The brief facts out of which the present revision petition arises are that the Ahata/property inquestion measuring 1-Kanal 3-Marlas is situated in Khewat No, 57 in Chak No, 97/RB Tehsil Jaranwala District Faisalabad. The property inquestion was previously owned by non-Muslim, who migrated to India. The Ahatas Nos, 562 and 563 were allotted to Rahim Bukhsh and Ahatas Nos, 568 and 569 were allotted to Ghulam Rasool:and the reports to this effect were entered in the revenue record on 17.1.1955 under the-order of the A.R.C. The aforesaid original allotees of the Ahatas inquestion also allotted agricultural land in the said village. The original allotees of the Ahatas inquestion alienated their agricultural land in favour of Muhammad Ashiq, Inayat and Abdul Aziz respondents-defendants but they did not surrender their Ahatas to them. The original allottees of the Ahatas inquestion sold away the Ahatas in disputed in favour of Muhammad Aslam, Altaf Hussain respondents for sale of consideration of Rs, 10,000/-vide receipt dated 26.7.1975. The respondents-plaintiffs secured the possession of the Ahatas in dispute. The respondents-plaintiffs gave the Ahatas to one Fateh Muhammad in use on loan who chained his cattle.
Muhammad Tufail father of Respondent No, 1-Defendant No, 1 was distressed. over this sale in favour of respondents-plaintiffs and the petitioners-defendants illegally took the possession of the Ahatas inquestion in the year 1976, The respondents-plaintiffs sought remedy in the revenue hierarchy. They submitted an application for possession of the aforesaid Ahatas before the Tehsildar who vide order dated 17.12.1977 directed that they should be put into possession. The respondents-defendants. consequently got possession of the Ahatas inquestion except Ahata, No, 569, which was under the lock at that time in consequence of the order of the Tehsildar The petitioner being aggrieved filed an appeal before the Collector Jaranwala, who dismissed the same vide order dated 26.4.1968. .The petitioners being aggrieved filed an appeal before the Addl.
Commissioner, Sargodha who accepted the same vide order dated 6.6.1979 by, means of which it was held that since the Settlement laws' has been repealed, the revenue authorities were functus officio to exercise their jurisdiction under those laws and the proper forum for the respondents was Civil Courts for the relief of possession and set aside the order of the Teshildar and Collector. The respondents-plaintiffs being aggrieved filed suit for the recovery of possession of Ahatas in the Court of Civil Judge. Jaranwala, with the prayer that the order of the Addl. Commissioner, Sargodha dated 6.6.1979 was void, without jurisdiction and as a consequential relief.that the petitioners- defendants were permanently restrained from claiming any right over the Ahatas in dispute. The respondents filed written statement. controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues.
1.Whether the plaintiffs have any cause of action or locus standi to file the suit against the defendants? OPP 2.Whether the suit is time barred under Limitation Act? OPD 3.Whether the suit is bad fort non joinder of necessary parties? OPD 4.Whether the suit has been properly valued for the purposes of Court fee and jurisdiction? OPP. If not, what is its correct valuation? O PP. Parties.
5.Whether the plaintiffs are the owners of Ihatas in dispute? OPP 6.Whether the order dated 6 6 1979 is void, illegal, and without junsdiction? OPP 7.Whether the suit is baseless and has been filed to harass the defendants? OPD
8. Relief
2. The learned trial Court decreed the suit vide judgment and - decree dated 23.2.1983. The petitioners being aggrieved filed an appeal before the learned Addl. District Judge, Faisalabad, who dismissed the same vide judgment and decree dated 6.10.1985, hence, the present revision petition.
3. Learned counsel of the petitioners submits that document Mark Ex. P.4 (Receipt) was inadmissible in evidence for want of registration and the Courts below have exercised jurisdiction with material irregularity in relying on the said document. In support of his contention, he relied upon the following judgments:-- Manzoor Hussain vs. Muhammad Fazal and 8 others (2002 CLC 1165) Muhammad Sadzq vs. Muhammad Ramzan and others (2002 SCMR 1821). Muhammad Shafi and another vs. Muhammad Ishaque (1998 SCMR 1274).
He further submits that respondents-plaintiffs filed the suit for possession on the basis of receipt Ex.
P.4, therefore, same must have to be registered in terms of Section 17 of the Registration Act but this fact was not considered by both the Courts below in its true perspective He further submits that receipt is not complete sale therefore, no title .of the Ahata inquestion be vested in favour of the respondents-plaintiffs therefore, suit filed by the respondents-plaintiffs was not competent before the Civil Court. He further submits that Ex.P.4 receipts is merely an agreement to sell, therefore, respondents-plaintiffs have to file suit for specific performance against the original owners. In support of his contention, he relied upon the following judgments:-- Ghulam Rasul vs. Muhammad Hussain and others (PLJ 2000 'S.C. 331). Zafar Ahmed vs. Mst Hajran Bibi (PLD 1986 Lahore 399). Mst Kulsoom Fatima vs. Wazir Ali etc. (NLR 1991 CLJ 664), He further submits that Nambardar Muhammad Hussain indentified witnesses of receipt namely Jamal Din and Taj Muhammad. The respondents-plaintiffs failed to produce Nambardar Muhammad Hussain aforesaid in the witness box, therefore, judgments of both the. Courts below are result of misreading and non-reading of the record He further submits that respondents- plaintiffs failed to bring the scribe writer of the receipt in the witness box, therefore, document inquestion was not proved in accordance with provisions of Qaun-e -Shahadat Order. 1984. In support of his contention, he relied the following judgments: Siraj Din vs. Mst. Jamilan etc. (PLJ 1997 Lahore 1310). Hamid Qayyum vs. Muhammad Azeem (PLD 1995 S.C. 381).
