CH. MUHAMMAD MASOOD JAHANGIR , J.--- Verily , Muhammad Iqbal respondent No.2 on 28.05.2005 instituted suit against the petitioners as well as respondent No.1 asserting that he on the basis of decree dated 17.05.1984 passed in suit for specific performance of agreement followed by attestation of sale deed No.1418/1 dated 17.09.1985 and mutation No.348 dated 27.10.1985 was exclusive owner of the subject area and that with regard to it, sale deed No.941 of 28.05.1984 maneuvered by petitioners/defendants was liable to be cancelled. The suit was resisted by the petitioners/defendants with the assertion that respondent/plaintiff had no nexus with the property, which was alienated to the formers via sale deed dated 28.5.1984. The learned Trial Court after receiving and appreciating the evidence, finally dismissed the suit vide judgment dated 22.01.2011, however, learned District Judge, Lodhran through impugned decision of 13.03.2012 allowed appeal and decreed the suit in favour of respondent No.2 and since then this petition was here.
2. Mian Anwar Mubeen Ansari, learned counsel for petitioners/defendants emphasized with great vehemence that though decree dated 17.05.1984 was granted to respondent No.2 prior to the execution of sale deed in favour of his client, however the said decree was not a deed of title, which by itself did not accrue any interest, right or ownership to the respondent/plaintiff, but learned Appellate Court below without considering the said aspect in its true perspective erred in law to prefer the said decree over the title documents of the petitioners. Mr. Ansari further argued that earlier suit for specific performance was decreed in favour of respondent/ plaintiff to the extent of 32 Kanals consisting of Khewat No.27 and to that effect it was satisfied via attestation/ sanction of sale deed dated 17.09.1985 and mutation dated 27.10.1985, whereas 22 Kanals 9 Marlas located in Khewat No.44 was transferred to the petitioners / defendants through sale deed No.941 dated 28.05.1984. Apparently, out of two separate properties bearing distinct Khewats No.27 as well as 44, the former was alienated to respondent No.2, whereas the latter to the petitioners, but the learned Appellate Court below without considering the vital documents; viz Exhs:P3, P4 and P5 committed material irregularity as well as patent illegality to cancel sale deed of the petitioners pertaining to altogether different land. In response, Messrs Malik Muhammad Tariq Rajwana and Malik Asif Rafique Rajwana, Advocates learned counsel for respondent supported the impugned judgment.
3. Arguments heard and record perused.
4. The available record stands for that Sajjad Ahmad was owner of 61 Kanals 12 marlas falling in Khewat No.27 as well as 22 Kanal 19 Marlas in another Khewat; viz. No.44, who with regard to former area (falling in Khewat No.27) executed agreement to sell dated 14.06.1979 qua 32 Kanal in favour of plaintiff/respondent No.2, whereas another sale contract was scribed in favour of his son Ghulam Hussain respecting 31 Kanal 8 Marlas. The plaintiff/respondent No.2 and Qjiulam Hussain instituted independent suits (without impleading each other) solely against their vendor Sajjad Ahmad. The said vendor though contested suit of Ghulam Hussain, however after due trial it was decreed-on 28.03.1981, whereas a consent decree dated 17.05.1984 (Exs.P2 and 3) in favour of plaintiff/respondent No.2- was passed latterly. It was again a hard fact that in execution proceedings of decree dated 28.03.1981, sale deed dated 27.03.1985 (Ex.D9) was earlier materialized in favour of Ghulam Hussain, however per decree dated 17.05.1984 (Ex.P3), subsequently sale deed dated 17.09.1985 (Ex.P4) attested in favour of plaintiff/respondent No.2. This all proved that not only sale contract, but decree and then sale deed of Ghulam Hussain were prior in time as compared to the agreement, decree as well as sale deed of the plaintiff/respondent No.2. The documents discussed so far were indicative of the fact that Sajjad Ahmad (the common vendor of plaintiff as well as Ghulam Hussain) was owner of 61 Kanal 12 Marlas in Khewat No.27, who sold out 63 Kanal 8 Marlas to the said vendees, thus subsequent sale deed (Ex.P4) in favor of plaintiff being excessive to the extent of 1 Kanal 16 Marlas could not be attested until and unless reduction to that effect was admitted. The plaintiff, at the most, could bring suit against Ghulam Hussain, who being co-sharer purchased property in Khewat No.27, but neither he was impleaded nor his sale deed (Ex.D9) ever challenged. By not doing so, in fact the plaintiff/respondent No.2 admitted the legality/genuineness of transaction and then its finalization in favour of Ghulam Hussain.
5. It is vivid from sale deed dated 28.05.1984 (Ex.P5) that Haji Muhammad Bakhsh (ascendant of petitioner) though purchased 22 Kanal 19 Marlas from the same vendor viz. Sajjad Ahmad; but it was part of different Khewat No.44, whereas plaintiff was vendee of land pertaining to different Khewat No.27, thus for said count alone, the latter lacked locus standi to challenge Ex.P5. The other drastic aspect of the plaintiff's case was that Ex.P5 of the petitioners was executed on 28.05.1984, whereas thereafter sale deed (Ex.P4) in favour of plaintiff was attested on 05.09.1085. It is trite law that prior registered instrument has preference over the latter One until and unless the former is cancelled. Reliance can be placed upon judgment reported as Abdul Rashid v. Muhammad Yaseen and another (2010 SCMR 1871), No doubt, the decree (Ex.P3) in favour of plaintiff was passed eleven days earlier to sale deed (Ex.P5), however, there is no cavil that decree for specific performance of sale agreement does not confer title until and unless it is blessed with the sale deed-title document via execution proceedings. See Abdul Majid v. Nizam Din and others (PLD 1959 Lahore 273), Muhammad Ishaq v. Muhammad Siddique (PLD 1975 SC 909) and Abdur Rehman and 68 others v. Province of Punjab through Collector, Bahawalpur and 23 others 2009 YLR 753. The learned District Judge while rendering its impugned judgment failed to consider said vital aspects, thus such approach being erroneous could not be supported or protected.
6. For the above reasons, the impugned judgment and decree being tainted with misreading/non- reading of evidence besides the settled law on the subject is not liable to be sustained, which is quashed by allowing this Civil Revision and judgment of the learned Trial Court dated 22.01.2011, whereby suit of the 13 respondent/plaintiff was dismissed, is restored. No order as to costs.