' MRS. IRSHAD QAISER, J.---The petitioners Shahid Mehmood etc. Filed Civil Revision No. 209 of 2010 and 210 of 2010 against Muhammad Afzal petitioner while Muhammad Afzal filed Civil Revision No.231 of 2011 and Civil Revision No.247 of 2011 against Shahid Mehmood etc. Against the judgment and decree dated 29-10-2009 whereby appeal filed by petitioner Muhammad Afzal was partially, allowed and modified the judgment and decree dated 15-6-2009 passed by trial Court. Since all the above four Civil Revisions are in respect of the same subject-matter and between the same parties involved common question of law and fact and challenged the same impugned judgment and decree therefore, I want to dispose of by the following single order.
2. Brief facts of the case are that petitioner Shahid Mehmood and seven others (legal heirs of Sohbat Khan) filed Suit No. 35/1 against Muhammad Afzal for declaration, possession and permanent injunction to the effect that the disputed property measuring one kanal bearing Khasra No. 354, the detail of which is given in the heading of the plaint, was purchased by their father Sohbat Khan deceased vide registered Deed No. 195 dated 10-5-1986, constructed boundary wall and installed main gate and two other small gates on the Western side. That petitioner Muhammad Afzal has no concern with the disputed property. That the plaintiffs along with their father were residing in Rawalpindi. That parties are near relatives and Muhammad Afzal was residing in his village; therefore, plaintiffs had given the keys of the main gate to him for his use as well as to supervise it. That few days ago they came to know that defendant started construction on the disputed property for which no permission was sought from the plaintiffs. Plaintiffs came to the village and restrained him from raising illegal construction and also demanded the keys but he refused hence the present suit.
3. Muhammad Afzal also filed Suit No. 26/1 against Shahid Mehmood etc. For declaration of perpetual injunction in respect of suit property to the effect that the suit property was owned by father of Shahid Mehmood but on 5-11-1994 he sold half of the disputed property i.e. 10 marlas to him in sale consideration of Rs.100,000 and in this respect a deed, was executed and possession was given to him. Out of the whole sale consideration Rs.90,000 was paid on the spot while Rs.10,000 was given later on. That predecessor of the petitioner Shahid Mehmood etc. Also sold the remaining portion of the vacant plots to him through oral agreement in sale consideration of Rs.1,00,000 and promised that on return back from Rawalpindi he will attest mutation or registry in favour of plaintiff Muhammad Afzal. That he had paid the whole sale consideration to the predecessor of plaintiffs and after obtaining possession, he raised construction on the same and now the plaintiffs have no concern with it. Respective defendants were summoned, wherein they put their appearance before the trial Court and contested the suits by filing their respective written statements. Both the suits were consolidated and consolidated issues were framed from the pleading of the parties. After the conclusion of the trial, the learned Civil Judge vide judgment and decree dated 15-6-2009 passed a decree in favour of Shahid Mehmood etc. In Suit No. 35/1 while the Suit No. 26/1 filed by Muhammad Afzal was dismissed. Against this judgment and decree petitioner Muhammad Afzal filed two Appeals No.155/13 and 156/13 of 2009 which were partially allowed vide judgment and decree dated 29-10-2009 and the consolidated judgment and decree of the trial Court was modified in the manner that a decree for specific performance of contract to the extent of 10 marlas was passed in favour of Muhammad Afzal and suit of Shahid Mehmood etc. Was also partially decreed to the extent of remaining 10 marlas in their favour.
4. Feeling aggrieved both the parties filed present revision petitions and assailed the partial decrees which were passed against each other.
5. Arguments heard and record perused.
6. Learned counsel for the petitioner Shahid Mehmood contended that their father Sohbat Khan had purchased the suit property through registered deed Exh. P W.2/1 and after purchase he constructed the boundary wall around the disputed property and also installed gates on it. That defendant Muhammad Afzal had no concern whatsoever with the suit property that since plaintiffs were close relative of the defendant and they were shifted to Rawalpindi' in the life time of their father in connection with business therefore, they had handed over the key of the premises to the defendant just for the purpose of arranging function etc. But the defendant without legal justification was intending to raise construction upon the suit land. That no deed has been executed by their father in favour of defendant. The deed is forged and factitious and is ineffective on their rights. These arguments were rebutted by the defendants/and stated that though Sohbat Khan was the original owner of the suit property but he sold the same to him through oral and written deed. That on 5-11-1994 he sold 10 marlas out of one Kanal for sale consideration of Rs.1,00,000 through, an agreement. That latter on, remaining 10 Marlas of the property were also purchased by him for a sum of Rs. 1,00,000 through oral agreement. That on the receipt of the entire amount, possession of the entire property was handed over to him and he constructed boundary wall etc. That legal heirs of Sohbat Khan had no right to claim the ownership on the disputed property which was sold, by Sohbat Khan to him.
