' The facts giving rise to this regular second appeal, which was initially filed as a revision petition and has been allowed to be converted into appeal, are that house No,B-IX-2-S-27, situated in Gali Hari Singh Nalva, Gujranwala, was transferred by the Settlement Department jointly to the appellant Ghulam Muhammad, his brother Muhammad Shafi and their mother Mst. Fazal Bibi on 26-10-1960 and P.T.O. Was issued in their names on 7-12-1960. The appellant instituted a suit for partition of the aforementioned house on 12-12-1974 claiming one-half share in the house. The respondent contested the suit and pleaded that the appellant had transferred his share in the house to him after receiving its price and had executed a document in that behalf on 29-11-1972.
The respondent contended that before the transfer of the house in question by the Settlement Department, the respondent and his mother had agreed that the house in question be transferred by the Settlement Department in his favour, as the appellant would receive compensation in lieu of his share in the house. The appellant and his mother also submitted affidavits before the Deputy Settlement Commissioner giving their consent to the transfer of the house in favour of the respondent. But somehow the Settlement Department transferred the house jointly in the names of the appellant and the respondent and their mother. In 1967 exclusive possession of the house was given to the respondent, who thereafter carried out repairs in the house and bore the entire expenses incurred in that behalf. It was further contended by the respondent that after the transfer by the appellant of his share in the disputed house in his favour, he had become its sole owner. The respondent also pleaded that the appellant was estopped by his conduct to institute the suit and that he was liable to pay special costs for the frivolous suit instituted by him. From the pleadings of the parties, the learned trial Court framed the following issues:-
(1) Whether the suit has been correctly valued for the purposes of court-fee and jurisdiction? If not, what is the correct valuation for both the said purposes?;
(2) Whether the plaintiff is estopped by his conduct to institute this suit?;
(3) Whether the defendant has raised construction in the property in question and effected repairs? If so, to what effect?;
(4) Whether the plaintiff executed an agreement in favour of the defendant on 29-11-1972? If so, to what effect?;
(5) Whether the property in dispute is jointly owned by the parties? If so, what are their shares?;
(6) Whether the defendant is entitled to special costs If so, to what extent?; and
(7) Relief.
2. The parties led evidence in support of their respective contentions. After considering the parties' evidence and hearing their counsel, the learned trial Court decided issues Nos. 1, 2, 3, 4 and 6 against the respondent. Issue No,5 was left undecided and as a result of the above findings, a preliminary decree was passed in favour of the appellant on 29-5-1980. The respondent preferred appeal against the judgment and decree of the learned trial Court which was accepted by the learned Additional District Judge by reversing the findings of the learned trial Court under issues Nos. 2 and 4 and the appellant's suit was dismissed vide judgment dated 2-2-1982.
3. At the time of hearing of the revision petition, a preliminary objection was raised by the respondent that the revision petition was not competent, as a second appeal in the High Court lay against the judgment and decree of the learned first appellate Court, as the value of the suit for the purposes of jurisdiction was over Rs,2,000 and the suit had been instituted prior to the amendment made in section 102 of the Code of Civil Procedure, 1908, by the Code of Civil Procedure (Amendment) Ordinance, 1980 (No,X of 1980), whereby second appeal to the High Court was abolished in cases where value of the subject matter was less than fifty thousand. Learned counsel for the appellant conceded that the judgment and decree of the learned Additional District Judge should have been challenged through appeal and that the revision petition filed by him was not competent. He, however, prayed that the revision petition filed by him might be treated as appeal. Since no question of limitation was involved inasmuch as the revision petition had been filed before the expiry of ninety days from the date of the decision of the first appellate Court and no payment of court-fee on the memorandum of appeal was necessary in view of the exemption allowed by the Provincial Government in the payment of court-fee in suits and appeal where the value of the subject matter did not exceed A rupees twenty-five thousand, learned counsel for the respondent did not oppose the request made by learned counsel for the appellant in view of the decision of the Supreme Court in the case of Abdul Aziz and others v. Abdur Rahim and others PLD 1984 SC 164. The request made by the learned counsel for the appellant is allowed and the revision petition, filed by him, is converted into an appeal. Necessary entries in the relevant register shall be made by the office.
