1994 PLP 69 (MLD)

This second appeal was directed against the judgment and decree, dated 15-4-1986 of the learned Additional District Judge, whereby the appeal of Muhammad Hanif appellant, was dismissed and the judgment and decree of the trial Court dismissing his suit was upheld.

2. Since this appeal has remained pending for all these years without admission, both the learned counsel were asked to submit arguments in detail treating the same as `pacca' matter. The record of the trial Court is also available. Learned counsel as such have submitted detailed arguments.

3. The necessary facts briefly stated are that Muhammad Hanif appellant prior to the filing of the suit for possession had filed an ejectment application claiming that the house transferred to him bears Property No.1105. The eviction application was allowed, but on appeal, the order of eviction was set aside. The second appeal also failed in this Court vide judgment dated 21-10-1977. Muhammad Hanif appellant, thereafter, filed the- present suit for possession claiming that the property in question was transferred to him as Property No.1105 by the Settlement Department through auction and he being the owner of the said property is entitled to recover the possession thereof. Ghulam Muhammad respondent-defendant, resisted the suit claiming that he was transferred the house in his possession by the Settlement Department describing the same as House No.1109. The learned trial Judge framed as many as nine issues arising out of the pleadings of the parties and after recording evidence of the parties and hearing their arguments, dismissed the suit. The first appeal filed by the appellant also failed vide judgment and decree dated 15-4-1986 of the learned Additional District Judge, hence this appeal.

4. Learned counsel for the appellant, in support of this second appeal submitted that the findings of the learned trial Court that the appellant has not been able to establish that the house in dispute bears No.1105 is contrary to record and as such the impugned judgments are not sustainable. He added that Exhs.PI and P2, the two reports made by the two learned Rent Controllers during the pendency of the eviction petitions were illegally kept out of consideration and had these been noticed and relied upon, it stood established that the house in question was House No.1105 for which the PTD has been issued by the Settlement Department in favour of the appellant.

5. Learned counsel for the respondent supported the findings of the learned Courts below and argued that the findings of fact cannot be set aside in the second appeal. He further argued that the judgment of this Court in SA.O. No.801 of 1976 Exh.P5 clinches the issue as in the said judgment this Court has already held that the house in question bears No.1109.

6. Learned counsel for the appellant has mainly relied on Exhs.P.1 and P.2 the inspection notes recorded by the learned Rent Controllers on 25-9-1971 and 5-6-1974. The perusal of these two inspection notes do not satisfactorily establish the location and identity of the property in question. These inspection notes could be better understood if the learned Rent Controllers had prepared the site plan as well. Many clarifications are needed to understand the inspection notes. The basic fact which cannot be ignored is that the appellant got the house transferred by participating in the auction held by the Settlement Department. The auction list which might have thrown some light on the identity of the house has not been produced on record. Even the demarcation fixing the identity of the house in question was not obtained. On the other hand. Ghulam Muhammad, respondent got the house transferred in his favour on the basis of possession as PTD was issued describing the House No.1109. It is well-established that in cases where the house has been transferred on the basis of possession, the number assigned loses significance in the document of transfer as the basis of transfer is the possession over the evacuee property and not its number. In this view of the matter, the rights vesting in Ghulam Muhammad, respondent under the PTD. issued for the house in question cannot be defeated on the basis of mistake if any, in recording the property number. Assuming that the house in question bears the number as is claimed by the petitioner-appellant, still on the basis of the PTD issued to him, no rights can be claimed in the said house as the same very house stood transferred to Ghulam Muhammad prior in time on 7-3-1960 while the transfer in favour of the appellant is dated 17-9-1966.

7. For reasons given above, the suit of the plaintiff-appellant cannot succeed as, against Ghulam Muhammad, transferee. The appeal, therefore, fails and is dismissed. Parties are left to bear their own costs. H.B.T./M-1224/L Appeal dismissed.