DR. KHURSHID IQBAL.
1. Dawood Shah, the respondent/plaintiff, initially filed a suit for possession and perpetual injunction in respect of the suit property (fully described in the head-note of the plaint). Later on, the petitioners also filed a suit for declaration, perpetual injunction and possession of the same subject property. Both the parties submitted their respective written statements to both the suits. The trial Court framed consolidated issues and recorded respective evidence of the parties.
2. After hearing the arguments of learned counsel for the parties, the trial Court decreed the suit of the petitioners and dismissed that of the respondent, vide judgment and decree dated 10.06.2017.
However, on appeal, the appellate Court by its judgment and decree dated 16.01.2018, set aside the judgment of the trial Court, decreed the suit of the respondent and dismissed the suit of the petitioners.
3. Through the instant Revision Petition, the petitioners have called into question the aforesaid judgment and decree of the appellate Court.
4. Arguments of learned counsel for the parties heard and record perused.
5. The background of the dispute is that the parties are adjacent owners of the lands. The respondent claims to be the owner of Khasra # 1270; and the petitioners, are of Khasras # 1271 and 1273. The respondent brought a suit for possession against the petitioners contending that they have forcibly taken possession of his 12 Marlas land. In their written statement, the petitioners set up a plea that they have purchased the land from the respondent and made part payment of the sale consideration, whereas Rs. 37500/00 is still outstanding on their part, which they are ready to pay provided the respondent transfer it in their names. They explained that the respondent was involved in a criminal case for abduction of a woman. In that case, the respondent had entered a compromise in consideration of some money for which he wanted to sell his land. The petitioners came forward to purchase his land.
6. The burden was on the petitioners to prove the sale. They failed to prove as to when exactly and where the respondent agreed to sell his land to them. They could not furnish evidence as to when the respondent was nominated in the abduction case; then, who the alleged abducted woman was. They contended having paid Rs. 30,000/00 to the son of the respondent in the presence of the witnesses. In the plaint (of their cross suit), they didn't mention the names of those witnesses in whose presence the aforesaid partial sale consideration was paid to the son of the respondent.
The witnesses of the petitioners did not support their stance. Even the name of the son of the respondent was not disclosed, who allegedly received the partial sale consideration. It was further stated in the evidence that as the respondent was absconder in the abduction ease, so his son and son-in-law approached to them as jirga for purchase of the land. One Masood Shah (PW3) deposed that he had reached out to the petitioners as jirga member for sale of the land. He, while under cross-examination, couldn't state the year or the month in which he went as a jirga Member.
He added that it was about 8 years ago. Their other witnesses--Mirullah and Muhammad Rahman (PWs 4, 5) deposed that the son-in-law of the respondent had compelled them to purchase the land. It doesn't stand to reason that instead of his own son, his son-in-law was so much worried about the sale of his land for the purpose of compromise. If at all, it is further unbelievable that A the son-in-law or even the son of the respondent, managed to sell the land without having been authorized by the respondent to do so. When asked about-- the FIR of the abduction case, Muhammad Zahid Shah (attorney of the petitioners/PW2) deposed that no FIR was lodged as the report of the incident was recorded in the daily diary.
7. It is admitted that there is no agreement to sell in black and white. The petitioners offered a pretext that written agreement was not possible due to abscondence of the respondent. It is in their evidence that they have purchased the land 08 years ago. But then they never went for a written agreement during such a long time, nor did they institute any suit. Indeed, they filed the suit after the encroachment of the respondent's land was found on their part during the demarcation proceedings. The petitioners also contended that they have been recorded in possession in Khasra Girdawari (ExPW1/3) through one Mirullah (PW4) as their tenant. Such an entry couldn't be read as evidence of their title. As against such entry, the respondent is recorded as owner of the suit property in the record of rights. Moreover, on the application of the respondent, demarcation was conducted in which the petitioners were found to have encroached his land. The respondent examined Girdawar Abdul Majid (DW2) who produced the respondent's original application for demarcation.
8. It is settled law that entry in Khasra Girdawari has no legal status. Reliance is placed on the case titled as Mst. Fakhrunnisa v. Mohibullah Khan reported as PLD 1984 Peshawar 94. In this case, it was held: "The mere fact that a person is recorded in Khasra Girdawri being in possession of a portion of land as vendee, without any sale mutation, or registered deed of sale, would not be any stretch of imagination, prove that he was vendee of the said portion of land."
Further reliance in this respect may be placed on Malik Sher v. Rab Nawaz and 2 others (1993 SCMR 2035), wherein it was held: "Khasra Girdawaris carry no presumption of truth. It is established law. It is also common knowledge that a person may be a tenant and yet his name may not appear on the Khasra Girdawari."
9. It is pertinent to mention here that whenever there is a conflict between the entries in the Khasra Girdawari and record of rights, the latter would prevail in Ghulam Muhammad v. Ellahi Bux (PLD 2002 Lahore 48), it was stated: "In case, there is a conflict between the entries in the Khasra Gardawari and the entries in the record of rights, the latter shall prevail. The rule laid down in the case of Muhammad Aslam v.
Khudadad (supra) 1982 SCMR 511], that the entries of Khasra Gardawari do not have the same degree and statutory force as exists for the entries of Annual Revenue Record, is respectfully followed."
10. As far the valid sale transaction is concerned, reference may be made to the case of Muhammad Alam and others v. Qalam Badshah and others reported as 2012 YLR 521 [Peshawar]. In this case, it was held that: "9. It transpired from the close analysis of section 54 that the valid sale transaction constituted, when the following essential elements proved by the vendee.
(i) The valid sale agreement.
(ii) The parties to the sale transaction.
(iii) The sale consideration fixed and paid. (v) The subject-matter of the sale transaction."
In Muhammad Yousaf v. Munawar Hussain and 5 others (2000 SCMR 204), it was observed: "The agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed. and such agreement does not confer any propriety right, and thus, it is obvious that the declaratory decree as envisaged by section 42 of the Specific Relief Act, cannot be awarded because declaration can only be given in respect of a legal right or character. The only right arising out of an agreement to sell is to seek its specific performance and in case the vendee has been put in possession, the same is protected under section 53-A of the Act."
11. The conclusion of the above discussion is that that the appellate Court has righty reversed the judgment and decree of the trial Court, which does not warrant interference by this Court in its revisional jurisdiction. Hence, the instant Revision Petition fails, which is accordingly dismissed.