1. ' NAZIM HUSSAIN SIDDIQUI, J:----This judgment will dispose of Civil Appeals Nos.1131 and 1168 of 1997.
2. In both these appeals common questions of facts and law are involved and both are directed under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973, against judgment, dated 11-7-1997 of a learned Judge of Peshawar High Court, Abbottabad Bench, whereby Civil Revisions Nos.389 and 390 of 1994 preferred by the respondent were allowed.
3. Dispute is about identification of the property/properties involved in these appeals. In order to understand the nature of the dispute in its true perspective it would be proper to give some details about these properties as contained in the relevant record and also shown iri the line plan showing location and dimensions of shops Nos.4441/1 and 463 and 467 and 468, situate at Sarafa Bazar (old Lohar Gali) M.C. Area, Abbottabad.
4. According to record, the present number of Shops Nos.464 and 465, is 461 and of No.466, is 461/1.
5. These shops belonged to one Thakar Jaswant Singh, an evacuee. Present shop number, having previous Nos.467 and 468, is 463, which belonged to Atar Singh and Harbans Singh, sons of Hari Singh. As per Revenue Record, the present owner of Shop No.461 is Haji Faiz Ahmed son of Sheikh Ahmed. Likewise, Junaid Rashid son of Abdur Rahid and Muhammad Riaz son of Haji Ghulam Muhammad are owners of Shop No.461/1 while Shop No.463 belongs to the heirs of Haji Ghulam Muhammad.
6. It is alleged that after migration of Thakar Jaswant Singh to India Shop No. 461/1 became evacuee property and was put to auction on 25-9-1967 and was purchased by one Hafeezur Rehman son of Imam Din, who was the highest bidder. PTD was issued to him on 14-10-1967. On 26-1-1970, Hafeezur Rehman sold said shop to Muhammad Ashraf son of Abdul Aziz, who for some time did his business in said shop. Later on, he (Muhammad Ashraf) sold it back to Hafeezur Rehman. On 12-6-1986, the appellants (Junaid Rashid and Muhammad Riaz) purchased it from Hafeezur Rehman, through registered sale-deed for a consideration of Rs.1,50,000 and possession was delivered to them.
7. Admittedly, since then they are in possession of said shop. It is alleged that contiguous to said shop there is the shop bearing No.463 (old Nos.467 and 468) having measurement of 20 x 8" in possession of Haji Ghulam Muhammad, Muhammad Riaz, Abdul Rasheed, Hafiz Muhammad Sarfraz, Haji Abdul Wadood, Abdul Waheed, Haji Faiz Ahmed, Razia Begum, Surrayya Begum and Mst. Zohra Begum, which was purchased by them from Sheikh Sardar Ali through sale-deed on 20- 11-1974.
8. Respondent Sultan Muhammad (hereinafter referred to as "the respondent") claimed. that he was owner of the shop in possession of the appellants, therefore, filed Suit No.292/1 of 1986 against the respondent before Civil Judge, Abbottabad, for injunction and restraining him from claiming any title in respect of said shop. Said suit was contested by the respondent. Learned trial Judge vide judgment, dated 6-2-1992, decreed it. The respondent challenged said. judgment and decree before the District Judge, Abbottabad, who by judgment, dated 22-9-1994, dismissed the appeal and affirmed the judgment and decree of the trial Court. Thereafter, the respondent challenged the aforesaid two judgments before the Peshawar High Court through Civil Revision No.390 of 1994, which, as stated earlier, was allowed.
9. The case of the appellants (in C.A. No.1168 of 1997) is that Shop No.463 (previous Nos.467 and 468) having measurement of 20 x 8", was owned by one Hari Singh, who died leaving behind 2 sons, namely, Harbans Singh and Atar Singh. It is alleged that abovenamed persons through a temporary wooden partition divided the shop into two portions. Later on they migrated to India and said shop became evacuee property. It is also alleged that when said shop was divided into two portions through temporary wooden partition, it was assigned Nos.viz. 467 and 468. It was auctioned and on 27-2-1960 was purchased by one Khawaja Muhammad Siddique for Rs.8,000.
10. However, after some time, said purchaser applied for cancellation of auction on the ground that he was given impression that the property consisted of two shops, but, in reality it was only one shop.
