' This regular second appeal has arisen out of suit instituted by the appellant on 25-6-1954 of a two-storeyed house situated in Baghbanpura, Lahore as fully described in the plaint and for recovery of Rs,216 as compensation for the use and occupation of the aforementioned house for the period from 1st June, 1951 to 31st May.
1954. The appellant claimed that he had purchased the aforementioned house from Muhammad Musa deceased predecessor-in-interest of respondents Nos.1 to 8 for Rs,2,000 by means of registered sale-deed, dated 6-7-1945. After the sale, physical possession of the house was, however, not delivered to the appellant. As respondents Nos.1 to 8 refused to deliver the possession of the house to the appellant after the death of Muhammad Musa and allowed Ilam Din respondent No,9 to occupy the house, the appellant instituted the suit against them for possession of the house and payment of compensation for use and occupation.
2. The suit was contested by the respondents. Respondents Nos.1 to 8 filed separate written statement contending that they had been improperly impleaded as party to the suit as they were not in possession of the disputed house which had been sold by their predecessor-ininterest Muhammad Musa deceased in favour of appellant on 11-5-1945. Ilam Din respondent No,9 controverted the allegations made by the appellant and pleaded that the disputed house was owned by his father Siraj Din and his brother Taj Din and that after their death he has been occupying the house as owner. Muhammad Musa deceased had never lived in the disputed house nor he had any right or interest in it. As an alternate plea Ilam Din respondent also stated in the written statement that he had acquired title to the disputed house through adverse possession as he had been in possession of the house for more than 20 years. He also questioned the valuation of the suit for purposes of court-fee and jurisdiction. After the disposal of the preliminary objections including the objection regarding valuation of suit for purposes of court-fee and jurisdiction the learned trial Court framed the following issues:--
(1) Whether defendants are not liable to deliver possession of the disputed house to the plaintiff ?
0.P.D.
(2) Whether defendant No,9 has become owner of the house by acquiring title through adverse possession ? O.P. Defendant No,9.
(3) Whether defendant No,9 is the owner of the house ? Q.P. Defendant No,9.
(4) Is the plaintiff entitled to any compensation, if so, to what extent and from whom ? O.P.P.
(5) Relief.
3. The parties led evidence in support of their respective contentions. After considering evidence produced by the parties and hearing the submissions made by their counsel the learned trial Court decided issues Nos.2 and 3 against respondent No,9 and issue No,4 against the appellant. Issue No,1 was left undetermined in view of the finding under issues Nos. 2 and 3. On the basis of the above findings decree for possession of the disputed house was pursed in favour of the appellant on 31-7-1965. Ilam Din respondent filed appeal against the aforementioned judgment and decree of the learned trial Court, which was partly allowed by the learned Additional District Judge on 20- 6-1966 as it' was held that respondent No,9 was entitled to retain possession of the disputed house to the extent of 3/4th share, while the appellant was entitled to joint possession of 1/4th share in the house. Feeling aggrieved by the judgment and decree of the learned Additional District Judge the appellant has filed the instant appeal in this Court.
4. It has been contended on behalf of the appellant that the learned Additional District Judge should have dismissed the appeal filed by respondent No,9 after he had found that respondent No,9 had failed to prove the ownership of the house because in view of the issues framed by the learned trial Court, the appellant was entitled to the relief claimed by him after the decision of issues Nos. 2 and 3 against respondent No,9. Learned counsel for the appellant has submitted that the learned Additional District Judge has misconstrued the documentary evidence produced by the appellant in rebuttal as the onus of proof of the material issues, i,e, issues Nos. 2 and 3 was on respondent No,9.
5. The appellant's case as revealed by the averments made in the plaint and the evidence produced by him is that the disputed house was owned by Taj Din who, before his death, transferred it to his wife Mst. Begum Bibi in lieu of her dower. After his death Mst. Begum Bibi contracted marriage with one Muhammad Hussain. She sold the disputed house to him for Rs,2,000 by means of registered sale-deed on 11-2-1942. Muhammad Hussain in turn transferred the house to Muhammad Musa by means of registered sale-deed, dated 1-7-1942 after receipt of Rs,2,000 from him. The appellant purchased the disputed house from Muhammad Musa through registered sale-deed, dated 6-7-1945 (Exh.P-I) on payment of Rs,2,000.
