' Applicants who were plaintiffs before the lower Court are aggrieved by the conflicting judgment passed by learned IInd Additional District Judge, Larkana dated 10-4-1986 setting aside the judgment and decree dated 11-6-1983 decreeing the suit in favour of the plaintiffs by IInd Senior Civil Judge, Larkana.
2. Plaintiffs filed Suit No,84 of 1974 for a declaration and in the alternate redemption of mortgage after taking accounts from defendants, possession and mesne profits of the suit land from 1972-73 onwards on the averments that Muhammad Ibrahim, Gul Hassan, Mst. Azima Khatoon, Mst. Khairan and Ghulam Rasul being debtors had sold away suit lands comprising S.No,157/3 and others in all measuring 27-17-1/4 acres situated in Deh Ishaque Taluka Shandadkot for a consideration of Rs,7,000 in favour of Mir Mehrab and Aitbar vide registered sale-deed dated 15-12-1953. It is admitted that the transaction of sale was effected without the sanction of the Collector as required by section 3 of the Sindh Rural Credit and Land Transfer Act, 1947 but according to plaintiffs no title was transferred to the purchasers and they continued to be the owners of the land as debtors, Purchasers realizing the legal position that the transfer was void and vendors continued to be the owners of the land, gave up their right in the suit land and claimed return of Rs,7,000 by filing Suit No,15 of 1954 which was decreed. It is further the case of the plaintiffs that the purchasers put pressure on them for recovery of Rs,7,000 and as the debtors had no money, decree-holders took undue advantage and demanded that the vendors should accept liability for Rs,10,000 and execute another sale-deed in the sum of Rs,10,000. Under pressure of the vendees and finding no other alternative, plaintiffs' ancestors executed another sale-deed dated 22-3-1956 in favour of the purchasers but consideration was not paid to them, therefore, title to suit lands was not transferred in favour of the purchasers and they continued to be owners thereof. They were liable for payment of Rs,7,000 to decree-holders and till that payment suit land was to remain mortgage with the purchasers, Plaintiffs averred that they redeemed the mortgage on payment of Rs,7,000 to Mehrab and Aitbar in the year 1962 and got back the possession of the lands and remained in possession thereof. After the death of original vendors, the plaintiffs being their successors, exercised all rights of ownership, got the lands cultivated and appropriated its produce. In the year 1971-72 plaintiffs orally leased out the suit land to defendant No,1 Mir Muhammad for one year and transferred possession to him. After the expiry of lease period when they demanded back the possession of the land, defendant No,1 refused to return the same claiming that the land belonged to Mehrab and Aitbar by virtue of the sale-deed dated 22-3-1956 executed in their favour. Mehrab and Aitbar having expired in the meanwhile, suit was filed against Mir Muhammad, and legal heirs of the purchasers as the defendants were claiming their interest through them.
3. In the written statement, defendants contested the suit. They claimed to be in possession of the suit land since 1953 and denied that it was ever returned to the plaintiffs. They denied filing of Suit No,15 of 1954 for recovery of money as well as the oral lease in favour of defendant No,1. They claimed adverse possession and pleaded that sale in respect of the suit land in favour of their ancestors was legal and valid. A number of legal pleas were advanced which are reflected in the issues.
4. On the pleadings of the parties, trial Court settled the following issues:-
7. Whether the transaction of sale effected in 1953 in favour of Aitbar and Mehrab was void? If so, what is effect?
8. Whether Aitbar and Mehrab filed Suit No,15 of 1954 for return of money paid for the transaction effected in 1954? If so, what is the effect?
9. Whether the sale-deed effected on 22-3-1956, in favour of Aitbar and Mehrab was the result of pressure on the vendors?
10. Whether the transaction dated 22-3-1956 was a mortgage?
11. Whether the transaction dated 22-3-1956 is illegal void and of no legal effect?
12. Whether the mortgage was got redeemed and possession was handed over to the plaintiffs as pleaded by the plaintiffs?
13. Whether the plaintiffs leased out the suit land to the defendants as shown in the plaint?
14. Whether the plaintiffs demanded back the possession of the suit land as alleged in the plaint and it was refused by the defendants?
