MUHAMMAD MUZAMMAL KHAN, J.--- This civil revision assails judgment and decree dated 22.1.2003 passed by learned Additional District Judge, Sargodha whereby appeal of the respondents was accepted and suit of the petitioners was dismissed by setting aside judgment and decree dated 28.10.1987 passed by the Trial Court.
2. Precisely, relevant facts are that the petitioners filed a suit for declaration with permanent injunction as consequential relief, through petitioner No. 1 as their attorney, averring that they are owners in possession of property No. 14-C, Satellite Town, Sargodha and the respondents had no concern wherewith as the same was exclusively owned by their predecessor Mian Feroze Din, on whose death it devolved on them by succession from him. The petitioners also pleaded that initially Plots Nos. 311, 312 and 313 were allotted to Mian Feroze Din, Miraj Din and lnayat Ali the real brothers which were got cancelled and instead Plot No. 14-C, was got allotted but two of the brothers i.e. Miraj Din and lnayat Ali expressed their inability to share the constructions over the plot and practically, relinquished their rights in favour of the 3rd brother namely Mian Feroze Din, their predecessor. According to assertions in the plaint, Feroze Din deceased, by bearing all the departmental expenses for allotment of the plot, got'the site plan sanctioned and raised construction there over, out of his own resources and that, all the utility connections like electric/water supply etc. Were in his name and be obtained a building loan from the House Building Finance Corporation which was repaid by him and thus, Miraj Din was exclusive owner of the house and names of his two other brothers appeared in the record just as "Benamidars".
According to the petitioners, the respondents interfered in this ownership/possession which necessitated filing of suit, with the prayer of issuance of permanent injunction, restraining them .
From interfering in possession/ownership of the petitioners, by any means whatsoever.
3. Lnayat Ali one of the brother, being defendant No. 1 and other respondents being defendants No. 2 to 11 as descendants of Miraj Din contested the suit by denying the allegations in the plaint, by filing their separate written statements wherein certain preliminary objections were also raised. Controversial pleadings of the parties, necessitated framing of issues and recording of evidence. The learned Civil Judge cognizant of the suit, after doing the needful, out of his appraisal of evidence, decreed the suit of the petitioners vide his judgment and decree dated 28.10.1987 declaring the petitioners as exclusive owners of the house in question.
4. The respondents aggrieved of the decision of the Trial Court dated 18.10.1987 filed an appeal before the learned Additional District Judge, Sargodha where they succeeded as their appeal, was accepted, judgment/decree of the Trial Court was set aside and suit of the petitioners was dismissed with costs vide judgment/decree dated 22.1.2003. The petitioners aggrieved of the appellate judgment/decree filed instant revision petition which was admitted to regular hearing and after completing of record, the same has now been placed for final determination. The respondents are represented through their counsel.
5. Learned counsel for the petitioners submitted that practically the two other brothers of predecessor of the petitioners i.e. Mian Feroze Din, had relinquished their rights in the Plot No. 14-C, Satellite Town, Sargodha and allowed him to raise a house there-over out of his own resources where all the utility connections, stood in his name, the building loan was sanctioned and repaid by him and the respondents never asserted any right thereto but a contrary view taken by the Appellate Court is not in accordance with the evidence on the file thus, the same is not sustainable.
He further contended that names of the two brothers of predecessor of the-petitioners, continued to remain in office of the concerned department, as "Benamidars" because all the three brothers depended on each other. According to him., the benami brother had surrendered their rights, if any in the plot beneath the house which they cannot be permitted to reclaim, after lapse of decades. It 'was also asserted on behalf of the petitioners that the brothers out of family settlement, allowed Mian Feroze Din to remain/continue as an owner of Plot No. 14-C, of which he had become owner under this arrangement and suit of the petitioners was rightly decreed by the Trial Court but a contrary view taken by the Appellate Court deserved to be adjudged.
6. Learned counsel appearing on behalf of the respondents, refuted the arguments of the petitioners and supporting the appellate judgment, urged that there is absolutely no evidence on the file with regard to surrender of ownership rights in the plot in question by the predecessors of the respondents and at the same time, family settlement among them, did not flow out of the file, thus, the same was correctly not acted upon by the first Appellate Court. He further elaborated his arguments by saying that assuming for the sake of arguments that there was some surrender of rights by the two brothers or there was some family settlement but it could not have been relied for decree in favour of the petitioners, as the same according to their own showings, was without consideration and thus, was void as held by the Hon'ble Supreme Court of Pakistan in the case of Sardar Din v. Mst. Khatoon and others (2004 SCMR 1102). He further argued that property subject of suit being admittedly located within the municipal limits and being above the value of Rs. 100/- ownership rights, therein could have been alienated/transferred through some instrument in writing, registered in accordance with the provisions of Registration Act but this not being the case of the petitioners, no right in such property stood extinguished, on the basis of verbal transferred as claimed by them. In this behalf reliance was made on the judgments in the cases of Muhammad Amin and 5 others v. Muhammad Latif (1987 CLC 2358) and Muhammad Saeed v. Mst. Nahid Shagufta and 3 others (PLD 1990 Lahore 467). The learned counsel for the respondents assertively relied on a document of the petitioners Ex.P. 1 which is a power-of-attorney executed by two brothers i.e. Inayat All and Miraj Din in favour of Mian Feroze Din in which it was acknowledged that all the three brothers are owners in the plot in question. According to him Ex.P. 1 having been executed on 8.3.1980 earlier to the institution of the suit in hand which was filed on 13.10.1981, not only negated the stand of the petitioners but also proved that Mian Feroze Din predecessor of the petitioners had only an interest to the extent of 1/3 share.
