TANVIR BASHIR ANSARI, J.--- The appellant Mst. Zubeda Begum filed a suit under Section 39, Specific Relief Act for cancellation of a sale-deed in favour of the respondent with consequential relief for possession of the shop in dispute on 1.9.1973. It was contended that the respondent was initially inducted as a tenant. However, during the proceedings before the Rent Controller which were initiated by the appellant/plaintiff, the respondent claimed ownership on the basis of a sale-deed in consideration of Rs.99/- allegedly executed in 1944. The plaintiff alleged that the said sale-deed was a forged document and was liable to be delivered up and cancelled. The plaintiff herself claimed title through a registered sale-deed executed on 6.1.1956 by one Sheikh Muhammad Ismail in her favour. The respondent contested the suit on the plea that she had purchased the shop in question from Mst. Rahiman wife of Muhammad Ibrahim for a consideration of Rs. 99/- in 1944. It was submitted that the plaintiff was not an owner of the suit shop.
2. From the divergent pleadings of the parties the learned Trial Court framed the following issues:- ISSUES: (1) Whether the plaintiff is the owner of the property in dispute?
(2) Whether the defendant is in possession of the disputed shop since 1944, as owner?
(3) Whether the suit is time-barred?
(4) Whether the defendant is in adverse possession of the disputed shop?
(5) Whether the suit is not maintainable in its present form?
(6) Whether the suit is counter-blast to save the plaintiff from the proceedings under Section 476, Cr.P.C.
(7) Whether the plaintiff is entitled to the decree prayed for?
(8) Relief.
2. After perusing the record and appreciating the evidence, the learned Trial Court dismissed the suit of the appellant vide judgment and decree dated 22.1.1978. The learned Trial Court decided issue No. 1 against the plaintiff and found that she has not been able to prove her lawful ownership as claimed by her under the registered sale-deed dated 6.1.1956. While coming to this conclusion, the learned Trial Court found that the original owner of the shop in question was one Sheikh Muhammad Ibrahim who had two wives namely Mst. Rasoolan and Mst. Rahiman. Mst. Rasoolan was the mother of Muhammad Isma il. After the death of Mst. Rasoolan, Muhammad Ibrahim alienated the shop in question alongwith four other shops in favour of Mst. Rahiman vide Ex.D.2.
Relying upon this alienation, the learned Trial Court found that Muhammad Ismail, after the death of his father Muhammad Ibrahim had no title or right to transfer the suit shop in favour of the plaintiff through the registered sale-deed dated 6.1.1956. Although the sue, of the appellant/plaintiff was dismissed the claim of the defendant/respondent that she was the owner of the suit shop through the sale-deed Ex.D.1, was also not proved. According to finding of the Trial Court, Ex.D.1 showing the sale in favour of the respondent from Mst. Rahiman was held to be a forged document.
3. The cumulative effect of the judgment and decree dated 22.1.1978 of the Trial Court is that title of neither party to the suit was found established.
4. While the appellant preferred an appeal against the said judgment and decree, Mst. . Satbharai respondent neither filed an appeal nor filed any cross-objection ,against the adverse findings recorded against her by the Trial Court. The learned Appellate Court reappraised the entire evidence on the record it concurred with the findings of the Trial Court that as Muhammad Ibrahim had alienated all his five shops in favour of Mst. Rahiman through Ex.D.2 (registered sale-deed dated 5.5.1937) his son Muhammad Ismail was not left with: any right or title in the suit property which he could alienate in favour of the appellant/plaintiff through the sale-deed dated 6.1.1956.
The appeal was dismissed vide judgment and decree dated 6.10.1981.
5. It may be mentioned here that the appellant for the first time raised a plea before the learned Appellate Court that Muhammad Ismail who had sold the suit shop in favour of the appellant was entitled to do so as he fell within the class of distant kindred of Mst. Rahiman being the sister's son of the said Mst. Rahiman. He claimed ownership as the only surviving heir of the said Mst. Rahinnan.
This plea did not find favour with the learned first Appellate Court for the reason that such a ground was not taken in the plaint, no issue was struck in this behalf and obviously no evidence was led to this effect. It was further observed that in the judgments Ex.D.3 and Ex.D.4, reference has been made to one Mst. Ferozan Bibi as sister of Mst. Rahiman. This Ferozan Bibi is also alleged to have appeared as a witness DW.1 in the ejectment proceedings commencing with the filing of suit No. 262/1958 titled Mst. Zubeda Begum v. Mst. Sathbharai. The learned Appellate Court presumed that Muhammad Ismail could be the son from Mst. Ferozan.
