' This revision petition is by defendant No.1 in the suit and is directed against the judgment and decree, dated 15-6-1989 of the learned First Appellate Court. It arises out of the following circumstances.
2. On 15-3-1981, respondents Nos.1 to 5 filed a suit for possession of a plot measuring 11 Marlas and 5 Sarsies against Mst. Zainab, the petitioner herein and 8 others. Their case in the plaint was that they purchased the aforesaid plot on 27-6-1969 through five separate sale-deeds (unregistered) for Rs.99 each, constructed a boundary wall and got approved the building plan from Town Committee, Shorkot on 12-2-1978. It was further averred that the plaintiffs-respondents reside most of time in District, Rahim Yar Khan. On 7-1-1981, they found that the petitioner and other defendants in the suit had occupied the said land ,and had raised the boundary wall. The suit was contested by the defendants. A number of objections were taken. On facts, it was averred that the petitioner was the owner in possession of the disputed plot.
3 Necessary issues were framed and the suit was tried. The learned trial Court held that the sale- deeds being relied upon by the plaintiffs were, in fact, agreements to sell which did not create any right in favour of the plaintiff-respondents. It was further found that there were material discrepancies in the statements of the P.Ws. And that the plaintiffs-respondents had failed to prove that the plot in possession of the petitioner was owned by them. Accordingly, the suit filed by the plaintiffs-respondents was dismissed vide judgment and decree, dated 25-11-1987. Respondents Nos. 1 to 5 filed an appeal which was allowed by the learned Additional District Judge, Jhang on 15- 6-1989. The learned First Appellate Court came to the conclusion that the plot in possession of the petitioner was the same which was described by boundaries in the sale-deeds relied upon by the plaintiffs/respondents.
4. The learned counsel for the petitioner contends that the learned First Appellate Court misread and ignored material evidence from consideration. He further submits that the respondents Nos. 1 te 5 had claimed to have purchased the plot in .Dispute from the same vendor from which the petitioner has purchased the plot measuring 12 Marlas and it was through registered sale-deed, dated 28-3-1970. He referred to the statement of P.W.5, the attorney of plaintiff/respondent No.1, who admitted that the petitioner had purchased the land from the same Khata from which respondents Nos. 1 to 5 had purchased the land. According to him, both the parties were at best, co-sharers and, therefore, suit for possession was not maintainable. He also relied on the reasoning of the learned trial Court that neither the vendor was produced nor satisfactory evidence was produced to prove the five sale-deeds (all produced as Ex.P.1). In any case, according to him, the registered sale-deed was entitled to preference as against unregistered sale-deeds in accordance with the provisions of section 50 of the Registration Act. He also contended that the plaintiffs-respondents had also filed a suit for declaration claiming title to the plot in dispute on the basis of the aforesaid unregistered sale-deeds in which they had assailed the registered sale-deed, dated 28-3-1970 and Mutation No.4129, dated 31-3-1971 based thereon in favour of the petitioner with the prayer for a permanent injunction. The suit was dismissed under Order IX, rule 8 of the C.P.C. On 17-12-1988. It is maintained that the suit claiming possession had been rendered in fructuous and was not maintainable unless title of the plaintiffs/respondents to the disputed land was established. He referred to yet another suit filed on 8-7-1986 for cancellation of the building plan of the petitioner and according to the learned counsel, this suit was also dismissed.
5. The learned counsel for the plaintiffs-respondents has supported the impugned judgment and decree. He maintains that the learned Additional District Judge, on consideration of evidence produced in the case, came to the conclusion that the plot in possession of the petitioner was the same which was purchased by the plaintiffs/respondents and, therefore, no interference is possible. He next maintains that by virtue of first proviso to section 50 of the Registration Act protection of section 53-A of the Transfer of Property Act was available to the plaintiffs/respondents and by virtue of second proviso to the said section, they had a right to enforce the unregistered sale deeds through a suit for specific performance against the petitioner, who claimed under a subsequent registered document and a suit for specific performance was, in substance a suit for possession. He further contended that the sale in favour of the petitioner was the last sale made by Riaz Hussain Shah from the relevant Khata and before the sale in favour of the petitioner, he had already exhausted his entitlement in the said Khata. Therefore, the plaintiffs/respondents were rightly found entitled to the decree. He further submits that no objection was taken in the written statement based on the suit for declaration referred to by the learned counsel for the petitioner, neither an issue was framed and, therefore, the plea could not be entertained for the first time in this revision petition. It is further submitted that the plaints in the suit for declaration or the cancellation of site plan being referred to by the learned counsel for the petitioner were not put to the attorney to the plaintiffs/respondents and these were not otherwise proved in accordance with law.