7. It is proved from record that Sohbat Khan predecessor of the petitioners Shahid Mehmood etc. Had purchased the property through a registered deed dated 10-5-1986 Exh . P. W .3/1. Thus his ownership is undisputed and naturally on his death the property had to devolve upon his legal heirs i.e. Shahid Mehmood and others but here Muhammad Afzal claims the ownership of the property on the basis of agreement dated 5-11-1994 and oral . Agreement in consideration of Rs.2,00,000. Now the question is that whether he purchased the disputed property from Sohbat Khan through oral and written deed or not?
8. So far the purchase of 10 Marlas out of 1 Kanal in consideration of Rs.1,00,000 through oral agreement is concerned, petitioner Muhammad Afzal has not produced even a single iota of oral or documentary evidence to prove his contention.. He himself was examined as P.W.4 and in his statement he simply stated {{URDU TEXT}} ' This bare allegation cannot entitle him to claim the ownership of 10 marlas out of the disputed property. Thus both the Courts below have rightly dismissed the claim of petitioner Muhammad Afzal in respect of 10 marlas allegedly purchased through oral agreement. In order to prove the agreement deed dated 5-11-1994 to the extent of alleged sale of remaining 10 marlas of land Muhammad Afzal produced and examined marginal witness Abdul Khaliq while other marginal witnesses Bashir Ahmad being dead could not be produced however, his son Zahid was examined as P.W.7 while P.W.5 Muhammad Faheem was examined to prove the payment of Rs.22,000 to Sohbat Khan. In his statement Muhammad Afzal stated that he paid Rs.68,000 to Sohbat Khan through Bashir Ahmad and Rs.22,000 through Faheem Khan.
' In cross-examination he admitted {{URDU TEXT}} ' It is admitted fact that no receipt in respect of payment of Rs.68,000 + 22,000 have been executed.
The payment of Rs.68,000 in the presence of Bashir Ahmad was also not proved because no authentic evidence in this respect has been produced. There are also material contradiction between the statement of Muhammad Afzal and Faheem with regard to the payment of Rs.22,000 Muhammad Afzal also failed to prove the payment of remaining Rs.10,000.
P.W.4 Abdul Khaliq also admitted {{URDU TEXT}} ' Petitioner Muhammad Afzal also failed to prove the construction of boundary wall and gates on the disputed property. Faheem Khan P.W.5 his own witness admitted this fact {{URDU TEXT}} ' One P.W.5 Mistri Baseer Khan also supported the contention of Shahid Mehmood and stated that he constructed the boundary wall around the disputed property and fixed gates in considerationof wages paid by Sohbat Khan. {{URDU TEXT}} ' He was cross-examined in detail but defence was not able to shatter his contention. The learned trial court has fully discussed the case of both the parties in detail and had rightly passed decree in favour of Shahid Mehmood and dismissed the Suit No. 26/1 of petitioner Muhammad Afzal.
9. Record further reveals that the Civil Revisions Nos. 231 of 2011 and 247 of 2011 are badly time- barred as it is not filed with in 90 days. The impugned decree and judgment was passed on 29-10- 2009 while the revision petition was filed on 9-2-2011 after the lapse of period of 15/16 months. The facts and circumstances suggest that these civil' revisions are just a counterblast of Civil Revisions Nos. 209 of 2010 and 2010 of 2010 which were filed in January, 2010.
10. Keeping in ,view the above facts and circumstances of the case I am of the view that the learned Appellate Court was not justified to hold that petitioner Muhammad Afzal is also entitled to decree to the extent of 10 marlas, which finding of the learned Appellate Court are not supported by reliable evidence available on record. Thus I hold that he has not properly appreciated the evidence in respect of the execution of deed dated 15-11-1994 and acted with illegality and material irregularity while reversing the finding of trial court in respect of dismissal of suit of Muhammad Afzal and passed decree in favour of Shahid Mehmood. Thus while concurring with the finding of the trial court the Civil Revisions Nos.209 of 2010, 210 of 2010 filed by Shahid Mehmood etc. Are accepted while the Civil Revisions Nos.231 of 2011 and 247 of 2011 filed by Muhammad Afzal being without any merit and badly time-barred are hereby dismissed. Parties are left to bear their own cost.