' Property measuring 2 Marlas, 255-1/2 feet comprising Khasra No,2554/2 situated in Street No,8, Munshi Mohallah Bhawana Bazar, Faisalabad was owned by Mst. Kaniz Fatima widow of Lal Din.
Roshan Din son-in-law and Mst. Khadija Bibi the daughter of Mst. Kaniz Fatima, who is wife of the said' Roshan Din, instituted a suit for declaration, injunction and possession on 9-1-1988 claiming ownership of the property in dispute against the petitioners/defendants. (For convenience sake the parties will be referred hereinafter as "plaintiffs" and "defendants" respectively). The case of the defendants was that shop having an rea of 11'-6" x 12' was sold by Mst. Kaniz Fatima vide registered sale-deed, dated 13-10-1952 in favour of Manazoor Ahmed and was in possession of the defendants as owners who derived title from him. The plaint was sought to be rejected by the defendants by making an application but such a prayer was declined by the trial Court on 10-10- 1988. That order was assailed by the defendants when the learned Additional District Judge, Faisalabad ordered the rejection of the plaint on 27-5-1989 accepting their revision petition. Writ Petition No, 5705 of 1989 was filed by the plaintiffs before this Court, which was accepted on 24-4- 1990 and the matter was remanded to the trial Court for decision on merits. Several issues were framed by the trial Court whereafter the evidence was led by the parties. On consideration thereof the learned trial Court dismissed the suit vide judgment and decree, dated 5-12-1993. However, on the appeal filed by the plaintiffs the said judgment was reversed by the learned Additional District Judge, Faisalabad, when their appeal was accepted and the suit was decreed vide his judgment, dated 5-10-1995.
2. The appellate judgment has been assailed by the defendants mainly on the ground that the approach adopted by the learned Appellate Court was not consistent with the evidence on the record inasmuch as that the issue of ownership of title stood determined by the judgment of the learned Additional District Judge, Faisalabad on 8-2-1984, which though arose in an ejectment matter yet was final in view of subsection (8) of section 15 of the Punjab Urban Rent Restriction Ordinance, 1959. It is contended that misdescription of the Khasra number in the sale-deed does not denude the title of the defendants in the suit property, which otherwise stands established and proved from unimpeachable evidence on the record. It is contended that the property was, fully identifiable in view of its location, measurement and boundaries mentioned in the sale-deed. It is further contended that the vendor Mst. Kaniz Fatima had no other property for which she could have executed the sale-deed. It is contended by the learned counsel that though Mst. Kaniz Fatima lived till the year 1987, she never challenged the title of the defendants in her lifetime. Admissions in the statement of Roshan Din plaintiff are highlighted to contend that Khan Medical Hall run by the defendants and possessed, is the same premises as was sold by Mst. Kaniz Fatima.
3. The learned counsel for the plaintiffs has supported the judgment of the learned Appellate Court and contends that such a well-reasoned judgment of the Appellate Court does not warrant interference. It is contended that in case in the sale-deed incorrect Khasra number was described the defendants could have Sought its correction and rectification which they did not. It is contended that the revenue entries, which were not consistent with the sale-deed were of no avail to the defendants/petitioners. It is further contended that the judgment of the Appellate Court, dated 8-2-1984 passed in ejectment matter was not determinative of the title nor the filing of earlier cases would stand in their way. It is contended that the Appellate Court was fully justified on the basis of evidence to reverse the adverse findings recorded by the trial Court in the matter.
4. The material on the record has been considered with the assistance of the learned counsel for the parties. It may be observed that neither the bulk or volume of the record nor the length or breadth of an order/judgment is always a decisive factor in cases. The Court is expected to reach the crux of the matter and the real controversy involved by taking into consideration all the attending circumstances discernible from the record. In the present case whereas the defendants' claim was that Mst. Kaniz Fatima had sold the shop in dispute (known as Khan Medical Hall) to Manzoor Ahmed, the case pleaded by the plaintiffs was that sale-deed, dated 13-10-1952 Exh.P.3 related to Khasra No, 4554/2 whereas the property of Mst. Kaniz Fatima comprised of Khsara No, 2554/2. There is no dispute that the description in the sale-deed is of Khasra No, 4554/2. The question, however, is whether that alone would be a determining factor to discredit the claim of the defendants. It is trite law that while deciding civil matters the preponderance of the evidence is the determining factor and not a singular circumstance taken in isolation of the other material on the record. Mere incorrect description of the property given in a document cannot be the sole consideration when there is ample material to establish the identity of the property subject-matter of the sale. The learned trial judge had dismissed the suit of the plaintiffs by reaching a conclusion that Mst. Kaniz Fatima had sold the shop to Manzoor Ahmed, which was in possession of the defendant where Khan Medical Hall was being run. The judgment has been reversed by the learned Additional District Judge by accepting appeal filed by the plaintiffs on his view of the matter that the sale-deed mentioned some other Khasra number and the revenue entries should have corresponded with the sale-deed and that the shop claimed by the defendants did not relate to the property owned by Mst. Kaniz Fatima, which was Khasra No,2554/2. The learned Appellate Court has taken pains in making copious reference to the material in his lengthy judgment. The evidence on the record, however, when taken into consideration in its totality on closer analysis show that Mst. Kaniz Fatima had indeed sold the shop to Manzoor Ahmed through sale-deed, dated 13-10- 1952 stating measurement and boundaries thereof. It is mentioned in the sale-deed that she owned the property measuring 2 Marl 255/1/2 square feet in Street No,8 Munshi Mohalla, Layyal Pur.
