This second appeal has arisen from suit filed by the respondents for redemption of suit property which has been decreed to the extent of half of the property in favour of respondent Abdul Latif through judgment and decree, dated 18-9-1986. This was challenged in appeal by the appellant which has been dismissed by the learned lower appellate Court through judgment and decree, dated 8-3-1988.
2. The facts giving rise to this appeal in brief are that the respondents on 22-1-1960 mortgaged the property in dispute with the appellant for an amount of Rs.2,500. This property was subsequently sold in execution of money decree which was obtained by Fatima Bibi and Fazal Hussain against the respondent No.1. In Court auction this property was purchased by one Muhammad Anwar on 27-2-1967. The present appellant filed an objection petition in the said execution proceedings which was accepted through order, dated 20-10-1975 by the executing Court wherein it was held that half of the property to the extent of rights of Muhammad Rafiq shall be deemed to have been sold in auction and the same half shall be deemed to have been purchased by Muhammad Anwar. The said one-half share of the property which was purchased by Muhammad Anwar in auction was sold by him to the present appellant on 28-11-1975. With this purchase of the share of Muhammad Rafiq in the property through Muhammad Anwar the appellant became owner of the said one-half, therefore, the mortgage of the said one-half made by Muhammad Ra6q with Abdul Latif extinguished because ownership of that half of the property became vested in the appellant. It may be observed here that the said one-half property of Muhammad Rafiq was specifically demarcated by the said executing Court. The correctness of these facts were not disputed by learned counsel for both the parties.
3. Learned counsel for the appellant argued that a final decree for redemption of mortgage has been passed in favour of respondent No.1 to the extent of his one-half share by the learned trial Court whereas requirements of mandatory provisions of Order 34 rule 7, C.P.C. Are that in such a case firstly preliminary decree is to precede. In support of this argument reliance has been placed on judgment reported as Muhammad Shamshad v. Haji Allah Rakha (1980 SCMR 397). Learned counsel for the respondents were not in a position to successfully meet this objection. The plain reading of Order 34 Rule 7, C.P.C. Shows that in such a suit the Court is bound to pass a preliminary decree and thereafter to pass a final decree. The reported judgment reliance on which was placed also lays down this rule. The impugned judgment and-decree on this short ground is illegal and is not sustainable. '
4. Learned counsel for the appellant further maintained that it was admitted by respondent No.1 when he appeared as his own witness and a finding has also been recorded by the learned trial Court that before mortgaging the property to the appellant he had already transferred his ownership rights of the property in favour of his wife, as such according to learned counsel he had no locus standi to seek redemption of mortgage as he was vested with no right to mortgage the property therefore the suit should have been dismissed. The argument has not impressed me. The appellant got the property through mortgage from respondent No.1. So far as the appellant is concerned, he is the mortgagee of respondent No.1, there being a contract of mortgage between the appellant and respondent No.1 therefore, respondent No.1 had locus standi to maintain the suit against the appellant. 1 have examined the statement of Abdul Latif respondent No.1 as P.W.
3. In the cross-examination he stated that he had already sold his share in the house to his wife before it was mortgaged with the appellant. Except this admission, there is no documentary evidence evidencing sale made by him to his wife. It is also manifest from his statement as also the contents of the plaint that the property is situated in the City of Sialkot. The value of the property is certainly more than Rs.100 as is clear from mortgage money which is Rs.2,500 for whole of the property and amount of mortgage money normally is always less than the sale price of the property because in the case of mortgage only an interest is conveyed as against full ownership rights in the case of sale. Under section 17 of the Registration Act read with section 54 of the Transfer of Property Act made applicable in Punjab, the sale could only be made through a document of sale which was compulsorily registrable and the effect of non-registration of the sale-deed according to section 49 of the Registration Act is that neither any rights in the property vesting in a person i.e. The alleged conveyor shall extinguish nor it will operate to create any right in favour of person who is the alleged purchaser. Mere admission of respondent No.1 that he had sold the property to his wife in these circumstances cannot be accepted as conclusive proof that requirements of law for creating ownership rights in his wife and to extinguish his ownership rights had in fact taken place.
The law is firmly settled that an admission of a fact is not conclusive proof of the fact admitted. The admission can be erroneous or against the facts and the law. In this case the admission made by respondent No-1 in these circumstances can safely be held to be erroneous and is not conclusive proof of extinguishments of his ownership rights in the property and creation of ownership rights in favour of his wife. This view gains strength from the fact that the wife of respondent No.1 has not raised any objection against the mortgage of property made by respondent No.1 as there is no evidence of this kind on the record except statement of respondent No.1 that she filed separate suit about which there is also no material brought on the record.
5. Learned counsel for the appellant next argued that the appellant being owner of one-half share of property which was owned by Muhammad Rafiq and he being in possession of the entire property as joint owner therefore, decree for delivery of physical possession through redemption of one-half share could not be passed in favour of respondent No.1 and he could only be granted decree for redemption simpliciter without possession and for seeking possession the respondent No.1 has to file suit for partition. This argument equally has no substance. In the execution proceedings one-half share of Muhammad Rafiq on north side was specifically separated through demarcation by the executing Court which was purchased by Muhammad Anwar in Court auction which ultimately was purchased by the appellant from him. The said one-half share of Muhammad Rafiq having been separated by the said Court and accepted by the appellant therefore the property as a whole cannot be held to be jointly owned. The appellant is owner of that separated one-half share of Muhammad Rafiq and decree for physical possession of the remaining one-half can be passed in favour of Abdul Latif in the present suit for redemption. This argument is also not sustainable and is hereby rejected.
6. For the foregoing reasons, this appeal is accepted on the only ground that the Courts below committed illegality in passing the final decree directly without in the first instance passing the preliminary decree as required under; Order 34 Rule 7, C.P.C. The judgments and decrees of both the Courts below, dated 18-9-1986 and 8-3-1988 respectively are hereby set aside. The case is remanded to the learned trial Court for passing preliminary decree in the first instance as required by law and thereafter pass final decree in accordance with law. The parties are directed to appear before the learned trial Court on13-5-1989. The learned trial Court shall dispose of the suit before 30-9-1989 positively. The parties are left to bear their own costs.
M.B.A./A-606/1,