JAWWAD S. KHAWAJA, J.--- Through this judgment I propose to decide the present revision petition and connected Civil Revisions Nos.837 of 2005, 858 of 2005 and 2164 of 2005 because these petitions arise out of consolidated judgments of the learned trial Court, dated 24-6-2000 and of the learned Appellate Court, dated 6-4-2005 whereby three suits, details of which appear below, were decided.
2. In order to appreciate the controversy arising between the parties, it is necessary to set out, in brief, the facts giving rise to these revision petitions. It is common ground between the parties to these petitions that Shop No.B-II-59-64 which is the property in dispute between them, was owned by one Nawab Din (now represented by his L.Rs.). There are three sets of claimants to the disputed shop, namely Barkat Ali and Muhammad Rafiq (petitioners in Civil Revision No.837 of' 2005), Abdul Rashid (respondent No.2 in this petition) and Feroze Din (the petitioner_in the present petition). It is these claimants who filed their separate suits to establish the rights respectively asserted by them in the disputed shop.
3. Barkat Ali claimed that Nawab Din had executed an agreement (Exh.D.41) dated 30-6-1980 whereby he agreed to sell the shop in question to him. On 14-10-1981 Barkat Ali filed a suit seeking specific performance of the agreement (Exh.D.41). He averred that constructive possession of the disputed shop was delivered to him. No particulars, however, were set out in the plaint as to who was in physical possession of the shop or the manner in which constructive possession of the same was delivered to him. Barkat Ali also prayed for cancellation of the sale-deed (Exh.D.6) dated 9-7-1980 in favour of Abdul Rashid.
4. Abdul Rashid filed a suit on 18-12-1989 seeking possession of the disputed shop on the basis of his purported title, under the sale-deed (Exh.D.6) allegedly executed in his favour by Nawab Din.
Abdul Rashid also asserted that he was a bona fide purchaser of' the disputed shop. As to possession, his case was that one Bashir Ahmad Nizami was a tenant in occupation of the shop, whose ejectment was being sought by him through the competent forum. The possession of Feroze Din over the shop was expressly denied. These averments appear in the plaint and Abdul Rashid's written statement in the suit filed by Feroze Din.
5. The third suit was filed by Feroze Din who sought declaration of title in the shop claiming that he had purchased the same from Nawab Din. Feroze Din also made a prayer to the effect that the sale-deed (Exh.D.6) in favour of Abdul Rashid was void and ineffective against him. By way of consequential relief he sought a permanent injunction to restrain Abdul Rashid from interfering in his possession. To support his case, he relied on a registered irrevocable general power of attorney (Exh.P.1) dated 3-9-1965 and on a receipt/agreement (Exh.P.2) dated 5-6-1962 executed by Nawab Din in favour of Feroze Din and one Mahuga jointly. Although Exh.P.2 has been given the form of a receipt IA it also contains terms which make it an agreement.
6. The three suits, mentioned above, were consolidated. In all 21 consolidated issues were framed on which the parties led evidence. Feroze Din examined 17 witnesses and produced documentary evidence including the registered power of attorney (Exh.P.1) and the agreement (Exh.P.2). Exh.P.3 to Exh.P.7 which are receipt to prove purchase of claims by Feroze Din were also produced by him.
Abdul Rashid appeared as D.W.6 and produced four other witnesses (D.W.2 to D.W.5) to support his case. He produced Exh.D.1 to Exh.D.40 as documentary evidence to substantiate his case. Barkat Ali appeared as D.W.12 and produced D.W.7 to D.W.11 to establish his claim. The agreement to sell (Exh.D.41) whereby Nawab Din purportedly contracted to convey the shop to him was the only document produced by Barkat Ali. The L.Rs. Of Nawab Din supported the case set up by Feroze Din.
