JUDGMENT MAULVI ANWAR-UL-HAQ, J.- On 15.3.1984, the respondent filed a suit against the petitioners, In the plaint it was stated that a residential house on an area of 1 maria and 6 sarsais, described in para-1 of the plaint, was an evacuee property which was transferred to the respondent as a building site on the basis of his possession. A PTD has also been issued on 9.12.1966. According to him his parents died when he was a child. Petitioner No. 1 is his uncle while petitioner No. 2 is the son of the petitioner No. 1. He was brought up by them in the said house. 14/15 years ago after attaining majority he left for Karachi and started business there but kept on coming to Sahiwal from time to time. He then went abroad to work for gain and had retuned two months ago. He is married having four children and he wants to accommodate his family in Sahiwal. He requested the petitioners to shift in their own house located in the same colony but they refused to do so. They also claimed that they have a writing issued by the petitioner whereby they will not leave possession. With these averments, he sought a decree for possession of the suit property. The petitioners in their written statement proceeded to state that they have themselves constructed the house at the plot and in the same breath it was stated that they have paid price i.e. Rs. 9000/- to the respondent and that they are in possession since 1970-71. On merits it was stated that the parents of the respondent migrated to Pakistan in 1950-51 and took up residence with them. They died soon thereafter and the petitioners got the respondent admitted in school and brought him up and got the plot measuring 1 maria 6 sarsais transferred in his favour on 7.10.1960. Price was paid in 1961 and after payment a permanent sale- deed was got issued on 16.8.1969. The respondent was to send power- of- attorney to facilitate transform of the house but he developed grudge against them regarding payment of Rs. 9000/- and filed the suit, It was further stated that they are in possession of a writing made by the respondent and the payment was made through Bank. Issues were framed. Evidence of the parties was recorded. Learned Trial Court decreed the suit on 25.9.1991 while the learned Addl. District Judge, Sahiwal dismissed the first appeal filed by the petitioners on 12.12.1995.
2. Learned counsel for the petitioners contends that it stood proved on record through authentic evidence that the property was purchased by the petitioner from the respondent for a sum of Rs.
9000/- and the said payment was made to him through cheque. He also placed implicit reliance on letter mark. "A", allegedly written by the respondent. At the same time relies on Section 60 of the Easement Act and further on the judgment in the case "Jagat Singh and others vs. District Board Amritsar (AIR 1940 Lahore 509) and "Davaram and others vs. Deorao and another (AIR 1926 Nagpur 376) to urge that the petitioners being licensees and having raised permanent structure, the respondent is not entitled to revoke licence issued to them by him for residing in the house.
Learned counsel for the respondent, on the other hand, contends that admittedly the respondent is owner of the suit property and the sale pleaded by the petitioners has not been proved. As to the said later contention, learned counsel states that apart from the fact that it stands proved on record that the house was constructed by the respondent or his late father, there is not even an allegation anywhere on the record that the house was constructed with the permission of the respondent. He further points out that it has come on record that admittedly the respondent was a minor at a point of time when he is stated to have sold the property to the petitioners and the alleged construction.
3. I have gone through the copies of the records with the assistance of the learned counsel for the parties. I have already reproduced above the material contents of the pleadings pf the parties.
There is no manner of doubt in my mind that it stands admitted in the pleadings, that the respondent was a child when his parents migrated to Pakistan. Some time thereafter both the parents died. The property was transferred to the respondent against the entitlement of his father or his own entitlement and further that he was in fact brought up by the petitioners who are his close relatives.
4. Now I have examined the evidence. Fakhar- ud-Din appeared as attorney of the respondent to state that the house was transferred to the respondent. His father died in the same house when he was a child and the house was transferred to him and that the petitioners started residing in the house along-with him. What I want to point out is that this witness was cross-examined at some length and not a single question was put to him suggesting that the respondent ever sold or agreed to sell the house to the petitioners. I have duly confronted the learned counsel for the petitioners with the said, state of affairs and he is unable to say any thing. Now coming to the evidence of the petitioners it is true that it has come in the statements of Syed Zahid Hussan, officer of Habib Bank DW-1, Adnan Asghar of the same Bank DW.2, Malik Muhammad Anwar of the same Bank DW-3 that the cheque and draft were transacted though their Bank but they were unable to state that the amount was credited to the respondent. Now Bashir Ahmad, petitioner No. 2, appeared as D.W. 12 on 2.7.1990. He proceeded to state that he and his father have been residing in the house since 20 years and prior to that as well plot was in their possession. The respondent is a collateral and in the year 1964-65 sold away the plot to them for a sum of Rs. 9000/- and went away. The payments was made later on through a cheque of Rs. 4000/- and a draft of Rs. 5000/-.
Construction was raised 20 years ago. Now in his cross-examination he proceeded to stated without any demur as follows:- {{Urdu Text}} Further he was confronted and he stated as follows:- {{Urdu Text}}
5. Apart from the said admissions by the petitioners, the petitioners themselves produced the records of the school wherein the respondent had been studying, through .Muhammad Iqbal, School teacher DW-5 who produced Ex. D. 5, the admission form and stated that the date of birth of respondent is 25.4.1949. It, therefore, stands established on record that in the year 1964-65 when the sale is stated to have been effected, the respondent, in fact, was a minor.
6. Now I have gone through the said letter mark "A" and I find that by no stretch the contents of the said letter can be stated to be acknowledgement of sale or any alleged tile of the petitioners.
7. Now so far as the said argument of the learned counsel based on Section 60 of Easements Act is concerned, nothing turns on the same in view of the circumstance of this case glaring oh the face of the record. According to the petitioners the house was already existing. The respondent was residing in the same when his parents died. The petitioners took up residence therein and brought up the child. Apart from this a license, coupled with interest, has not at all been pleaded by the petitioners. On the other hand, their case is that the property was sold to them by the respondent in the year 1964-65 which fact is not proved and even it be assumed that some sale was made then the same is void for the reason that the respondent was admittedly a minor at- the said point of time. Apart from this learned counsel for the respondent is very right in alleging that there is no allegation that it was with prior consent of the respondent that they constructed the house even if it be assumed that they did so.
8. For all That has been discussed above, I do not find any force in this C.R. Which his accordingly dismissed without any orders as to costs.