Shop subject-matter of sale measuring 11'-6" x 12' was part of the same. It is identified by its boundaries. The trouble, however, arose with the mention of Khasra No, 4554/2 whereas the said property measuring 2 Marlas, 255/1/2 square feet comprised Khasra No,2554/2. When the property subject-matter of sale was otherwise identifiable and the defendants had continued to be in possession, mere misdescription of Khasra number in the sale-deed could not be taken as circumstances or a determining factor to nullify the sale: In this context it is worth noting that Mst.
Kaniz Fatima did not own any property bearing Khasra No,4554/2, which could be the subject- matter of sale, dated 13-10-1952. It is also worth-noting that on 28-8-1973 Mst. Kaniz Fatima had transferred the rest of the property from Khasra No,2554/2 i.e, 1 Marla, 28 square feet to her two daughters Mst. Khadija Bibi and Mst. Marrayam. This was the remaining property left with Mst. Kaniz Fatima by excluding the area of the shop already sold by her to Manzoor Ahmed defendant. It is also worth-noting that Mst. Kaniz Fatima who had lived till the year 1987 had not disputed the sale by herself in favour of the defendants. The sale-deed, dated 13-10-1952 was thumb-marked by her.
No steps were taken by the plaintiffs to prove that the same was not of Mst. Kaniz Fatima. Even Roshan Din plaintiff who appeared as a witness was not in a position to deny that the ownership of Mst. Kaniz Fatima was only of Khasra No, 2554/2 having area measuring 2 Marlas, 255/1/2 square fee. Indeed his deposition is fraught with inconsistencies and improbabilities and lacked credibility.
There is a document executed by Roshan Din (mortgage, dated 28-10-1987) for availing loan facility from N.I.C.F.C. Limited, the area mentioned therein and the description given goes to show that the property in dispute i.e, Khan Medical Hall was situated towards south of the mortgaged property i.e, Khasra No,2554/2. That was the remaining ownership of Mst. Kaniz Fatima, which she had transferred to her daughters. Needless to state that a plaintiff in the civil litigation is to succeed on the strength of his own case but the plaintiff/ respondents here in this case failed to prove their claim.
5. Besides, there is other evidence of great relevance and importance in the form of a judgment of the learned Additional District Judge, Faisalabad, dated 8-2-1984 which arose out of the ejectment proceedings taken out by Roshan Din plaintiff where the question of ownership of the shop had arisen and issue about the existence of relationship of landlord and tenant was decided. The ejectment petition was accepted by the Rent Controller but that judgment was reversed by the Appellate Court wherein observations and findings of utmost significance were recorded by the Appellate Court. It was noted that "the main stress of the learned counsel for the respondent (Roshan Din) is on the point that Mst. Amt-ul-Karim has purchased property from Manzoor Ahmed out of Khasra No, 4554/2, as such she is not the owner of the property in possession of the appellants. In the context of the controversy it was noted by the Appellate Court "the only point which requires determination in this ejectment petition is if the property in possession of the appellants falls within Khasra No,2554/2 or not". The finding returned and conclusion drawn by the Appellate Court was that:-- "10. Admittedly area of property bearing Khasra No,2554/2 is given as 2 Marlas, 255/1/2, in the first sale-deed, copy of which is Exh. Al and which was executed by Mst. Kaneez Fatima in favour of Mst.
Marrium and Mst. Khedija Bibi. Similarly the area of this Khasra No,2554/2 has been given 2 Marlas, x 255-1/2' in the sale-deed copy of which is Exh.A.2 and this sale-deed was executed by Mst.
Marryum and Mst. Khedija Bibi in favour of Roshan Din respondent. It is evident from the copy of this sale-deed Exh.A.2 that a portion of this property measuring 1 Marla 26 3/4' out of Khasra No,2554/2 measuring 2 Marlas x 255-1/2' has been sold to the respondent. Thus it is established that Mst.