7. The suit filed by Feroze Din has concurrently been dismissed by both Courts below. The suit for specific performance filed by Barkat Ali etc. Was decreed by the learned trial Court but has been dismissed in appeal. The suit for possession filed by Abdul Rashid, which had been dismissed by the learned trial Court, was decreed in appeal. It is, in these circumstances, that Feroze Din and Barkat Ali etc. Have filed the present revision petitions.
8. I have gone through the record with the assistance of learned counsel for the three contesting parties named above and first take up for consideration the case of Feroze Din. The agreement to sell (Exh.P.2), dated 5-6-1962 has been duly proved through the testimony of the two marginal witnesses, namely, Allah Ditta, who appeared as P.W.2 and Mukhtar Ali (P.W.6), who was the nephew (Bhatija) of Nawab Din. The veracity of these witnesses has not been impeached. It is clear, therefore, that Feroze Din along with Mehnga (now represented by his L.Rs.), were the vendees of the disputed shop as per agreement (Exh.P.2). At this point I need to note that through Exh.P.2 Nawab Din acknowledged receipt of the entire consideration and also agreed that when proprietary rights (Haqooq Malkana) were transferred to him, he would be obliged to register a conveyance in favour of Feroze Din and Mehnga.
9. The agreement (Exh.P.2) and the rights vested in Feroze Din pursuant thereto are corroborated by other material on record. Firstly the L.Rs. Of Nawab Din have accepted the case set up by Feroze Din. Secondly Exh.P.3 to Exh.P.7 referred to above, also establish the interest of Feroze Din in the disputed shop. Thirdly, for reasons discussed later in this judgment. I have found conclusively that Feroze Din is in possession of the disputed shop and was also in possession in 1980 when the alleged agreement (Exh.D.41) in favour of Barkat Ali etc., and the alleged sale-deed (Exh.D.6) in favour of Abdul Rashid were made. Feroze Din's possession provides strong corroborative evidence of the authenticity of the agreement (Exh.P.2) and the rights thereby created in favour of Feroze Din.
10. Now I come to the reasons which prevailed with the learned Courts below for disregarding the agreement (Exh.P.2) and for non-suiting Feroze Din. It has been firstly observed by the learned trial Court that the L.Rs. Of Mchnga have, in their written statement, denied that Mchnga had any title or interest in the disputed shop. This averment " made in the pleadings, however, has no legal bearing in the case. None B of the L.Rs. Of Mehnga appeared in the witness-box to testify on oath. The averment made in the written statement, therefore, cannot be treated as evidence against Feroze Din or for disproving the agreement (Exh.P.2). This is particularly so in view of the testimony of the marginal witnesses of the agreement (Exh.P.2), namely, Allah Ditta (P.W.2) and Mukhtar Ali (P.W.6).
The written statement of the L.Rs. Of Mehnga, however, means that these L.Rs. Do not assert any interest in the suit property.
11. The documentary evidence (Exh.P.1 to Exh.P.7) has been summarily brushed aside by the learned Courts below on the basis of one sentence in Feroze Din's testimony which has been read out of context. Feroze Din appeared in Court on 9-5-1990 when his statement was recorded as P.W.12. He deposed that there was delay in the transfer of proprietary rights and a power of attorney was obtained from Nawab Din in favour of Mahnga to obviate dependence of Nawab Din for the purpose of effecting transfer of the shop. The learned Courts below have held that this testimony was, by itself enough to demolish the entire case set up by Feroze Din regardless of the remaining oral evidence and the documents (Exh.P.1 to Exh.P.7) adduced by him. The conclusion of the learned Courts below is based on the fact that proprietary rights were actually transferred to Nawab Din vide PTD (Exh.D.1) dated 21-3-1963 and, therefore, the statement by Feroze Din that the power of attorney (Exh.P.1) which is dated 3-9-1965 had been obtained because proprietary rights had not been conferred on Nawab Din is incorrect.
