Khan Muhammad Alias Muhammad Vs Waryam etc

Form No.HCJDA-38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

(i)Civil Revision No. 60875 of 2017

Khan Muhammad alias Muhammad through L. Rs. Versus Waryam and another

(ii)Civil Revision No. 69095 of 2017

Mian Noor Muhammad Versus Waryam and another

JUDGMENT

Date of hearing: 28.04.2022 Petitioner(s) by: Sheikh Naveed Shehryar and Bashir Ahmad Mirza, Advocates (in C.R.

No.60875-2017) Sheikh Sajid Mehmood, Advocate (in C.R. No. 69095-2017) Respondent (s) by: Mian Qamar-ul-Islam, Advocate Sultan Tanvir Ahmad, J:- This single judgment shall dispose of both the titled civil revisions being outcome of the consolidated judgment and decree dated 05.07.2017 passed by learned Additional District Judge, Chiniot whereby, civil appeal No. 114-RT of 2017 instituted by Khan Muhammad alias Muhammad on 03.02.2015 against the judgment and decree dated 31.01.2015 passed by learned Civil Judge, Chiniot has been dismissed and civil appeal No. 122-RT of 2017 dated 28.05.2015 filed

Civil Revision No. 69095 of 2017

by Mian Noor Muhammad against the aforesaid judgment and decree has been partially allowed.

(Hereinafter, Khan Muhammad alias Muhammad son of Samanda shall be referred to as ‘Petitioner No. 1’, Mian Noor Muhammad son of Muhammad Hayat shall be referred to as ‘Petitioner No. 2’ and Waryam son of Samanda shall be referred to as the ‘Respondent’).

2.Brief facts of the case are that the Respondent filed a suit for declaration regarding half share in land measuring about 53-Kanal and 15-Marla, which is further detailed in head note of the plaint (hereinafter referred to as the ‘Suit Land’), with the averments that the Respondent and Petitioner No. 1 are real brothers and they lived and worked together during the lifetime of their father, when they purchased Suit Land from the common source of income and since Petitioner No. 1 used to deal with the property matters he managed to get the Suit Land transferred in his name. As per the suit, when the Respondent discovered about the same, he lodged protest whereupon iqrarnama dated 19.12.2003 was executed by Petitioner No.1, whereby, while acknowledging that the Suit Land was purchased from common source of income, Petitioner No. 1 has also admitted that he is holding the Suit Land as ostensible

Civil Revision No. 69095 of 2017

owner for the Respondent, however, Petitioner No. 1 deviated from the said commitment / iqrarnama and sold the Suit Land to Petitioner No. 2 through sale deed No.

1741 dated 16.05.2006. The Respondent also claimed that he is in possession of the Suit Land i.e. the property falling in his share, since the purchase of the same.

3.At that stage another suit for permanent injunction filed by Petitioner No. 1, with respect to the Suit Land, was also pending adjudication. Both the suits were consolidated. The Suit Land was sold, during the pendency of the lis, by Petitioner No.1 to Petitioner No.

2.On 22.09.2011 amendment in plaint was allowed. In the meanwhile, suit for permanent injunction filed by Petitioner No. 1 was withdrawn. The learned trial Court initially framed eleven (11) issues. Upon consolidation of the suits, three (3) additional issues were framed. The aforesaid amendment also resulted into framing of additional issues. Later, withdrawal of suit of permanent injunction resulted into abandoning certain issues.

Finally, the following position as to the issues was settled: -

1.Whether the plaintiff is entitled to declaration that he is owner in possession of the suit property detailed in head note of the plaint? OPP

Civil Revision No. 69095 of 2017

2.Whether plaintiff is entitled to decree for permanent injunction? OPP

3.Whether plaintiff of the connected suit is entitled to decree for permanent injunction? OPD

4.Whether plaintiff has no cause of action? OPD

5.Whether suit of the plaintiff Varyam is time barred? OPD

6.Whether plaintiff is estopped by his word and conduct? OPD

7.Whether requisite court fee has not paid if so its effect? OPD

8.Whether plaintiff of the connected suit is estopped by his words and conduct? OPP (struck off)

9.Whether plaintiff of the connected suit has no cause of action of locus standi? OPP (struck off)

10.Whether description of the property in connected file is incorrect? OPP (struck of).

