' IJAZ-UL-AHSAN, J.---This petition is directed against judgment and decree dated 31-3-2001 passed by learned Civil Judge at Kasur, which was upheld in, appeal by the learned Additional District Judge at Kasur vide judgment and decree dated 27-9-2001. Through the impugned judgments and decrees, the suit filed by respondent No,1 for declaration with consequential relief was decreed.
2. Briefly stated the facts of the case are that respondent No,1 Muhammad Bashir filed a suit for declaration with consequential relief against Muhammad Sharif, predecessor-in-interest of the petitioner. It was alleged in the plaint that Muhammad Sharif was his brother-in-law. Sharifan Bano, petitioner No,1 was real sister of his wife. Muhammad Sharif was working for Pakistan Air Force and was dismissed from service and had no place to live. On the request of Sharifan Bano, respondent allowed Muhammad Sharif and his family to share his house in Dingipura Kasur (Katchi Abadi) in December, 1978. The respondent and Muhammad Sharif along with his family resided together in the said house for about a year, in which Muhammad Sharif and his family were given one room. Subsequently, the respondent had to leave with his family to help his brother in his cultivation in the village. When he returned after about six months, Muhammad Sharif did not allow him to enter the house claiming that the respondent had mortgaged the house in question in his favour.
3. The respondent instituted a civil suit against Muhammad Sharif for possession of the disputed house. The said suit was decreed. The decree was upheld in appeal vide judgment and decree dated 28-5-1985. Muhammad Sharif filed a Civil Revision in this Court and the decree of the Civil Court in favour of Muhammad Bashir was suspended. It appears that during pendency of the civil revision Muhammad Sharif manoeuvred false affidavits with the Municipal Committee, Kasur concealing the litigation between the parties and making a positive assertion in the prescribed form that he was residing and in occupation of the disputed house since 1-1-1978. Nasir Mehmood, petitioner No,2 also filed a similar affidavit despite the fact that he was only 12 1/2 years old and residing at the disputed premises with his parents. Petitioner No,3 namely Ansar Mehmood was at the relevant time seven years old and living in the same house.
4. It was alleged that on the basis of false affidavit and in connivance with the revenue Patwari Muhammad Sharif managed to get two sale-deeds executed by the Municipal Committee Kasur in favour of Muhammad Sharif, Nasir Mehmood and Ansar Mehmood. One sale-deed related to land measuring 8 Marlas, 142 Sq.Ft. And was in favour of Muhammad Sharif and Ansar Mehmood and the second related to 2 Marlas, 62 Sq.Ft. And was in favour of Nasir Mehmood. The sale-deeds were result of fraud in collusion with the Revenue Patwari, as the petitioners were neither authorized nor entitled to allotment of the said property. It was further alleged that even otherwise, the petitioners did not fulfil the criteria for allotment of immovable property in Katchi Abadi Scheme.
5. Muhammad Sharif died during pendency of the suit in December, 2000. The petitioners are his legal heirs, Nasir Mehmood and Ansar Mehmood, in addition to being his legal heirs, also claimed the benefit of the sale-deeds in their favour in their own right.
6. The suit was contested. The defence Laken was that Nasir Mehmood was owner of a separate property, which had fraudulently been shown as "durie" of the suit property. He had been running his own business in the said property for a long time and the subject-matter of the litigation was limited to the property measuring 8 Marlas, 142 Sq.Ft. Which stood in the name of Muhammad Sharif and Ansar Mehmood. It was stated that both sale-deeds had been executed in accordance with law and Muhammad Sharif as well as petitioners Nos. 5 and 6 were owners of the property by virtue of valid sale-deeds executed in their favour by Municipal Committee, Kasur. On the legal plain, various preliminary objections were raised including bar of the suit under section 10, C.P.C., incorrect description of the property and the suit being barred by limitation.
