ABDUL QADEER CHAUDHRY, J.-Leave to appeal was granted to consider the contention of the appellants that the question of title having been decided in favour of the appellants, they were entitled to the relief of possession.
2. The facts, in brief, are that the appellants filed a suit for declaration claiming that the house in question belongs to him and was leased out to the respondent at a monthly rent of Rs.15. The respondent contested the suit and stated that he had purchased the house from the appellant No.1. a sale-deed was also executed in his favour and that the respondent was not liable to make the payment. Issues were framed by the learned Oazi. Witnesses were produced by the parties. The Qazi decreed the suit in favour of the appellants. It was directed that the possession of the house be delivered to the appellants. The appeal of the respondent was dismissed by Majlis-e-Shoora on 4-10-1978. The learned High Court in second appeal set aside the two orders and the case was remanded to the trial Court by means of order dated 12-12-1981. It was contended before the High Court that consequential relief of possession had not been sought for. The High Court directed that necessary amendment should be made in the plaint. The appellants submitted an application seeking amendment of the plaint. The Qazi again decreed the suit. The appeal against the said decree was accepted by Majlis-e-Shoora on 13-11-1983 and the case was remand with a direction that the respondent be allowed an opportunity to lead evidence. The learned Qazi again decreed the suit on 21-11-1984. The appeal against the said decree was dismissed by the Majlis-e-Shoora on 10-7-1985. The Revision Petition filed by the respondent was accepted by the High Court on 28-11- 1985. The case was again remanded. As per direction of the High Court, the amendment was allowed on 24-8-1986 and amended plaint was filed on 25-8-1986. The respondent filed the written statement. Three issues were framed. The witnesses were examined by the parties. The learned Qazi on 20-1-1988 granted decree for declaration to the appellants that they are owners of the suit property. The respondent filed an appeal before the Majlis-e-Shoora against the said decision. The appellants also filed an appeal seeking relief of possession which was omitted by the Qazi. The appeal filed by the respondent was accepted on 7-8-1988 and the appeal of the appellants was dismissed. The appellants then filed two Revision petitions seeking setting aside of the judgment of the Majfs-e-Shoora recorded by them in appeal whereby the appeal of the respondent was accepted and the appeal of the appellants for possession was dismissed.
3. The learned High Court set aside the judgment and decree of Majlis-e--Shoora dated 20-1-1988 and the decree of qazi, Turbat, was restored. However, relief of possession was not granted;
4. The learned High Court has recorded the following conclusion:-- "Broadly speaking evidence on record suggests that respondent Mistri Muhammad Hassan approached petitioner No.1 (Said Muhammad) with offer to purchase suit property; who expressed willingness regarding his share and also addressed letter dated 2-2-1974 to petitioner No.2 (Dost Muhammad) for eliciting his confirmation/approval for said sale. However, petitioner No.2 could not be contacted, nor has he confirmed or ratified, proposal of selling his share. It is the case of respondent, that he got possession of suit property on arrangement of sate accordingly total price was paid to petitioner No.1 but petitioners have expressly disputed factum of sale maintaining that money kept with petitioner No.1 was returned to P.W. Wahid Bakhsh when petitioner No.2 rejected offer made by respondent".
5. The learned High Court also discussed the evidence and rejected the evidence of the respondent with regard to the sale of the house in question. It further observed as hereunder:-- "Analysis of evidence shows incoherent facts and circumstances regarding stand for purchasing property in dispute. Cumulative effect of evidence merely suggests anxiety of respondent to purchase `suit property' for which though petitioner No.1 was approached, yet petitioner No.2 who is admittedly co-owner in the property was not even contacted.` Besides original letter dated 2-2- 1974 which is stated to be document forming basis for purchase of suit property was neither brought on record nor even put to petitioner. Thus, I have no hesitation to conclude that respondent has not been able to conclusively establish his claim about purchase of suit property from petitioners. The judgment of appellate Court dated 7-8-1988 in that behalf is clearly defective.
However, conclusions drawn by trial Court are quite proper and justified."
6. Having come to the conclusion that the appellants are owners of the house in dispute and the respondent has failed to prove that he has purchased the suit house, the following conclusion was recorded:-- "Apparently besides omission of trial Court, parties have also been negligent in pursuing the matter in the right directions. Therefore further remand as suggested by learned counsel fnr petitioners in my opinion would not serve any useful purpose. Undisputedly neither issue pertaining to possession was framed during present proceedings, nor question about relief of possession has at all been determined by the trial Court, therefore, principle of res judicata under section 11, C.P.C.
Would not arise, if claim for possession is initiated on the basis of title proved in this case."
7. We have heard the learned counsel for the parties. It has been established by the material on record that the appellants are owners of the house in dispute. Here, it may also be mentioned that the appellants had filed an eviction application before the Rent Controller which was decreed in their favour on 20-1-1988. The respondent's appeal before the High Court was dismissed on 5-4-1988.
According to the appellants, the eviction application had been filed by the appellants and Tehsildar, Turbat, made a further direction that the possession be handed over to the appellants.
The ownership of the appellants has been established. The suit for possession was decreed by the Qazi in the first round of litigation. The respondent had Held to prove that he had purchased the house. In pursuance of the direction of the High Court, the amended plaint was filed by the appellants seeking relief of possession. The Rent Controller had determined the relationship of landlord and tenant between the parties and a direction for the possession of the house was made. The relief claimed by the appellants flows from the evidence on record. Non-framing of issue in the circumstances of the case does not non-suit the appellants. Once it has been decided that the house has not been purchased by the appellants, the direction for the delivery of the possession could be made. It does not require any further inquiry and no evidence is necessary.
The appellants had brought sufficient evidence on record to get tit;: relief for possession of the house. This relief could not be refused on objection of technical nature which is of no consequence.
8. In the result, the appeal is allowed and decree for possession is passed in favour of the appellants. There will be no order as to costs.