10-A. Whether defendant No. 2 is bona-fide purchaser of the suit property vide registration bearing No. 1741 dated 16.05.2006 without notice? OPD-2 10-B. Whether defendant No. 2 is entitled to receive improvement charges over the suit property if the suit is decreed? OPD-2 10-C. Whether defendant No. 2 is entitled to receive special cost u/s 35-A CPC? OPD-2 10-D. Whether defendant No. 1 is benamidar of the suit property and that real owner is the plaintiff Waryam? OPP

11.Relief?

Civil Revision No. 69095 of 2017

4.The parties led their respective evidence. Prior to the amendment in the suit, the Respondent appeared as PW-1. One Ghulam Jaffar appeared as PW-2. Later, Muhammad Sarfraz son of the Respondent (special attorney) appeared as PW-3. Mulazim Hussain son of Shamir Ahmad, Farid son of Mama, Kamal Din son of Ameer Din, Sheikh Muhammad Tariq son of Muhammad Ayub, Raja Tasawar Abbas son of Ghulam Farid, Shaukat Ali Shaukat record keeper, Muhammad Shafiq- ur-Rehman Sub-Inspector Expert finger print Bureau, Mukhtar Ahmad H.R.C. registrar office, Jhang appeared as PW-4 to PW-11, respectively. As documentary evidence from the Respondent side Exh.P1 to Exh.P40 were brought on the record. On the other hand, Petitioner No. 1 appeared as DW-1, while Khushi Muhammad and Allah Ditta appeared as DW-2 and DW-3 to support the stance of Petitioner No.1. Mian Noor Ahmad / Petitioner No. 2 appeared as DW-4 and deposed that he is bona-fide purchaser of the Suit Land against the consideration of Rs.600,000/-. As documentary evidence Exh.D-1 to Exh.D-23 were brought on record.

5.The learned trial Court gave issue wise finding and vide judgment dated 31.01.2015 granted following relief to the Respondent:-

Civil Revision No. 69095 of 2017

“As per may issue wise findings, the suit of the plaintiffs is hereby decreed and the plaintiff is declared as owner in possession of 1⁄2 share in the disputed properties as mentioned in the head note of the plaint. The defendant No. 1is declared as Benamidar to the extent of 1⁄2 share in the disputed properties. The registered sale deed bearing No. 1741 dated 16.05.2006 in favour of the defendant No. 2 is also declared null and void. No order as to costs. Decree sheet be prepared accordingly. File be consigned to the record room after its due completion and compilation”.

6.The above judgment and decree was assailed by the Petitioners before the learned District Court, Chiniot through separate appeals. The appeal bearing No. 114-RT of 2017 filed by Petitioner No. 1 has been dismissed and the appeal bearing No. 122-RT of 2017 filed by Petitioner No. 2 has been partially allowed (i.e. to the extent of the transfer of share from PetitionerNo.1 to Petitioner No. 2) by the learned Additional District Judge, Chiniot vide consolidated judgment and decree dated 05.07.2017.

7.Aggrieved from the aforesaid consolidated judgment and decree the present civil revisions, under section 115 of the Code of Civil Procedure, 1908 (the ‘Code’), have been filed.

8.Sheikh Naveed Shehryar, learned Senior Advocate, appearing on behalf of Petitioner No. 1, has submitted

Civil Revision No. 69095 of 2017

that the learned two Courts below have failed to appreciate four constituents of benami transaction, independently and in proper manners. Learned counsel for Petitioner No. 1 has raised serious objections as to the amendments allowed in the plaint by the learned trial Court and it is argued that through the original plaint transactions pertaining to the years 1973 and 1984 were challenged and the same was hopelessly time barred; that breach of iqrarnama dated 19.12.2003 was introduced through amendment which is not just result of an afterthought but at the same time it amounted to change in the nature of the plaint, therefore, this amendment was beyond the scope of Order VI, Rule 17 of the Code; that word ‘benami’ was introduced in the plaint by way of subsequent amendment, allowed by the learned trial Court at belated stage, which is not acceptable as per the law. The learned counsel has further argued that the declaration of benami transaction cannot be sought for partial title document; that independent issues were required to be framed for the each constituent of benami transaction, which even otherwise are missing in the claim, hence the Respondent has failed to prove his case and the suit is liable to be dismissed.

Civil Revision No. 69095 of 2017

9.Mr. Bashir Ahmad Mirza, the learned counsel of Petitioner No. 2 has argued that the evidence given by Mian Noor Muhammad (DW-4) has been totally ignored;

that no notice of revival of the suit after the acceptance of civil revision on 05.11.2011 was ever received by Petitioner No. 2, who is a bona-fide purchaser of the Suit Land from its ostensible owner, for valuable consideration and without notice of the claim or pendency of the suit, therefore, his case is covered under section 41 of the Transfer of Property, 1882. Learned counsel has further contended that principle of lis pendens does not apply to the case of Petitioner No. 2.