7. Out of the pleadings of the parties, the learned trial Court framed as many as 11 issues, both parties produced voluminous oral as well as documentary evidence. After hearing the parties, the learned trial Court decreed the suit of the respondents. On appeal, the said decree was upheld.
8. The learned counsel for the petitioner submits that the disputed property is situated in Katchi Abadi. The Board of Revenue had transferred the same to Municipal Committee, Kasur which was given the power to allot the same to those who were in possession. According to the learned counsel, survey was conducted on the basis of which the petitioners were found to be in possession. He points out that there is no document on record that indicates that at the time of the survey, the respondent was in possession. Submits that the relevant law, regulations and notification provide for settlement of the disputes by District Implementation Committee constituted under the law. The said Committee was never approached by the respondent who directly approached to civil court through the suit in question.
9. On the legal plain the learned counsel submits that in the first place the suit was patently barred by time. Points out that the sale-deeds which were under challenge in the suit were executed on 6- 3-1977 and the suit on the other hand was filed on 28-5-1984, i,e, seven years later. He submits that the limitation for filing such suit is three years which had already expired when the suit was filed.
Relies on Qazi Fazal Ahmad and others v. Riaz ur Rehman and others 1997 CLC 322. The learned counsel further submits that two separate sale-deeds were challenged through one suit which could not have been done.
10. The learned counsel argues that a suit for possession of the nature filed by the respondent was not maintainable in view of the fact that the respondent either had title in the suit property nor was he in possession. He submits that even if for the sake of argument and without conceding it is assumed that the respondent was in possession, his status as nothing more than a trespasser. As such he could not have maintained the suit. In-support of his contention, the learned counsel has relied on The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331, Anjuman Araian, Bhera v. Abdul Rashid and others PLD 1982 SC 308, Abdul Aziz v. Syed Arif Ali and 6 others PLD 1978 Lahore 441, Abdul Ghafoor and 2 others v. Allah Bukhsh and 5 others 2001 CLC 370, Secretary, Board of Revenue, Balochistan Quetta and 3 others v. Abdul Qayyum 2009 CLC Quetta 1269 and Ghulam Yasin Butt and 2 others v. Manzoor Hussain and 3 others 2000 YLR Lahore 915.
11. The learned counsel further contends that the respondent had no locus standi to maintain the suit in question. It is apparent from the record that no right vests in him relating to the suit property.
Consequently, there was no question for any right being violated and any injury being suffered by the respondent.
12. The learned counsel argues that since the petitioners were in possession which was evident from the survey report and the said report was never challenged at any forum, especially a forum provided in the law, i,e,, the District Implementation Committee, the respondent was estopped from agitating the matter before any other forum. The learned counsel has also drawn my attention to an ejectment petition filed by the respondent against the petitioners which was dismissed on account of failure on the part of the respondent to establish the relationship of landlord and tenant.
The learned counsel finally argues that the suit was also defective insofar as possession relating to the property was not claimed which was admittedly occupied by Nasir Mahmood. It is pointed out that an area of 2 Marlas, 62 Square feet was in possession of the said person. He, therefore, submits that judgments and decrees of the learned subordinate courts are, at least, to the extent patently defective. The learned counsel has also referred to various notifications and policy documents issued by the concerned department relating to Katchi Abadies including policy instructions regarding regulation of Katchi Abadies in Punjab which provides for allotment of land situated in Katchi Abadies to occupants and dwellers who are so determined through a survey undertaken under the relevant policy. He has also drawn my attention to the Punjab Katchi Abadies Act, 1992.
Under the said Act the Director General has the power to call for the record and resolve all disputes relating to Katchi Abadies. The learned counsel submits that the said avenue was not explored by the respondent before approaching the learned Civil Court. The learned counsel has also referred to a mortgage deed in support of his argument that the story narrated by the respondent in his plaint is incorrect insofar as possession of the disputed property was handed over to the petitioners pursuant to a mortgage which was duly evidenced by the mortgage deed. The 'learned counsel, therefore, argues that the subordinate courts erred in law to refuse reading of the said mortgage deed in evidence on the ground that it was an unregistered document and proceeded to discard the same. The learned subordinate courts have also ignored the fact that the signatures of the respondent on the mortgage deed have been admitted by him in the suit.
