' This revision petition arises out of the suit instituted on 28th Juae, 1969 by Tasleem Jan and 9 others, his sons and daughters, against the present petitioners Khawaja Muhammad Naeem and others, legal representatives of Khawaja Mehtab-ud-Din Butt and the wife and children of Mahmood Jan deceased, one of the sons of the plaintiff No, 1, for a declaration that decree obtained on 19th April, 1969 by the legal representatives of Khawaja. Mehtab-ud-Din against the heirs of Mahmood Jan deceased in Suit No, 87/1 of 1969 titled as Khawaja Muhammad Naeem etc. v. Mst. Ghulam Fatima etc., in regard to ownership of the rear portion of shop No, 1067, situate at the Saddar Road Peshawar Cantt. Was based on a collusive and fictitious compromise, on fraud and misrepresentation and was, therefore, ineffective on the rights of the plaintiffs in the suit shop, as Mahmood Jan deceased, predecessor-in-interest of defendants I to 5 was not competent to sell more than his share in the said shop, a declaration to the effect that the plaintiffs were owners in possession of 20/22 share in the suit shop and for the grant of a perpetual injunction against the respondents (present petitioners) restraining them to act upon the impugned decree or to obtain the possession of the property under the said decree and to restrain defendants 1 to 5 from conveying the share of the plaintiffs in the suit shop to any person.
2. It was averred in the plaint that the plaintiff No, 1 Tasleem Jan in company with one Abdul Hakeem, his brother, had started a joint venture in Shop No, 1067 situate at Saddar Road, Peshawar Cantt under the style of "Tasleem Jan and Brothers." A little later by mutual agreement this firm was divided into two equal shares, that after the division between plaintiff No, 1 and his brother, the same plaintiff re-named the so-called firm as "Tasleem Jan & Sons", wherein he brought his children, the plaintiffs Nos. 2 to 10, and Mahmood Jan the predecessor in interest of defendants Nos.
1 to 5, who also was, his son, as partners and started the furniture business in the said shop. It was further averred that the late Mahmood Jan son of plaintiff No, 1 was only one out of them all, who was an educated person and, therefore, the business and its mints were under his management and control; that on 8th of August, 1961, plaintiff No 1 had from the income of the said shop got the building of the shop, which was an evacuee property transferred as industrial concern in the name of the firm Tasleem Jan & Sons and obtained the Provisional Transfer Order and the Permanent Transfer Deed in respect thereof from the Settlement Department of the Government of Pakistan. It was also alleged that deceased Mahmood Jan surreptitiously contracted to sell half of the shop consisting of its back portion to Khawaja Mehtab-ud-Din, the predecessor-in-interest of the petitioners, for the consideration of Rs, 10,000 and got the agreement to this effect registered on 28th July 1961 even before the issuance of the Provisional Transfer Order and obtained the thumb impression of plaintiff No, 1 on the said deed by taking advantage of the illiteracy and old age of the said plaintiff that on 8th of August, 1961, the P.T.O. Respecting the said shop was issued by the Settlement Authorities in the name of Tasleem Jan & Sons, which was followed by the P.T.D. On 28th September 1966 after the transfer price was paid that the said Mahmood Jan died on 4th of April, 1964 and was succeeded by defendants 1 to 5 : that the petitioners in collusion with defendants 1 to 5, the legal representatives of Mahmood Jan deceased brought a collusive suit in the Court of the Senior Civil Judge, Peshawar on the basis of the said agreement to sell, wherein the plaintiff No, 1 and his children were intentionally not impleaded as defendants and obtained a decree, on 19th April 1969, on the basis of a compromise in regard to ownership in the half of the property, which was much more than the actual share of deceased Mahmood Jan, which came to only 2/22 in the whole shop. It was further claimed that the plaintiffs, as partners in ownership, were in possession of the shop. The impugned decree was assailed on the grounds reflected in the prayer noted above.