He further submits that Ghulam Rasool has executed power of attorney in favour of respondents and Rahim Bukhsh also executed power of attorney in favour of Muhammad Bashir his son.
Ghulam Rasool original owner, Muhammad Bashir son of Rahim Bukhsh another owner of Ahata inquestion executed general power of attorneys in favour of the respondents-plaintiffs but the petitioner failed to bring general attorney of the original owner in the witness box, therefore, both the Courts below were not justified to accept the suit of the respondents-plaintiffs. He further submits that the suit was not competent as the respondents-plaintiffs did not implead the original owner as defendant in the plaint. He further submits that respondents-plaintiffs have to prove their own case and both the Courts below erred in law to decide the case against the petitioners- defendants on the shortcomings of the petitioners-defendants, which is not in consonance with the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- Mst. Fatima Bibi vs. Mst. Nasim Akhtar (PLJ 2000 Lahore 2119). MD. Anwarullah Mazumdar vs. Tamina Bibi (1971 SCMR 94). (PLD 1964 S.C. 681) (There is no judgment)
He further submits that respondents-plaintiffs failed to prove that the respondents-plaintiffs got the possession of the Ahata inquestion mere mentioning in receipt that respondents-plaintiffs secured possession, is not sufficient proof qua taking the possession of the Ahata inquestion by the respondents-plaintiffs. In support of his contention, he relied upon Muhammad Abid and 2 others vs. Nisar Ahmed (2000 SCMR 780). He further submits that according to the Ex. P.4 full payment has been paid by the respondents-plaintiffs to the original owners, therefore, this receipt must have been registered under the provisions of the Registration Act. In support of his contention, he relied upon Sana Ullah and another vs. Muhammad Manzoor and another (PLD 1996 S.C. 256). He further submits that respondents-plaintiffs have taken a stand that they were dispossessed by the petitioners illegally and this fact was mentioned in Roznamcha dated 26.12.1977 Ex. P.2. The respondents-plaintiffs have to file suit within six months but the respondents-plaintiffs failed to file suit within six months and the respondents-plaintiffs filed suit on 26.4.1980, therefore, suit of the respondents-plaintiffs was highly time barred, therefore, question of limitation was not properly decided by the Courts below. He further submits that Ahata No, 568 is in the ownership of Malik Jan Muhammad as is evident from Ex. P.7 and not in the name of Ghulam Rasool. This fact alone is sufficient that judgments of both the Courts below are result of misreading and non-reading of the record. He further submits that respondents-plaintiffs purchased the Malba qua the Ahata inquestion as is evident from the contents of Ex. P.4 receipt.
4. The learned counsel of the respondents submits that respondents-plaintiffs purchased the Ahata inquestion alongwith Malba as is evident from the contents of Ex. P.4. He further submits that respondents-plaintiffs purchased the property inquestion vide receipt Ex P.4 from:the original owners, who did not come forward till date to deny the factum of the sale whereas respondents- plaintiffs proved the contents of the receipt by producing PW.2 Jamal Din and P.W.3 Taj Muhammad, who were the attesting witnesses of Ex.P.4. He further submits that Muhammad Hussain Nambardar has not identified PWs. Jamal Din and Taj Muhammad as is evident from the contents of the receipt, who has only signed the document inquestion as a witness. The respondents-plaintiffs have discharged their liabilities to prove the contents of Ex. P.4 by producing P.W. 2 and W:P.3. He further submits that both the Courts below after proper appreciation of evidence on record, have given concurrent finding' of fact against the petitioners and the learned counsel of the petitioner failed to point out any infirmity or illegality committed by the Courts below. He further submits that Ex.P.4 receipt was not compulsorily be registered as is held by both the Courts below after proper appreciation of evidence and law on the subject. Suit for possession was competent and was filed within time in terms of Article 141 of the Limitation Act.
5. Learned counsel of the petitioner in rebuttal, submits that Ghulam Rasool executed general power of attorney in favour of Muhammad Tufail on 28.2.1977 and Muhammad Bashir son of Rahim Bukhsh also executed general power of attorney in favour of Muhammad Tufail on 6.6.1977. The evidence of P.W. 2 and 3 is contradictory to each other on material points but this fact was not considered by both the Courts blow in its true perspective coupled with the fact that Ex. P. 7 clearly reveals that Ahata No, 568 belong to Jan Muhammad whereas according to the stand of the respondents-plaintiffs Ahata No, 568 belong to Ghulam Rasool therefore, judgments of both the Courts below are result of misread and non-reading of the record.