10.Conversely, Mian Qamar-ul-Islam, learned counsel for the Respondent has submitted that the possession of Suit Land as owner, source of consideration and motive for transaction stood fully proved through cogent and confidence inspiring evidence, given by as many as eleven (11) PWs and in addition to the same, the expert evidence has further corroborated the stance of the Respondent. He explained that since the Suit Land is owned by the two brothers, therefore, non-production of titled documents by the Respondent in his evidence, is not fatal for the case. Learned counsel has further argued that the case of ‘benami’ transaction is set-up in paragraph

Civil Revision No. 69095 of 2017

No. 3 of the plaint and in response to the same, the written statement merely contained evasive denial, which as such amounts to admission; that iqrarnama dated 19.12.2003 stood proved through the evidence of the marginal witnesses, stamp vendor and by recognizing the hand writing as well as signature of the deceased scribe, which could not be controverted through specific denial in the written statement or leading any evidence; that receipt (Exh.P8) issued by seller of the property forming major part of the Suit Land further proves the source of consideration; that Petitioner No.1 himself requested the learned trial Court for the comparison of his thumb impression on the ‘iqrarnama’ which was allowed on 18.02.2014; that upon endorsement by the hand writing expert through his report Exh. P12 and his on oath evidence has left not even a lurking doubt as to the nature of the transaction, therefore, the averments in the plaint stood proved beyond an iota of doubt. The learned counsel, while relying upon cases titled “Mst. Barkat Bibi Vs. Khushi Muhammad and others” (1994 SCMR 2040), “Fazal Subhan and another Vs. Chamnay and another” (2017 MLD 2079) and case titled “Fazal-ur-Rehman and 2 others Vs. Begum Sughra Haque” (2000 MLD 562), has contended that order dated 22.09.2011 passed by the

Civil Revision No. 69095 of 2017

learned trial Court, allowing amendment in the plaint, was never challenged, therefore, it attained finality. It is further argued that not just Petitioner No. 1 failed to challenge the aforesaid order but at the same time he has accepted the order of amendment by filing the amended written statement on 01.10.2011, therefore, the same relate back to the time when the suit was filed and the challenge to the amendment as well as plea of bar of limitation cannot be raised at this stage.

11.I have heard the learned counsel for the parties in length and perused the record with their able assistance.

12.Firstly, I would like to take up the objections raised by the petitioner side, as to the amendment(s) allowed in the plaint and limitation. As per learned counsel of Petitioner No. 1, original plaint simply contained the prayer of declaration without mentioning the word ‘benami’ or referring to iqrarnama dated 19.12.2003 therefore, the suit filed in 2004, based on transactions pertaining to the year 1973 and 1984 was time barred as well as the amendments in the plaint are against the settled principles relating to Order VI, Rule 17 of the Code. Here, it is appropriate to reproduce the

Civil Revision No. 69095 of 2017

order dated 22-09-2011 passed by the learned trial Court whereby, the amendment was allowed in the plaint:-.

“Plaintiff intends to add additional ground in plaint 1 to prove his ownership i.e. ground of Benami. He already has alleged his ownership. The suit property is the same. Parties are also same. The complexion of the suit shall not be changed by adding additional ground of ownership. Certainly the court has to see at the time of final judgment as to whether any ground is proved or not. It is well settled law that an amendment in pleadings can be allowed at any stage even at the stage of appeal, provided complexion of the suit should not be changed. So in the best interest of justice, this application is accepted hereby subject to payment of cost of Rs.1000/-. Now amended plaint be submitted on 26.09.2011”.