6. I have considered the submissions made by the learned counsel for the parties. Neither in the plaint nor in the sale-deeds relied upon by the plaintiffs/respondents, the Khasra number of the plot purchased by respondents Nos.1 to 5 was identified. These are five unregistered sale-deeds each for 1/5 share of a piece of land measuring 13 x 8 Karms and the said plot has been defined by boundaries only in the said sale-deeds. These sale-deeds were not implemented in the Revenue Record. The petitioner purchased 12 Marlas from the same vendor namely Riaz Hussain Shah as 6/29 shares out of the total area measuring 2 Kanals, 18 Marlas comprising Khasra No.15/I of Square No.158 of Khata No.105/101. This sale-deed was implemPnted in the Revenue Record vide Mutations No.4129 attested on 31-3-197i. The Jamabandi Exh.D.3 for the year 1976-77 shows that the entire area of Khasra No.15/1 was sold by Riaz Hussain Shah in favour of Mst. Fatima Iqbal (26 Marlas), Muhammad Ashraf (12 Marlas), Mst. Zainab, petitioner (12 Marlas) and one Allah Bukhsh (8 Marlas).
As far as the plaintiffs/respondents are concerned, their names do not figure in the Revenue Record. The question which attracted my attention was whether Riaz Hussain Shah had sold land in favour of the plaintiffs/respondents from the same Khata from which the land was sold in favour of the petitioner. On this question, the statement of P.W.5, the attorney of the plaintiff-respondent No.1, clinches the issue. According to him, Riaz Hussain Shah owned total area measuring 2 Kanals, 18 Marlas and that the petitioner and the plaintiffs/respondents had purchased the disputed plot from the same Khata. It may also be noted that neither any of the plaintiffs went into the witness box nor even the vendor was impleaded to the suit or examined. The suit for declaration was filed by the respondents on 28-7-1988, after dismissal of the present suit on 25-11-1987. Copy of the plaint in the said suit and the order are not on the record of the trial Court. These were, however, placed on the record of this revision petition. Copy of the suit for cancellation of the building plan of the petitioner was placed on the record as Exh.D.7. However, the decision rendered in the said suit is not on the record. Normally a document which ig not part of the record could not be taken into consideration. However, according to the rule 10 of Order XIII of the Code of Civil Procedure, the Court may of its own motion send for either from its own records or from any other Court the record of any other suit or proceedings and inspect the same. The documents forming part of judicial record are public documents under Article 85 of Qanun-e-Shahadat Order. Therefore, by virtue of the power vesting in this Court under rule 10 aforesaid, the certified copy of the plaint and the order passed have been taken into consideration by me for limited purpose of identity of the property.
Perusal of the plaint in the suit for declaration and in the suit for cancellation of the site plan leaves no manner of doubt that the plaintiffs/ respondents have been claiming title to the plot purchased by the petitioner. With the purchase of land from the same vendor and from the same Khata, the plaintiffs- respondents, could at best claim to be co-shares in the disputed property and on this score alone the suit for possession filed by respondents Nos.1 to 5 was not maintainable The description of the property in the sale-deeds in favour of the plaintiffs/ respondents was not determinative of the controversy in view of the findings recorded by me above.
7. Since the property sold by the vendor to the petitioner and respondents Nos. 1 to 5 was the same, the registered sale-deed in favour of the petitioner is entitled to preference as against the unregistered sale-deeds set up by the plaintiff-respondents by virtue of the provisions contained in section 50 of the Registration Act.
8. As far as the contention of the learned counsel that the plaintiffs/ respondents were protected by virtue of section 53-A of the Transfer of Property Act is concerned, it has no merit because the protection available under section 53-A could not pressed as a shield and not used as sword to maintain a suit for possession. Reference may be made to Muhammad Yousuf v. Munawar Hussain and 5 others 2000 SCM R 204. As far as the second proviso to section 50 is concerned, the plaintiffs/respondents could file a suit for specific performance. The suit for possession based on the title was, therefore, not maintainable on this score as well. The sale-deed in favour of the petitioner was registered on 28-3-1970 while the instant suit was filed on 15-3-1981 and the vendor was not party to the suit. Thus, the present suit could not be treated as suit for specific performance.
9. As far as the rule of confrontation in respect of the two suits is concerned, it was not otherwise attracted because none of the plaintiffs/respondents appeared in the witness box.
10. The learned First Appellate Court by ignoring aforesaid material aspects identified by me in this judgment acted illegally warranting interference of this Court in exercise of revisional jurisdiction.
Accordingly, this revision petition is allowed and the impugned judgment and decree, dated 15-6- 1989 of the learned First Appellate Court are set aside with the result that the suit filed by the plaintiffs/ respondents stands dismissed.