13. The learned counsel relied on Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821 and Ghulam Siddique v. Mst. Ajaib and others 2002 CLC 1244 to argue that in exceptional circumstances an unregistered document can also be read in evidence and can confer a valid title in a party. He therefore, submits that the judgments and decrees of the learned subordinate courts not only suffer from illegalities and material irregularities but also are defective insofar as they have misread and ignored material evidence that is available on record.
14. The learned counsel for the respondent supports the findings of the learned subordinate courts and adds that the same are based upon evidence on record. There is no misreading or non- reading of evidence. Further the orders of the learned subordinate courts are in accordance with law.
15. Arguments heard. Record perused.
16. The stance taken by the petitioners is that the sale-deeds were correctly and validly executed in favour of Muhammad Sharif and petitioners Nos. 5 and 6. The point requiring determination was as to who was in possession of the disputed property on 1-1-1978 in view of the fact that proprietary rights could have been granted to the person, A who was in possession on the said date. It is evident from the record that the suit for possession filed by respondent No,1 was decreed by the Civil Court in his favour. The said suit related to the disputed property. The said judgment and decree was maintained by the appellate court as well as this Court whereby he was found entitled to possession of the disputed property. In consequence, respondent No,1 was found entitled to possession of the disputed property. As a necessary corollary, Muhammad Sharif and petitioners Nos. 5 and 6 were found to be unauthorized and at best subject to the rights of Muhammad Bashir, respondent No,
1. It was also established through evidence of Muhammad Ishaq that respondent No,1 had lent one room of the disputed house to Muhammad Sharif, who took possession of the entire house taking advantage of the absence of Muhammad Bashir. As far as the question of mortgaging of the property by Muhammad Bashir in favour of Muhammad Sharif is concerned, no credible evidence was available on record to establish and substantiate such claim. It is also evident that Muhammad Sharif got the sale-deeds, relating to the disputed property, registered by filing incorrect and fraudulent affidavits. This is further substantiated by the fact that the sale- deeds were got registered during the pendency of the litigation before this Court, while petitioner No,5 namely Nasir Mehmood was 12 years old and Ansar Mehmood was 7 years of age. It is also an admitted fact that respondent No,1 had purchased superstructure of the impugned property from Feroz Din and Siraj Din on 10-2-1973. He continued to occupy the property for the next 5 to 7 years, which establishes his claim that he was in occupation and possession of the disputed property on the critical date i,e, 1-1-1978.
17. D.W.1, Nasir Mehmood, petitioner No,5 maintained that Muhammad Sharif and Ansar Mehmood and himself were occupying the disputed property pursuant to sale-deeds in their favour. He testified that they were in occupation of the property even before 6-3-1977 when the superstructure was mortgaged by Muhammad Bashir in favour of Muhammad Sharif. He also stated that Muhammad Bashir was not in occupation of the disputed property at the time that the survey was conducted in which they were shown to be in possession. D.W.1, however, admitted that he had constructed a wall to divide the property in two portions, out of which, he was in occupation of smaller portion and had a sale-deed for the same in his favour. It is, however, significant to note that D.W.1 admitted possession of Muhammad Bashir, respondent No,1, over the disputed property before 6-3-1977.
18. The documentary and oral evidence clearly indicate that respondent No,1 was the original occupant of the disputed property. The petitioners based their claim upon the alleged mortgage.
This claim was neither accepted by the trial Court nor by the appellate and revisional courts.