3. The suit was hotly contested by both the sets of the defendants, namely the legal representatives of the deceased Mahmood Jan and the present petitioners. The case of the defendants was that the deceased Mahmood Jan was the proprietor and full owner of the business styled as "Tasleem Jan & Sons", which was so named as a mark of respect and affection which Mahmood Jan felt for his father and brothers. That the suit shop was transferred to Mahmood Jan as owner of the said concern and that the whole transfer price was paid by him. It was, therefore, alleged that the said Mahmood Jan was fully competent to convey the half of the shop in its back portion to the predecessor-in-interest of the petitioners and that the impugned decree was not obtained as a result of collusion, fraud or mispresentation but was otherwise fully justified and was the result of a genuine transaction between the said Mahmood Jan and the predecessor-in-interest of the petitioners. It was further contended that under the agreement to sell the possession of the back portion of the suit shop was delivered to Khawaja Mehtab-ud-Din by Mahmood Jan, who was since then in possession of the same and had re-built the shop about 14/15 years prior to the institution of the suit, which was within the knowledge of the plaintiffs. On the legal plane several objections as to the competency of the suit and to the deficit valuation of the suit in respect of jurisdiction and the court-fee etc. Were taken, which were fully reflected in the framing of issues by the learned trial Court.
4. The plaintiffs tendered into evidence the copies of Appendix IX, a notice of demand in respect of the suit property issued by the Settlement Department on 13th June 1961 to Tasleem Jan & Sons, a letter from the Additional Settlement Commissioner to the above-named business on dated 2nd September, 1966, asking them to produce a Clearance Certificate of the Government dues to enable the said office to issue a Permanent Transfer Deed; and the certified copies of the order of the Permanent Transfer dated 28th September 1966 and of the Provisional Transfer Order dated 8th August, 1961, and of the impugned decree. Also a reply to the above-mentioned letter of the Settlement Authorities by the plaintiffs. The defendant-petitioners amongst other documents placed on record the original agreement to sell, certified copies of the extracts from the Cantonment Assessm ent, Lists of the Properties, a certified copy of the order of the Court and a copy of the application of deceased Mahmood Jan addressed to the Deputy Settlement Commissioner, Peshawar, accompanying the submission of a number of compensation Books for adjustment in the transfer price of the shop in dispute. The suit of the plaintiffs succeeded on 21si.
March, 1970, in the trial Court by grant of a declaratory decree to the effect that they were joint- owners of 10/11 shares in die suit shop against the defendants.
5. Defendants 1 to 5, challenged the decree in the Court of the learned District Judge, Peshawar, while the present petitioners filed Cross-objections. The appeal and the cross-objections came up for hearing on 4th September, 1974, before Mr. Muhammad Ishaq Khan, District Judge, Peshawar and were dismissed by a common judgment of the said date.
6. The petitioners have come up on revision to this Court assailing the judgments and decree of the lower Courts on a number of grounds, out of which, important being that the suit of the plaintiff was not competent in the form it was instituted in that they were out of possession of the A disputed property and therefore a suit for mere declaration without seeking possession as a consequential relief was barred under section 42 of the Specific Relief Act and that the judgments and decrees were against the weight of evidence, rather the evidence was misread by both the Courts below and that the plaintiffs were estopped by their own conduct to seek the relief from the Court.
7. A preliminary objection has been taken on behalf of the plaintiffs-respondents to the effect that the plaintiffs were precluded from invoking the revisional jurisdiction of the Court on the ground that the decree of the trial Court was not challenged by the present petitioners by way of an appeal before the learned District Judge, Peshawar and they, therefore, were quite contended with the decree till such time as they received the notice of the appeal lodged by the legal representatives of Mahmood Jan deceased, the defendants 1 to 5 in the said Court, then only the petitioners filed a cross-objection. In other words, the contention of the learned counsel for the said respondents appears to be that when a party to the suit does not choose to file an appeal from the decree, that party, by necessary intendment, accepts at least a part of the decree as binding and correct. Such party as that cannot, later on, be allowed to challenge the whole of the decree by way of cross-objection in the appeal of another party. In my view, the contention is without substance. Order XLI, rule 22 of the Code of Civil Procedure, which allows a respondent to file Cross- Objections is in the following terms :- "(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow.
