' AMIN-UD-DIN KHAN, J.---Through this civil revision, the petitioner has challenged the judgment and decree dated 2-6-2004, passed by the learned Additional District Judge, Lahore whereby the appeal filed by the petitioner was dismissed and the judgment and decree dated 18-11-1998, passed by the Civil Judge, Lahore, dismissing his suit, was upheld.
2. Brief facts of the case are that the plaintiff/petitioner on 15-11-2003 filed a suit for possession against the respondent/ defendant with regard to the land measuring 10 marlas, fully described in the plaint. Written statement was filed, suit was contested, the learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. In the first round of litigation, the learned, trial Court, on 3-11-1994, decreed the suit, appeal was preferred and the learned first appellate court, vide order dated 27-3- 1996, remanded the case while framing some new issues. After remand, both the parties produced their further evidence and on 18-11-1998 the suit was dismissed by the learned Civil Judge, Lahore, appeal was preferred, which also met the same fate, vide judgment and decree dated 2-6-2004, passed by the learned Additional_ District Judge, Lahore. Hence, this civil revision.
3. The learned counsel for the petitioner submits that both the courts below have misread . The statements of P.W.1 and P.W.2 and generally the evidence produced by the plaintiff/ petitioner has been ignored. He further submits that the original owner Mst. Ayesha, sold the suit plot through registered sale-deed (Exh.P.2) on 10-1-1963 in favour of Muhammad Ashraf. He also submits that Mst. Surraiya Tabassum/plaintiff purchased the said plot from Muhammad Ashraf through registered sale-deed dated 27-2-1967, copy of sale-deed is Exh.P.3. The learned counsel states that when the defendant/respondent forcibly took the possession of the suit-land, the petitioner was forced to file the suit in hand. He further states that Muhammad Arif prepared a forged and fictitious sale-deed of the suit property from Mst. Ayesha in his favour on 18-1-1982 and thereafter, through sale-deed dated 16-12-1982 purportedly transferred the suit plot in favour of the defendant. He submits that the original sale-deed in favour of Muhammad Arif was in custody of the police and was proved to be forged as Mst. Ayesha died in 1968 and this fact has been stated by P.W.1 and P.W.2, who were not cross-examined on this point, therefore, it is an admitted position that Mst. Ayesha the original owner of the suit property died in the year 1968. Even otherwise, she had transferred the suit property in favour of Muhammad Ashraf in the year 1963, who later on transferred the same in favour of the plaintiff/petitioner. Further submits that the defendants amended their written statement to the effect that they are bona fide purchasers of the suit house but they have not produced absolutely any evidence with regard to their claim of being bona fide purchasers. Learned counsel has referred to the judgment of the first appellate court wherein the finding is recorded that there are two separate plots owned by both the parties. Learned counsel states that it is nobody's case that the plot of each party is a separate one, 'therefore, this finding is absolutely against the record. He further states that even one of the contiguous owners, namely, Sh. Anwar Hussain has been produced as P.W.5, who certified that after purchase the plot remained in possession of the plaintiff/ purchaser till it was illegally occupied by the defendants/respondents. Learned counsel has referred to a compromise dated 15-5-1983 (Exh.P.4) arrived at between the parties in a suit, which was filed by Muhammad Arif, the predecessor of the defendants against the present plaintiff. He has further referred to Exh.P.5, which is the order passed on the bail application of Muhammad Arif and the factum of death of Mst. Ayesha is mentioned in the same. Exh.P.8 has also been ,referred through which on 4-6-1983 the suit filed by the said Muhammad Arif against the present plaintiff was dismissed for non-prosecution. Even the learned counsel has referred to Exh.P-12, the alleged sale-deed by Mst. Ayesha in favour of Arif.
Learned counsel has referred to pages 3 and 4 of the sale-deed to state that it does not match the writing on the last line of Page No.3, which is continuing to page 4 and the first line wherein the boundaries of the suit property has been mentioned, it is visibly clear that this writing has been recorded afterwards because the continuous writing from page 3 of the sale-deed matches with line No.2 from the top of page No.4. The boundaries mentioned in first line are written afterwards.
The death certificate of Mst. Ayesha was produced as Exh.P.20. D.W.1 and D.W.2 have admitted the surroundings of the suit plot mentioned in the plaint. Further that when the defendant- appeared as D.W.3 admitted that he has not seen the registered sale-deed in favour of said Muhammad Arif from whom he has purchased the suit property and he has shown his ignorance about the fact that Mst. Ayesha died on 9-8-1968 when a specific question was put to him in the cross- examination. Learned counsel has also referred the finding of the learned first appellate Court wherein it has been recorded that both the parties became owners in the joint suit property. On the other hand, learned counsel for the respondent states that there are concurrent findings of fact recorded by both the courts below. Further that the sale-deed in favour of the defendant/respondent has not been challenged in this suit. He states that the wrong mentioning of I.D. Card No. On the sale-deed of the predecessor of defendant makes no difference. Further states that the defendant/respondent is in possession of the suit property. Lastly, states that the evidence of the plaintiff is contradictory one.