13.It is a matter-of-fact that the amendments were allowed by the learned trial Court, after adopting the proper procedure as provided in the Code. Instead of assailing the order(s) permitting the amendment(s), Petitioner No.1 has not only opted to file the amended written statement but he has also failed to challenge the order(s) before the next fora or availing appropriate remedy against the same. He further failed to set-up this specific grievance in the memorandum of appeal, filed before the learned Appellate Court, against the final judgment. In case titled “Mst. Barkat Bibi Vs. Khushi Muhammad and others” (1994 SCMR 2240) the Honourable Supreme Court of Pakistan, while dealing

Civil Revision No. 69095 of 2017

with the similar issue, reached to the conclusion that failure to assail the order allowing amendment, at the time of granting amendment application, in the given circumstances, is fatal for the case. The following observation of the Honourable Supreme Court of Pakistan is highly relevant:-

“The learned counsel for the petitioner contended that when the amendment was allowed by the learned Judge, the claim for specific performance had become time- barred and therefore no decree could be passed. The correct legal position is that such objection had to be considered at the time of granting the amendment application. Once an amendment is granted, it relates back to the date when the suit was filed. As observed in Mst. Ghulam Bibi and others V. Sarsa Khan and others (PLD 1985 SC 345) after the amendment has been allowed “the question of limitation would then remain only of form and not of substance”. Therefore, at this stage when the amendment has been allowed, plea of bar of limitation cannot be raised”. (Emphasis supplied)

14.The case set-up in the original plaint is for claiming share in the property on the basis of consideration paid by the Respondent and held in the name of Petitioner No. 1, in substance is a suit for benami and subsequently mere insertion of word ‘benami’ and its acknowledgement in the shape of iqrarnama has not changed the nature of the suit.

Civil Revision No. 69095 of 2017

15.Even otherwise, without any protest or raising challenge through appeal or revision, Petitioner No.1 has filed his amended written statement and the perusal of memorandum of appeal confirms that no specific challenge in the said memorandum of appeal was set-up against the orders of amendment(s). I am of firm view that now this matter is past and closed transaction.

Besides Mst. Barkat Bibi case (Supra), more or less similar view has been adopted in case titled “Waris Vs.

Muhammad Sarwar”(2014 SCMR 1025), “Muhammad Ashraf through LRs Vs. Mst. Najma Begum alias Najma Sultana and others”(2021 CLC 612 Lahore), “Kaura and others Vs. Allah Ditta and others”(2000 CLC 1018 Lahore), “Ghulam Qadar Vs. Mst. FatehBano”(AIR 1934 Lahore 974).

16.The objection of Sheikh Naveed Shehryar, learned counsel for Petitioner No.1, as to the limitation is also not acceptable in view of the observation of this Court, in the similar situation and involving benami transaction, in case titled “Malik Muhammad Zubair and 2 others Vs. Malik Muhammad Anwar and 2 others”(PLD 2004 Lahore 515). The relevant part of the said judgment is as follows:-

Civil Revision No. 69095 of 2017

“Undoubtedly, the learned Court of appeal, has not applied its mind to the complete evidence on the record, but has decided the matter, on the basis of two main reasons, firstly, the suit has been filed after 31 years and during his life time, Bashir has never challenged the sale and kept mum, suffice it to say that both these reasons are unfounded, because the person would only claim declaration of being the real owner, when his title is denied by the “Benamidar”.

(Emphasis Supplied)

17.To determine the question as to whether a transaction is benami in character the following factors have been established, through a number of judicial pronouncements, as requirements to be taken into consideration: -

(i)Source of consideration;

(ii)The party from whose custody the titled documents were brought on the record;

(iii)Possession of suit property; and (iv) Motive behind benami transaction.

18.Serious challenge is raised against the impugned judgment on the basis that titled documents of Suit Land was not in the custody of the Respondent and he has merely produced its certified copies on the record.

However, this factor is reasonably explained by the learned counsel for the Respondent by stating that property is claimed to be in the joint ownership of two brothers (Khan Muhammad/Petitioner No. 1 and

Civil Revision No. 69095 of 2017

Waryam/the Respondent), therefore, the titled documents can be in the possession of any of them. This explanation appears to be reasonable and the same is based on the record. The four factors, discussed above, are considerations and guidelines for determining the issues involving benami transactions. Failure of deposit of title documents in evidence by claimant of benami transaction, provided it is reasonably explained, does not always has consequence of failure of claim. In case titled “Al-Hajj Muhammad Rafique Vs. Mst. Khalida Shehzad” (2003 CLC 559) it is observed by this Court that no absolute formula or acid test uniformly applicable to determine if the transaction is benami in its nature can be laid and the question, as to the character of transaction, is largely one of fact. It will be beneficial to reproduce the following paragraph from the judgment of “Al-Hajj Muhammad Rafique”case (Supra):-

“The question whether a transaction is a Benami in character or not has to be decided keeping in view a number of factors/consideration which have been re- established through a number of judicial pronouncements. At first, I would refer the case of Yeleswarapu Ganjamma (1925 Mad.