' In Ramasray Singh and others v. Bibhison Sinha and others AIR 1950 Cal. 372 a Division Bench of the said Court has on the similar objection held as follows:- "This right to file a cross objection is not limited in the way suggested by the respondent. If an appeal is filed the respondent to the appeal without filing any appeal can take cross-objection to the decree on any ground on which he could have filed an appeal."
' Relying on the above-noted case a Single Bench of this High Court in Khawar All Shah and 2 others v. Syed Murtaza Shah, Sub-Inspector, Police and others (1), on somewhat similar facts has Ileld "Under Order XLI, rule 22, C. P. C. Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could. Have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of the service on him or his pleader of notice of the day fixed for hearing the appeal or within such further time as the Appellate Court may see fit to allow."
8. Respectfully agreeing with the dictum of law laid down in th above-cited authorities, I am of the opinion, that the petitioners had a statutory right to challenge the whole of the decree before learned appellate Court by way of cross-objection even on the expiry of the period of limitation for filing an appeal, when other side of the defence did file an -appeal before the learned Appellate Court. This disposes of the preliminary objection of the respondents.
9. Now, coming to the merits of the case of the petitioners the onus probandi was on the plaintiffs to prove their contention of the ownership of the business known as "Tasleem Jan & Sons", which they have miserably failed to discharge. It is an admitted fact that it was only a business concern styled as such and not a firm of partnership registered under the Partnership Act. No deed of Partnership has been brought on record, indeed none even alleged to be in existence to show as to who was the owner of the business concern and what was the ratio of their shares in the said business. This could either have been proved by production of the business account or statement of Income-tax filed from time to time in regard to the business. The mere assertion of the plaintiffs that Mahmood Jan deceased being the only educated partner of the firm was responsible for maintenance of accounts and that all the 'accounts books, etc: were in possession of defendants 1 to 5, would not suffice in the absence of any attempt on the part of the plaintiffs to get the same produced before the Court for evidence by the defendants under the procedure laid down for such production. During the trial not a single attempt has been made by the plaintiffs to seek the assistance of the Court in getting those accounts produced. It this state of the matter, the presumption would be that either such accounts did not exist or the plaintiffs could not dare to get them produced before the Court to see the light of the day. The plaintiff No, 1, besides himself introduced P. Ws. Arifullah, Said Ahmad Shah, Ahmad Khan and Salar Mian Muhammad to prove the joint ownership of the plaintiffs with Mahmood Jan deceased in the concern. Their statements stand rebutted by the statements of Mst. Ghulam Fatima, defendant No, 1, the wife of the deceased Mahmood Jan, The father-in-law of the deceased and other witnesses. The witnesses of the plaintiffs do not inspire confidence, in that P. Ws. Said Ahniad Shah and Arifullah both admit that they had no business relations with the firm Tasleem Jan & Sons and were not aware of the position of Mahmood Jan in that concern. Similarly, Salar Mian Muhammad stated in the cross- examination that the plaintiffs came into the supervision of the business after the demise of Mabmood Jan. He also admits that Mahmood Jan was living in a separate (1) P I) 1969 Pesh. 203 house from that of his father and brothers with his wife and children during his lifetime. P. W.
Ahmad Khan in his statement alleges quite contrary to the stand of the plaintiffs themselves that Mahmood Jan deceased was only a paid employee and was working as a clerk. The plaintiff No, 1 admits that they were not paying any income-tax, nor the concern was a registered one. Also that no document was executed in respect of the business nor were there any letter-heads or other stationery of the concern. There is also a very significant admission on behalf of the plaintiffs in the evidence and the pleadings that an agreement to sell was executed and got registered on 17th July 1961, and that the petitioners were in possession of the rear portion of the shop since then and had rebuilt the shop about 10 years prior to the institution of the suit by the plaintiffs. It is also admitted that during all this long period the plaintiffs had not realised any rent from the petitioners nor was the plaintiff No, 1 aware for all this long period as to under what terms the property in question was being held and dealt with by the petitioners. The plaintiffs have alleged this fact in the plaint that the deceased Mahmood Jan got thumb-impression of plaintiff No, 1 on the agreement to sell and that it was got registered. The plaintiff No, 1 states in examination-in-chief that he was once taken to the office of the Sub-Registrar by his son Mahmood Jan deceased, where he was made to thumb impress a document, which was not read over to him and which he later on came to know was an agreement to sell the portion in dispute of the shop to the predecessor-in-interest of defendants 6 to 14.
