' Suit No, 19/1 of 1970 was instituted by Muhammad Zaman (respondent No. 1) on 8-1-1970 for declaration that he was owner in possession of two houses (as described in the plaint) situate in village Khanda Khoo, Tehsil Abbottabad and the decree in civil suit No, 615 decided on 20-12-69 obtained by Abdul Latif (defendant No, 4) against Khan Muhammad and others being fraudulent was ineffective against his rights. In the alternative decree for specific performance by registration of the sale-deeds dated 5-11-68 was prayed for. Vide order dated 30-5-73 the decree prayed for was granted in favour of the plaintiff by the Civil Judge, Abbottabad. The appeal filed by Abdul Latif (petitioner) before the Additional District Judge, Hazara at Abbottabad also failed on 10-12-1975.
Hence this revision.
2. The plaintiff claimed ownership of the two houses on the ground that they exclusively belonged to one Sher Gul son of Shehbaz and were sold in his favour by two sale deeds dated 5-11-68 for a total consideration of Rs, 1,600. Abdul Latif (defendant) controverted the claim of the plaintiff and stated that Shehbaz Khan was the owner of three houses (rooms) and on his death the houses devolved on his 3 sons Sher Gult Mir Gul and Abdullah. He further stated that he being the son of Abdullah his 1/3 share devolved on him whereas 2/3 share belonging to Sher Gul and Mir Gul was orally sold by them in his favour 20 years ago and since then he was in possession of the entire property. It may be noted that out of the 3 houses the plaintiff's suit relates to 2 houses and the third house which was also the interitance of Shahbaz Khan has not been included in the present suit for the reason that the aforesaid sale deeds relate to two houses only.
3. Both the courts below have come to the conclusion that the houses in dispute exclusively belonged to Sher Gul who had competently alienated the same in favour of the plaintiff and thus he was held to be a lawful owner thereof.
4. From the perusal of the record it becomes clear that in fact the suit property belonged to Shehbaz Khan who had 3 sons i. e., Sher Gul, Mir Gul and Abdullah and one daughter Mt. Hayat Noor. Muhammad Zaman ( plaintiff ) is the son of Mst. Hayat Noor. Abdul Latif (petitioner) is the son of Abdullah. One Khan Muhammad is the son of Mir Gul whereas Mst. Sakina, Mst. Aqil Jan and Ghulam Mustafa are the heirs of Sher Gul. Muhammad Zaman in his evidence stated that the houses were constructed by Shehbaz Khan in his lifetime and were given to his 3 sons mentioned above. Similarly Abdul Latif (defendant) also stated that the 3 houses (rooms) were constructed by Shehbaz Khan and given to his 3 sons Abdullah, Sher Gul and Mir Gul. He further stated that the houses belonging to his uncles i. e. Sher Gul and Mir Gul were also given to him as he had agreed to construct houses for them elsewhere. Havildar Ahmad Ali (D. W. 2) who is equally related to both the parties stated in his evidence that the houses belonged to Shehbaz Khan which were given to his 3 sons mentioned above. He stated that Abdul Latif (defendant) was in possession of the houses for the last 20/25 years. Muhammad Zaman (plaintiff) failed to prove that the houses purchased by him exclusively belonged to Sher Gul. There is no evidence to show how Sher Gul became the exclusive owner of the 2 houses. It is obvious that the sale-deeds in question would be valid only to the extent of the share belonging the Sher Gul in the inheritance of his father Shehbaz Khan. Both the learned Courts below arrived at an erroneous finding holding Sher Gul as the exclusive owner of the 2 houses. It is proved from the evidence that Shehbaz Khan left behind 3 sons i. e. Abdullah, Mir Gul and Sher Gul and one daughter Mst. Hayat Noor (mother of Muhammad Zaman plaintiff). Therefore in the inheritance of Shehbaz Khan Sher Gul was entitled to only 2/7 share which he could have validly transferred in favour of the plaintiff. The plaintiff being the only son of Mst. Hayat Noor would also inherit her 1/7 share. In this view of the matter the plaintiff could be held entitled only to 3/7 shares in the 2 houses in dispute and the remaining 4/7 shares would devolve on the heirs of Mir Gul and Abdullah.
5. The learned counsel for the petitioner argued that the suit was barred under section 42 of the Specific Relief Act, since the consequential relief of possession has not been claimed by the plaintiff as admittedly the houses were in possession of Abdul Latif (defendant) at the time of the institution of the suit. The learned counsel for the plaintiff referred to the statement of Muhammad Daud (P. W.
4) and stated that the houses were rented out by the plaintiff in favour of this witness on the basis of rent deed (Exh. P. W. 1/1) and therefore, the possession shall be deemed to be that of the plaintiff.
However, the said witness in his cross-examination admitted that about 6/7 months ago he was forcibly dispossessed of the suit property by Abdul Latif defendant. The learned counsel for the petitioner also referred to a report lodged by Muhammad Zaman (plaintiff) in Police Station, Sherwan on 31-12-69 (Exh. D. W. 1/1) wherein he had mentioned that the 2 houses in dispute were purchased by him from Sher Gul, his maternal uncle, but Abdul Latif (defendant) claiming a share in the houses had taken forcible possession thereof and was not allowing the plaintiff to enter the houses. It is contended that from this report it is clearly established that the plaintiff was not in possession of the suit property at the time of the institution of the suit and thus in the absence of a prayer for the consequential relief of possession the suit was incompetent. It may, however, be mentioned that admittedly the parties are co-sharers in the property in suit and in the absence of any ouster the possession of one co-sharer endures for the benefit of other co-sharers and in this view of the matter one co-sharer can sue for a declaration of his right without seeking relief of possession. In these circumstances the objection of the learned counsel that the suit was incompetent in the absence of a prayer for consequential relief of possession would not prevail.
6. The learned counsel for the petitioner also urged that the sale-deeds in question being unregistered were inadmissible in evidence and could not pass a valid title in the suit property in favour of the plaintiff. It may be observed that the plaintiff in the suit has also made an alternate prayer for specific performance of the contract by registration of the sale-deeds in question. It is well-established that a vendee in possession of unregistered sale-deed can sue for specific performance of the original contract and the suit cannot be defeated merely because the deed was executed but had not been registered. In Shah Muhammad v. Inayatullah and others (1) it was held that : "When a vendor executes a deed of sale but it remains unregistered and the vendee sues for specific performance of the original contract the question that is to be considered is whether there is a subsisting contract for sale or not. If the contract be subsisting the vendee has a statutory right, subject to the provisions of the specific Relief Act, to have the contract performed. The suit cannot be defeated merely because another deed which was executed had not been registered.
In this view of the matter no fault can be found with the form of the suit wherein the plaintiff has sought a declaration of his right and in the alternative has also prayed for the specific performance of the original contract of sale effected in his favour by Sher Gul deceased. Regarding the decree in suit No, 615 decided on 20-12-69 it may be mentioned that admittedly the plaintiff Muhammad Zaman was not a party thereto and thus it would have no binding effect on his rights in the suit property.
7. For the aforesaid reasons the decree prayed for is granted to Muhammad Zaman plaintiff (respondent No. 1) and he is declared to be the lawful owner of 3/7 share in 2 houses (rooms) in dispute. Since the third house (room) is not the subject-matter of the present suit nothing herein shall preclude the plaintiff or other heirs of Shahbaz Khan from claiming their lawfal share in the said house. This revision is, therefore, partially accepted and the decrees of the lower courts are modified as stated above. The parties are directed to bear their own costs.
Revision .
(1) PLD 1953 Lab. 87 {FOONOTE}}