MOHAMMAD SAYEED AKHTAR, J.- The plaintiff/respondent No. 1 filed a suit on 30.5.1985 against Muhammad Asif (the predecessor-in-interest of petitioner 1A to 1-F) and others for declaration, possession and cancellation of sale-deeds dated 16.6.1982 in respect of Property No. SE-IV-4-S-2 situated at Abdul Karim Road, QiIla Gujjar Singh, Lahore and for recovery of Rs. 12,500i-for use and occupation of the property. It was averred that Mst. Shehzada Begum was the exclusive owner of the suit property. She died issueless and intestate on 13 5.1983 leaving behind the plaintiff and defendants 2 to 6 (respondents 2 to 6) as her legal heirs and only they were entitled to inherit her property. Defendants 2 to 6 had relinquished their respective share in the property in favour of the plaintiff vide relinquish deeds dated 25.7.1983 and 04.8.1984. Defendants No. 2, Muhammad Asif, had no blood relationship with Mst. Shehzada Begum; he illegally claimed the ownership of the said property. Sale deeds No. 7334 and 7335, dated 16.6.1982 were void, without consideration, forged and fictitious documents. Hafiz lnayat, the previous husband of Mst. Shehzada Begum had adopted defendant No. 1, Muhammad Asif, as his son. Defendant No. 1 served a notice dated 01.1.1983 upon the plaintiff claiming himself as owner of the suit property to the extent of 1/2 share on the basis of aforementioned two sale-deeds and the remaining 1/2 as being the son of Mst. Shahzada Begum. The defendant No. 1 was asked.
Many a times to accept the right cf the plaintiff but in vain.
During the pendency of the suit Muhammad Asif, defendant, sold the 1/2 share of the house to Ata Elahi on 12.6.1986. He was impleaded as defendant No. 7 (petitioner No. 2).
The suit was resisted denying all the allegations. It was alleged that the sale-deeds were genuine and that the defendant was in possession of the same as sole heir of Mst. Shehzada Begum. Out of the pleadings of the parties following issues were framed:---
(1) Whether the suit has been improperly valued for the purpose of Court-fee and jurisdiction? OPD
(2) Whether the suit is not maintainable in its present form? OPD.
(3) Whether except particulars of fraud has not been given in the plaint? If so, its effect? OPD. (4)
Whether instant suit is not maintainable in view of preliminary objection No. 7 of written statement?
OPD.
(5) Whether plaintiff is owner of the suit property? OPD
(6) Whether defendants No. 2 to 6 have relinquished their respective shares in favour of the plaintiff vide relinquishment deed dated 4.8.1984 and 25.7.1983? OPD.
(7) Whether sale-deeds in favour of the defendant No. 1 by Mst. Shahzada Begum dated 16.6.82 is illegal, forged and ineffective upon the right of the plaintiff? OPD.
(8) Whether defendant No. 1 was adopted son of Hafiz Inayat?
(9) Whether relinquishment deed dated 25.7.1983 and 4.8.84 are illegal, void and inoperative and deficiently stand?
(10) Whether defendant No. 1 is liable to pay Rs. 500/- per month as use and occupation of the suit property?
(11) Whether the plaintiff is entitled to recover suit amount Rs. 12,500/-?
(12) Whether plaintiff is entitled for possession of the suit property?
(13) Relief.
Learned Trial Court after recording the evidence of the parties decreed the suit on 9.12.2000. The petitioners in their appeal before the learned Additional District Judge, Lahore remained unsuccessful on 02.4.2004.
2. Learned counsel for the petitioners contended that the suit was for cancellation of the documents as well as for possession, plaintiff was bound to pay Court-fee on it. Learned counsel further contended that both the Courts below have misread the record. There are two sale-deeds Ext.P.7 and P.8 dated 16.6.1982 regarding 1/2 share of the property in favour of Muhammad Asif (the predecessor-in-interest of petitioners 1-A to 1-F) but the same have been ignored. He urged that the petitioner No. 2 purchased the remaining 1/2 share of the property vide registered sale-deed dated 12.6.1986 for a consideration of Rs. 60,000/- from Muhammad Asif who was the sole heir of Mst. Shehzada Begum being her son. He urged that the deed writer Malik Khurshid Ahmad, appeared as DW-1 and deposed that he had written the sale-deed in presence of the witnesses.
Sale-deeds Ext.P.7 and P.8 stand proved.
3. Conversely the learned counsel for the respondents submitted that Muhammad Asif is not the son of Mst. Shehzada Begum. He was adopted son of Hafiz Inayat, the previous husband of Mst.
Shehzada Begum. He did not inherit the property of Hafiz Inayat. He further submitted that the alleged sale deeds Ext.P.7 and P.8 dated 16.6.1982 have not been proved as the marginal witnesses never appeared in the witness-box. He submitted that the ,plaintiff/respondent is prepared to pay the Court-fee on the value of Rs. 96,000/- (price mentioned in the sale deed).
4. I have, gone through the judgments of the Courts below, perused the record and considered arguments of the learned counsel for the parties. Mst. Khurshid Begum, the daughter of Hafiz Inayat had filed a suit against Mst. Shehzada Begum claiming her -share of inheritance in the property left by Hafiz Inayat, her father. The said suit was compromised vide judgment Ext.P.2 and P.3, the daughters of Hafiz lnayat were given their due share alongwith Mst. Shehzada Begum, the widow of Hafiz lnayat. In the said suit Muhammad Asif did not inherit as son of Hafiz Inayat. All the PWs have deposed that Mst. Shehzada Begum had no issue. Only Mst. Nusrat Asif, the wife of Asif (the predecessor-in-interest of the petitioners 1-A to 1-F) appeared in the witness-box as DW-2 and deposed that .Asif was son of Mst.
Shehzada Begum. There is no other evidence on the record to corroborate the same. It is thus clear that Asif was not off spring of Mst. Shehzada Begum and Hafiz lnayat.
5.. The alleged sales in favour of Muhammad Asif vide sale-deeds Ext.P.7 and P.8 dated 16.6.1982 are not proved on the record. Malik Muhammad Afzal and Muhammad Sharif Butt are the marginal witnesses, neither of them appeared in the witness-box to prove the same. On the top of the alleged sale-deeds Ext.P.7 to P.8 there is note that the original 'Behr does not bear the signatures of Sub-! Register. The deed writer DW-1 deposed that he wrote down the sale-deeds in presence of Mst. Shehzada Begum and marginal witnesses, however, he admitted that the register in which the contents of the sale-deeds were noted down had been lost. He further admitted that he had no document proving the loss of the register. Mst.
Nusrat Asif, wife of Asif (vendee) appeared as DW-2 and admitted in 'cross-examination that no consideration was paid to Mst. Shehzada Begum. The defendant was the beneficiary of the sales, the burden of proof shifted to him which he failed to discharge. In my view the alleged sales are not proved on the record. The sale in favour of Ata Elahi, petitioner, by Asif as sole heir of Mst. Shahzada Begum vide sale-deed dated 12.6.1986 was made during the pendency of the suit and the prevalence of the temporary injunction. It was in violation of Section 52 of the Transfer of Property Act, 1882 and is hit by the principle of lis pendens. It has already been held that Asif was not the son of Mst. Shehzada Begum. Both the Courts below have concurrently decided against the petitioners.
I do not find any fallacy in the same, therefore, dismiss this revision petition leaving the parties to bear their own costs.
6. The legal heirs Saeed Mirza (respondents 1 to 5) shall furnish the requisite Court-fee on the value of the property given in the sale-deeds within one month of the receipt of the judgment of this Court. .