' JAWWAD S. KHAWAJA, J.--- Naveed Ahmad, petitioner/defendants, impugns the concurrent decrees of the learned trial Court dated 25-10-2004 and of the learned appellate Court dated 17-11- 2005 whereby a declaratory suit filed by respondents Nos.1 to 5, who are the L.Rs, of Muhammad Iqbal, deceased, has been decreed.
2. The present dispute is only between the petitioner/defendant and the L.Rs, of Muhammad Iqbal.
The subject-matter of the dispute is a shop in Godhpur, Mohallah Munshian, Tehsil and District Sialkot.
3. In order to appreciate the controversy between the parties, it is necessary to set out the brief facts of the case. One Muhammad Ali was the owner of certain property, which included the disputed shop. According to the petitioner, during his lifetime Muhammad Ali divided his property into three portions, which were then occupied by his three sons, namely, Muhammad Iqbal (predecessor-in-interest of respondents Nos.1 to 5), Muhammad Ishaq (respondent No,6) and Muhammad Razzaq (respondent No,7).
4. Vide registered sale-deed dated 7-12-1995, the petitioner purchased the disputed shop from Muhammad Ishaq.
According to the petitioner, at the time of purchase, the shop was occupied by Ashiq Hussain, who was the tenant of Muhammad Ishaq. The said Ashiq Hussain also appeared as D.W.1 and deposed that he was originally a tenant of Muhammad Ishaq and was paying rent to him and after the purchase of the shop by Naveed Ahmad, petitioner, he had started paying rent to him. Muhammad Iqabl, however, filed his declaratory suit out of which this petition has arisen claiming that he was owner in possession of the disputed shop. He also assailed the sale made by Muhammad Ishaq in favour of the petitioner.
5. Based on the pleadings of the parties, the learned trial Court framed as many as 8 issues.
However, issues Nos.4 and 6 are dispositive of the present petition. These issues were framed in the following terms:-- "4. Whether the plaintiff is owner in possession of the suit shop? OPP."
"6. Whether the impugned sale by the defendant No,3 is illegal, void and ineffective upon the rights of the plaintiff and is liable to be set aside? OPP."
6. Learned counsel for the petitioner contends that the petitioner is now in possession after Ashiq Hussain vacated the shop in dispute. He has argued that on basis of the testimony of Ashiq Hussain (D.W.1) and the petitioner's own testimony, coupled with the fact that the shop is presently in his occupation, it is clear that the averment made by Muhammad Iqbal in the plaint that he was in possession of the disputed shop is false.
7. There is in fact no dispute that the respondent/plaintiff was not in possession of the disputed shop. In para-18 of the appellate judgment this question has been brushed aside simply on the basis that even if Muhammad Iqbal was not in possession, the Court could grant the relief of possession. This observation does not take note of the falsity of the case set up by Muhammad Iqbal and the relevance of possession in the context of the case. The fact that Muhammad Iqbal was not in possession of the disputed shop, strongly supports the contention of the petitioner that the shop fell in the share of his vendor, Muhammad Ishaq, and, therefore, was lawfully conveyed by Muhammad Ishaq to him.
8. It is also not in dispute that Muhammad Ishaq along with Muhammad Iqbal and Muhammad Razzaq inherited the property originally owned by their father Muhammad Ali. In the circumstances, even if it is assumed that there was no formal partition of the property between the three brothers, the sale of the shop by Muhammad Ishaq in favour of the petitioner was valid and unassailable. At best, in such eventuality, Muhammad Iqbal may have had some basis for filing a suit for partition.
There is no basis appearing on the record for the finding of the Courts below that the sale in favour of the petitioner was illegal.
9. Learned counsel appearing for respondents Nos.1 to 5 contended that the property, originally owned by the father of the three brothers, had been partitioned between the brothers, who had thereafter taken possession of their respective portions. It was argued that the petitioner could not assert any title in the disputed shop because the said shop fell in the share of. Muhammad Iqbal (predecessor-ininterest of respondents Nos.1 to 5).
10. The contention of learned counsel for the said respondents cannot be accepted for a number of reasons. Firstly, it is worth noting that there is no deed wherein the partition of the property between the three brothers was recorded. In these circumstances, if a de facto partition was put in place between the three brothers without a formal partition deed, the question of possession would assume critical significance.
11. As discussed above, the possession of the petitioner over the shop in question is not in dispute.
Learned counsel for the respondents was asked to explain how the petitioner came to be in possession of the disputed shop if, indeed, Muhammad Iqbal and the two other brothers had taken possession of separate portions of their father's property, and if the disputed shop was comprised in the portion which fell to the share of Muhammad Iqbal. Learned counsel for the respondents could not offer any satisfactory explanation. He stated that Ashiq Hussain (D.W.1) was a tenant of Muhammad Iqbal, but had been forcibly dispossessed by the petitioner with the aid of the police.
This story, however, cannot be believed because it finds no mention in the plaint. Para.11 of the plaint is relevant. It has been averred therein that the petitioner Naveed Ahmad had been threatening to take possession of the disputed shop to which he had no right. There is no mention, at all, of Ashiq Hussain as a tenant or the fact that Ashiq Hussain was dispossessed by the petitioner with police assistance.
12. In addition to the above, I need to note that the petitioner Naveed Ahmad is an outsider, who is not supposed to know of any informal partition between the three brothers. He purchased the disputed shop through a registered sale-deed for valuable consideration from Muhammad Ishaq.
The constructive possession of Muhammad Ishaq through the tenant Ashiq Hussain (D.W.1) and thereafter the constructive possession of the petitioner through the same tenant has been established through the testimony of D.W.1. This was followed, undeniably, by the actual physical possession, which is now with the petitioner.
13. Unfortunately, the learned Courts below have ignored the law and the facts brought on record as discussed above. They have fallen in serious error by deciding Issues Nos.4 and 6 in favour of the respondent/plaintiffs. The impugned decrees, as such, are not legally sustainable and are set aside. As a consequence, the suit filed by the respondents/plaintiffs is dismissed. The petitioner shall be entitled to his costs throughout.