' TASSADUQ HUSSAIN JILLANI, J.--- Through this petition petitioner seeks leave to appeal against, the judgment dated 20-7-2004 passed by a learned Judge of the Lahore High Court, Lahore vide which he dismissed petitioner's appeal (R.S.A. No,24 of 1994) and affirmed the judgment and decree of the learned first Court of appeal. The High Court while dismissing the appeal further declared that the respondent/ plaintiff would be entitled to the possession of the suit property.
2. Facts giving rise to the instant petition are that respondent Muhammad Usman filed a suit for possession of the suit property i.e, shop and in the alternative he prayed that in case the possession is not delivered he be paid a sum of Rs,1,34,000 (sale price Rs,80,000 and other expenses incurred). It was contended that he had purchased this property through registered sale- deed dated 26-5-1987 for the afore-referred amount from respondents Shamshad Bano and Mst.
Sardar Begum, that the said shop was in possession of Abdur Rahim, respondent/defendant as a tenant, that the said respondent/defendant had undertaken that he would vacate the shop and hand over possession to him in June, 1987, that despite the undertaking and efforts made he had refused to hand over possession.
3. During pendency of the suit Amir Bakhsh respondent/defendant became a party by preferring an application before the trial Court on the ground that he had purchased the property and had been given possession by respondents Nos.l and 2. Learned trial Court vide its judgment and decree dated 24-11-1992 partly dismissed the suit but decreed the same to the extent of payment of Rs,8,000 i.e, the sale price of the shop in question and incidental charges to the tune of Rs,11,700.
With regard to issue No,3 i.e, "Whether the plaintiff is entitled to obtain possession of the property on the averments mentioned in the plaint", the Court found that the dispute arose on account of the confusion over the Khasra number of the property in question. It was held as under- "- The original vendors and the plaintiff think that the property in possession of the defendant No,5 was situated in Khasra No,578/4 whereas the version of the defendant No,5 was that property in his possession was situated in Khasra No,578/3 which was purchased by him for valuable consideration. The description of the impugned property given in the plaint is very much clear and the documents produced on behalf of the plaintiff clearly shows that the property purchased by him was situated in Khasra No,578/4. He wanted to get the possession of that property. This fact 'was also conceded that the plaintiff had no concern with the property of Khasra No,578/3. Copy of Jamabandi produced on behalf of the plaintiff also shows that there were two Khasra numbers on the spot i.e, 578/4 which was owned by the defendants Nos.3 and 4 and Khasra No,578/3 which was owned by one Bashir and Hafeez. The plaintiff admittedly purchased the property situated in Khasra No,578/4 whereas the documents on the file show that Khasra No,578/4 was purchased by defendant No,5 and his wife. The Local Commissioner was appointed by my learned predecessor who submitted his report. The report of the Local Commissioner is Exh.D.12, this report clearly indicates that the Khasra No,578/4 was situated on the western side of the Khasra No,578/3. This report is also supported by documents produced as Exh. D.9 and Exh.D.14 and Exh.D.15. Khasra No,578/3 is also shown in this document and the owners of Khasra No,578/3 are admittedly Bashir and Hafeez and the defendants Nos.3 and 4 had no concern with that property. In this way the version of the defendant has been proved that he was in possession of Khasra No,578/3 which was owned by him...."
' The afore-referred judgment and decree was challenged by the vendors of the respondent/plaintiff namely Sardar Begum and Shamshad Begum. The learned first Court of appeal vide judgment and decree, dated 7-11-1994 set aside the judgment and decree of the trial Court and inter alia held as under:-- "15. The copies of mutation Exh.D.3 and Exh.D.4, no doubt, reveal that the respondent No,1, and his wife had purchased one Marla each from its owner Muhammad Bashir and Muhammad Hafeez respectively from Khasra No,578/3, yet these documents did not mention the fact that the shop in dispute is situated in this Khasra number and on the other hand to the same rather proved the fact that what both these respondents Nos.1 and 2 had purchased the same in Khasra number 578/3 was the vacant plot/land but not the constructed shop. It is also not the case of the respondent that either at the time of its purchase by them, this plot had any constructed shop there over or they have even constructed any shop on such plot. Therefore, it is proved that what the respondent No,3 purchased in Khasra No,578/3 that was a vacant plot and not the constructed shop, while admittedly the present shop in dispute has got its existence since long. As such, the property in suit cannot be held to be situated in Khasra No,578/3 as claimed by respondent No,3."
