AMIN-UD-DIN KHAN, J.--Through this appeal appellants, who are defendants in a suit for declaration, cancellation of documents, possession, permanent & mandatory injunction filed by the respondents-plaintiffs, have challenged the judgment & decree dated 23.5,2012 rectified on 13.6.2014 whereby the suit has been decreed,
2. Brief facts of the case are that plaintiffs- respondents on 18.07,2002 filed a suit for declaration, cancellation of documents, possession, permanent & mandatory injunction on the ground that they have Transfer Order No, 26463 dated 28.06.1976 in favour of their predecessor and challenged the Transfer Order No, 15108 dated 29.12.1973 in favour of Mst, Iqbal Begum, the grandmother of the parties, Written statement was filed. Suit was contested on the ground that on the basis of forged and factious transfer order the suit has been filed and the transfer order in favour of Mst. Iqbal Begum which has been challenged end for the cancellation of which prayer has been made. is a valid document. Learned Trial Court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence.
Learned Trial Court decreed the suit vide judgment & decree dated 23.5.2012 on the basis of findings recorded on Issues No, 1, 2, 3 and 6. Hence, this first appeal.
3. Learned counsel for the appellants argues that the Transfer Order No, 26463 (Exh.P.5) allegedly issued on 28.6.1976 prima-facie seems to be a forged and fictitious document as allegedly the same has been issued by the Deputy Settlement Commissioner. States that as at the time of alleged issuance of the said Transfer Order, the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was repealed through the promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of 1975) since 28th January, 1975 and according to Subsection (2) of Section 1 it was to take effect on the 1st day of July. 1974, therefore, states that under the repealing Act the powers were to be used by Board of Revenue and further states that the Deputy Settlement Commissioner who issued the Transfer Order in favour of predecessor of the appellants-defendants on 29.12.1973 has been shown to have issued " the transfer order (Exh.P.5) in favour of predecessor of plaintiffs. Further that the possession of the appellants-defendants has been admitted upon the suit property and they are in possession since the time of their predecessor. Further states that now under the policy a District Verification Committee has been constituted who has verified the transfer order in favour of Mst. Iqbal Begum to be a valid and true document. Further that the witness produced by the plaintiffs themselves as PVV-4 has shattered their case rather he has proved the valid transfer order i e. Exh.P.6/Exh.D.1. States that if any transfer order is to be cancelled that prerogative is with the department to move for the same, any third person has no right asking the Court to cancel the valid transfer order issued by the department.
Relies on "Faizuddin Ahmed versus Muhammad Yousaf and another' (1988 SCM R 1289). Further while referring the statement of PW-2 and the document produced by the said witness that matter of arbitration shows that in the year 1971 the proceeding with regard to allotment of the plot in question and other property total measuring 14 marlas 6 sirsahi from Khasra No, 438 was under process and same is the position in the reference of Arbitrator (Exh.P.1) and Award of Arbitration (Exh.P2) by the plaintiffs-respondents. Prays for acceptance of appeal and setting aside the judgment and decree passed by the learned Trial Court in favour of the plaintiffs-respondents.
4. On the other hand, learned counsel for the respondents argues that Mst. Iqbal Begum passed away in the year 1967, therefore, transfer order in favour of dead person was not possible. The case of learned counsel for the respondents-plaintiffs is that the matter with regard to allotment of land in favour of Mst. Iqbal Begum in the year 1961 ended in the year 1963 and therefore issuance of alleged transfer order in favour of Mst. Iqbal Begum in the year 1973 is forged and fictitious one. He has referred the documentary evidence produced by plaintiffs-respondents to state that the case pleaded by the plaintiffs has been fully prayed, therefore, there is no defect in the judgment & decree passed by the learned Trial Court. Prays for dismissal of the appeal.
5. We have heard learned counsel the parties at full length gone through the oral as well as documentary evidence produced by both the parties minutely with the able assistance of learned counsel for the parties and the findings recorded by the learned Trial Court.
6. Plaintiffs-respondents came to the Court with filing a. suit for possession and permanent injunction initially on 18-07-2002 and subsequently the plaint was amended and it was for declaration cancellation of document, possession, permanent and mandatory injunction claiming that they be declared owner on the basis of Transfer Order No, 26463 dated 28-6-1976 (Exh.P5) and transfer order in favour of Mst. Iqbal Begum Exh.P..6/Exh.D.1 for land measuring 14 marlas and 6 sirsahi be cancelled. We have gone through the findings recorded by the learned Trial Court on Issue No, 6 whereby it is held that transfer order in favour of Mst. Iqbal Begum Exh.D.1 has not been issued in accordance with the requisite procedure and same has been issued in favour of dead person. We are unable to agree with the learned Trial Court as the documentary evidence produced by the appellants-defendants as Exh.DA, consists upon 16 pages (as mentioned in the statement, of learned counsel for the defendants recorded on 05-05-2012), fully shows the application moved by Mst. Iqbal Begum in the year 1961 and departmental proceedings upon that application as well as the payment of compensation from the compensation book and the deed of association and settlement. Further the document transfer order Exh.D.1/Exh.P.6 has been verified by the District Verification Committee that this document is in accordance with the record, therefore, the learned Trial Court was having no jurisdiction to cancel that document only on the basis that there are some procedural deviations committed by the department while issuing the same. We note that said deviations noted by the learned Trial Court are actually not the deviations as the application for transfer was moved by Mst. Iqbal Begum, even if, she passed away during the pendency of the process of transfer of the property in her favour, the transfer in her favour cannot be declared to be null and void as after her death her legal heirs are entitled to inherit the same in accordance with law. It is admitted between the parties that Khasra No, 438 consists upon about 20 kanals of land. The argument of learned counsel for the respondents that the matter of transfer in favour of Mst. Iqbal Begum ended in the year 1963, is not borne out from the record that even the arbitration proceedings which have been produced as Exh.P.1 and Exh.P.2 show that transfer in favour of Mst. Iqbal Begum was under process at that time even in the year 1071. Learned counsel for the respondents wants to take benefit of this fact interpreting in favour of the plaintiffs- respondents that subsequently this process' of transfer and allotment was not completed whereas the argument of learned counsel for the appellants-defendants that even if the arguments of learned counsel for the plaintiffs-respondents are admitted even then the possession by Mst. Iqbal Begum since the year 1964 and subsequently by her legal heirs in the year 1971 and till today by the appellants-defendants cannot be denied as there is no evidence on the file produced by the plaintiffs-respondents that the property was relinquished by Mst. Iqbal Begum or she or her legal heirs subsequently parted with the possession.