15. Whether the plaintiffs have ever remained in possession of suit property after 15-12-1953?
16. Whether the suit is within time?
17. Whether suit is bad for misjoinder of parties?
18. Whether the suit is undervalued and insufficiently stamped?
19. Whether the suit is not maintainable?
20. What should the decree be?
5. Both the parties led evidence in support of their respective contentions. By its judgment and decree, trial Court held that the transactions of sale effected in 1953 as well as 1956 were illegal, void and of no legal effect for wad of sanction from the Collector under the relevant law. It was held that the sale-deed of 1956 was executed under pressure and indeed it was a mortgage. On issue No,2, it was held that Suit No,15 of 1954 was actually filed which ended in a compromise decree and reflected that amount of Rs,7,000 was payable by the plaintiffs and that if permission was obtained from the Collector, Mehrab and Aitbar would be bound to purchase the suit land. On issues Nos.4 and 6 it was held that the transaction of 1956 was in fact a mortgage which was redeemed and possession handed over to the plaintiffs. On issue relating to lease, it was held in favour of the plaintiffs; suit was held to be within time and not bad for misjoinder of parties. Consequently the suit was decreed as prayed.
6. Respondents challenged this decree in Civil Appeal No,52 of 1983 which came up for hearing before an Additional District Judge, Larkana who by his judgment and decree, dated 10-4-1986 set aside the decree and dismissed the suit. Learned Appellate Court held that both the sale-deeds were void; that the sale transaction in 1956 was a sale outright and not a mortgage; lease in favour of defendant No,1 was disbelieved; respondents were found to be in possession of the suit land since 1956; and suit for possession was held to be barred by limitation and not maintainable.
7. It is the judgment of the first Appellate Court that has been impugned in the present Revision Application.
8. Learned counsel for the applicants has raised the following contentions:---
(i) That the sale transaction of 1956 being void to the knowledge of the parties was executed just to secure payment of Rs,7,000 and that it was a anomalous mortgage with stipulation of redemption.
That the Appellate Court fell into error by misreading the evidence on the issue of redemption and handing over of possession in favour of the plaintiffs in 1962 on payment of the debt.
(iii) That learned Appellate Court wrongly decided the issue relating to oral lease of suit land in favour of defendant No,1 in 1971 by discarding evidence tendered in the suit.
9. On the other hand Mr. Muhammad Bachal Tunio learned counsel for the contesting respondents supported the impugned judgment and contended that sale transaction of 1956 was an absolute sale and not a mortgage. He urged that possession of the suit land was delivered to the respondents with the execution of sale-deed in 1956 who have continued to remain in possession thereof in their own rights and that the suit for redemption of mortgage was not maintainable whereas relief for possession was barred by the provisions of Limitation Act.
10. Dealing with the first contention raised on behalf of the applicants, it seems that the transaction of sale in 1956 was an absolute sale for a valuable consideration with delivery of possession in favour of respondents' ancestors, Learned Appellate Court rightly held that the applicants had failed to establish that there was undue pressure on the vendors to execute the sale-deed by way of security for repayment of loan. Appellate Court has correctly dealt with the evidence of P.Ws.
Muhammad Ibrahim and Peroze in support of its finding and no case of misreading or non-reading of evidence has been made out. Simply because the transaction was hit by provisions of law inasmuch as it was entered into without obtaining sanction from the Collector would not necessarily show that it was an anomalous mortgage with condition of redemption as provided in section 58(g) of the Transfer of Property Act. In this provision of law, anomalous mortgage has been defined to mean as a mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title deeds.
11. There is another aspect of the matter. In the consent decree passed in Suit No,15 of 1954 filed by the ancestors of the respondents against the vendors for recovery of Rs,7,000, it was stipulated that in case vendors obtained sanction from the Collector in respect of transaction of sale, Mehrab and Aitbar would be bound to purchase the suit land from them. At any rate, applicants have not been able to point out any error of law committed by the first Appellate Court in arriving at the above conclusion.
12. On the other hand, learned counsel for the respondents contended that predecessors-in- interest of the plaintiffs having not disputed, execution of sale-deed, and handed over possession cannot turn around to say that they had not received the consideration or that it was a mere paper transaction to secure the repayment of loan. Learned counsel further urged that in law; in the face of a registered sale-deed, plaintiffs cannot be permitted to lead oral evidence to contradict the terms of a written document as such evidence would be hit by the provisions of Article 103 of Qanoon-e-Shahadat, 1984. Reliance was placed on Muhammad Akbar Khan v. Sultan Ghani and others 1970 SCMR 6% in which the view taken was that indeed provisions of sections 91 and 92 of the Evidence Act preclude a vendor from going behind recital in a registered sale-deed and claiming that part of consideration was not paid to him. In Mst. Sitara v. Sher Muhammad, Khan 1985 SCM R 1052 Hon'ble Supreme Court observed that in the presence of mutation Sentries after the death of the predecessor-in-interest warrant of execution shall be taken as correct and conclusive unless shown to contrary. It was held that oral evidence in presence of documentary evidence cannot be accepted as oral evidence was without any significance.