4. Learned counsel for the appellant has submitted that document dated 29-11-1972 (Exh.D/1), relied upon by the respondent in support of his claim that he was the sole owner of the disputed house, was not executed by the appellant. In the replication filed by him, the appellant had not only specifically denied the execution of the document, but had also pleaded that it had been prepared by committing forgery. According to the learned counsel, the respondent had failed to prove the execution of the document, as none of the attesting witnesses was examined as a witness. Even the scribe of the document did riot depose that the appellant had signed the document in his presence. Learned counsel for the appellant has contended that even if it be assumed for the sake of argument that the execution of the aforementioned document is proved, it has no evidentiary value for want of registration. According to the learned counsel, document Exh.D/1 cannot be treated as an agreement to sell in view of its contents. The recital in the document that the price of one-half share of the house amounting to Rs,10,000 had been received by the appellant and that the possession of the house had been delivered to the respondent indicate that the document was written to evidence the transaction of sale. It cannot be treated as an agreement to sell merely because it is stated therein that the sale-deed in respect of the share transferred by the appellant would be executed as and when needed. Learned counsel for the appellant has referred to Jagmohandas v. Kishan A 1 R 1957 Hyd. 37 and K. Santhakumari v. K. Suseela Devi AIR 1961 And. Pra.
424 in this connection.
5. Learned counsel for the appellant has contended that section 53-A of the Transfer of Property Act would not be applicable to the facts of the case as, according to the respondent's contention, the possession of the house was delivered to him by the appellant long before the execution of the document Exh. D.1 whereas one of the essential requirements for the application of section 53-A is that the possession of the property should have been acquired by the transferee under the un- registered agreement deed. In this connection learned counsel has referred to Mst. Ghulam Sakina v. Umar Bakhsh and another PLD 1964 SC 456 and Noor Din v. Amar Ali 1980 CLC 1785.
6. Learned counsel for the respondent, on the other hand, has submitted that the execution of document Exh.D.1 has been duly proved by its scribe and since no evidence in support of the allegations made in the replication by the appellant that the aforementioned document was prepared by committing forgery or it was the result of fraud, has been produced by the appellant, the first appellate Court has rightly concluded that the document Exh.D.1 was executed by the appellant.
7. Learned counsel for the appellant has further submitted that it is immaterial whether document Exh.D.1 is an agreement to sell or a sale deed as in both the cases the provisions of section 53-A of the Transfer of Property Act would be applicable and the respondent would be able to successfully defend the suit instituted by the appellant.
8. According to the learned counsel for the respondent the appellant is estopped by his conduct to lay any claim on the house in question as he had agreed and had even made a request to the Settlement Department that the disputed house be transferred to the respondent. After the transfer of the house by the Settlement Department the appellant had also delivered its possession to the respondent and later on had executed Exh. D.1 in his favour.
9. The execution of document Exh.D.1 by the appellant is the basic question, which requires determination in this appeal because the effect of the document and its evidentiary value can be considered only if it is found that the appellant has executed it and is bound by it. On the basis of evidence produced by the parties the learned trial Court has come to the conclusion that the execution of document Exh. D.1 by the appellant is not proved. The learned first appellate Court has, however, held otherwise. The document Exh.D.1 was written by Inayatullah, Petition-Writer of Kamoke, on 29-11-1972 at Gujranwala, where he had come to appear in Court in some case. He has stated while appearing as D.W.5 that the aforementioned document was written by him under the instructions of the appellant in favour of the respondent. A sum of Rs,10,000 was also paid in his presence. There were as many as four attesting witnesses to the document, out of whom three had in fact put their signatures on the document. None of these witnesses has been produced by the respondent to prove the execution of the document by the appellant. Although the appellant had specifically denied the execution of the document and had contended that his signatures upon the document were forged no evidence was brought on record by the respondent to controvert the appellant's above contention. Neither the respondent nor the scribe of the document, Inayatullah D.W.5, made any statement that the document Exh.D.1 was signed by the appellant. Even the appellant was not confronted with his signatures appearing on Exh.D.1 when he appeared as a witness. The bare statement made by Inayatullah D.W.5, that the document Exh.D.1 was drawn-up under the instructions of the appellant, was not sufficient evidence to prove the execution of the document by the appellant particularly when he had contended that his signatures appearing on the document were forged. The fact that the appellant has not produced any evidence to prove the forgery allegedly committed by the respondent while preparing Exh.D.1 does not prove the execution of the document by the appellant. The initial onus to prove the execution of Exh.D.1 by the appellant was on the respondent, which he failed to discharge by the evidence produced by him during the trial. A careful examination of the signatures of the appellant appearing on Exh.D.1 and its comparison with his admitted signatures on the plaint, Wakalatnama in favour of Kh. Azizur Rehman, Advocate, and other documents filed by him during the trial of the suit, reveals that there are marked dis-similarities between the two signatures from which it can be concluded that the appellant had not signed Exh.D.1 The circumstances under which Inayatullah D.W.5 was asked to write the document in question, non-production of his register of petitions and the loss of the stamp-vendor's register containing entry regarding the sale of the stamp-papers to the appellant are additional factors, which make the execution of Exh.D.1 by the appellant doubtful. The view taken by the learned trial Court that the execution of document Exh.D.1 by the appellant has not been proved is based on proper appreciation of the evidence as noticed above and is accordingly affirmed.