Consequently, the only basis for possession of the petitioners on 1-1-1978 was that the same was under and subject to the rights of respondent No,1 and they could not have claimed proprietary rights of the disputed property as they were not occupying the same in their own D rights. Even if, for the sake of argument, it is conceded that they were in possession as mortgagees, such possession did not entitle the petitioners to procure sale-deeds in their favour through submission of false documents.
19. It is also noted that petitioners Nos. 5 and 6 were minors on 1-1-1978 and could not have claimed proprietary rights of any property comprised in Katchi Abadi. The petitioners did not produce any cogent evidence to rebut the said fact. It is, therefore, established on record that both of them were disqualified on account of their minority to claim the disputed property and/or get sale-deeds executed in their favour.
20. The learned counsel for the petitioners has argued that the status of respondent No,1 was that of the trespasser and he could not have maintained that suit for possession. He was, therefore, precluded to claim any right regarding the disputed property or seek cancellation of the sale- deeds. I am afraid, I do not find myself in agreement with the argument of the learned counsel for the petitioners. It is apparent from the record that the respondent No,1 was found to be entitled to possession of the disputed property by the courts of competent jurisdiction through judgment and decree, which was upheld up to this Court. His right to possess the disputed property stood recognized and admitted and cannot be re-opened through supplementary proceedings. Once it is established that the respondent was entitled to possession of the disputed property on the critical date, possession or occupation of the same by the petitioners at any subsequent date is immaterial in view of the fact it will be presumed subject to the rights of the respondent and the possession of' the property will be presumed to be under the respondent thereby giving no independent right, authority or entitlement to procure proprietary rights of the disputed property in question by the petitioners.
21: The main contention of the learned counsel for the petitioner was that the suit was in the first place barred by time. It was argued by the learned counsel for the petitioners that the respondent was all along aware of the process of execution of sale-deeds. He had knowledge in 1988 and 1991, yet the suit was filed after expiry of a period of limitation. It is, however, noticed that the learned trial Court found that the sale-deeds, which were procured by filing false affidavits, were void and therefore no limitation ran against the same. It is settled law that there is no limitation against fraud. The sale-deeds were executed despite pendency of the proceedings before this Court and on the basis of false affidavits sworn by the petitioners. The learned subordinate courts were, therefore, correct in coming to the conclusion that no limitation could be pleaded in facts and circumstances of this case. The learned subordinate courts also found that the Municipal Committee, Kasur had acted illegally and the sale-deeds executed by it were void ab inito, therefore, the suit could be thrown on the basis of the bar of limitation.
22. It was finally argued that civil court had no jurisdiction to entertain and adjudicate upon the suit in view of the provisions of section 10 of the Transfer of Evacuee Land (Katchi Abadi) Act, 1972. It is however, noted that the disputed property is not an evacuee property, therefore, the provisions of Transfer of Evacuee Land (Katchi Abadi) Act of 1972 was not applicable to the facts and circumstances of the present case. Even otherwise, the sale-deeds in favour of Muhammad Sharif, Ansar Mehmood and Nasir Mehmood were the result of fraud and connivance with the Municipal Committee, Kasur, which had acted in violation of the law and executed sale-deeds despite pendency of the proceedings before this Court. The Civil Court was, therefore, fully competent to entertain the matter and determine the question of rights of the parties regarding the disputed property.
23. The learned subordinate courts have undertaken an elaborate exercise of appraisal of evidence and have come to just and proper conclusions, which are fully supported by the record. I have examined the entire record with the assistance of the learned counsel for the parties and have independently arrived at same conclusion, as the learned subordinate courts. The learned counsel for the petitioners has not been able to convince me that there is any misreading or non-reading of evidence by the learned subordinate courts or any illegality or material irregularity committed by them that may persuade me to interfere in their concurrent findings of facts or draw a different legal conclusion contrary to the one arrived at by the learned subordinate courts. Consequently, the findings of the learned subordinate courts are upheld. The petition is found to be without merit and it is accordingly dismissed.