4. I have heard the learned counsel for the parties at full length and have gone through. The record with their able assistance.
5. First of all I take up the point and the objection raised by the learned counsel for the respondent/defendant that as the sale-deed in his favour has not been challenged in the suit, therefore, no decree could be passed in favour of the plaintiff/petitioner. I am afraid, in the circumstances of this case, it was not incumbent upon the plaintiff/petitioner to challenge the registered sale-deed in favour of the defendant/respondent as it pertained to the year 1982, whereas the plaintiff herself was claiming title on the basis of a registered sale-deed dated 27-2- 1967. In this view of the matter, I am clear in my mind that it was not necessary for the plaintiff/petitioner . To challenge the sale-deed in favour of the defendants in her suit. Even otherwise, it is not denied that Mst. Ayesha died in the year 1968 and Muhammad Arif allegedly derived title in the suit property through registered sale-deed by Mst. Ayesha in the year 1982.
When Mst. Ayesha died in the year 1968 how the sale-deed could be executed by her in favour of Arif in the year 1982, therefore, criminal case was registered against him and he remained a proclaimed offender and he has not defended the civil revision as well as criminal charges against him.
6.I have noticed that the sale-deed in favour of the plaintiff/petitioner, which is prior in time, has not been denied by the defendant. The petitioner/plaintiff has fully proved the surroundings of the suit plot and even one of the neighbour, who is contiguous owner of this plot has certified that the petitioner/plaintiff remained in possession of the suit property from the time of its purchase till the same was illegally occupied by the defendant. I am also clear in my mind that both the parties claim the same plot with same specifications, which is numbered as Plot No.3. The finding of the courts below that both the parties became joint owners in joint `khata' is also not true. It is no one's case that it is a 'joint khata' and they became the join owners. There is evidence on the file that Mst.
Ayesha, the original owner carved down some plots on her land and sold the same through registered sale-deeds containing their specifications. Furthermore, as the suit property is situated in an urban area, therefore, `khasra' number and `khatooni number' are not of much significance.
Even I have noticed that the learned courts below fell in error while stating that `Idiatooni' number is changed after every four years. I am afraid, it is absolutely against the prevalent practice. The fact is that after every four years new `jamabandies' are prepared and it is possible that `khewat' number may change after every four years and even it is not necessary that in every eventuality `khewat' number is changed but the finding that `khatooni' number changes after every four years, is not correct. Now the crux of the matter, after scrutiny of the evidence, is that the sale-deed of the plaintiff/petitioner is not denied and even sale in favour of her predecessor in the year 1963 by Mst.
Ayesha is not denied. Specifications of the properties are also not denied. Both the parties are claimant of Plot No.3 with further specification of surrounding properties of other people. As discussed above, when there is direct evidence of the person from the vicinity as well as statement of owner of the adjoining property that the plaintiff/petitioner took the possession in the year 1967 when the suit property was transferred in her favour through a sale-deed and that the defendant took the possession forcibly at the time of just before the filing of the suit and further when the defendant's title is not clear, his non-cross-examining the P.Ws. On the point that Mst. Ayesha died in the year 1968, under the law the statements of the P.Ws. Are presumed to be admitted by the defendant. The defendant is claiming title in the suit property on the basis of the sale-deed executed in his favour by Muhammad Arif, but in view of the fact that the sale-deed in favour of Muhammad Arif by Mst. Ayesha has been proved to be forged and fictitious, the sale-deed in favour of the defendant does not create any title or interest in his favour. In the circumstances, both the courts below fell in error while dismissing the suit filed by the plaintiff/ petitioner. The findings recorded by both the courts below are not sustainable under the law. The case of the respondent/ defendant that he is a bona fide purchaser for value just has been pleaded and no evidence has been led on this point. For raising this plea at least it has been admitted that he is claiming the same property which was earlier sold in favour of the plaintiff/petitioner, therefore, the findings of both the courts below being against these admitted facts are not sustainable in the eye of law. While taking light from the law declared by this Court in the case reported as Fazal Hussain and another v. Abdul Hamid (PLD 1971 Lahore 89) it is obser-ed that description sufficiently identifying property should prevail and `khasra' number etc. Has no much relevance. Even I have noticed that `khatooni' number has been discussed in detail. I am afraid, findings of the courts below as well as the contentions of the learned counsel for the respondent/defendant even raised before this Court are based on erroneous assumption that `khatooni' number has any preference over the identification through `khasra' number. I am clear in my mind that `khatooni' only shows the cultivating possession of any individual or group of persons and for specification identification of the property the basic thing is `khasra' number and not `khatooni' number. In this view of the matter, the findings recorded by both the courts below on issue No.8 are also held to be absolutely against the record and voluminous evidence available on the record.
7. For what has been discussed above, the instant civil revision petition is accepted and the impugned judgments and decrees of the first appellate Court dated 2-6-2004 as well as of the learned trial Court dated 18-11-1998 are set aside. Resultantly, the decreed with costs throughout suit filed by the plaintiff/petitioner is decreed with costs throughout.