' This revision petition is directed against the order of learned Additional District Judge, Chunian dated 19-3-1998 maintaining the judgment and decree of the learned Civil Judge, Chunian dated 8-10-1995 decreeing the suit for possession of respondent No,1 Noor Din.
2. Brief facts of the case, suit titled 'Noor Din v. Khushi Muhammad, etc. Are that Noor Din respondent No, 1/plaintiff purchased disputed house measuring six and a half Marla from Khushi Muhammad petitioner for Rs,8,500 through an agreement dated 4-7-1978. It is pleaded that suit land is a part of Shamlat Deh and cannot be sold through sale agreement, therefore, its sale effected only through delivery of possession. Respondent No,1 got the possession of the suit house after payment of aforesaid amount and spent Rs,5,000 for its repair and maintenance. About nine years prior to filing of the suit plaintiff entered out the eastern room to Mushtaq respondent No,2 at the rate of Rs,50 per month and about three years ago Mushtaq hired the western room instead of eastern at the rate of Rs,100 per month and started paying regularly monthly rent nine months prior to filing of the suit he stoppped paying the rent and on asking of the plaintiff for vacation of the room he in collusion with petitioner delivered its possession to him instead of plaintiff. It is further stated that the petitioner took the possession of eastern room illegally and the luggage of the plaintiff valuing Rs,3,000 lying in the said room was misappropriated by him. The suit was filed for recovery of possession of the house and also for the recovery of Rs,900 as mesne profit and Rs,3,000 as compensation of the articles of the plaintiff misappropriated by the petitioner/defendant No, 1 .
3. Defendant No,1 petitioner Khushi Muhammad also filed a separate suit against Noor Din respondent No,1 herein this petition. It was pleaded by Khushi Muhammad that he is owner in possession of the suit property. He gave the possession of one room to Mushtaq respondent No,2 for his temporary residence. On his refusal to vacate the room he filed a suit for possession against him on 22-9-1992. Defendant No,2 delivered the possession of said room to him on 24-9-1992. It is further pleaded that Noor Din is bent upon to take the possession of the suit to property and the petitioner filed a suit to protect his possession over the suit property against Noor Din petitioner denied the agreement of sale dated 4-8-1978 in favour of Noor Din, Mushtaq Ahmad respondent No,2 supported the version of the petitioner. Noor Din filed a contempt application on the averment that during the status quo order dated 27-10-1992 petitioner demolished the southern wall in kitchen of the suit property. The said application was also contested by Khushi Muhammad petitioner. Learned Trial Judge on divergent pleadings of the parties framed the following issues:--
(1) Whether the plaintiff has got no cause of action? OPD
(2) Whether the suit is mala fide and false and defendants are entitled to special costs? OPD
(3) Whether the plaint has been wrongly valued for the purpose of court-fee and jurisdiction? If so, its effect and correct value? OPD
(4) Whether the plaintiff has purchased house in dispute from Khushi Muhammad vide receipt/sale noted dated 4-8-1978 for Rs,8,500? OPP
(5) Whether plaintiff is entitled to recovery compensation for the use and occupation of house from defendant No,1? If so to what extent? OPP.
(6) Whether plaintiff is entitled to recover Rs,3,000 for the compensation of different articles? OPP
(7) Whether Khushi Muhammad has filed his suit without any cause of action? OPP
(8) Whether Noor Din is entitled to special costs in suit for permanent injunction? OPP
(9) Whether suit of Khushi Muhammad is mala fide and false? OPP
(10) Whether Noor Din has got no right to interfere in the possession of Khushi Muhammad upon suit house? OPD 1
(11) Whether Khushi Muhammad has violated the interim injunction dated 27-1-1992 issued by this Court? OPP
(12) Relief.
' After recording the evidence the suit of the petitioner was dismissed whereas that of Noor Din for possession was decreed by the learned Civil Judge on 8-10-1996 against which his appeal was dismissed through impugned judgment dated 19-3-1998.
4. Learned counsel for the petitioner contends the Exh. P-1 agreement to sell is not admissible in evidence as it relates to purchase of property more than 100 and it is a compulsory registerable document. He further submits that the respondent No,1 produced only one marginal witness of said document. The sale was not proved in favour of respondent No, 1 . The lower Courts misread the evidence on record in decreeing the suit of respondent No,l.
5. Learned counsel for respondent No,1, on the other hand, submits that the agreement to sell was executed prior to enforcement of Qanun-e-Shandat Order, 1984. There was no legal obligation on the part of respondent No,1 to produce two marginal witnesses. The document was proved through its marginal witness Haji Manzoor Ahmad P.W.2. Learned Trial Judge as well as the Appellate Court while appreciating the evidence concurrently believed his evidence and decree the suit. Petitioner has not challenged the dismissal of his suit for permanent injunction which fact also supports the averment of respondent No,1 that he is owner of the house. Learned counsel further submits that there is no error in the impugned judgment and the petition is liable to be dismissed.
6. I have heard the learned counsel for the parties Issue No,4 is the crucial issue in the instant case.
The burden of proof of this issue was on Noor Din. He appeared as P.W.1 and deposed that he purchased the dispute property from Khushi Muhammad for Rs,8,500, entire amount was paid to him, acquired possession and thereafter spent Rs,5,000 over its maintenance, Exh. P-1 was executed by the parties, secribed by Ghulam Nabi and witnessed by Haji Manzoor Ahmad P.W.2 and Haji Nawab Din not produced. Haji Manzoor Ahmad P.W.-2 categorically deposed that Khusi Muhammad petitioner thumb-marked Exh.P-1 in his presence. It was written by Ghulam Nabi and witnessed by him. He further deposed that the sale price 8,500 was paid to Khushi Muhammad in his presence consequently the possession of the house was delivered to Noor Din. This witness is unconnected. His evidence inspires confidence being a marginal witness of Exh. P-1. As against this evidence petitioner has not produced any cogent evidence in rebuttal of Exh. P-1. Khushi Muhammad has not himself appeared in the witness-box instead his son as his attorney appeared as D.W.2 who deposed that the house was not sold by the Khushi Muhammad to Noor Din. Khushi Muhammad perhaps avoided taking of oath or facing the test of cross-examination or taking of his thumb-impression for sending to the expert. Non-appearance of Khushi Muhammad in rebuttal to the evidence of Noor Din leads to an adverse inteference against him. Against documentary evidence of Exh. P-1 oral statement of son of petitioner is not worth credence, Exh. P-1 is sufficient evidence of sale of disputed house in favour of respondent No,1 and its non-registration hardly furnishes any ground to vitiate its evidentiary value. Petitioner delivered possession to vendee after receipt of entire consideration. Document was executed prior to enforcement of Qanun-e-Shandat Order, 1984, therefore, non-production of second marginal witness is immaterial. The findings of both the Courts below on this issue are based on true appreciation of evidence which call for no interference. In consequence of findings on issue No,4 the suit was rightly decreed. The findings on other issues are also supported by valid reason which have not been seriously challenged by the learned counsel for the petitioner during arguments.
7. The impugned judgment does not suffer from any legal error warranting interference by this Court. The petition is dismissed with no order as to costs. .