' RUSTAM S. SIDHWA, J.---This is an appeal by Munir Ahmad, appellant, against the judgment of a learned Single Judge of the Lahore High Court accepting the writ petition filed by Barkhurdar respondent, setting aside the order of the learned Additional Sessions Judge dated 13-2-1990 and ordering that the Wagon SGE 5430 be given on Superdari to Khizar Hayat son of Barkhurdar respondent, subject to the result of suit filed by Munir Ahmad appellant in the Civil Court.
2. Leave was granted to consider the question as to which of the two parties was legally entitled to the Superdari of the wagon in dispute. The interim order of this Court suspending the order of the High Court on the condition of the appellant depositing Rs,1,90,000 (one lac ninety thousand) with the trial Court within a week, which amount would not be paid to the respondent till the disposal of this appeal, was allowed to remain with the trial Court pending the disposal of this appeal.
3. The brief facts of the case are that on 7-7-1988 Barkhurdar respondent entered into an agreement with the Agricultural Development Bank of Pakistan (ADBP), Chiniot for the purchase of a van. The Bank sanctioned a loan of Rs,2,90,000 to Barkhurdar. According to the terms and conditions of the loan, the van was to remain in the name of ADBP. The registration book showed that the vehicle registered as No, SGE 5430 was non-transferable and was shown in the name of ADBP, Chiniot, and that of Barkhurdar.
4. Without fulfilling the condition of the. ADBP Barkhurdar, without the payment of the full consideration to the ADBP and in violation of the terms and conditions which he had entered into with the ADBP, sold the van on 11-7-1988 i.e, four days after he took the van (with the loan of the bank) to one Gulzar for Rs,3,62,000 (Rupees three lac sixty-two thousand) and entered into an agreement dated 11-7-1988 with the said Gulzar Ahmad Gulzar Ahmad paid Rs,1,30,000 (Rupees one lac thirty thousand) in cash to Barkhurdar and agreed to pay the remaining amount in instalments of Rs,3,500 (Rupees three thousand five hundred) per month. Gulzar Ahmad in total paid Rs,1,92,000 (Rupess one lac ninety-two thousand). Meanwhile Gulzar Ahmad sold the vehicle to one Khalid on 10-9-1988 for Rs,2,24,000 (Rupees two lac twenty-four thousand) in cash and received the full consideration from said Khalid. Khalid in turn sold the van to Munk Ahmad, appellant, against cash payment of Rs,2,30,000 (Rupees two lac thirty thousand) vide agreement dated 25-6-1989 and receipt of the same date on the basis of an open transfer letter duly signed by Barkhurdar. Khalid handed over to the appellant the above-mentioned documents alongwith the registration book of the van. The appellant then applied to the registration authority Sargodha and got the van transferred in his name on 11-7-1989. Later, Barkhurdar respondent tried to secure the van from the appellant, who was constrained to institute a suit in the Civil Court, where the Court granted stay order in favour of the appellant. Khizar Hayat son of Barkhurdar then got an F.I.R.
Registered at Police Station Sargodha Cantt. On 7-11-1989 under sections 406, 420, 467, 468 and 471, P.P.C. Against Gulzar and the appellant, alleging that the transfer of the van in the name of the appellant had been procured on the basis of false documents. During investigation, the Investigating Officer seized the vehicle from the possession of the appellant. The learned Magistrate granted Superdari to Khizar Hayat on 1-1-1990, which order was set aside by the learned Additional Sessions Judge on 13-2-1990, who granted Superdari to the appellant.
5. Barkhurdar, though not an applicant for Superdari, impugned the order of the learned Additional Sessions Judge in a writ petition where he succeeded, which order is now before us in appeal.
6. It cannot be denied that the van was seized from the possession of the appellant. It is yet to be seen whether the documents produced by the appellant in the Civil Court are based on forgery or not and it is only the Civil Court which can determine the question of title. Prima facie appellant is entitled to the custody of van in dispute.
7. Nobody is here on behalf of the respondents to oppose this appeal.
8. For the foregoing reasons, this appeal is accepted, the judgment of the learned Single Judge dated 28-11-1990 is set aside and the order of the learned Additional Sessions Judge dated 13-2- 1990 is restored. The amount of Rs,1,90,000 (Rupees one lac ninety thousand) deposited in this Court shall not be withdrawn till the claim of the ADBP Chiniot, against the said van is satisfied or a release is given by the said Bank with the permission of the trial Court. When an application is made for the withdrawal of the said amount, the case shall be put up before a learned Single Judge of this Court for necessary scrutiny. A copy of this order should be sent to ADBP, Chiniot.
