Suit for declaration filed by Muhammad Yousaf ("the respondent" now represented by his legal heirs), was allowed by the learned Civil Judge, vide judgment and decree dated 31-3-1988; appeal filed by the petitioners failed on 18-7-1989. Hence this petition.
2. Briefly stated the facts of the case are, that Jalal Din, father of the respondent, as the owner of the land measuring 89 Kanals, 2 Marlas, situated in Mouza Ban Bajwa, Tehsil Pasrur, District Sialkot, vide registered sale-deed dated 28-6-1979, sold the same in favour of the petitioners; previously the respondent his son had filed a suit for declaration, against Jalal Din on 21-5-1979, to the effect that his father Jalal Din, out of the aforesaid had orally gifted the land measuring 4 Kanals, 7 Marlas, in his favour on 7-11-1978; Jalal Din, without issuance of any notice, by the Court, voluntarily appeared before the Court.On 23-11-1978 and made conceding statement, thus a decree was passed in favour of Muhammad Yousaf. Thereafter, Jalal Din, vide sale-deed dated 28-6-1979, as mentioned above,sold the entire Khata measuring 89 Kanals and 2 Marlas, in favour of the present petitioners.
3. Muhammad Yousaf, on 23-5-1985, brought the present suit for declaration, challenging the aforesaid sale to the extent of 4 Kanals and 7 Marlas on the basis of said decree and also sought possession as the consequential relief. This suit was contested by the petitioners who stated that earlier Jalal Din, vide agreement dated 13-12-1978 had agreed to sell the whole Khata measuring 89 Kanals and 2 Marlas; though Khasra numbers comprises of Khata were duly incorporated in the agreement, but because of some incidental delerical omission, land to the extent of 4 Kanals and 7 Marlas was less mentioned in the agreement. However, while executing sale-deed, this omission was realized and due correction was made, resultantly, whole of the Khata measuring 89 Kanals and 2 Marlas was transferred in favour of the petitioners, by Jalal Din, Muhammad Yousaf, who was the son of the seller duly witnessed the sale-deed and never ever claimed that 4 Kanals and 7 Marlas, had earlier been gifted by his father to him and a decree has been passed in his favour, resultantly, Muhammad Yousaf, is debarred and estopped by his own conduct to challenge the sale in favour of the petitioners, Learned trial Court, framed the following issues:--
(1) Whether the impugned decree dated 234.1979 was collusive and thus ineffective on the rights of the defendants? OPDs
(2) Whether the plaintiff is estopped to sue? OPD
(3) Whether the suit is within time? OPP.
(4) Whether the plaintiff is entitled to the decree prayed for? OPP Evidence of the parties was recorded and vide judgment and decree dated 31-3-1988, the suit of Muhammad Yousaf, was allowed, holding that the petitioners have failed to establish on record the earlier agreement to sell dated 13-12-1978; a decree had been obtained by the plaintiff on 23-11- 1978, against his father before the sale-deed dated 23-5-1979, which has not been got set aside by the petitioners/defendants. Appeal filed by the petitioners also failed.
4. Learned counsel for the petitioners contends that even if the agreement to sell has not been produced in evidence, yet in the statement of P.W.3, reference to it was made and it was deposed that earlier through the agreement Jalal Din, had agreed to sell his whole Khata measuring 89 Kanals and 2 Marlas; this statement has nut been subjected to cross-examination by the respondent; decree dated 23-11-1978, in favour of Muhammad Yousaf, was collusive in nature, because the matter was never consented by Jalal Din and he made conceding statement; the gift or the decree was never got incorporated in the Revenue Record and was kept secret, which fact by it self prove the transaction as dubious and fraudulent. Petitioners are the bona fide purchasers, having verified from the Revenue Record, that the title of whole Khata measuring 89 Kanals. And 2 Marlas vested with Jalal Din; the possession under the gift as alleged by Muhammad Yousaf was never delivered to the plaintiff/respondent and therefore, gift was invalid. Plaintiff kept silent for about 6 years and at the fag-end of limitation had filed the suit, obviously with an oblique object to harass the petitioners.
5. Conversely, learned counsel for the, respondent, argued that the petitioners have failed to prove on record the agreement to sell dated 13-12-1978, wherefrom it can be ascertained and verified that Jalal Din had earlier agreed to sell the whole Khata measuring 89 Kanals and 2 Marlas to them. It is also stated that before the sale-deed could be executed in favour of the petitioners. Jalal Din had already gifted the suit land measuring 4 Kanals and 7 Marlas in favour of the respondent and to this effect, a decree had already been passed on 13-11-1978 in favour of the respondent, therefore, to the extent of this piece of land Jalal Din was not the owner, and had no legal title to pass on to the petitioners.