10. Now an examination of the original agreement to sell, which has been placed on record by the petitioners as Exh. D.W. 2/1, reveals that this document does contain the thumb-impression of the plaintiff No, 1, as a witness to its registration by the Sub-Registrar. An endorsement of the registrar would show that in the presence of the plaintiff No, 1 and other witnesses before the said authority a sum of Rs, 5,000 in different currency notes changed hands from the defendants-petitioners to said Mahmood Jan and that the document was read over and explained to the parties in the presence of the witnesses by the said Officer. Now it does not stand to reason that the plaintiff No, 1 while witnessing the transaction would not come to know of the actual nature of the transaction, while witnessing the receipt of the consideration by his son Mahmood Jan. According to his own admission, he has remained a silent expectation of the transfer of the possession of the rear portion of the shop to defendant-petitioners and also when they rebuilt the shop, he did not object to the same. It leads one to the irresistible conclusion that the reason for the plaintiff No, 1 of silently witnessing these events and. Not raising any objection thereto was that during the life time of his son Mahmood Jan he had no connection whatsoever with the partnership of the shop in dispute and had allowed his son to act as full owner thereof. This presumption finds further support from the application of Mahmood Jan deceased, Exh. P. X/1, which was submitted by the deceased to the Deputy Settlement Commissioner, Peshawar, where under three compensation books of the verified claims of three different persons were submitted for adjustment towards the transfer price of the shop in question. This application is signed by Mahmood Jan as Proprietor of Tasleem Jan & Sons. Out of these three compensation books, one belonging to Hamid Ali claimant, is that which the said Mahmood Jan obtained from the predecessor-in-interest of the defendant-petitioners under the above-quoted agreement to sell, which was for a sum of Rs, 4,982. In addition to this book and the amount received in cash by Mahmood Jan before the Registrar, this deed- has a recitation of the receipt of Rs, 18 in cash by the executant alongwith that book which brought the figure of advance payment of consideration to Rs, 5,000. This deed also witnesses a statement of the executant that he is the full owner of the shop, which has been transferred to him and the P.T.O.
Of which is yet to be issued in his name. It also mentions the two other compensation books, which are mentioned in the application referred to above alongwith the third obtained from Khawaja Mehtab-ud-Din, the predecessor-in-interest of the defendant-petitioners, were submitted to the Deputy Settlement Commissioner, Peshawar for adjustment of the transfer price of the whole shop therefrom.
11. It is deplorable that both the Courts below have not bothered to examine the transfer documents of the shop in question minutely to ascertain as to whom the property was transferred. Copy of the P.T.O. Placed in evidence by the plaintiffs' themselves as Exh. P. W. 1/1, which has been made the basis of the judgment of the Courts below, contains the clear mention of the name of the transferee in its Schedule of transferees as "M/s. Tasleem Jan & Sons through Mahmood Jan son of Tasleem Jan, proprietor". Similarly a copy of the order of Permanent Transfer issued after the demise of Mahmood Jan by the Additional Settlement Commissioner, Peshawar, also shows the name and parentage of the transferee, in its relevant column in the following words :-- "Tasleem Jan & Sons through Mahmood Jan, Proprietor Furniture Manufacturer 1067 Saddar Road Peshawar Cantt."
