' This revision petition arises out of the concurrent findings of the learned trial Court who dismissed the suit of the petitioner while decreeing the suit of the respondent on 12-4-1981 and the Appellate Court upholding the judgment and decree vide its judgment and decree, dared 7-6-1983.
2. The suit of the petitioner Hoshiar Ali for declaration to the effect that the petitioner/plaintiff was owner in possession of Shop No,6/112 situated in Mandi Bahauddin being a bona fide purchaser.
The second suit is filed by Ghulam Sabir respondent No,1 . He is son of Mst. Azizan, the original owner of the shop in dispute. He challenged the vires of the consent judgment and decree, dated 21-9- 1966 which was obtained by one Abdul Latif, now respondent No,2, against Mst. Azizan. Since after the consent decree, the said Abdul Latif had furlher alienated the property ID favour of Hoshiar Ali through a registered sale-deed. This sale was also questioned by Ghulam Sabir, respondent. The ostensible consideration for this sale was Rs,10,000.
3. The petitioner impugns the judgment and decree of the Court below on the ground that he was a bona fide purchaser from Abdul Latif and seeks protection under section 41 of the Transfer of Property Act.
4. Both the suits were consolidated by the trial Court vide order, 'dated 12-4-1981 and consolidated issues were framed, on the basis of divergent pleadings of the parties. These are reproduced below in extenso:-- Issues
(I) Whether the sale by Mst. -Azizan prepositus of the shop in dispute of defendant No,1 Master Abdul Latif was void and ineffective and this sale had passed no title to him? OPP
(2) Whether the defendant No,1 had no title to alienate the disputed shop in favour of defendant No,2. If so, its effect? OPP
(3) What is the legal position of this suit in the light of institution of civil suit by defendant No,2 against the rest of the parties to the suit? OPD-2
(4) Whether the suit is time-barred? OPD
(5) Whether the plaintiff is estopped by his conduct from challenging the impugned sale? OPD-2 (5-A) Whether the plaintiff has got cause of action and locus standi to file the present suit? OPP (5-B) Whether the suit in its present form is not competent? OPD (5-C) Whether the suit is incorrectly valued for the purposes of court-fee. OPD (6-A) Whether the mortgage, in favour of the defendant Bank by Mst. Azizan the deceased through her son Ghulam Sabir was unauthorised, illegal and void? OPD (6-B) Whether the impugned decree, dated 20-10-1972 in Suit No,744/730 is illegal, void and ineffective? OPD-2 (6-C) Whether the Suit No,627 of 1979 is barred by principle of res judicata? OPD-4 (6-D) Whether the defendant No,2 is the owner in possession of the suit property? OPD
(7) Relief,
5. Parties adduced both verbal and documentary evidence in respect of their claims. The suit of Hoshiar All met with dismissal, whereas the suit of Ghulam Sabir was decreed.
6. The learned Courts below were of the view that as the value of the shop in question was beyond Rs,100, the consent decree had to be transformed into a registered sale-deed which had not been done and the sale remained an oral one which in view of sections 49 and 17 of Registration Act, was of no use. This view was given while deciding issue No,1.
7. The main argument of the learned counsel for Hoshiar All was that a separate suit in this case which was filed by Ghulam Sabir was incompetent in view of section 12(2) of the Civil Procedure Code, on account of which a petition had to be moved on the basis of fraud having been committed in respect of the property in the Court which passed the consent decree. That in her statement Mst. Azizan stated before the Court that she .Did not appoint her son Ghulam Sabir as her attorney. The learned counsel, therefore, was of the view that Ghulam Sabir did not have the locus standi for filing this suit, when Mst. Azizan was still alive.
8. Mian Sarfraz-ul-Hassan, Advocate, representing Ghulam Sabir argued that the suit was filed by him after the death of Mst. Azizan and,' therefore, a power of attorney was not necessary because he was a legal heir. That section 12(2) of the Civil Procedure Code would not come in his way as the amendment to section 12, C.P.C. Was made after the suit had been filed. The suit was filed in 1973, whereas the said amendment was made in the year 1980.