12. There are a number of reasons why the apparent inconsistency in the testimony of Feroze Din is not sufficient to non-suit him. Firstly it may be noted that Feroze Din was testifying almost 25 years after the execution of the power of attorney (Exh.P.1) and 28 years after the C agreement (Exh.P.2). It was not expected of him to remember the details of events which took place so many years earlier.
At this point, it is worth-noting that when the bargain was struck between Feroze Din and Nawab Din (as evidenced by Exh.P.2) proprietary rights had not as yet, been transferred to Nawab Din. This could easily have caused the inconsistency in Feroze Din's testimony. Secondly the learned Courts below have ignored the material part of his testimony that the power of attorney (Exh.P.2) had been obtained from Nawab Din to eliminate dependence on Nawab Din, Most importantly, however, nothing turns on the statement of Feroze Din, referred to above. The power of attorney (Exh.P.2) is a registered document and has been properly exhibited on record. It is not the case of any of the contesting parties that the power of attorney was not executed by Nawab Din. In any event Exh.P.2 merely corroborates the stance of Feroze Din. It is not in itself a conveyance. The documentary evidence produced by Feroze Din supported by the testimony of his witnesses and his possession over the disputed shop, provide the strongest proof of his case. In the circumstances, even in the light of Feroze Din's testimony and the inconsistency therein noted by the learned Courts below, he could not have been non-suited.
13. Lastly, the inconsistency in Feroze Din's testimony has to be weighed against the utter lack of probity in the pleas raised by Abdul Rashid and Barkat Ali, the other two claimants to the shop. In this context the most crucial aspect of the case viz. Possession of the shop, needs to be considered.
Feroze Din is in possession of the shop in question. Abdul Rashid and Barkat Ali have not been able to show to the contrary. Even the decree for possession granted to Abdul Rashid by the Appellate Court notes this fact and grants him the right to obtain possession from Feroze Din. Since there is nothing on record to show that Feroze Din was occupying the shop as a tenant or in some similar capacity, the very fact of possession further supports the case of Feroze Din that he had purchased the shop from Nawab Din. This is particularly so in the context of the pleadings of Abdul Rashid and Barkat Ali etc. (considered below) read with the evidence respectively produced by them.
14. The case set up by Barkat Ali, etc. As averred in their plaint, is significant. Paragraph 2 thereof is reproduced as under: "(2) That the defendant No.1 (Nawab Din) executed an agreement to sell the above mentioned property in favour of the plaintiff for a consideration of Rs.25,000. Rs.2,000 were paid in advance when the bargain was struck and Rs.20,000 were paid as earnest money on 30-6-1980 when the agreement to sell was executed in favour of the plaintiff. The possession of the property in dispute was also delivered to the plaintiff and since then the plaintiff is in the constructive possession of this property, as such the plaintiff has paid Rs.22,000 to the defendant No.1 and the defendant No.1 was bound to execute the sale-deed in favour of the plaintiff till (sic)."
15. One thing obvious from the above is that Barkat Ali, etc. Have been less than forthright. There is no explanation as to the manner and the time when the disputed shop was delivered to Barkat Ali.
There is an ambiguous reference to constructive possession without indicating as to who was in physical possession of the shop or the nature of the constructive possession claimed by Barkat Ali.
His plaint, on this score, is as vague as can be, and shows the deliberate concealment of material facts. The testimony of the witnesses produced by Barkat Ali have also, failed to throw any light on this important plea. Learned counsel for Barkat Ali referred to the agreement to sell (Exh.D.41) dated 30-6-1980 which is the only document produced by him in support of his case. This document also highlights the lack of credibility of Barkat Ali's case. The following sentence appears in the agreement:-- As in the plaint, no mention has been made as to who was the tenant in possession of the shop.