' The above-cited two documents, which are the title deeds clearly establish that the whole shop bearing No, 1067 was transferred to Mahmood Jan son of Tasleem Jan as Proprietor of Tasleem Jan & Sons. Needless to say that these documents have been misread by both the Courts below in coming to the conclusion that the shop No, 1067, of which the suit portion is a part was transferred to Taslim Jan & Sons, the business concern. It is also established from the above narration of facts that a part of the transfer price was obtained from the predecessor4n-interest of the petitioners by Mahmood Jan in consideration of the sale in the form of a Compensation Book of Hamid Ali a claimant. As regards Exh. P. W. 6, which is a letter addressed by the Additional Settlement and Rehabilitation Commissioner, Peshawar to Tasleem Jan and Sons, which has been placed as proof of ownership of the said concern by the plaintiffs, suffice it to say that it is dated 7th September, 1966, i,e, about two years after the death of Mahmood Jan and has been sent .In reply to the application of the plaintiffs whereby the issue of the Permanent Transfer Order was prayed for. By this document, they have been asked to produce the Clearance Certificate to the effect that no Government dues were payable. The Permanent Transfer Deed, which was issued subsequent to this letter contains, as stated above, the name of Mahmood Jan as Proprietor of the said concern.
The document under reference, therefore, would be of no avail to the plaintiffs. The defendant- petitioners have placed on record the certified copies of the extracts from the Assessment Lists of the Properties situate in Peshawar Cantt. For the periods 1st July, 1962 to 30th June, 1970 wherein the name of Khawaja Mehtab-ud-Din their predecessor-in-interest has been entered as an owner of portion of shop No, 1067, which is a clear proof of his possession as an owner of the suit portion since 1962. This state of the Cantonment Record, coupled with the admission of plaintiff No, 1 that the suit portion of the shop was re-constructed by the said Khawaja Mehtab-ud-Din about ten years prior to the institution of the suit goes a long way to establish that shop No, 1067 was got transferred by Mahmood Jan, the predecessor-in-interest of defendants 1 to 5, in his own name as sole Proprietor of the business concern Tasleem Jan & Sons and that the plaintiffs had no right or interest therein as co-owners.
12. As regards the contention of the petitioners that the suit was not competent, in its present form, it may be pointed out that the property in suit was admittedly not in possession of the plaintiffs. The findings of both the Courts below are also to this effect. It is therefore, clear that the plaintiffs, not being.In possession could not seek a mere declaration of title without asking for possession as a consequential relief. The suit was, therefore, barred under section 42 of the Specific' Relief. Act and the findings of the Courts below on the issue of the competency of the suit cannot be upheld.
13. The learned counsel for the Respondents has relied on Sultan Ahmad v. Mustafa Khatoon (1) in his contention that finding of fact not based on misreading of evidence nor on mere surmises and conjectures cannot be disbelieved in Second Appeal, and has urged that the instant matter being a Revision petition which has more limited scope, the findings of the Courts below, in regard to the joint ownership of the plaintiffs with defendants cannot be assailed in these proceedings. The Federal Court Decision in Abdul Majeed and others v. Khalil Ahmad (2) has also been quoted on behalf of, the Respondents in support of the contention that concurrent finding of facts of lower Courts, even though it may be erroneous cannot be upset by High Court in Second Appeal.
14. I am in respectful agreement with the proposition of law laid down in the above-mentioned authorities, but 1 am afraid none of these comes to the aid of the respondents. In the Federal Court decision a very important proviso has been attached to the proposition that it would be so when the evidence is considered by the Court. In the instant case, it is not only the evidence in the form of P.T.O. And P.T.D. Which has been misread but a very important piece of evidence .Consisting of the duly proved copy of the application of the deceased Mahmood Jan Exh. P. K/1, referred to above has been kept out of consideration. Also the record of the impugned decree which was assailed in suit and which was before the Court has not been looked into. This record contains a certified copy of the Permanent Transfer Deed issued on 28th September. 1966 which clearly shows the name of Mahmood Jan as Proprietor of "Tasleem Jan & Sons" as the transferee in whose favour it is issued. 1 hese authorities are therefore, of no avail to the respondents.
' In view of the above discussion, I am constrained to hold that the judgments and decrees of both the Courts below are not sustainable. Consequently, this revision petition is accepted and the decrees and judgments of both the Courts below are reversed. The suit of the plaintiffs fails and is.
Therefore, dismissed with costs throughout.