11. His request was accepted and the shop was put to auction again and this time it was purchased by Sheikh Sardar All for Rs.4,900 Last-mentioned sold it to Ghulam Muhammad and his sons, namely, Abdul Rashid, Muhammad Riaz, Abdul Waheed and Muhammad Sarfraz through sale- deed, dated 20-11-1974. Said Ghulam Muhammad had expired and is being represented by the appellants (in C.A. No.1168 of 1997).
12. It is alleged that, after purchasing aforesaid shop Haji Ghulam Muhammad and others demolished the old construction, got the site plan sanctioned from the Municipal Committee, Abbottabad, and constructed three-storey building thereon. It is urged that said Shah Sardar Ali fraudulently posed himself to be the owner of two shops and mentioned a false and imaginary number of shop as 462 and sold it to the respondent, although there was no such shop bearing No.462. Thereafter, the respondent without any justification started claiming ownership of shop bearing No.463. Under these circumstances, the appellant filed declaratory Suit No.185 of 1987 in the Court of Civil Judge, Abbottabad, which was contested and was decreed on 16-2-1992. The respondent preferred appeal against said judgment and decree before District Judge, Abbottabad, which was dismissed. The respondent then filed Civil Revision No.389 of 1994 before the High Court which, as stated earlier was allowed.
13. Learned Civil Judge had, before delivering judgment, dated 16-2-1992, in Suit No.292/1 of 1986 inspected the site and recorded his observations which are as follows:-- "Therefore, in light of this order and on the request of the counsel, I in their company visited the spot and had found that the shops bearing 464 and 465 and 466 alongwith Bala Khana previously belonged to Thakar Jaswa nt Singh is in one complete block as it was before partition of sub- continent while the property bearing No.467- 468 has been converted into a three-storey building which originally belonged to Atar Sindh and Harbans Singh. As Hafeezur Rehman stepped into the shoe of Thakar Jaswa nt Singh and the present plaintiff stepped into the shoe of Hafeezur Rehman, therefore, the description so mentioned in the plaint is correct."
14. Learned District Judge, Abbottabad, in his judgment, dated 22-9-1994, observed that Shop No.461/1 belonged to Thakar Jaswa nt Singh and the same was purchased by Hafeezur Rehman which, ultimately, was purchased by appellants Junaid Rashid and Muhammad Riaz and upheld the findings of trial Court that the respondent had no concern with Shop No.461/1, which was in possession of the appellants.
15. Learned High Court, while summarizing the case of the contesting parties, held that only two questions required consideration namely, (i) whether Shop No.463 (old Nos.467 and 468) was one shop or were two shops, one purchased by Ghulam Muhammad and the other by the respondent and (ii) whether Shop No.461/1 in fact is Shop No.467. Having taking into consideration, the High Court decided Civil Revisions Nos.389 and 390 of 1994 and concluded as follows:-- "For the reasons above-stated Civil Revision No.389 of 1994 is allowed and the judgments and decrees, dated 22-9-1994 and 16-2-1992 are set aside and Suit No.185/1 of 1987 instituted on 26-7- 1987 by Mst. Zuhra Begum and others is dismissed. Similarly, C.R. No.390 of 1994 is allowed and the judgments and decree, dated 22-9-1994 and 16-2-1992 are set aside and Suit No.292/1 of 1986 instituted by Junaid Rashid and Muhammad Riaz is dismissed. Because of the protracted litigation between the parties there shall be no order as to costs."