Order accordingly.
1992 SCMR [Supreme Court of Pakistan] Present: Abdul Qadeer Chaudluy and Wall Muhammad Khan, JJ Haji SULTAN and 6 others--- Appellants versus ABDULLAH KHAN and 2 others---Respondents Civil Appeal No,1025 of 1990, decided on 2nd March, 1992j!Iiio-,,A .Notiz'wort (On appeal from the judgment, dated 30-6-1990 of the High Court, Peshawar, in Civil Revision No308 of 1984). t
(a) Approbate and reprobate-- )w 'Ail ----Principle---Conduct of parties-Challenge to title of vendors by kt ndeeSo4 Vendees having purchased share of minors through their uncles had sh&ki them as their vendors---Vendees subsequently could not turn round and take different position to challenge title of their vendors. [p.
1458] A 19a 11110 ) Itaiil
(b) Acquiescence 1,)t) 1,/pi ----Vendee/plaintiffs had purchased land from two }Sets! Ittidors through joint transaction; one set of vendors were major while ether set of vendors were minors at time of sale---In Revenue Record, after such sale 2/3rd share was recorded in favour of vendees plaintiffs while 1/3rd share of minors remained in names of minors and such entry continued without any objection---Vendees filed suit after .About fifty years to challenge. Mutation made in respect of suit land in minors' favour--Sale in respect of minors' share was not acted upon---Minors on attaining majority filed suit against vendees for recovery of their share of produce---Vendees having acquiesced in lops- standing entries in Revenue record and having taken no steps for rectification of record, their suit for rectification of same after about fifty years, was dismissed. [p. 1458] B M. Bilal, Senior Advoappeal is directedcate Supreme Court, M.
Advocate Supreme Court and Ijaz Muhammad Khan, Advocate-on-Itecord cu r Appellants.
Fateh Muhammad, Advocate Supreme Court and Abdul Hamid Qureshi, Advocate-on-Record (absent) for Respondents.
Date of hearing: 2nd March, 1992.
' ABDUL QADEER CHAUDHRY, J.---This against the judgment of the Peshawar High Court dated 30-6- 1990.
2. The facts of the case are that the land measuring 39 Kanals 8 Marlas situated in Tehsil Charsadda was owned by Abdul Habib, Hassan Khan, Abdullah, Ismail, Muhammad Ali and Muhammadi Khan. Haji Sultan, Lashkar Khan, Samiullah, Sikander and Abdul Qayyum purchased the land through the registered sale-deed on 19-3-1930 for a consideration of Rs,13,500. At the time of sale, the vendors Abdullah, Ismail, Muhammadi and Muhammad Ali were minors. The sale on behalf of minors was effected by Abdul Habib and Hassan Khan, their uncle. At the time of sale, the land was mortgaged with Rashid and Najab for an amount of Rs,8,500. After the completion of sale, the vendees redeemed the suit land and came into possession. According to the learned counsel, they are still in possession of the suit land.
3. The minors after becoming major filed a suit in the Revenue Court for the produce of the land in question against the plaintiffs. The appellants then filed a suit for declaration and injunction to the effect that they are owners in possession of the suit land and the entries in the Revenue Record showing the defendants to be owners to the extent of 1/3 are wrong. The suit was contested. The learned trial Judge on 14-1-1984 dismissed the suit filed by the plaintiffs. The plaintiffs-appellants challenged the decree and judgment of the trial Court before the Additional District Judge, Charsadda, who accepted the same on 26-6-1984. The defendants filed a civil revision against the judgment of the Additional District Judge which was accepted by the impugned judgment. The judgment of the Additional District Judge was set aside and that of the trial Court was restored.
4. Learned counsel for the appellants submitted that the sale was made in 1930 and under the Custom the grandchildren could not inherit the, property. This contention is without any merit as according to the appellants themselves they had also purchased the share of the minors through their uncle. They had shown the minors as their vendors. Now, they cannot take a different position to challenge the title of their vendors. The admitted position is that after the sale 2/3rd share was recorded in favour of the plaintiffs-appellants and 1/3rd of the minors was recorded in the names of the minors in the Revenue Record and this entry continued without any objection. The appellants filed the suit in 1981 i.e, after about 50 years. They did not care to challenge the mutation made in respect of the suit land in minors' favour. The sale in respect of the minors' share was not acted upon as is clear from the Revenue Record. The minors, when they attained majority, filed a suit against the appellants for recovery of their share of produce.
5. The appeal has no force: The same is dismissed. As the appeal is being dismissed on merits, we do not consider to dispose of the preliminary objection raised by the respondents, about the