The witnesses produced by Barkat Ali have not been able to prove that the disputed shop was occupied by a tenant of Nawab Din or that Feroze Din was not in possession when the agreement (Exh.D.41) was executed. In these circumstances, there can be no proof of any attornment in favour of Barkat Ali or the delivery of constructive possession to him as alleged in his plaint. For another reason also Barkat Ali's story lacks credibility. I do not find it possible to believe that he paid almost the entire consideration as averred by him without obtaining either title to the disputed shop or its possession. The cumulative effect of these facts leaves me in no manner of doubt that the case set up by Barkat Ali was false. This alone was sufficient to deny to him. The D discretionary relief of specific performance, as envisaged by section 22 of the Specific Relief Act. Before concluding my discussion on Barkat Ali's case, it needs to be noted that the agreement (Exh.P.2) in favour of Feroze Din is almost 18 years prior in time to the agreement (Exh.D.41) in favour of Barkat Ali etc. Furthermore, Feroze Din has proved himself to be in possession based on Exh.P.2. In this view of the matter, specific performance of the agreement (Exh.D.4l) could not have been allowed even if Barkat Ali had been honest and truthful.
16. Now I take up for consideration the case of Abdul Rashid. As noted above, in his plaint and also in paragraph 4 of his written statement in the suit filed by Feroze Din, it has been averred that one Bashir Ahmad Nizami was in possession of the disputed shop as a tenant under Nawab Din. It was also stated that he (Abdul Rashid) had instituted proceedings before the Rent Controller for ejectment of the tenant and that an ejectment order had been passed against Bashir Ahmad Nizami on 18-1-1982. The contents of paragraph 6 of Abdul Rashid's plaint are also significant. It is alleged therein that Feroze Din and the L.Rs. Of Mehnga were neither tenants under Nawab Din nor did they have any other right over the disputed shop. Significantly, it was asserted that they had occupied the shop illegally. No particulars were given as to when and how Feroze Din had taken possession of the shop.
17. Leaned counsel for Abdul Rashid, however, referred to the ejectment petition (Exh.D.30) in which it has been stated that Bashir Ahnlad Nizami was occupying the shop as a tenant under Nawab Din and that a notice under section 13-A of the Urban Rent Restriction Ordinance had been issued to the said tenant after Abdul Rashid had acquired title through the sale-deed (Exh.D.6). He also referred to the ejectment order passed against Bashir Ahmad Nizami, in his attempt to show that this person rather that Feroze Din, was in possession of the disputed shop at the, time he purchased it. Feroze Din, I may add, had acknowledged that Bashir Ahmad Nizami was, at one time, a tenant in the disputed shop but deposed that he had vacated the same many years earlier.
18. In the circumstances, learned counsel for Abdul Rashid was asked to explain as to how and when Feroze Din came to occupy the shop. He was unable to do so. It is in fact evident from the order of the Rent Controller dated 14-10-1982 that the ejectment order, dated 18-1-1982 had been obtained by Abdul Rashid ex parte against Bashir Ahmad Nizami whereafter he had attempted to enforce the same against Feroze Din through execution proceedings. The learned Rent Controller dismissed the execution petition riled by Abdul Rashid while holding that Feroze Din could not be dispossessed in execution of an ejectment order which had been passed against Bashir Ahmad Nizami. It is also worth-noting, as acknowledged in Abdul Rashid's plaint, that Bashir Ahmad Nizami had died well before the ejectment order. Since there is no evidence available on record to show when Bashir Ahmad Nizami had died, it is possible that his death had taken place even prior to the filing of the ejectment petition.
19. The only inference, which can reasonably be drawn from these facts, is that Feroze Din was in occupation of the disputed shop when the sale-deed (Exh.D.6) was allegedly executed by Nawab Din in favour or Abdul Rashid and that the ejectment petition against Bashir Ahmad Nizami had been moved as a devious and underhand device by Abdul Rashid to take possession of the disputed shop.
20. Since the Feroze Din was in possession but was not a tenant of Nawab Din as admitted by Abdul Rashid in his plaint, notice must be imputed to him of Feroze Din's interest in the disputed shop and he was thus, put to inquiry which he did not undertake it follows that Abdul Rashid cannot claim to be a bona fide purchaser of the disputed shop as asserted by him. This is quite apart from the fact that the sale-deed (Exh.D.6) itself has not been proved as required by law. Only one of the marginal witnesses thereto, namely, Arif Hussain, who is a relative of Abdul Rashid, was examined in proof.
