' This judgment shall simultaneously dispose of Regular Second Appeals Nos. 288/79 and 432/79 which have been preferred against the decree dated the 19th of February, 1979, of the learned District Judge, Sheikhupura, whereby 2/3rds of the land in question was given to the plaintiffs- appellants in R.S.A. 289/79 and the remining 1/3rd was given to the defendant-appellant in the other appeal (No.432/79).
2. The land in question belonged to an evacuee Hakim Singh, who mortgaged it to the parties jointly. Later, on payment of dues determined by the Settlement Department, they were conferred title in regard to it. The plaintiffs' main plan was that while they were owners of 2/3rds in their own right, they had purchased the remaining 1/3rd from the defendant on cash payment of money. No formal sale-deed was executed in regard to the alleged sale but reliance was placed on an endorsement allegedly made under the hands of the defendant Muhammad Latif on the mortgage deed (Exh.P.5). Secondly, the receipt (Exh.P.6) was tendered to show that the sale price had been acknowledged by the defendant. Thirdly, an affidavit (Exh.P.3) was pressed into service supporting paynrent of the same amount to the defendant. It was made clear in the affidavit that the defendant shall be bound to get the sale mutated in the Revenue record. Lastly, a writing (Exh.P.1) in the nature of relinquishment was attributed to the defendant whereby, he delivered possession to the plaintiffs accepting their title. Consequently the plaintiffs prayed for a declaration that they had become owners of the land in question measuring 17 kanals 16 marlas.
3. The suit was resisted denying all these transactions and documents. The trial Court decreed the suit accepting the above-mentioned documents to be genuine but the learned District Judge in the impugned judgment ruled them out for want of registration. According to him, the plaintiffs- appellants were entitled only to 2/3rds while the remaining 1/3rd still vested in the defendant Latif.
4. Both the parties preferred separate appeals but unluckily none of them has raised any question of law to be decided by this Court. Their stress all along was either that the defendant Latif had made the sale in favour of the plaintiffs or conversely that the entire land measuring 17 kanals 16 marlas belonged to him. It will be appreciated that both these questions relates the facts. The decision of the trial Court, although modified in appeal, nonetheless determined a question of fact.
Finding thereon cannot be disturbed in second appeal.
5. Learned counsel for the plaintiffs contended that material evidence was wrongly ruled out. I do not think it was so. The endorsement, the affidavit, the relinquishment and the receipt tendered to prove sale by the defendant in favour of the plaintiffs, were hit by section 17 of the Registration Act and could not have been accepted as evidence of creating or extinguishing rights. Some oral evidence was as well pressed in proof of the sale but when an interest in immovable property worth more than Rs.100 is created, it requires compulsory registration. Otherwise section 49 provides that it shall not create or extinguish any right whatsoever.
6. On the other hand, learned counsel for the defendant-appellant strenuously submitted that the entire land measuring 17 kanals 16 marlas in the suit was given by the Settlement Department to him in his own right and that 2/3rds thereof could not possibly be given to the plaintiffs. A perusal of the plaint belies this contention. It was not clear as to 2/3rds of what land after all was allotted to the plaintiffs. The controversy related to the land shown in the plaint and the total area given there was 17 kanals 16 marlas. The plaintiffs claimed declaration of title to its entirety but the finding was that 1/3rd thereof belonged to the defendant Latif. No evidence was produced to suggest that land much in excess of 17 kanals 16 marls was allotted to the plaintiffs-appellants or for that matter to their predecessor. The defendant Latif and the plaintiffs' predecessor Ismail were real brothers.
They got this much area on this ratio proportion. No other land was involved and the entire argument was misplaced. The mortgage deed (Exh.P.5) from which the trouble started on taking land from Hakim Singh by the two brothers, supports the plea that they were sharing the mortgage in the ratio of 2/3:1/3. There is no substance in the contention of learned counsel for the defendant- appellant as well.
7. Both the appeals are dismissed leaving the parties to bear their own costs.