2016 PLP 1359 (YLR)

ABDUL LATIF KHAN, J.

This revision petition has been preferred against the judgment and decree dated 18.12.2006, passed by learned Additional District Judge-IV, Abbottabad whereby appeal of respondents Nos.1 and 2 was accepted and judgment and decree dated 29.7.2002 of Civil judge-I, Abbottabad was set aside and a preliminary decree for possession through redemption of the suit house was passed in favour of respondents Nos.1 and 2 against petitioners on payment of Rs.500/- as mentioned in the deed and respondents Nos.1 and 2 were directed to deposit the mortgage amount within one month from the date of judgment, if not already deposited in the trial Court. Arguments heard and record perused.

2. A perusal of record reveals that plaintiffs/respondents brought a suit for redemption of mortgaged house No.366 (present No.TC 424). The suit was dismissed on 25.2.1992 in initial round and appeal preferred was allowed however this Court on acceptance of revision remanded the case for decision afresh after arraying the L.Rs. of Faqir Muhammad as party to the suit who were consequentially arrayed as defendants Nos.11 to

22. They were proceeded ex-parte and the matter was revisited by trial Court and dismissed the suit on 29.7.2002, against which an appeal was preferred which was allowed hence the instant petition.

3. The vital issue for determination was that whether predecessor in interest of plaintiffs were owner of the disputed property. The burden squarely lies upon the plaintiffs to prove the same who produced as many as 7 witnesses. The revenue record along with record from Town Committee was produced, apart from the record of registration office, Deputy Commissioner Abbottabad. Ex.PW.1/1 and Ex.PW.1/2, copies from the register of Deputy Commissioner office were produced wherein sale deed with the equity of redemption of the property in dispute from Mst.Rehmat Jan widow and Hussain Bakhash son of Faqir Muhammad has been registered. The respondents mainly relied upon Ex.PW.5/1, who has proved the same however the vendors of plaintiffs namely Mst.Rehmat Jan and her son Hussain Bakhash had no authority to transfer the entire property as there are other legal heirs of Faqir Muhammad namely Wazir Muhammad, Mst.Hameeda Jan and Mst. Fatima Jan. It is vehemently argued that the property in dispute was the Hissadari ownership of Mst.Rehmat Jan widow and Hussain Bakhash son of Faqir Muhammad but the record is silent to this effect. Even otherwise it is not evident from record that if at all it is presumed to be Hissadari ownership of Hussain Bakhash and Mst.Rehmat Jan then which of the property in lieu thereof was given to Wazir Muhammad, Mst.Hameeda Jan and Mst.Fatima Jan. Admittedly all of them are legal heirs of Faqir Muhammad and it is also admitted that there are other property owned by Faqir Muhammad however the existence of other property would not amount to exclusion of Wazir Muhammad, Mst.Hameeda Jan and Mst.Fatima Jan from the ownership of disputed property.

4. It is by now established that the vendor cannot transfer better and larger title to the vendee except that he owns. The deed though executed and attested on their behalf could be termed as valid only to the extent of their shares and not more than that and as such transfer of entire property was not permissible under the law. There is no evidence brought on record by plaintiffs to prove that defendants are in possession of the property in dispute as mortgagees though they are claiming possession over the property from 1995 however claimed to have scribed deeds later on. DW.5 has admitted that Mst.Fatima Jan and Mst.Hameeda Jan were not present at the time of transaction and documents Ex. DW.1/1 and Ex. DW.1/2 being unregistered documents were not proved as required under the law and as such the plea of defendants regarding purchase of property from Wazir Muhammad, Mst.Hameeda Jan and Mst. Fatima Jan has not been proved through cogent evidence. The Hissadari ownership of vendors of plaintiff i.e., Mst.Rehmat Jan and Hussain Bakhash has not been proved on record. The co-sharer could not alienate or retain the possession under the garb of Hissadari beyond his share in the joint holding and could not transfer a bigger share in any eventuality without the consent of others. The learned trial Court has property evaluated the evidence available on file and has arrived at a correct conclusion. The learned Court of appeal has not decided the lis pending before it with conscious and application of independent mind which is not maintainable.

5. For the aforesaid reasons, I allow this petition, set aside the impugned judgment passed by Court of appeal and restore that of trial Court whereby suit of the plaintiffs/respondents was dismissed. SL/271/P Petition accepted.