2006 PLP 697 (CLC)

SARDAR MUHAMMAD NAWAZ KHAN, J.--This appeal arises out or the following facts: Civil Suits one by Muhammad Razaq-appellant herein and other by Mst. Shamim Akhtar and others respondents herein were brought before Sub-Judge, Sansa on 2x11-1992 and 16-2-1994 respectively. Muhammad Razaq appellant sought cancellation of a sale-deed dated 26-7-1989 to the extent of defendant No.2 Ajmal Khan whereas Mst. Shamim Akhtar and others respondents sought possession of a house sold to their predecessor-in-interest through sale deed dated 26-7-1989. The trial Court consolidated both the suits and, after due process of law, decreed the suit by Muhammad Razzaq appellant and disallowed the cross-suit by Mst. Shamim Akhtar and others. Mst. Shaman Akhtar and others feeling aggrieved by the judgment and decree of the trial Court filed appeal before Additional District Judge Sansa from where the judgment and decree of the trial Court allowing the suit A by Muhammad Razaq was set aside consequently, the suit by him. was dismissed however, the dismissal order regarding suit by Mst. Shamim Akhtar and others was allowed to continue though for different reasons. Mst. Shamim Akhtar and others did not file further appeal before this Court against the dismissal of their suit therefore, the controversy to the extent of suit for possession by Mst. Shamim Akhtar and others stands closed. The only controversy which remained under debate at bar before this Court was the validity of judgment and decree of the 1st Appellate Court to the extent of dismissal of the suit by Muhammad Razaq appellant. The learned counsel for the appellant Muhammad Razaq contended that 1st appellate Court fell in error while declaring that the sale-deed in favour of predecessor-in-interest of respondents Shamim Akhtar and others was perfectly in accordance with law as the sale was made out of Khewat No.22 whereas gift-deed dated 13-9-1980 on the basis of which the cancellation of sale by Ajmal Khan deceased is sought was made out of Khewat No.23 which is a separate Khewat. The learned counsel in order to support his contention referred to different revenue papers tendered into evidence in this case. The documents referred to by the learned counsel were examined with the help of both the learned counsel representing the respective parties. The argument by the learned counsel for the appellant merits consideration favourable to him. It is amply clear that Khewat No.23 is not a separate Khewat but it has been renumbered as Khewat No.22 during recent settlement. Therefore, the findings of the 1st appellate Court to this extent are found to be incorrect. However, there is another aspect of this case which is left unattended by both the Courts below. The respondents Shamim Akhtar and others while submitting their written statement resisted the suit by Muhammad Razaq appellant on the ground that he voluntarily consented to the sale by his real uncle Ajmal Khan and did not raise any objection to the sale at the time of registration of sale-deed dated 26-7-1989. The trial Court without looking into the stand taken by the respondents in their written statements framed the issues on different points at variance but no issue is found to have been framed regarding consent of the appellant and its effect on the suit by Muhammad Razaq appellant. There is sufficient evidence regarding consent of Muhammad Razaq to the sale of the share he claims through a gift-deed in his favour in the year 1980. The question then arises as to what are the powers of this Court in such an eventuality where the relevant issue has not been framed but the evidence on the controversy is available on record. The answer to this question is provided under rule 24 of Order XLI, C.P.C. which advantageously is reproduced below:-- "

24. Where evidence on record sufficient, Appellate Court may determine ease finally. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the appellate Court may, alter resetting the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds." The above provision of law shows that if the evidence on record is sufficient to enable the appellate Court to pronounce the judgment the Court is empowered to re-settle issue/issues if necessary and finally determine the suit. Thus, the following issue is settled in view of pleadings. The evidence showing consent of Muhammad Razaq appellant to the sale by Ajmal Khan is sufficient to determine the fate of the suit. Muhammad Razaq is real nephew of Jamal Khan and Muhammad Bashir Khan who are real brothers. Initially, in the year, 1980 Jamal Khan appointed Muhammad Bashir Khan his real brother as attorney to transfer his share in Khewat No.23 including other Khewats mentioned in the gift-deed dated 13-9-1980 in favour of Muhammad Razaq. Muhammad Bashir transferred the share of Jamal Khan in favour of Muhammad Razaq out of the aforesaid Khewats. As it is evident from the body of the gift-deed that the possession of the gifted property was also handed over to Muhammad Razaq. This document is relied upon by Muhammad Razaq. It clearly means that all the 3 persons namely Ajmal Khan, Muhammad Bashir and Muhammad Razaq appellant were fully aware of the transfer in the year 1980. Later on, the aforesaid 3 persons, as evident from the record approached Raja Sahib Dad Khan a relative of Muhammad Azam Khan for sale of their respective shares in Khewat No.22 (re-numbered as 23). Raja Sahib Dad Khan persuaded Muhammad Azam Khan deceased to purchase their land as they were in dire need of money in order to clear a loan of a bank. Muhammad Azam Khan deceased consequently, agreed to purchase the land mentioned in the sale-deed Exh.P.B. resultantly, Rs.4,30,000 were settled as sale consideration. All the vendors executed the sale-deed in favour of Muhammad Azam Khan deceased and appeared before Sub-Registrar Sansa for registration of the document. The document was registered in their presence. Muhammad Razaq appellant being an adult and sane person raised no objection to the sale by his real uncle Jamal Khan despite the fact that he had obtained a gift-deed in his favour in the year 1980 and no share whatsoever was left with Jamal Khan out of Khewat No.22 at the time when the sale-deed was going to be registered in favour of Muhammad Azam Khan predecessor-in-interest of Shamir Akhtar and others. Not only this but the possession of the entire land sold to Muhammad Azam out of Khewat No.22 was handed over to vendee in presence and knowledge of Muhammad Razaq as it appears from the body of the sale-deed, dated 26-7-1989 and the statement of D.Ws. Raja Sahib Dad and Mujahid Khan. The language used in the body of sale-deed also suggests to say that Muhammad Razaq appellant knowingly consented to the sale by Ajmal Khan which is conveniently reproduced as under:-- The above extract of the sale-deed clearly indicates that all the vendors including the appellant deliberately and with mutual consent transferred the suit-land in favour of Muhammad Azam deceased and they were fully aware of the gift-deed in favour of Muhammad Razaq in the year 1980. They made Muhammad Azam to believe that the title of the suit-land existed in favour of Ajmal Khan at the" time of sale. Muhammad Azam vendee on this belief' purchased the property in good faith. This conduct of Muhammad Razaq appellant estops him to challenge the sale by Ajmal Khan his real uncle in favour of predecessor? in-interest of Shamim Akhtar and others. Though Mst. Shamim Akhtar and others while submitting their written statement did not specifically use the word "Estoppel" yet all the averments in the written statements when put together clearly show that they are pleading estoppel against Muhammad Razaq appellant. Under these circumstances section 114, Qanun-e-Shahadat comes to rescue the respondents Shamim Akhtar and others which is reproduced as under:

"

114. Estoppel

When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself amid such person or his representative, to deny the truth of that thing." The above provision of law clearly debars the appellant Muhammad Razaq to bring the present suit against the respondents Shamim Akhtar and others. He by his conduct intentionally permitted the vendee to believe Ajmal Khan as true owner of the suit-land and the vendee by acting upon such belief purchased the property. Thus, Muhammad Razaq appellant cannot be allowed to bring the present suit challenging the validity of the sale-deed. The result, therefore, is that the impugned judgment and decree of the 1st appellate Court is allowed to continue however, on different reasons mentioned in this judgment. Appeal disallowed. H.B.T./3/AJK????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.