9. According to the learned counsel for the respondent as the property was of a value -of Rs,100 and above and was located in an urban estate, it A wa- compulsorily registerable under provisions of section 54 of the Transfer of Property Act read with sections 17 and 14 of the Registration Act.
10. However, this legal argument of the learned counsel for the respondent has been contested by the learned counsel for the petitioner, according to whom the provisions of the Transfer of Property Act were not applicable ar the relevant time in the area where the land is situated. That consequently, an oral gift was permissible. That as the provisions of section 54 of the Transfer of Property Act were not applicable, the provision of Registration Act would not also be applicable.
11. It was pointed out that in the sale-deed executed by Abdul Latif in favour .Of Hoshiar Ali, Ghulam Sabir was reflected as an attesting witness and this reflected his own conduct. He was not an ordinary attesting witness but was witnessing the sale of the property, the ownership of which ultimately he was going to challenge on the basis of his ownership rights.
12. Commenting further on the conduct of Sabir Ali, the learned counsel for Muhammad Ashraf respondent has said that he was not to be believed. That he was playing a fraud. That he even played a fraud with his mother by mortgaging her property to the National Bank on the basis of a fictitious power of attorney. That although the legal advisor of the Bank had declared his power of attorney to be fraudulent. He still manipulated and succeeded in getting the loan. That whereas Hoshiar Ali petitioner paid back the loan for saving the property.
13. Learned counsel representing the National Bank of Pakistan stated that the loan taken against the property was adjusted and, therefore, the bank had no interest left in the matter. In this connection he referred to a letter of the bank which he placed on the file as Mark-1.
14. Learned trial Court was of the. View that as the property in question was not registered, no rights whatsoever in the suit property could he transferred in favour of Master Abdul Aziz and, therefore, to the vendee Hoshiar Ali from him. This is based on an incorrect reading of the law.
15. Vide Notification No,15246-74/2237-LR-V," dated 30-12-1974, the provisions of section 54 etc. Of the Transfer of Property Act were extended to the whole of the Province of Punjab with effect from 30th of December, 1974. The suit whereby the consent decree was obtained by Abdul Latif 'pertained to the year 1966. This was challenged through the present suit, therefore, the provisions of section 54 of the Transfer of Property Act and the Registration Act were not applicable at the relevant time and as such the learned trial Court erred in coming to such a conclusion. This was the subject-matter of issue No,1.
16. Issue No,2 decided by the learned trial Court on the basis of issue. No,1 by stating that as no title had passed on to Abdul Latif and as such he could not transfer it in favour of Hoshiar Ali. Issue No,4 was decided against Hoshiar Ali on the ground that there was no valid sale and he, therefore, dismissed the suit of Hoshiar Ali while the suit of Sabir Ali was accepted.
17. Issue No,4 pertains to limitation. The learned trial Court had decided it against the present petitioner on the ground that as he had already held while deciding issue No,1 that it was a void sale, therefore, there is no question of the expiry of limitation.
18. According to the learned First Appellate Court, the learned counsel for the appellants/present respondents having conceded the findings of the lower Court under issue No,1 as correct, had tried to argue that the suit was barred by time having been instituted beyond period of 6 years in view of Article 120 of the Limitation Act. The reply of the learned First Appellate Court was that as the document was void, there was no question of limitation involved.
19. The main basis for the concurrent findings of the Courts below was that since the sale-deed had not been registered, it could not be acted upon. ' , This is belied by the legal position on the subject to which both the Courts c below did not advert to or perhaps were not properly assisted.
20 The suit of Sabir Ali having been filed in January, 1973. It has now to be seen afresh if it was barred by time after the decision of this Court on issue No,l.
21. Consequently, the judgment and decree of the First Appellate Court is set aside and the case is remanded to the learned District Judge, Mandi Bahaduddin for hearing it himself or entrusting it to anyone else. The appeal shall be deemed to have been pending with the First Appellate Court who has to rewrite the judgment atter reconsideration of all the facts and the observations made in this revision petition by this Court. Parties are directed to appear before the learned District Judge, Mandi Bahauddin on 28-6-1999. In case of their failure, they shall be summoned for a close date.
Since this is an old matter and the legal position having been clarified, this Court directs the learned First Appellate Court to accomplish its disposal by 30th of October.
1999. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.