' However, the Court did not grant any relief to the respondent/plaintiff on the ground as under:-- ".... Since the respondent No,4 has not challenged the finding of learned trial Court at issue No,3 by way of appeal, and nor he has filed any cross-objection thereagainst, therefore, he cannot be held as its owner. However, the appellants having been held to be owners of disputed shop and they having also admitted its transfer to the respondent No,4 and no effect in the title of the appellants having been found, the respondent No,4, was legally not entitled to the return of price or damages of any incidental charges from the appellants."
3-A. The judgment and decree of the Appellate Court was challenged in the Regular Second Appeal by Amir Bakhsh which was dismissed. But notwithstanding the judgment and decree of the first Court of appeal the learned High Court held that although respondent/plaintiff had not challenged the judgment and decree of the trial Court in appeal but since the first Court of appeal had held the sale in his favour by Mst. Sardar begum and Mst. Shamshad Begum (respondents/defendants) to be valid sale, he was entitled to the possession of the property in terms of the prayer made in the plaint. The judgment and decree of the learned first Court of appeal was accordingly modified. This was vide the impugned judgment and decree dated 20-7- 2004.
4. Learned counsel for the petitioner challenged the concurrent judgments and decrees on the ground that the same are based on non-reading of material. Evidence on record, that it was not open for the High Court to grant relief to the respondent/plaintiff who had neither challenged the judgment/decree in appeal not he had filed any cross-objection.
5. We have considered the submissions made by petitioner's learned counsel in the light of the evidence led by the parties and have also gone through the impugned judgment.
6. Both the vendors namely Mst. Sardar Begum and Shamshad Begum admittedly supported factum of sale in favour of respondent/ plaintiff Muhammad Usman through their General Attorney, Wajid Ali P.W.2. Their real brother Makhdoom Ejaz Hussain (D.W.2/4) also appeared to state that the property in question was inherited by him, his mother and sister, that the said property/shop was on rent and it was sold to Muhammad Usman respondent/plaintiff. The Patwari of the concerned Revenue Estate-also appeared as D.W.1/4 namely, Mushtaq Ahmad who stated that on the application of Ch. Muhammad Sarwar demarcation of Khasra No,578/4 was carried out on 16-4-1981, that the said Khasra measured 8 Marlas out of which 6 Marlas was given to Ch. Muhammad Sarwar whereas on the remaining 2 Marlas was constructed shop in possession of Makhdoom Ejaz Hussain. The said Makhdoom Ejaz Hussain while appearing as D.W.2/4 candidly stated that the said shop falls within Khasra No,578/4, the stand of the respondent/plaintiff finds further strength from the statement of P.W.6 Nazir Ahmad, Assistant Excise and Taxation Officer, who stated that the shop in dispute was as per record owned by Makhdoom Ejaz Hussain and Mst.
Shamshad Begum and Amir Bakhsh respondent/defendant was mentioned as a tenant. This is corroborated by Exh.P.3 which is a rent deed dated 20-5-1982 executed by Amir Bakhsh in favour of Shamshad Begum. In the face of the evidence referred to above, the concurrent judgments with regard to the transaction of sale made in favour of respondent/plaintiff Muhammad Usman are unexceptionable. The being so, the modification in the judgment and decree made by the learned High Court and thereby declaring respondent/plaintiff Muhammad Usman to be entitled to possession was not only consistent with the evidence but was in accord with the canons of equity.
No piece of evidence was referred to by petitioner's counsel which could persuade us to interfere in the impugned judgment.
7. For what has been discussed above we do not find any merit in this petition, which is dismissed, and leave to appea is refused.