13. In the case of Ansar Ali and others v. Muhammad Ismail Miaji 1968 SCM R 302 it was held that Court would require cogent evidence to hold that document is not that what it purports to be. In the words of Supreme Court,, the Court may look into such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts. Supreme Court laid down certain tests though not exhaustive for determining the nature of such transaction which are:---
(1) The existence of a debt;
(2) The period of repayment; a short period being indicative or a sale and a long period of a mortgage;
(3) Continuance of the grantor in possession indicates a mortgage;
(4) A stipulation for payment of interest indicates a mortgage;
(5) A price below the true value is indicative of a mortgage;
(6) A contemporaneous deed stipulating for re-conveyance in the case of a mortgage, but one executed after a lapse of time points to a sale;
(7) Purchase of stamps and payment of registration costs if done by the transferor, is indicative of a sale.
14. Learned counsel for the applicants relied upon Bashir Ahmed and 3 others v. Mst. Hakima and 6 others (PLD 1982 Kar. 172) in support of his argument that since the sale transaction of 1956 was held to be void it would be taken to be a mortgage and not an absolute sale. Facts of the reported case are entirely distinguishable and the view taken in this case was that before the amendment effected in Sindh Urban Credit and Land Transfer Act, 1947 under section 3 of the said Act where the holding of a landlord did not exceed the minimum area, permanent alienation without the sanction of Collector was prohibited. Under section 5 permanent alienation of land which was prohibited under section 3 was not to take effect as such to the extent it was so prohibited unless and until sanction was given thereto by the Collector. Discussing the effect of sections 5 and 7 of the Act, learned Single Judge held that --permanent alienation made without the sanction of the Collector shall remain null and void and will not be validated unless the Collector has granted the sanction.
15. Adverting to the second contention raised on behalf of the applicants, it is obvious that the Appellate Court has held the transaction to be an outright sale and not a mortgage. In case there was no mortgage deed between the parties, question of its redemption on the part of vendors would hardly arise in the circumstances.. Dealing with the evidence of P.W. Muhammad Ibrahim Exh.123 and P.W. Peroze Exh.128, learned Appellate Court did not commit any illegality or material irregularity by not accepting their oral and interested , version. Needless to observe P.W.
Muhammad Ibrahim while asserting payment of Rs,7,000 at his Otaq to Mehrab and Aitbar in 1962 and claiming to have taken back the possession of the suit land, was unable to explain as to why no acknowledgment receipt in token of payment of money and no endorsement on the sale-deed was obtained to indicate the redemption of so-called mortgage. All that he stated in his evidence was that he had asked Mehrab and Aitbar to return the sale-deed with an endorsement who promised to return the sale-deed within 2-3 days and that they were prepared to hand over the possession to him.
16. P.W. Muhammad Ibrahim claiming to be in possession of suit land since 1962 and raised cultivation thereon was not in a position to produce a single land revenue receipt or bill in support of his case. Even he did not summon revenue record to establish that the possession of the suit land was restored to plaintiffs as alleged. No doubt, he produced a certificate Exh.126 from Sub Treasury Officer, Shahadadkot and Rubkari Exh.127 dated 5-10-1974 from Mukhtaiarkar, Shahadadkot to the effect that in 1962-63 fine of Rs,654.52 was imposed on him for unauthorised cultivation on the suit land and that a sum of Rs,437.03 was refunded to him but these documents do not establish delivery of possession to plaintiffs in 1962 in consequence of redemption of mortgage. Both these documents are private documents and therefore not admissible in evidence in the absence of evidence of the authors of these documents. Learned Appellate Court was, therefore, justified in not accepting both the documents in support of the case set up by the plaintiffs. The witness attempted to justify absence of any documentary evidence by stating that in 1973 his house was set on fire and that his articles and land revenue receipts were put to ashes but he was constrained to admit that there was no documentary evidence to show that his house was burnt in 1973. This explanation is far from satisfactory and assuming for the sake of argument that it was true, in all probability plaintiffs should have summoned Revenue record to show that they had remained in possession of the suit land since 1962, raised cultivation thereon and paid land revenue assessm ent therefor. There is thus no merit in the submission of the learned counsel and in my view no exception can be taken to the view of the first Appellate Court on this aspect of the case.