7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. According to the petitioner/plaintiffs themselves, originally three plots in the C.LJ respective names of all the three brothers i.e. Plots Nos. 311, 312 and 313 were allotted which were surrendered and in lieu thereof, one plot No. 14-C, Satellite Town Sargodha was allotted by the Secretary, Housing Committee; Sargodha (respondent No. 13). It means that plot in question was allotted against the same consideration which was paid for the three plots. It is also not denied that the subsequent allotment of one plot, was in the names of all the three brothers. No written relinquishment or settlement-deed was executed between the three brothers and under the rules of the allotting authority, any transfer/alienation by the allottee was to be made by the intervention of the Housing Department. Besides this control of the housing authority, such transaction had to be in writing and through a registered instrument as mandated by the Hon'ble Supreme Court in the case of Sadar Din (Supra) thus, claim of the petitioners regarding allotment of the plot in the names of other two brothers of late Mian Feroze Din rested on mere verbal assertion which, even otherwise, is not borne out from the record. There is voluminous evidence on the file which shows that Plot No. 14-C, Satellite Town, Sargodha was originally allotted in the names of three brothers and continued in their names after deposit of its cost of Rs. 1920.5 as reflected in documents Ex.P. 8 and Ex.P.
9. The application filed by the allottees where-under an agreement was executed between them and the department through its Secretary on 26.5.1959 also proved that his plot was in the ownership of all the three brothers with equal share of 1/3 each. Loan for construction of house was sanctioned by the House Building Finance Corporation in the names of all the three brothers and the mortgage-deed Ex.P. 1/1 was inscribed by Mian Feroze Din on his own behalf and as attorney of the other two allottees. For the purpose of loan, a special power-of-attorney was executed by Inayat Ali and Miraj Din in favour of Mian Feroze Din on 18.7.1961 acknowledging joint ownership of the three allottees. Besides power-of-attorneys dated 13.9.1956 Ex.PW/7/2 and Ex.PW/7/3 there is another registered power-of-attorney Ex.P. 1 executed on 8.3.1980 which has been produced by the petitioners themselves and shows that all the three had 1/3 share in the house. Attempt of the learned counsel for the petitioners to build his case on the basis of an affidavit of lnayat Ali Ex.PW. 4/A that constructions were raised by Mian Feroze Din exclusively, is of no help to the case of the petitioners for multiple reasons. Firstly, on the ground that this affidavit was not acted upon because housing department before whom it was filed passed no order thereon, excepting it and for the second reason that it was not a document, parting with any share in the plot and at the same time, it was not registered. To my mind, registered power-of-attorney dated 8.3.1980 executed amongst them, just before the institution of the suit in hand clinches the controversy because after two decades of construction of house, share of all the three brothers to the extent of 1/3 share each in the house was acknowledged by the petitioners themselves. Besides all this, all the three stands taken by the petitioners that of surrender of rights by two brothers in favour of the 3rd family settlement among them and "Benami" ownership of two brother, are self- contradictory and self-destructive because if the two brothers were benami owners of the plot in dispute, then they could not surrender their rights and similarly, there could not be any question of any family settlement between the real owner and the "Benamidars". For this reason, as well, I am not persuaded to hold that the appellate judgment/decree suffered from any illegality.
8. Though learned counsel for the respondents aptly relied on the judgments in the cases of Muhammad Amin and 5 others (supra) and Muhammad Saeed (supra) to contend that alienation/surrender/family settlement within the municipal limit could not take place without a registered document. Utility bills produced by the petitioners to show that Mian Feroze Din was exclusive owner of the house where those utility connections were sanctioned in his name, I find that on the basis of these bills, the relief claimed cannot be granted. Mian Feroze Din was the eldest brother in whose life-time, it is not unusual that the utility connections were installed and bills thereof, were used in his . Name, specially when history of the case shows that all the three brothers after having the respective plots cancelled, got on joint plot allotted in the names of three brothers. This is common, in a joint family system that elder of the family, enjoys administrative control of the property and holds it for the benefit of the others co-sharers, as well. These bills, thus do no convey that two other brothers stood excluded from the property in dispute. A co-sharer in the joint property, is neither stopped for claiming his share therein, nor his this right can be extinguished by lapse of time and at the same place, his sleeping over would not exclude him from the property, as claimed by the petitioners.
9. For the reasons noted above, I have no hesitation to hold that the Appellate Court took a lawful view of the matter and returned correct findings in support of his judgment which are absolutely in consonance with the evidence on the file. Neither any part of the record was misread nor any illegality/irregularity was committed by the first Appellate Court, amenable to revisional jurisdiction. This revision petition has no merit in it and is accordingly dismissed with costs.
Civil Revision .