7. In this case we have noticed that more than 80% of the amount mentioned in Exh.D1 is shown to have been adjusted/paid, therefore, in the light of judgment passed by this Court reported as "Mst.
Aziz Bibi versus Karam Din and others" (1995 M LD 1121) the learned Trial Court has no jurisdiction to declare cancellation of said document for non-payment of the remaining price in the light of condition No, 8 of Exh.D.1 which is reproduced for ready reference:-- "In case of default in payment, the Board of Revenue, may effect the recovery as arrears of land revenue,"
Therefore, the findings recorded by the learned Trial Court on issue No, 6 are not sustainable under the law in the light of judgment of august Supreme Court of Pakistan reported as Faizuddin Ahmed versus Muhammad Yousaf and another' (1988 SCM R 1289).
8. During the arguments we have noticed that at many stages learned counsel for the respondents has advanced arguments which were self-contradictory. At one stage his arguments were that the property mentioned in Exh.D.1/Exh.D.6 and Exh.D.5 which is in favour of the plaintiffs- respondents are separate properties and property in possession of appellants-defendants is the same which is of the plaintiffs-respondents, therefore, argues that possession has rightly been ordered to be given to plaintiffs. When confronted to the learned counsel that if it is so then why plaintiffs have prayed for cancellation of the document (Exh.P.6/Exh.D.1) in favour of Mst. Iqbal Begum, the predecessor of the parties to the suit, states that as it is a forged document, therefore, the prayer Jas s been made. We are unable to understand that when s per the plaintiffs- respondents the property mentioned in Exh.D.1 is some other property then the property mentioned in Exh.P.5. transfer order in favour of predecessor of plaintiffs why the plaintiffs have prayed for cancellation of the said document. Further learned counsel for the respondents at one stage argued that even the document Exh.D.1 is a valid document then it will go .in the interest of the appellants-defendants as they are also the legal heirs of Mst. Iqbal Begum and they will get share of inheritance. This argument is also against the stance taken by the plaintiffs in their suit. When the department issuing the transfer order Exh.D. 1 in favour of Mst. Iqbal Begum has admitted this document to be true and valid and District Verification Committee in its meeting held on 19.3.2011 has approved the same how the plaintiffs were entitled to pray for the cancellation of the said document and we hold that in these circumstances the learned Trial Court . was having no jurisdiction to declare this document invalid or cancel the same.
9. We have noticed that Exh.P.5 as claimed by the plaintiffs in favour of their predecessor is visibly issued on 28.6.1976 by the same Deputy Settlement Commissioner who has issued Exh.D.1 on 29.12.1973 in favour of Mst. Iqbal Begum whereas after the repeal of laws through the repealed Act, 1975 the powers were with the Board of Revenue to dear with the matters in accordance with Section 4 of the said Act, therefore, this fact goes against the case of the plaintiffs. Even we have noticed that Exh.P.8 and Exh.P.9 allegedly issued on 9.10.1978 in favour of predecessor of the plaintiffs and Nawab Din are of the same officer as signatures are of the same person which are allegedly issued on 9.10.1978 whereas Exh.P.12 is undated which is with the signatures of the same Deputy Settlement Commissioner as claimed by the plaintiffs that this memorandum was issued to Mst. Iqbal Begum to-deposit the price and if price will not be deposited the reservation of land will be withdrawn. Prima facie this document does not seem to be correct document, therefore, not helpful for the plaintiffs/respondents.
10.So far as findings on Issues No, 1, 2 and 3 are concerned, admittedly Khasra No, 438 consists upon 20 kanals as has been admitted by Roshan Khan PVV-1, who is one of the plaintiffs, in his cross-examination, therefore, even if the plaintiffs have a valid document in their favour even then they can move for partition of the property and suit for possession was not competent when they have no right to pray for cancellation of document Exh.P.6/Exh.D.1. Plaintiffs pleaded in Para Nos. 5 and 6 that their predecessor permitted his younger brother Abdul Rasheed alias Chan Mahi, predecessor-in-interest of the present defendants to reside in th4 suit house. We have noticed that there is no date of said permission and oppression of defendants given in the suit whereas case of the appellants that Mst. lqbal Begum was in continuous possession since before the year 1961 and after her death they are in possession.
11.By the scrutiny of evidence produced by the plaintiffs/respondents it is clear that they miserably failed to prove issues No, 1 to 3.
12.In these circumstances the evidence of the plaintiffs-respondents was not upto the mark to decide Issues No, 1, 2, 3 & 6 in favour of plaintiffs-respondents. In this view of the matter, this appeal is allowed, findings recorded by the learned Trial Court on Issues Nos. 1, 2 & 3 as well as Issue No, 6 are reversed and the judgment. & decree passed by the learned Trial Court is set aside. Resultantly suit filed by respondents/plaintiffs stands dismissed.