' MAMOON KAZ1, J.---This appeal, is directed against the judgment of the Peshawar High Court, dated 24-2-1993, whereby the findings arrived at by the learned Additional District Judge, Peshawar, were reversed and his judgment was set aside.
2. The facts of the case are that Mukhtar Ahmad Baig who is now represented by his legal heirs, respondents Nos.(i) to (v), was issued a P.T.O. By the Settlement Department on 30-1-1962, in respect of house No, 1122/C, situated on Tipu Sultan Road, Kali Ban; Peshawar Can, On '12-2-1962, Mukhtar Ahmad executed two documents, viz., a mortgage deed and an agreement of sale. By the latter agreement he agreed to sell the said house to the appellant but as a sale-deed could not be executed until a PTD had been issued, in order to give effect to the bargain, a mortgage deed was also executed on the same day. The consideration in both the documents was stated to be Rs,8,000. .3. Mukhtar Ahmad Baig subsequently filed a suit for possession by redemption of the said mortgage on payment of Rs,8,000. The suit was contested by the appellant. The learned Civil Judge however, granted a preliminary decree in favour of Mukhtar Ahmad, holding that the transaction was a mortgage. The appellant feeling aggrieved by the said judgment filed an appeal in the District Court, Peshawar, which was accepted by the learned Additional District Judge and it was held that the transaction was a sale but the property could not be sold until PTD had been issued.
The learned Additional District Judge did not agree with the finding of the trial Court that the transaction was a mortgage and, therefore, he dismissed the suit.
4. Mukhtar Ahmad Baig filed a civil revision before the Peshawar High Court, which was accepted by the learned Chief Justice as it was held that although Rs,8,000 was a reasonable price for the house in question and the mortgage amount could be treated as consideration for the sale but the sale-deed could only be registered on issuing of P.T.D. Therefore, it could not be said that the sale was in any manner complete and in that case there was no need of executing a sale agreement.
5. Leave was granted to examine the propriety of the judgment of the High Court.
6. Learned counsel for the appellant has argued that the mortgage deed and the agreement to sell were executed on the same day, therefore, the two documents must be read together to ascertain the true intention of the parties. Learned counsel for the respondents, on the other hand, has supported the judgment of the Peshawar High Court as, according to him, the transaction was clearly a mortgage. Since there exists no controversy qua execution of the two documents by Mukhtar Ahmad Baig it would be imperative to examine the circumstances necessitating their execution simultaneously. Admittedly, when the two documents were executed only a P.T.O. Had been issued and P.T.D. In respect of the property was yet to be issued by the Settlement Department. There is no evidence to indicate that Rs,8,000 which had admittedly been received by Mukhtar Ahmad Baig represented only a part payment of the full consideration of the house but the circumstances on the other hand indicate that the said amount constituted total consideration in both the documents executed in respect of the said property. The claim of the respondent in the plaint that rupees 50,000 had been agreed to be the total consideration could not be established by the respondent before the Civil Court by any substantial evidence. The execution of a mortgage deed along with the sale agreement lends further support to the contention that the former was to serve as a collateral security in respect of the transaction because admittedly the sale-deed could not be executed on account of want of PTD, after receiving of full consideration by Mukhtar Ahmad Baig. The conduct of the parties after execution of the two documents which is no less a relevant factor to be taken into consideration for ascertaining the true intention of the parties, according to the evidence recorded by the trial Court, indicates that the appellant himself obtained PTD in respect of the said house, although in the name of the respondent. The respondent also executed a surrender-deed, giving up his claim in respect of the suit property in favor of the appellant. Further, all tax dues in respect of the property were being paid by the appellant after execution of the said documents. The judgments of the subordinate Courts further indicate that the above evidence was not disputed by the respondent in his statement before the trial Court. It was further brought on record that the house in question was demolished and reconstructed by the appellant after necessary permission for the sale had been obtained by him from the Cantonment Authorities. The taking of possession by the appellant is another factor lending support to the contention that the transaction was a sale because mortgage of property alone might not have necessitated delivery of possession to the appellant. The circumstances of the case, therefore, clearly indicate that there was sufficient evidence to support the appellant's case that the transaction in question was in fact a sale. The mortgage deed executed by the appellant, therefore, clearly appears to be a collateral document, meant only to secure the transaction. Therefore, the mortgage could not have been considered in isolation, but together with the other circumstances of the case. In fact the learned Chief Justice has himself reached a conclusion that there was a transaction of sale between the parties but he further went on to observe that in absence of P.T.D. The sale was not complete and under such circumstances there was also no need for execution of an agreement of sale. The circumstances enumerated above, however, clearly indicate that the sale was in fact complete since full consideration had been paid to the respondent by the appellant and possession of the property had also been obtained by the latter. The claim of the respondent that the sale price was Rs,50,000 was also rejected by the learned Courts below firstly on the ground that no such amount had been mentioned in any of the two agreements and secondly, for want of supporting evidence.
Under such circumstances execution of a sale-deed which depended only upon issuing of a P.T.D.
Was only a formality which into way could render the otherwise complete sale transaction ineffective. Consequently, the learned subordinate appellate Court appears to have rightly reversed the judgment of the trial Court and dismissed the suit. The High Court was clearly in error while reversing the judgment of the subordinate Appellate Court in view of the evidence referred to above.
7. In the result, the appeal is allowed and the judgment of the learned High Court is set aside. The parties are, however, left to bear their own costs.