6. Ilam Din respondent No,9, on the other hand, while appearing as D.W.5 says that the disputed house was constructed by his father Siraj Din and his uncle Taj Din in 1940 and that after their death he has been occupying the house along with other heirs. From the statement of his counsel recorded before the settlement of issues on 2-10-1976 it transpires that the disputed house was originally owned by Taj Din, uncle of respondent No,9. As he died issueless Siraj Din father of respondent No,9 succeeded him as his sole heir. Taj Din's (not Siraj Din's as recorded in the statement) widow contracted marriage with Muhammad Hussain and after the marriage she sold the house in question to him although she was not entitled to do so. Muhammad Hussain later on sold the house to Muhammad Musa, who in turn transferred it to the appellant by executing sale- deed in his favour.
7. From the evidence placed on the record it is established that the disputed house was owned by Taj Din. Reference in this behalf may be made to copy Exh. D.1 from the register of assessment of the Corporation of the City of Lahore pertaining to year 1940 registered mortgage deed, dated 2-9- 1939 Exh.P.3 and the rent note, dated 20-9-1939 Exh. P.2. Statement, dated 2-10-1956 made by the learned counsel of respondent No,9 admitting Taj Din as owner of the house is also relevant. There is also no dispute that Mst. Begum Bibi was the wife of Taj Din and that she had contracted marriage with Muhammad Hussain after the death of Taj Din. According to her the disputed house had been transferred to her by Taj Din during his lifetime in lieu of her dower. In this connection reliance has been placed on Iqrarnama, dated 18-10-1942 marked 'A'. The admissibility of this document in evidence has been questioned on behalf of respondent No,9 inasmuch as neither the scribe of the document nor its executant has been examined as a witness to prove its contents.
The objection of respondent No, 9 against the admissibility of the aforementioned document appears to be well founded. Apart from the fact that neither the scribe nor the executant of the document has been examined no secondary evidence has been led to prove the document. The mere fact that the above document was handed over to Muhammad Musa deceased predecessor-in-interest of respondents Nos.1 to 8 as deposed by Muhammad Ahmed respondent while appearing as D.W.6 would not prove its contents. The factum of gift of the disputed house allegedly made' by Taj Din in favour of Mst. Begum Bibi stated in the aforementioned document is also not proved because no evidence has been produced to show that Taj Din deceased had given the house in question to his wife Mst. Begum Bibi in lieu of her dower. Such a gift falls in the category of Hibba-bil-Iwaz, which being a sale could not be effected otherwise than by a registered instrument as required by section 54 of the Transfer of Property Act, 1882. The entries in the revenue record to give effect to the aforementioned gift as stated in document Exh. P.A. .n favour of Mst. Begum Bibi would also be of no avail and in any case would not meet the legal requirement of section 54 of the B Transfer of Property Act and section 17 of the Registration Act.
Learned counsel for the appellant has relied on Nawab Mirza Muhammad Sadiq Ali Khan and another v. Nawab Fakhra Jahan Begum and another AIR 1932 P C 13 to show that transfer of physical possession of the property in respect of which gift is made by a Muslim husband to his wife is not necessary, but as noticed above the factum of gift itself is being challenged in the present case and as such the issue regarding transfer of possession of the house by the deceased donor is quite besides the point.
8. Mst.Begum Bibi had sold the disputed house to her husband Muhammad Hussain on the basis of title acquired by her under the gift made by Taj Din deceased. In view of the factual and legal position noticed in the preceding paragraph Mst. Begum Bibi could claim title to the extent of 1/4th share- in the house as widow of Taj Din and nothing more. The sale effected by her in excess of her 1/4th share c did not pass any title to Muhammad Hussain and the subsequent transferees including the appellant. The appellant, therefore, was not entitled to claim more than 1/4th share in the disputed house. The mere fact that Ilam Din respondent had failed to prove that he had acquired title through adverse possession or that he was the owner of the house in his own right as claimed by him in his written statement would not justify the grant of relief in its entirety as stated in the plaint. The appellant had claimed exclusive title to the disputed house and on- that basis had prayed for delivery of possession of the house to him. His claim was resisted by respondent No,9 on certain grounds. His contention that he was the owner of the house in his own right has not been accepted in toto but it has been found that he is entitled to get 3/4th share only in the disputed house. This conclusion has been reached after considering the evidence of both the parties. Can it be said that since respondent No,9 has failed to prove that he is the full owner of the house the appellant is entitled to the relief sought for by him in the plaint and the Court cannot grant him any other relief. The answer is in the negative because the provisions of Order VII, rule 7, C.P.C. Give ample powers to Court to grant such D relief to a party which, according to the Court, on appraisal of factual and legal position, the party is entitled to.
' The upshot of the above discussion is that there is no force in this appeal. The judgment and decree passed by the learned first appellate Court are based on proper appraisal of evidence on record and are accordingly affirmed. The appeal is dismissed with costs.