10. After the above finding that the execution of document Exh.D.1 by the appellant is not proved no right or interest in the disputed house can be claimed by the respondent on the basis of the above document. It is, therefore, not necessary to consider the evidentiary value of Exh. D.1, on which submissions have been made by the learned counsel for the parties. The evidence produced by the respondent that prior to the transfer of the house by the Settlement Department the appellant and Mst. Fazal Bibi, his deceased mother, had agreed that the house in question should be transferred by the Settlement Department only in the name of the respondent is of no use in so far as the question of appellant's title to the house in question is concerned because the Settlement Department had not acceded to the request made by the appellant and his mother and had transferred the house jointly in favour of the appellant, Mst. Fazal Bibi and the respondent. Even otherwise the agreement referred to above Was not considered sufficient by the respondent for claiming exclusive ownership of the house in dispute as otherwise he would not have felt the necessity of the transfer of the appellant's right in the house by executing a document in his favour.
11. The possession of the disputed house is with the respondent as admitted by the appellant's witnesses, but it does not affect the appellant's right to seek partition of the house as he is one of the persons to whom the house was transferred by the Settlement Department. The plea of estoppel raised by the respondent is primarily based on the execution of the document Exh.D.1 by the appellant. But as noticed above the execution of the said document by the appellant is not proved. On the basis of possession alone the respondent cannot plead that the appellant, who admittedly is one of the joint owners of the house in dispute, is estopped by conduct to file the suit against him. The finding of the learned trial Court under issue No,2 against the respondent is, therefore, correct and is accordingly affirmed.
12. Admittedly the disputed house has been transferred jointly in favour of the appellant, the respondent and their mother Mst. Fazal Bibi. The appellant claims that he is owner of 1/2 share in the house. The respondent's case is that the appellant has sold his 1/2 share in the house to him, which, however, has not been proved. It is in evidence that Mat. Fazal Bibi died in 1971.- It is also in evidence that the appellant and the respondent had also another brother, namely, Taj Din. It is not known as to when Taj Din died but it is admitted by the respondent that he is survived by a widow, five daughters and three sons. There is nothing on the record to show that Mst. Fazal Bibi had relinquished her 1/3rd share in the house in favour of the appellant and the respondent. According to the P.T.D. Issued by the Settlement Department Mat. Fazal Bibi became owner of 1/3rd share in the house, which, after her death, would devolve on her legal heirs, namely, the parties and their brother Taj Din. In case Taj Din had died prior to the death of Mst. Fazal Bibi his share would go to his legal heiRs, In any event the appellant is not entitled to claim 1/2 share in the disputed house. In addition to his 1/3rd share in the house he would get 1/9th share as heir of Mst. Fazal Bibi, his mother, and thus his total share in the house comes to 4/9th share. Similarly the respondent is entitled to get 4/9th share in the house. The remaining 1/9th share shall go to the heirs of Taj Din deceased.
The upshot of the above discussion is that this appeal is accepted and the judgment and decree, dated 2-2-1982 passed by the learned Additional District Judge are set aside. The preliminary decree passed by the learned trial Court is restored with the modification that the appellant shall be entitled to get 4/9th share in the house partitioned. The respondent shall also be entitled to 4/9th share in the house while the remaining 1/9th share shall go to the heirs of Taj Din deceased, who shall be impleaded as party by the learned trial Court before proceeding further in the case.
The appellant is also awarded the costs of the appeal.