Furthermore, even the person who purportedly identified Nawab Din before the Sub-Registrar has deposed that when he appeared before the Sub-Registrar for identifying Nawab Din the sale-deed was returned without being registered. This witness also deposed that he was not present when the sale-deed ''was subsequently presented for registration and was, therefore, unable to say who had presented the document for registration.
21. Having considered in detail the respective claims asserted by Feroze Din, Abdul Rashid and Barkat Ali etc. I.Have reached the inescapable conclusion that Abdul Rashid and Barkat Ali etc. Have not only failed to prove the cases respectively set up by them, they have positively been shown to be false and dishonest. On the other hand, Feroze Din has been able to prove his case.
Even if there was an inconsistency in his testimony (referred to by the learned Courts below and noted in para.l1 above), such inconsistency was not of a nature which could discredit, in its entirety, the testimony of Feroze Din and his witnesses or which could negate the documentary evidence (Exh.P.I to Exh.P.7) produced by him. In any event, even if the Courts below had found this inconsistency to be material, they were obliged to weigh the cases set up by the three competing claimants to the shop, and to E determine, on balance, which party had the more plausible case.
Had this been done, Feroze Din undeniably would have succeeded on the basis of the available evidence which preponderantly, indeed overwhelmingly, favours him as against the other two contestants.
22. Unfortunately, the learned Courts below have adopted uneven standards while evaluating the cases of the there contesting parties. When considering the case of Feroze Din, they have applied the most stringent and exacting standard of proof of non-suit him. On the other hand glaring and patent lack or probity, as discussed above, on the part of Barkat Ali has been ignored by the trial Court and similar want of honesty on the part of Abdul Rashid has been glossed over by the Appellate Court.
23. Before parting with this judgment, I need to address a preliminary objection raised by learned counsel for Abdul Rashid against the maintainability of Feroze Din's case. He argued that the declaratory suit filed by Feroze Din was liable to be dismissed because he had not been able to prove conveyance of title in his favour. This argument was advanced on the basis that a mere agreement did not create title in favour of Feroze Din. Even if this contention is accepted, Feroze Din's suit was not liable to be dismissed because he had sought other reliefs which could have been granted. Feroze Din had sought a permanent injunction to restrain Abdul Rashid from interfering in his possession and had also prayed that the sale-deed (Exh.D.6) be declared ineffective to the extent of his rights in the disputed, shop and inoperative against him. Through the evidence produced on record Feroze Din has proved his entitlement to these two prayers. Abdul Rashid is, therefore, restrained permanently from interfering in Feroze Din's possession over the disputed shop, on the basis of the sale-deed (Exh.D.6). It is also held that the said sale-deed is inoperative against Feroze Din. There. Is another reason why the objection raised on behalf of Abdul Rashid cannot be allowed. Through this judgment, the suit for possession filed by Abdul Rashid has been dismissed. The sale-deed (Exh.D.6) has also been held to be inoperative against Feroze Din. In the circumstances, Abdul Rashid has no locus standi to raise the aforesaid objection. Only Nawab Din could have questioned the maintainability of a declaratory suit on the basis that title had not been conveyed. The L.Rs. Of Nawab Din, however, have chosen not to do so.
24. To sum up the foregoing discussion, the impugned appellate decree is set aside and the suit for possession filed by Abdul Rashid is dismissed. The suit filed by Barkat Ali, etc. Also stands dismissed.
The suit filed by Feroze Din is decreed to the extent that the other parties are restrained from interfering in his possession and the sale-deed (Exh.D.6) is held to be ineffective and inoperative against Feroze Din.
25. Feroze Din shall also be entitled to his costs throughout.