Kaneez Fatima was the owner of the property bearing Khasra No,2554/2 measuring 2 Marlas, 255- 1/2'. Now Mst. Kaneez Fatima has sold a shop measuring 11-1/2 x 12' in favour of Manzoor Ahmed vide sale-deed Exh.P.7. It is correct that Khasra number given in Exh.R.7 is 4554/2 but the area has been given as 2 Marlas 255 1/2'.
' The mere fact that instead of Khasra No, 2554/2 it mentioned as 4554/2 does not alter the position as area is the same. Now if this area of 2 Marlas 255-1/2' belongs to Mst. Kaneez Fatima and she has sold a shop out of this area measuring 11-1/2 x 12' which comes to 138', then the remaining area comes to 2 Marlas 117-1/2'. It is also evident from Jamabandi of 1977-78 Exh.R.14 that Mst. Kaneez Fatima is the owner of Khasra No,2554/2 measuring 2 Marlas, 117-1/2'. It is thus clear that Mst.
Kaneez Fatima sold the shop in favour of Manzoor Ahmed out of her own property bearing Khasra No,2554/2 and not 4554/2 as inadvertently mentioned in the sale-deed. It is also evident from copy of Jamabandi Exh.R.12 that Khasra Nos. 4554 and 4555 belong to one Manzoor Ahmed son of Abdul Karim and the area of each Khasra number is 8 Marlas x 162 sq: ft. It is thus cleat that Manzoor Ahmed vendor of Mst. Amtul Karim had purchased shop measuring 138' out of Khasra No,2554/2 belonging to Mst. Kaneez Fatima.
11. The upshot of the above discussion is that the property in favour of the appellants originally belongs to Mst. Kaneez Fatima which was sold in favour of Manzoor Ahmad vide sale-deed Exh.R.7 through general power of attorney Exh.R.8 and the said property is situated in Khasra No,2554/2 and now it has been given number as 2554/3. That the respondent has nothing to do with this property and the appellants are not occupying the disputed shop as tenants of the respondent.
Thus the findings of the trial Court are not sustainable. Consequently the appeal is accepted and the impugned order is hereby set aside. With the acceptance of this appeal, the ejectment petition filed by the respondent stands dismissed."
' Admittedly the judgment was not assailed any further by the plaintiff and thus attained finality.
Section 15 (8) of Punjab Urban Rent Restriction Ordinance, 1959 will have therefore, its ramifications inasmuch as the judgment which attained finality under the law was binding qua the parties and its legal efficacy could not be bypassed or annulled. General observations contained in the judgment of the learned Additional District Judge, Faisalabad impugned herein to the contrary and the view taken thereabout by him is incorrect. Reference in this context may be made to Mir Salah ud Din v. Nazi Zaheer ud Din (PLD 1988 SC 221) and Muhammad Bakhsh and 3 others v. Khuda Bakhsh and 3 others (1993 M LD 937). In Mir Salahud-Din case (supra) question whether after the decision rendered by the Authority/ Court under the Rent Restriction Law the same could be re- agitated in a civil suit was considered by their lordships with particular reference to an earlier judgment commonly known as Rehmatullah case (1983 SCM R 1064) and it was restated that: "A matter involving even a dispute of title--having once obtained finality in the Rent Controller's forum (including hierarchy of appeal/s and thus the appellate and superior Courts) cannot be re- agitated in a suit before a Civil Court of general jurisdiction, inter alia, because of principle of general res judicata; the provisions contained in section 12(2), C.P.C. Read with section 9, C.P.C. And, the provisions contained in section 15(7) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (as amended)". It was observed that there could be some possible exceptions as had been stated in the case of Rehmatullah. In the instant case, however, 'no such exception enumerated therein is attracted.
' There thus remains no doubt about the determination made by the Appellate Court in the judgment, dated 8-2-1984 and the finding recorded by the trial Court in the instant round of litigation. Extensive reference made by the learned counsel for the plaintiff to the evidence and his contentions aimed at to show that since the sale-deed mentioned a different Khasra number than was owned by Mst. Kaniz Fatima the sale-deed, dated 13-10-1952 should be treated as of no effect does not carry much weight. As a consequence I am not persuaded to affirm or uphold the view that prevailed with the Appellate Court in accepting the appeal of the respondents/ plaintiffs. The judgment suffers from material illegality, rendering the same unsustainable in law.
'Civil Miscellaneous No, 1-C of 1997 was filed by the petitioners under Order 41, Rule 27, C.P.C. To bring on record certain documents mentioned therein, however, in view of the findings and conclusion stated above on the basis of the material already on the record the said application has become redundant and infructuous which is disposed of accordingly.
' As a result of the above by setting aside the judgment and decree, dated 5-10-1995 rendered by the learned Additional District Judge, Faisalabad the revision petition is accepted restoring the judgment and decree, dated 5-12-1993 of the learned trial Court. No order as to costs.