16. We have at length heard learned counsel for the parties and, with their assistance, examined the record.
17. Mr. S.M. Zafar, learned counsel for appellants (in C.A. No.1131 of 1997) contends that the High Court without justification has disturbed the concurrent finding recorded by the two Courts below holding that it was a case of non-reading and misreading of the evidence. He also argued that the judgment of the High Court is mainly based on earlier decisions of various Courts delivered in rent proceedings. He referred to the decision of the High Court in S.A.O. No.20 of 1967 which arose out of an eviction application filed by Sheikh Sardar Ali against one Falazur Rehman who expired during pendency of the proceedings and was joined by his legal heirs. He pointed out that the High Court was impressed by the rent deed executed in favour of Sheikh Sardar Ali by said Fazalur Rehman and took the view that successor in-interest of deceased Fazalur Rehman having stepped in his shoe, could not legally raise any issue as to the identity of Shop No.461/1. It is urged by learned counsel that issue of title could not validly be decided by the Rent Controller, as such, any observations to that effect were of no legal consequence. He submitted that this Court has already decided this legal proposition in the case reported as Rehmatullah v. Ali Muhammad and another (1983 SCM R 1064). This reported case was considered by the High Court and was distinguished on the ground that the principle laid down therein was not attracted, as the Rent Controller, the Appellate Court and the High Court, in earlier round of litigation had decided that said Fazalur Rehman and subsequently his legal heirs were tenants of Sheikh Sardar Ali in Shop of No.462. This Court in the aforesaid reported case, after taking into consideration the case-law available up to that time held as follows:-- "The requirement of the relevant law contained in the Rent Restriction Ordinance is that the Rent Controller cannot decide the question of relationship of landlord and tenant against the tenant when the landlord has not been able to establish his position as landlord beyond reasonable doubt. In that situation the proper course for the Rent Controller would be, to decide the issue against the landlord and advise him to first get his title established before seeking ejectment."
18. As against above, Mr. Mushtaq Ali Tahirkheli, learned counsel for the respondent, vehemently argued that appellants Junaid Rashid and Muhammad Riaz (in C.A. 1131 of 1997) being relatives of Hafeezur Rehman, could not derive better title than him (Hafeezur Rehman) and that the latter had admitted in the previous litigation that the shop in his possession was Shop No.463 (Old Nos.467 and 468) with present No.462, and such findings were also recorded by competent Court, including the High Court in S.A.O. No.20 of 1967. He also argued that new No.461/1 was incorporated in the record fraudulently just to deprive the respondent to enjoy his property. He specifically referred to the consent order, dated 7-12-1986 passed in Writ Petition No.42 of 1986 whereby said Hafeezur Rehman had agreed to hand over Shop Nos.467 and 468 (present No.463) to the respondent and instead of doing that fraudulently transferred it by registered sale-deed, dated 12-6-1986 in favour of the appellants.
19. Mr. Muhammad Munir Peracha, learned counsel for the appellants (in C.A. 1168 of 1997) argued that though the findings of the trial Court and first Appellate Court were based on irrefutable oral and documentary evidence, yet, the High Court set aside the same on the grounds, which are not sustainable.
20. Main point in these appeals is the issue of identification of the shops in question. It appears that confusion arose when the original numbers were changed and the new ones were assigned. It is significant to note that the trial Court being confronted with such situation exercised necessary caution and before reaching final conclusion had recorded the evidence of the concerned officials, including Muhammad Arshad, an official from Settlement Department, who produced original PTD of Shop No.461/1 (Old No.466) showing Thakar Jaswant Singh as its original owner. The witness deposed that property bearing Nos.467 and No.468 was transferred to Sheikh Sardar Ali on 12-1- 1963. Trial Court also recorded the evidence of Record Keeper of Municipal Corporation, Abbottabad, who stated that in the new register for the year 1990-91 Shop Nos.464 and 465 (new No.46.1 and 466 (new No.461/1) were in the name of Thakar Jaswant Singh. Thus it stands proved from the evidence that the predecessor-in-interest of the appellants (in C.A. 1131 of 1997) had purchased the property which initially belonged to Thakar Jaswant Singh. It is not the case of the respondent that he had purchased the property of said evacuee. On the contrary, his case is that he purchased the property belonging to Atar Singh and Harbans Singh. It has also come on record that the respondent had purchased said property without seeing it. The Shop No.461/1 is different property than Shop No.467. Mischief was done by said Sheikh Sardar Ali who sold the same property to two different persons. It also stands proved from the record that the appellants (in C.A.
21. No.1168 of 1997) had purchased the property (Shop Nos.467 and 468) from Sheikh Sardar Ali which, as stated earlier, in fact was one shop and thereafter got the site plan sanctioned and constructed three-storey building thereon. The appellants in both these appeals are in possession of the properties since long. The principle of res judicata is not at all attracted to the circumstances of these cases. It was a real dispute relating to the title of the property, which could not be decided in rent proceedings or in appeals emanating therefrom. The properties in question belonged to the appellants of these appeals and they were legally justified in claiming their ownership.
16. The finding of the High Court, date 11-7-1997 is not in accordance with the evidence on record and we set aside it. Resultantly, these appeals are allowed with no order as to costs. Judgments passed by the two Courts below in these matters are restored.