6. It was in this view of the matter, that the learned first Appellate Court did not consider it appropriate to consider this version of the appellant that Muhammad Ismail was a legal heir of Mst. Rahiman.
7. The present Regular Second Appeal was admitted to regular hearing on 12.11.1989 mainly on the ground that Muhammad Ismail the predecessor-ininterest of the appellant was in any event the legal heir of Mst. Rahiman, being the real sister's son and was thus, entitled to alienate the suit property in favour of the appellant.
8. Sheikh Zamir Hussain, Advocate appearing for appellant has contended that it was incumbent upon the learned first Appellate Court to have considered this plea of ownership of Muhammad Ismail in order to completely adjudicate the controversy between the parties. According to him even if this plea was not taken in the plaint, nothing prevented the appellant to urge this point before the Appellate Court which could allow the suitable amendment in the plaint and take further necessary proceedings in the matter to do complete justice between the parties. In fact, the appellant states to have filed an application before this Court being C.M. No. 973-C-82 which is to this effect. It is further contended that there was nothing on the record to suggest that Muhammad Ismail was not the son of Mst. Rasoolan. The learned first Appellate Court fell in error in presuming that there was some confusion relating to the identity of mother of Muhammad Ismail. The mention of Mst. Ferozan in Ex.D.3 and Ex.D.4 as a sister of Mst. Rahiman could not take away from the fact that Mst. Rasoolan was another sister of Mst. Rahiman or that Muhammad Ismail was a son from Mst. Rasoolan.
9. On the other hand, the learned counsel for respondent submitted that the appellant was the plaintiff in the suit who could only succeed upon the strength of har own case. According to the learned counsel, once Ex.D.2 was proved whereby Muhammad Ibrahim sold five shops to Mst.
Rahiman in 1937, nothing was left for Muhammad Ismail to inherit from Muhammad Ibrahim. It is further contended that the appellant could not be allowed to take the plea that Muhammad Ismail was a legal heir of Mst. Rahiman as no such plea taken at any time before the Trial Court.
10. Arguments have been heard and record perused.
11. The Trial Court had answered issue No. 1 against the appellant/plaintiff mainly on the ground that her predecessor-in-interest namely Muhammad Ismail had no transferable title in the suit property which he could alienate in favour of the appellant through the registered sale-deed dated 6.1.1956. According to the Trial Court, Muhammad Ibrahim had alienated the suit shop, alongwith other shops through a registered sale-deed dated 5.5.1937 in favour of his wife Mst. Rahiman. While non-suiting the appellant the learned Trial Court also found issue No. 2 against the respondent where the sale-deed Ex.D.1 was found to be a forged document.
12. Although it is correct that the appellant/plaintiff did not take the plea of entitlement of Muhammad Ismail as an heir of Mst. Rahiman in the plaint, yet this plea was taken during the course of the appeal before the learned first Appellate Court. In all fairness the learned Appellate Court ought to have viewed this plea more seriously as non-consideration of this plea would not adequately conclude the controversy between the parties. It is not on the record if any application for amendment was made before the learned first Appellate Court. However, such an application has been filed during the course of instant Regular Second Appeal on 7.11.1992 which is present on the record as C.M. No. 973-C/92.
13. It also goes without saying that the respondent did not prefer any appeal against the adverse findings recorded by the Trial Court whereby her claim to the suit property through Ex.D.1 was negated. She did not even file cross-objections when the appellant preferred her appeal. It shall be against the principle of 2004 administration of justice and also against public policy to leave a property without a lawful owner by not deciding a plea available to a party although raised at a belated stage.
14. In view of what has been discussed above, this Regular Second Appeal is accepted and the judgment and decree dated 6.10.1981 passed by the Appellate Court is set aside and the case is remanded to the learned first Appellate Court to decide the plea of the appellant in respect of the right claimed by Muhammad Ismail as the only surviving heir of Mst. Rahiman. In this context it shall be in the interest of justice to allow the application under Order 6, Rule 17, CPC filed by the appellant in this Court (C.M. 973C/1,992) to enable the appellant to incorporate the proposed amendment in the plaint. The learned Appellate Court shall confine itself to this plea of the appellant and its possible effect upon the sale-deed executed by Muhammad Ismail in favour of the appellant. As this is an old matter, the learned Appellate Court shall decide the appeal afresh in terms of the observations herein before contained, and to the extent specified herein within 6 months. Parties to bear their own costs. .