' MIAN SAQIB NISAR, J.--- The instant revision petition as also Civil Revision No,529 of 2000, are being disposed of together, as both involve common questions of law and facts. #TBS [Vol. VIII #TBE
2. The dispute between the parties, relates to a shop; the petitioner brought a suit for declaration claiming to be the owner of the disputed shop on the basis of the document Exh.P.1 dated 27-2- 1974, whereby Muhammad Malik, had sold the shop in his favour; while the respondents filed a separate suit alleging that the disputed property was in fact originally owned by Sheikh Umer Din and the petitioner was put in possession of the property as tenant under them and therefore, they sought the possession of the same; both the suits were consolidated; learned Civil Judge allowed the suit of the petitioner and dismissed that of the respondents through judgment and decree dated 25-5-1988. Against the above, the respondents filed appeals and judgment and decree have been reversed. The learned Court of appeal has come to the conclusion that the document Exh.P.1 is unregistered document and therefore, confer no right upon the petitioner, which has been only executed by Muhammad Malik one of the co-owners of the property, who could not have sold the share of the other cosharers/respondents; no sale-deed on the basis of the document Exh.P.1.
Has been finally executed. Moreover, the property in issue is part of the property purchased by Sh.
Umar Din vide registered sale-deed Exh.D.1 in the year 1948, which was rented to the petitioner as tenant and therefore, the petitioner is liable to surrender the possession of the property to the landlord.
3. Learned counsel for the petitioner contends that the learned Court below has absolutely misinterpreted the Exh.D.1, the registered sale-deed. According to which, the boundaries of the property, on three sides, comprises of streets/roads and on the 4th side, is the house belonging to Sh. Umer Din and Molvie Ghulam Mustafa, whereas from the site plan submitted by the respondents, along with the plaint, the boundary are altogether different. It is also submitted that there is no proof of the fact that the property was ever rented out to the petitioner through any document. Besides there is no documentary evidence on the record about the payment of the rent by the petitioner to the respondents, resultantly, the appellate Court has grossly erred while holding that the property in question is part of the house purchased by Sh. Umer Din, predecessor-in- interest of the respondents.
4. Confronted with the above, learned counsel for the respondent states that Muhammad Malik, is one of the legal heirs of Sh. Umer Din and it has not been shown by the petitioner that he was the exclusive owner of the suit property and thus, could independently sell the same; undoubtedly the property is part of the property belonging to Sh. Umer Din and was jointly owned by the respondents as well. When particularly questioned, learned counsel has failed to connect on the basis of Exh.D.1, registered sale-deed in favour of Sh. Umer Din that shop forms part thereof. He states that Veranda, which find mention in the sale-deed Exh.D.1, in fact has been converted into the shop and Muhammad Malik has allegedly sold it to the petitioner. Suffice it to say that if the boundaries of this Veranda are considered in the light of Exh.D.1 and also the site plan appended by the respondents, along with the plaint, these do not tally at all. The other evidence is not reliable enough to establish that the property in dispute is the one, purchased by Sh. Umer Din through Exh.D.1. There is no written document about the tenancy of Sh. Umer Din or his legal heirs in favour of the petitioner. Moreover, it has not been proved that the petitioner has been making the payment of the rent, to the respondents, therefore, notwithstanding that Muhammad Malik had any exclusive title to the property or not, but is clear that the suit property has not been established by the respondent to be joint property, being originally owned by Sh. Umer Din. The onus in this regards was on their shoulder. Learned Court of appeal has failed to consider these important aspects of the matter and thus, the judgment and decree being based upon misreading and non- reading of the record cannot be sustained.
' In the light of above, by allowing this petition, the judgment and decree impugned is set aside with the result that by upholding the judgment and decree of the trial Court, the suit of the petitioner is decreed, whereas that of the respondents is dismissed.