' JAWWAD S. KHAWAJA, J.-The petitioner Muhammad Sadiq and the respondents Nos.l to 3, namely, Muhammad Yousaf, Shamim Akhtar- and - Tasleem Akhtar are brothers and sisters inter se Kishwar Bibi (respondent No.4) js .The wife of the respondent Muhammad Yousaf, while Byshra Bibi (respondent No.5) is the daughter of Muhammad Yousaf and Kishwar Bibi.
2. The petitioner impugns the concurrent decrees of the learned trial Court dated 8-4-2006, and of the learned appellate Court dated 24-7-2006 whereby a declaratory suit filed by the petitioner- plaintiff has been dismissed.
3. The dispute in this case relates to the eastern one half portion of Property No.B-IV-15-18 comprising of a shop and Chobara situated in Main Bazar Sheikhupura. The western one half of the property is owned by the above named brothers and sisters. The case of the petitioner is simple.
According to him, the suit property was originally owned by Manzoor Ahmad who, after receiving consideration, sold the same to the four brothers and sisters jointly. A sale-deed was not executed but instead a power of attorney was taken in the name of the respondent Muhammad Yousaf who was the eldest in the family. Subsequently, on 4-1984, the said Muhammad Yousaf executed a sale deed in favour of his wife Kishwar Bibi (respondent No.4) but kept this transaction concealed from the petitioner and his two sisters. At this point it is relevant to note that the petitioner claims in his testimony as P.W,-5 that he is in occupation of the disputed property and has been in possession thereof for sixty years.
4. The petitioner, apart Trorm his own testimony, produced three non-family witnesses Shamim Akthar (respondent No.2) also appeared as P.W.-4. These witnesses corroborated the case set up by the petitioner-plaintiff. On the other hand, although respondent Nos.l, 4 and 5 submitted a joint written statement wherein they averred that Kishwar Bibi had purchased the property out of her own resources, the said Kishwar Bibi did not enter the witness box either to confirm purchase of the suit property or to depose as to her own financial resources out of which she purchased the suit property.
5. Learned counsel for the petitioner has argued that the above material circumstances, have not been taken note of by the learned Courts below who have proceeded simply on the ground that the petitioner had asserted that Kishwar Bibi was merely a benami owner but had failed to prove this assertion. Learned counsel for the petitioner contends that the learned Courts below have misdirected themselves because the case of the petitioner was that the four brothers and sisters continued to be the owners of the property having purchased the same jointly from Manzoor Ahmad and that the sale-deed dated 4-1984 in favour of Kishwar Bibi (respondent No.4) was effected fraudulently with the object of depriving the petitioner and his two sisters from their rights in the suit property.
6. Learned counsel for the respondents Nos.l, 4 and 5 was not in a position to advance any sound arguments to controvert the above submission. He stated, however, that Kishwar Bibi was not well and, thereof, did not appear in Court as a witness. To Support his submission, he also referred to a document (Mark-A) which appears to be a medical report. It is important to note that the report is dated 24- 6-2002 ' while the testimony of the witnesses of the defendants was recorded in 2006.
Although the aforesaid medical report (Mark-A) has not been proved, even if it is taken into account, it cannot justify the conclusion that four years after the said report Kishwar Bibi could not appear and testify in Court. Moreover, even the contents of the said report do not establish inability on the part of Kishwar Bibi to give evidence.
7. There are even more significant aspects of the case which tend to support the case of the petitioner-plaintiff and detract from the veracity of the plea raised in defence. In paragraph 10 of the written statement filed by respondents Nos .1, 4 and 5 it was asserted that the suit property had been purchased by Kishwar Bibi in consideration of a sum of Rs. 18,000 which she had paid from her own pocket. This assertion was belied by Maqsood Ahmad who was examined by the contesting respondents as D.W.l. He stated that an amount of Rs.25,000 was paid as consideration by the father of Kishwar Bibi who has a leather business in Rawalpindi. In his cross-examination, the witness also testified that Kishwar Bibi herself was unemployed. Muhammad Yousaf respondent- defendant appeared as D.W.4 and attempted to justify the financial resources of Kishwar Bibi.
However, in his examination-in-chief, he stated that the property was purchased from funds which were provided by the parents of Kishwar Bibi. These discrepancies in the testimony of the D.Ws.
Have not been duly considered by the learned Courts below.
8. I now advert to another significant aspect of the case. When the respondent Muhammad Yousaf appeared as D.W.4, he deposed that Sheikh Manzoor, the previous owner of the suit property, had given a power of attorney to him (Muhammad Yousaf) because Sheikh Manzoor himself had left for Karachi- in connection with his business. Muhammad Yousaf also added that Sheikh Manzoor had instructed him to execute a registered conveyance in favour of Kishwar Bibi and he had executed the sale-deed (Exh.D.3) dated 1-4-1984, as instructed. I find it strange that although there was a willing vendor, namely, Sheikh Manzoor and a willing purchaser, namely, Kishwar Bibi, who claimed to have the requisite funds, why no sale-deed was directly executed in her favour by the vendor. Learned counsel for the respondents Nos.l, 4 and 5 was asked to explain the reason for a power of attorney in favour of Muhammad Yousaf which, in the circumstances, was wholly unnecessary. He could not offer any valid explanation. Learned counsel for the said respondents also could not show from the record as to when and to whom the amount of consideration was paid.
9. There is yet another element in this case which provides circumstantial support for the claim asserted by the petitioner- plaintiff. He is in possession of the shop and Chobara comprised in the ^disputed property. His possession of the Chobara is not disputed by the respondent Muhammad Yousaf. Yousaf's explanation, however, is that the petitioner was a tenant in the Chobara. Learned counsel for the respondents also stated that Muhammad Yousaf had filed an ejectment petition against the petitioner, which had been allowed by the learned Rent Controller and the ejectment order had been upheld right upto the Honourable Supreme Court. As to the shop, it was submitted by learned counsel for the respondents that during the pendency of the present lis, the petitioner had forcibly taken possession of the same. When pressed to give a date, learned counsel for the contesting respondents stated that this was done on 1-3-2003. This submission is not credible at all. It may be noted that ' the declaratory suit of the petitioner was filed on 6-9-2003. The allegation that the petitioner took forcible possession of the shop was neither pleaded in the written statement nor did Muhammad Yousaf testify to this effect when he appeared in Court on 26-1- 2006, and recorded his statement as D.W.l. These circumstances belie the respondent's statement that possession of the shop was forcibly taken by the petitioner. By the same token the plea of the petitioner is strengthened that he has been in occupation of the disputed property for the past sixty years.
10. Unfortunately, the learned Courts below have not examined the above aspects of the case. The impugned decrees are therefore, not legally sustainable and are set aside. As a consequence, the suit of the petitioner-plaintiff is decreed as prayed for.