6.I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
7. It is pertinent to mention here that petitioner has only challenged the vires of Issue No, 5 before the First Appellate Court and the remaining issues were not pressed by the learned counsel of the petitioners before the First Appellate Court as is evidence from para 4 of the impinged judgment, therefore, contentions-pleas raised by the learned counsel of the petitioners qua other issues before this Court has no force in view of the law laid down by the superior Courts in the following judgments:- Government of the Punjab vs. Prof Mst. Jamida Malik. (1991 MLD 824). Safdar Ali through his legal heirs vs. Muhammad Malik (1995 CLC 1751). It is also settled principle of law that Transfer of Property Act is not applicable in whole of the Punjab. There is a 'condition precedent qua the application of the Transfer of Property Act to issue a notification to this effect, which is not applicable to the general sales of immovable-agricultural as well as residential property in the rural areas, therefore, there is no legal bar qua the oral sale of agricultural land or rural residential properties of the value of Rs, 100/- and more, therefore, both the Courts below were justified that original owners could sell the Ahata inquestion to the respondents-plaintiffs through oral sale, therefore, judgments of both the Courts below are in accordance with the law laid down by the Honourable Supreme Court in Malik Muhammad Ishaque's case (PLD 1977 S.C. 109). Ex.P.4 receipt is not a document through which the sale was completed between the original owners and the respondents-plaintiffs, therefore, receipt Ex. P.4 is not compulsorily registerable under the provisions of the Registration Act and both the Courts below were justified to rely upon the law laid down by the Division Bench of the Karachi High Court in Mst. Anwar Sultan's case (PLD 1969 Karachi 474). Coupled with the fact that original owner of the property inquestion did not come forward to challenge the receipt and title of the respondents- plaintiffs till date. Both the Courts below have given concurrent findings of fact against the petitioner after proper appreciation of evidence. It is better and appropriate to reproduce the operative part of the judgment of the First Appellate Court to resolve the controversy between the parties:- "It is a common point that Raheem Bakhsh and Ghulam Rasool became owners of the Ihatas in dispute under the Settlement. Scheme No, VII. As such, they had full competence to dispose of these Ihatas in any manner and to any body. Jamal Din P.W.2 and Taj Muhammad P.W.3 have consistently and without challenge to their integrity, impartiality and independence stated that these Ihatas were sold to the respondents-plaintiffs in their presence in the sum of Rs, 10,000/- by their owners and sale price was received against receipt Ex. P.4. As the record shows, a chequered litigation continued between the parties on the revenue side and in the Civil Court. During this litigation, the appellants-defendants could not produce Raheem Bakhsh and Ghulam Rasool to rebut the assertion, of the plaintiff:-respondents about the sale of the suit Ihatas. Factum of sale is open to proof by producing the vendor herself and in his absence the persons before whom he had completed transaction of sale. The respondents-plaintiffs have successfully proved this fact through the depositions of Jamal Din and Taj Din P.Ws. To dislodge the presumption of sale, onus shift on the appellants-defendants which they could discharge only by producing the owners that they had not sold it. But this never happened and the onus to prove the sale discharged by the respondents-plaintiffs stood the round. It is known to every body that Section 54 of the Transfer of Property Act is restricted in its application to certain cities of the Punjab Province by means of Notification and is not applicable to the general sales of immovable property/agricultural as well as residential in the rural areas. Thus, there is no legal bar to an oral sale of agricultural or rural residential properties of the value of Rs, 100/- and more. This being so, Raheem Bakhsh and Ghulam Rasool could complete the transaction of sale orally as well. The receipt Ex. P.4 on its legal Construction, is not a document through which this sale was completed. It only contains recitals of sale and nothing. The sale in fact preceded the execution of this document and was oral. This being so, the above referred authority quoted by the learned counsel for the appellants has distinguishable features from those of the present case. In view of my discussed made above, I am fully convinced that Raheem Bakhsh and Ghulam Rasool plaintiffs and the same are under the unauthorized occupation of the appellants- defendants. This being so, the respondents-plaintiffs have every legal right to ask for possession of these Ihatas on the basis of their title within 12 years from the date of the sale. As such, I find no force in this appeal with is hereby dismissed with costs."
It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts. The Judgments cited by the learned counsel of the petitioners are distinguished in facts and law as highlighted in the preceding paragraphs. Both the Courts below, as mentioned above, have given concurrent finding of fact against the petitioners and the learned counsel of the petitioners failed to point out any piece of evidence, which was misread or non-read by the Courts below or violated any principle laid down by the Superior Courts, therefore, I am not inclined to interfere in the concurrent findings of the Courts below as the law laid down by the Privy Council in N.S. Vankatagiri Ayyangar and another vs. The Hindu Religious Endowments Board Madras (PLD 1949 P.C. 26), which was followed by this Court in Board of Intermediate & Secondary Education Lahore vs. Syed Khatid Mehmood (NLR 1985 Civil 114). It is pertinent to mention here that the judgment of this Court was upheld by the Honourable Supreme Court. I do not find any infirmity or illegality committed in the judgments of the Courts below. In view of what has been discussed above, this revision petition has no merit and the same is dismissed.