ORDER NASIM SlKANDAR, JUDICIAL MEMBER.- These cross appeals relate to the assessment years.
1985-86 to 1988-89 and assail a common order recorded by A AC, Range-IV, Lahore on 5.10.1991.
2. The assessee appellant is an individual who returned the value of a house commonly known as 116 Mahmood Ghazanavi Road, Sialkot at Rs. 4,00.000/-. The assessing officer adopted the value of the property at Rs. 20,00,000/- in the year 1985- 86 and at. Rs. 22,00,000/-in the year 1986-87. In respect of next two years viz. 1987-88 and 1988-89 it was claimed by the assessment that she disposed of the house for consideration of Rs. 10,50,000/- and purchased a house 115-A Abubakar Block New Garden Town, Lahore. This claim was not believed by the assessing officer on the ground that the property was allegedly conveyed by means of an agreement only and also that it was not a genuine document. Thereafter he adopted the value of this house at Rs. 24,20,000/- and Rs.
26,62,000/- respectively in the last two years viz. 1987-88 and 1988-89.
3. Learned first appellate authority found the value estimated in the years under review to be on the higher side and therefore ordered its reduction to Rs. 10,00,000/-, Rs. 12,0, 000/-, Rs. 14,00,000/- and Rs. 16,00,000/-in the four years under review. While reducing the price the appellate authority recorded that although the area of the house was 11.3 kanalas yet the constructed portion was very small, that the house in question was % located in the Cantonment area where the land is given only on lease by Ministry of Defence and is not freely transferable and that during the period relevant to the first two assessm ent years the assessee had been in litigation with the cantt Authorities with respect to this house.
4. The assessee complains that the appellate authority was not justified in rejecting the sale agreement while the department considers the reduction in estimated values to the legally and factually improper. Since the assessee only press for acceptance of the alleged sale in the last two years, the appeals filed in respect of the first two years viz. 1985-86 and 1986-87 are not pressed.
5. Learned counsel for the assessee in support of his submissions that the property in question stood transferred to the purchasers through an agreement dated 19.5.1987 relies upon an order of Senior Civil Judge Sialkot dated 4.4.1993 recorded in Civil Suit No. 81 of 1993. According to the judgment of the Civil Court the assessee Mrs. Shamas-ul-Qamar disposed of her rights in the afore-said bungalow through an agreement executed on 19.5.1987 and received a sum of Rs.
8,00,000/- through Cheque No. 05093297 dated 19.5.1987 drawn on Allied Bank of Pakistan Sialkot Cantt. The remaining consideration of Rs. 2,50,000/- was stated to have been received in cash. The agreement was entered into with two persons as purchasers and at their instance a power of attorney was executed in favour of a person of their choice namely Retired Major Pervaiz Iqbal.
However, dispute appeared between two persons and their nominated attorney which resulted in- to filing of the said civil suit re: Mian Iqbal Hussain Mrs. Shamas-ul-Qamar and another. While the suit Was pending Messrs Khush Akhtar Subhani and two others filed an application under order of Rule 10 of the C.P.C, to be impleaded as parties, Their applications succeeded and they were brought on record as plaintiff against Mrs. Shamas-ul-Qamar, Kaiser Mahmood, Retired Major Pervaiz Iqbal and Faiz Ahmed Defendants. The new plaintiffs claimed to have acquired lease hold rights in the property in question through "the second attorney Mahmood Asghar Malik in whose favour Mrs. Shamas-ul-Qamar executed a power of attorney at the instance of the original vendees Messrs Mian iqbal Hussain and Kaiser Mahmood. All the parties before the Court of Senior Civil Judge, Sialkot finally agreed that the agreement to sell dated 19.5.1987 be accepted as a basic document and the newly impleaded plaintiffs as the rightful transferee of the property deriving their rights from the said agreement and the second power of attorney executed as a consequence thereof. The operative part of the judgment in para 6 reads;- "In view of the statements of all the parties dated 10.10.1992 and 18.3.1993 and in the light of Mark A and Mark B the suit is decreed in favour of the plaintiffs and against the defendants that the defendants No. 1 and 2 were bound to execute a sale deed in favour of the plaintiffs who had become the full owner of the property for consideration paid and get the sale deed registered and the power of attorney in favour of defendant No. 3 stood cancelled and was inoperative on the rights of the plaintiffs and that any agreement to sell in favour of the defendant No. 4 was void and inoperative on the rights of the plaintiffs. The parties are left to bear their own costs. Counsel present. The file be consigned after necessary completion."
6. From the above order of the Civil Court part of the contentions made by the assessee find support. It appears admitted that the land on which the house in question is constructed belonged to Government of Pakistan and the assessee Mrs. Shamas-ul-Qamar enjoyed only lease hold rights, lt is also claimed that these rights are granted for a fixed period through usually long but the transfer never assumes the status of a complete owner. In other words such property does never nurture in to a free hold as the lessee remains in possession subject to a number of conditions coupled with the payment of rent during the currency of the lease period. In such cases transfer of lease hold rights by way of an agreement or a power of attorney is not uncommon through a registered document is invariably involved for transfer of lease hold rights for more than one year.
In this case the Civil Court has finally determined that these rights in the demised property were duly conveyed by way of the agreement in question. However, delivery of possession of the property is not indicated by any evidence on record. The judgment and decree of the Civil Court is also silent in this aspect. Therefore, the matter needs to be remanded to the assessing officer with the direction that actual possession of the property in question during the charges year 1987-88 and 1988-89 should be probed and the value of the property be assessed in the hands of the assessee only if she retained actual or constructive possession even after execution of the above agreement.
7. The grievance of the department in the years 1985-86 and 1986-87 against reduction in the price adopted also appears. The reasons which weighed with the appellate authority and referred above have not been seriously challenged before us. Therefore, the reduction is the estimated values to Rs. 10,0, 000/- and Rs. 12,00,000/- in both of the years is not open to exception.
8. This being so, the appeals filed by the assessee in the years 1985-86 and 1986-87 shall be dismissed as withdrawn while those in the years 1987-88 and 1988-89 shall stand remanded as said above. The departmental appeals in the years 1985-86 and 1986-87 shall be dismissed while these in the later two years 1987-88 and 1988-89 shall fail having become infructuous in view of remand of the issue of possession in these two years.