1. ' This judgment shall decide Writ Petition No,2287 of 1999 and Writ Petition No,2288 of 1999, in which somewhat common questions are involved.
2. On 18-9-1991 the respondents filed an application for ejectment of Ch. Akbar. Ali, predecessor-in- interest of the petitioners, from the suit house. In the plaint it was stated that the house is owned by respondents while the said Akbar Ali is occupying the same as tenant subject to payment of Rs,500 per month as rent. Ejectment was sought on the ground that the rent has not been paid for 4 years prior to the institution of the petition and that premises is required for personal use of the respondents. In reply the said Akbar All denied the relationship of landlord and tenant between the parties. According to him the house was owned by Ghulam Muhammad who had mortgaged it in favour of Mst. Anwar Begum with condition that in case the house is not redeemed within two years, Mst. Anwar Begum will become owner of the house. It was further stated that respondents had filed a suit against Mst. Sugran Begum and others in the year 1973, wherein he was directed to pay court-fee of Rs,973 up to 26-10-1973 otherwise his suit would be dismissed. He did not file the court-fee and the suit stood dismissed. Later respondent by fraud fabricated a decree and that he has filed an application under section 12(2), C.P.C. On 15-1-1992 for cancellation of the said decree.
2. ' As would be evident from the above narration of facts, on 15-1-1992 the said Akbar Ali had filed an application under section 12(2), C.P.C. On the ground that the decree in the said suit (I may note here that the suit was filed by Munawar respondent against Mst. Zohra Begum etc. Successors-in- interest of said Ghulam Muhammad) was subject to payment of court-fee up to 26-10-1973 and court-fee was not paid within said date and later was placed on the file and records were interpolated. This application was resisted by the respondents.
3. ' A preliminary issue was framed by the learned Rent Controller as to existence of relationships of landlord and tenant between the parties. Evidence was recorded. Vide order dated 26-4-1995 the ejectment petition was dismissed.
4. ' Issues were framed in the said application under section 12(2), C.P.C. Evidence was recorded. The application was dismissed by the learned Civil Judge on 19-5-1998.
5. ' An appeal filed by the respondents and civil revision filed by the petitioners were heard by a learned Additional District Judge separately, whereas the revision was dismissed. Appeal was allowed and after reversing the findings on the said preliminary issue, ejectment application was allowed. These judgments were passed on 28-7-1999. Learned counsel for the petitioners contends that document Exh.R.1 was 30 years old document and enjoys presumption of correctness under Article 100 of the Qanun-e-Shahadat Order, 1984, and ought to have been believed by the learned Additional District Judge in support of contentions of his clients that they are mortgagees in possession and further that they have become owners because of non-performance of the condition in the mortgage. Learned counsel has not much to say in support of writ petition filed against the order concurrently rejecting the application filed by the petitioners under section 12(2), C.P.C. For setting aside of the decree in favour of the respondents and against the L.Rs, of said Ghulam Muhammad. Learned counsel for the respondents, on the other hand, contends that apart from the fact that the document contains conditions which on the face of them are void, it being unregistered does not at all proceed to extinguish any right, title or interest of the alleged mortgagor. He also refers to several pieces of evidence on records to demonstrate that the relationship of landlord and tenant stood proved between the parties.
6. ' I have gone through the records appended with both these cases with the assistance of the learned counsel for the parties. The factual position which emerges is that Ghulam Muhammad was owner of the house in question. According to the petitioners vide mortgage-deed dated 3-7- 1961, in order to secure a sum of Rs,10,000 Ghulam Muhammad mortgaged the house in favour of his mother Mst. Anwar Begun and term was that if he fails to redeem the house within two years Mst. Anwar Begum will become owner. On 29-10-1974 the respondents filed a suit against Mst.
7. Sughran etc. Admittedly L.Rs, of said Ghulam Muhammad. On the same day the defendants in the case put in appearance and conceded the suit. After fulfilling requisite formalities, the suit was decreed with condition that court-fee of Rs,973 be paid up to 26-11-1974 failing which the suit will be dismissed. The court-fee was paid on 15-11-1974. Accordingly decree sheet was prepared on 26-11- 1974 vide documents Exh.P.9 to Exh.P.11.
8. ' After tiling of the ejectment petition on 19-9-1991, the petitioners filed an application under section 12(2), C.P.C. On 30-11-1992. This application was dismissed on 19-5-1998 and revision was dismissed on 28-7-1999. Both the Courts holding that no fraud or misrepresentation, was committed or made and further that it has come in deceased Akbar Ali's own statement that he had in the first instance filed an application on 29-10-1974 for setting aside of the decree which was dismissed.
9. ' Now coming to the contentions of the learned counsel for the petitioners. 1 have already narrated above the contents of R.1 the alleged mortgage-deed. It is apparent on the face of this document that mortgage was allegedly effected to secure a sum of Rs,10,000. This was a document which was compulsorily registrable under section 17(1)(b) of the Registration Act, 1908. Admittedly it is unregistered. This being so, in terms of section 49 of the Registration Act, 1908, the document does not create any right or interest in favour of the alleged mortgagee. Reference be made to the case of Firdus Khan v. Seyid Azam Shah and 14 others PLD 1970 (W.P.) Peshawar 141. On this short ground alone the said document does not create or for that matter extinguish any right, title or interest in the property in question.
10. ' It has further been found that after transfer of the property in favour of the respondent under the said decree, he got the plan approved and re-constructed the house and thereafter let it out to the predecessorin-interest of the petitioners. It is stated case of the respondent in his evidence that amount of ???? 300 vide cheque Exh.P.1 was remitted by way of rent. No explanation has been offered by the petitioners regarding the said remission -other than one stated by the respondents.
11. ' There is yet another aspect of the case. Muhammad Boota the father and attorney of the respondents appeared in the witness-box as P.W.6 and stated his case. It was not even suggested to him that house was mortgaged by Ghulam Muhammad in favour of Anwar Begum, mother of the said deceased Akbar Ali.
12. Having thus examined the records, I find no force in these two writ petitions which are accordingly dismissed, leaving the parties to bear their own costs. At this stage learned counsel for the petitioners prays that some time be granted to vacate the premises. Learned counsel for the respondents does not object in case reasonable time is granted. This being so, the petitioners are directed to vacate the premises in question and deliver its vacant possession to the respondents on or before 31-8-2003, failing which the respondents shall be entitled to execute the ejectment order passed by the learned Additional District Judge, No order as to costs.