6. I have heard the learned counsel for the parties. Though the agreement to sell has not been produced in evidence. However, this document is available on the record. It is clear from this agreement to sell that Jalal Din had agreed to sell whole of his 1hata because the entire Khasra numbers comprises of the Khata are mentioned in the agreement to sell. The measurement of the Khata are less 4 Kanals and 7 Marlas but this seems to be result of some clerical/incidental omission. As mentioned earlier, though the document has not been produced in evidence, yet the Court, for the purpose of doing justice, can consider the agreement; particularly, when a reference to the agreement has been made in the statement of P.W.3 and his deposition has not been subjected to cross-examination. Even otherwise, it is most dubious, strange and inconceivable that a father out of his free-will, would gift the property in favour of his son .And then would back out for no cogent reason, constraining the son to file a suit on 21-11-1978, and the father, without any notice, having been issued by the Court, appears before the Court and makes a conceding statement on 23-11-1979; on procuring the decree, the respondent does not get it incorporated in the Revenue Record. His father knowing fully well of the decree sells his whole Khata measuring 89 Kanals and 2 Marlas, in favour of the petitioners, through a registered sale deed; respondent accompanies his father for the execution of the sale-deed and attests the instrument as a marginal witness. The claim of the respondent that he was compelled to sign the deed is not corroborated by any independent evidence and the reasons given in this behalf in his statement while appearing as P.W.1, on the fact of it, are baseless. The respondent is an educated person, he accompanied his father, as has been stated by D.W.2, signed the document in English, how is it possible that he was not aware whether the sale includes 4 Kanals and 7 Marlas or not. Moreover, the effect of the alleged gift has not been given in the Revenue Record. In his statement, he has admitted that he was never delivered physical possession of the gifted land, rather he states that the possession of his father over the land was deemed by him as his possession. The material .D.Ws. Have stated that the contents of the sale-deed were read to the respondent, and there is no cross-examination to these depositions. The respondent remained silent for about almost six years and throughout the factum of gift and the decree was kept secret, even this was not disclosed when the petitioners had the opportunity for the disclosure i,e, at the time when he witnessed the sale-deed and at the fag expiry of period of limitation, he filed the present suit. There is no plausible explanation given by him as to why, when he was out of possession of the suit property, which admittedly was delivered to the petitioners at the time of sale in their favour he remained silent for such long period of time. All the above aspects have considerable reflection upon the case of the respondent, qua the issue of estoppel and that the validity of oral gift and the decree dated 23-11- 1978.These aspects are borne out from the record, but the Courts below have totally overlooked these, which is due to sheer non-reading of the evidence. Besides, the Courts have also failed to appreciate that the possession of the suit property, which was sine qua non for the validity of gift, was never delivered to the respondent under the gift, thus such a gift was invalid and no consent decree in favour of the respondent, could cure the defect especially when subsequently, Jalal Din himself asserting as owner of the property in contradiction of the gift and the decree, sold the property in question to the petitioners.
6. The argument of learned counsel that decree dated 23-11-1978, had not been challenged by the petitioners, suffice it to say that from the facts narrated above, it is clear that the decree obtained by Muhammad Yousaf, was collusive in nature and therefore, such decree is liable to be ignored. In this behalf, I am fortified in my view by the judgments reported as Falak Sher v. Muhammad Rashid and another (PLD 1982 Lah. 426) and Ghulam Tayyib v. Shahro Khan and others (PLD 1962 BJ 1).
7. Dealing further with the question that the agreement to sell has not been adduced in evidence by the, petitioners, therefore, it cannot be looked into, it may be held that such document when available on the record, referred to in the statement of P.W.3 was not cross-examined, could be considered by the Court to meet the ends of justice. Reliance in this behalf, can be placed on the cases reported as Muhammad Ashraf v. Syed Ghulam Murtaza and others (1993 CLC j85) and PLD 1975 Lah. 1170 and 1175. Notwithstanding the agreement to sell, from the proper reading of the evidence. I am of the view that Jalal Din had earlier agreed to sell the whole of his Khata measuring 89 Kanals and 2 Marlas to the petitioners, but there was error in the measurement of the land agreed to be sold; taking advantage of this omission, the respondent in collusion with his father, procured a collusive decree and kept the same a secret to take advantage at some subsequent stage. Therefore, such decree even if not challenged by the petitioner, would not affect their title to the property acquired through a registered sale-deed coupled with the delivery of possession to them. In the light of above, the judgments and decrees impugned suffer from the vice of proper reading of evidence, on the record, in its true and proper perspective and thus cannot be sustained in law.
Resultantly, by allowing this petition, the judgments and decrees are set aside and the suit of Muhammad Yousaf is dismissed with costs throughout.