2004 PLP 1542 (SCMR)

MUNIR A. SHEIKH, J.

This petition is directed against the judgment, dated 17-1-2002 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, through which revision petition filed by the respondent against the judgment of the First Appellate Court has been accepted and judgment and decree of the trial Court restored.

2. The dispute relates to Plot No.

32. According to the respondent plaintiff, he purchased the said plot orally from one Habib Ullah in the year, 1971, got a site-plan sanctioned from Municipal Committee, Pind Dadan Khan and constructed a house thereon and gave it to the petitioners as licensees for temporary residence being his step brothers. According to the written statement, copy of which has been appended with this petition, the petitioner's case was that they had also purchased this plot in the year, 1971 from the same person as per Para-1 of preliminary objections whereas according to Para-1 on merits, they made out a case that they purchased Plot No.35 from one Habib Ullah through registered sale-deed in 1973 and few days before, they had orally purchased Plot No.32 in dispute and constructed a house on the same. The trial Court after considering the oral and documentary evidence produced by the parties, came to the conclusion that the respondent had constructed the said house and gave it to the petitioners for temporary residence who were licensees, as such the respondent-plaintiff was entitled to a decree as prayed for. The suit was decreed through judgment, dated 23-11-1991. The appeal filed by the petitioners against the said judgment and decree was accepted through judgment, dated 28-5-1992 by the First Appellate Court. Revision petition filed by the respondent has been accepted by the learned Judge in Chamber of the Lahore High Court, through the impugned judgment, dated 17-1-2002 by holding that findings recorded by the First Appellate Court were based on mis-reading and non-reading of material piece of evidence against which leave is sought.

3. We have heard learned counsel for the petitioners and find that both the parties were claiming purchase of Plot No.32 from one Habib Ullah. Habib Ullah appeared as P.W.2 who supported the case of respondent and denied that he ever sold the plot in dispute to the petitioners. The petitioners own case was that they purchased another adjoining Plot No. 35 from, same Habib Ullah through registered sale deed but did not bother to get a sale-deed executed for Plot No.32 also about which there is no explanation available on the record about Plot No.

32. Learned counsel stated that Habib Ullah did not have in his possession document of title from the Settlement Department though sale was not executed which is a lame excuse and an afterthought.

4. We have gone through the statement of Habib Ullah and find that on behalf of the petitioners, no cross-examination was conducted to the effect that he was not in possession of title deed when the petitioners allegedly orally purchased the said Plot No. 32.

5. The documents placed on the record prove that in 1971 the respondent made an application to the Municipal Committee, Pind Dadan Khan for sanction for the site plan for construction of a house over the plot in dispute which was duly sanctioned and the property tax receipts are in favour of the respondent who had been paying the said tax. There are also documents in the shape of bills from WAPDA which show that the respondent had been paying tariff for the electricity connection in the property in dispute.

6. Learned counsel for the petitioners submitted that the bills of WAPDA do not show that the same related to the property in dispute but we find that when the said documents were produced, no question was raised to the effect that they were not related to the property in dispute. There is no evidence on record that the respondent owned any other house.

7. Learned counsel for the petitioners argued that the property in dispute is within the limits of Municipal Committee, Pind Dadan Khan, therefore, according to section 54 of the Transfer of Property Act which was made applicable to such areas in Punjab, sale of immovable property could only be effected by a registered sale-deed in the absence of which no title shall be deemed to have passed to the purchasers as such the respondent-plaintiff could not maintain the suit as owner. In support of this argument, he referred to reported judgments of this Court. We need not discuss the facts of these judgments as admittedly in these cases, there was direct dispute between the vendor and the vendee who was claiming ownership rights in the property on the basis of oral sale in such areas, therefore, the question of title was directly between the vendor and the vendee. In this case, the case of the respondent was, which was found to have been established that he constructed the house on the plot in dispute and the petitioners were inducted in the same as licensees for temporary residence, therefore, the question of title inter se between the petitioners and the respondent-plaintiff is not relevant in this case. Once the licence is proved and the same is terminated, the respondent was entitled to recover the possession as such this argument has no force.

8. The findings of facts recorded by the trial Court which have been affirmed by the High Court in the impugned judgment are found to have suffered from no illegality such as mis-reading or non-reading of any material piece of evidence whereas findings of the First Appellate Court were rightly held to have rested on non-reading; of documentary evidence on the record as such these were liable be struck down under section 115, C.P.C.

9. For the foregoing reasons, we find no force in this petition which is accordingly dismissed and leave refused. M.H./M-726/S Petition dismissed.