17. Reverting to the third contention raised on behalf of the applicants, it would be seen that the Appellate Court has disbelieved the oral evidence adduced by the applicants on the issue relating to lease of the suit land in 1971 in favour of defendant Mir Muhammad followed by delivery of possession to him. On scrutiny of the evidence on record, I fad that the learned Appellate Court has taken a rational view of the matter which is neither unreasonable nor injudicious. Evidence on record reveals that the applicants never received back the possession of the suit land from the respondents and their ancestors in 1962 as alleged. Once it is held on preponderance of evidence that possession of the suit land remained intact with the respondents, it is highly difficult to accept the version of the applicants that in 1971-72 they had leased out the suit land in favour of Mir Muhammad for a period of one year against consideration of Rs,3,000 as lease money. Applicants have relied upon the evidence of Shamsuddin Exh.110 and Muhammad Ibrahim Exh.123 in support of their case which on analysis was found to be unworthy of credit. In the first place in all fairness lease of immovable property ought to be reduced to writing and in case it was oral, cogent and convincing evidence is required to establish the lease coupled with transfer of possession for a valuable consideration. The circumstance that Mir Muhammad refused to return back the possession of the suit land to the applicants, speaks for itself and it can be reasonably inferred that in fact there was no lease in respect of the suit lands in favour of Mir Muhammad and this plea was advanced just to meet the bar of limitation for the relief of possession. In the absence of delivery of possession in favour of the lessee, lease in respect of immovable property loses its importance and significance. Both the witnesses examined on this issue were unable to explain the cultivation raised on the suit lands or the names of the Harries cultivating the same which reflects on their credibility. I am, therefore, inclined to hold that by not accepting tainted and interested evidence on this issue, learned Appellate Court did not commit any error of law.
18. Lastly reverting to the issue relating to bar of limitation, it would seem that on applicants' own showing they had transferred possession of the suit land in favour of vendees with the execution of sale-deed in March, 1956. Notwithstanding the circumstance that the sale-deed of 1956 was void and invalid for want of sanction from the Collector under the relevant law, respondents acquired a valuable right and interest in the property which matured into title by reason of law of adverse possession. Consequently suit for possession was very clearly barred by. Article 142 of the Limitation Act which prescribes a period of 12 years from the date, of dispossession. Learned Appellate. Court therefore acted within its jurisdiction while holding that the suit for possession was hit by law of Limitation.
19. In Ahmed Khan v. Rasul Shah and others (PLD 1975 SC 311) it was held that it is well-established principle that a vendee who remains in possession after the sale of property which goes off or is otherwise defective in law holds adversely to the vendor. Dealing with the effect of section 28 of the Limitation Act, 1908, it was observed that after the efflux of the, period prescribed by the Act "for the possession of any property", the right of the owner in that property is extinguished. This is different from merely barring the' right for the enforcement of right as in the case of a mere "chose in action" as distinguished from right, in property.
20. In Syed Moin Ahmed v. Khondkar Moinuddin reported in PLD 1969 Dacca 132, a Division Bench took the view that under Article 142 of the Limitation Act, it is duty of the plaintiff first to prove to the satisfaction of the Court that he was in possession of the suit premises within 12 years prior to the filing of the suit and if he fails to do so, he cannot get decree for declaration or title and recovery of possession from a person whose status upon evidence is found not to be that of either a tenant or a licensee or a person in possession under the title of the true owner.
21. Similar view was taken in Muhammad Azim and another v. Mst. Haliina and 9 others (PLD 1975 Pesh. 60) holding that in a suit for recovery of possession it is the bounden duty of the plaintiff to prove that he had been dispossessed within 12 years,
22. There is yet an authority from the Supreme Court of Pakistan in the case of Mir Laik Ali v.
Standard Vacuum Oil Company and another (PLD 1964 SC 220) in which the Supreme Court observed as under:--- "When there is an invalid transfer in favour of a person and he holds possession of the property transferred as transferee, his possession is in his own right and adverse to the transferor. If he continues in possession of immovable property for more than twelve years he Will acquire an indefeasible title."
23. Learned counsel for the applicants realizing the weakness in his case came out with the plea that the provisions of section 28 of the Limitation Act have been held to be repugnant to the Injunctions of. Islam by Federal Shariat Court but learned counsel loses sight of, the fact that the said judgment is, the subject-matter of an appeal pending before Supreme Court of Pakistan. At any rate, assuming that section 28 of the Limitation Act is no more a valid law, it would not affect the past and closed transactions as the judgment itself would be effective from August, 1992.
24. In view of what has been stated above, there is no merit in this revision application which must fail and is hereby dismissed.'