Manda and Diwan, the three out of four co-sharers of the Ihata in dispute transferred their respective shares to defendants Nos.3 and 4 vide registered deed Exhs.D.2/1 and D.2/2. Hence the challenge through suit. In the written statement filed by petitioners/defendants the averments made in the plaint were controverted. It was contended that Exh.P.3 is not a registered document as required under section 17 of the Registration Act, hence not admissible in evidence under section 49 of the Registration Act. It was further alleged that Exh.P.3 had been obtained from defendant No.1 through fraud and misrepresentation.

3. In terms of the divergent pleas following issues were framed: "(1) Whether the Civil Court has got no jurisdiction to adjudicate upon the suit? (2) Whether Ihata in dispute is a joint property, if so, to what effect? (3) Whether the alleged receipt is admissible in evidence? (4) Whether alleged receipt pertains to Ihata in dispute? (5) Whether the plaintiff has purchased the Ihata in dispute from the defendant No. 1? (6) Whether the defendants Nos.3 and 4 are bona fide purchasers of the Ihata for consideration? If so, to what effect? (7) Relief.

4. The learned trial Court decreed the suit primarily on Issues Nos.3, 4 and

5. The appeal against the said judgment and decree was allowed by learned Additional District Judge vide judgment, dated 28-3-1977 on the ground that in terms of its recitation respondent/ plaintiff had only purchased Malba of two rooms and two Verandas in evacuee Ihata for a consideration of Rs.1,100; that respondent/plaintiff was not owner of the Ihata/suit property when it was purchased by petitioners/defendants through General Attorney of respondent/defendant No.1 vide sale-deed Exhs.D.3/1 and D.3/2. The Lahore High Court, however, set aside the afore-referred judgment of the Appellate Court holding that respondent/plaintiff was in possession of the suit-land prior to the sale in favour of petitioners/defendants; that the value of the suit land at the relevant time was Rs.100 per Marla and it is in evidence that Rs.1,100 had been paid by the respondent/plaintiff for 11 Marlas of land; that since admittedly the suit property was situated in rural areas of provisions of section 54 of Transfer of Property Act were not applicable and non-registration of Exh.P.3 (through which respondent/plaintiff had purchased the suit property) would be fatal to the case of respondent/plaintiff.

5. Learned counsel for the petitioner in support this petition submitted that respondent/plaintiff had purchased the Malba of the Ihata as is evident form Exh.P.3; that even the amount paid for the purchase as given in Exh.P.3 is Rs.1,100 which itself would indicate that it had not been the value of the land measuring 11 Marlas; that the learned Court has not appreciated the fact that respondent/plaintiff had not purchased the property through any registered or any other credible document to establish his claim of ownership over the property in dispute.

6. We have not been able to persuade ourselves to grant the leave prayed for firstly because it is in evidence that respondent/plaintiff had been put in possession of the suit property prior to the execution of the sale-deed being relied upon by the petitioner/defendant. This is evident from the statement of P.W.2 who is Lamberdar of Chak No.186/9-L. The recitation of Exh.P.3 itself is to the effect that the possession was delivered to respondent/plaintiff and even the statement of D.W.1, the attorney of Diwan is corroborative of this fact; secondly the respondent/ plaintiff had successfully proved the execution of Exh. P.3 by producing P.Ws.2 and 3 who both deposed that the vendee (respondent/plaintiff) had made the payment in their presence and possession had also been delivered. As against this petitioner/defendant did not produce the vendor and author of Exh.P.3 to prove the allegation that Exh.P.3 was the result of fraud or misrepresentation; thirdly the argument of non-registration of Exh.P.3 is not tenable in view of the fact that section 54 of the Transfer of Property Act is not applicable to rural areas where admittedly the suit property is situated.

7. What has been discussed above, we do not find any merit in this petition, which is dismissed, and leave to appeal is refused. S.A.K./M-166/S Leave refused.