980), in which while discussing on the nature of Benami transaction it was held that the source of purchase money is only one criterion though an important criterion; similarly, the custody of documents is also not conclusive criterion. In case of

Civil Revision No. 69095 of 2017 Ramdhan AIR 1926 Nag. 109, it was observed that onus of proof is on party raising plea of Benami, strong evidence is necessary. Source of purchase money and other circumstances must also be considered besides oral evidence. In the case of Mst. Zohra Begum and 6 others v. Muhammad Ismaeel 1995 CLC 242, it was held that the question whether a particular sale is Benami or not in largely one of fact, and for determining this question, no absolute formula or acid test uniformally applicable in all situations can be laid down”. (Emphasis Supplied)

19.In case titled “Muhammad Sajjad Hussain Vs.

Muhammad Anwar Hussain” (1991 SCMR 703) the Honourable Supreme Court of Pakistan while refusing to decline the relief (of benami) for not producing the titled document in evidence, has observed as follows:- “Be that as it may, since the appellant was the ostensible owner of the second house, he obtained the title deed from the House Building Finance Corporation and, therefore, the production of the title deed by the appellant is itself not sufficient to negate the other evidence which tends to prove that the appellant was Benamidar particularly keeping in view as many as 41 receipts for the payment of the loan amount to the House Building Finance Corporation, 8 receipts for the payment of the property taxes for the years 1968-69 to 1976-77, 8 receipts for the payment of K.M.C. taxes for the period of 1969-70 to 1976-77, and four receipts for the payment of ground rent to the K.D.A. for the period from 1968 to 1971, were produced by the respondent”. (Emphasis Supplied)

Civil Revision No. 69095 of 2017

20.As far as the possession of the Suit Land is concerned, it is specifically pleaded in the plaint that the Suit Land is in the possession of the Respondent. Further, PW-3 in his examination-in-chief deposed as follows: - نصف رقبہ پر،رقبہ کی خانگی تقسیم برابر برابر ہوئی ہمارا قبضہ ہے اور نصف رقبہ پر خان محمد کا قبضہ ہے۔ جب جھگڑا شروع ہوا تو خان نے مورخہ کو میرے والد کے حق میں اشٹام 19.12.2003 تحریرکر کے دیا تھا اشٹام خان نے خریدا تھا جسکو ظفر قریشی عرضی نویس نے تحریر کیا تھا۔ اس وقت میں بھی ساتھ تھا میرا والد مالزم ولد شمیر قوم ممبرا بھی ساتھ تھا اور فرید بار بھی ساتھ تھا بوقت تحریر اشٹام میں موجود تھا۔

21.This part of the statement went un-rebutted. No noticeable question was asked to PW-3 (Muhammad Sarfraz son of Waryam) regarding the aforesaid possession, as claimed in his examination-in-chief.

Khasragardawaries, Exh.P3, Exh.P4 and Exh.P38, are also reflecting the possession of the Respondent.

Petitioner No. 1 when appeared as DW-1 completely failed to deny the possession in his examination-in-chief.

I have not noticed any material piece of evidence, on the record, suggesting anything other way around. It is not the case put forth, before this Court, by Petitioner No. 1 that possession was obtained as leaseholder or merely for cultivation. There is no allegation of per force

Civil Revision No. 69095 of 2017

possession. It emerges that the possession was obtained by the Respondent of the Suit Land, to the extent of his share, as owner, soon after purchase of the Suit Land and/ or execution of the purchase documents.

22.In case titled “Malik Muhammad Zubair (Supra), this Court, along with the above said four considerations, also discussed the fifth one i.e. “conduct of the parties, as to how, the property was dealt”. The above discussion and evidence on record also satisfies this concern because the conduct of the parties is clearly indicative that the Respondent is in possession of the Suit Land as of a right and not in any other capacity.

23.As far as the motive is concerned, the same can be ascertained by determination of the intention of the parties, at the time of transaction, which can be gathered from surrounding circumstances including the relationship of parties. The Respondent all the way through maintained that he and his brother were living in joint family system, where he used to work in the fields and property matters were dealt by Petitioner No. 1. On account of relationship, the Respondent never had any reason to doubt that this stage could arise. Sheikh Naveed Shehryar, learned counsel for Petitioner No. 1 argued that the ‘motive’ required to be proved in such

Civil Revision No. 69095 of 2017

transaction has to be one of the conventional kind, like avoidance of tax or some public functionary avoiding to disclose his wealth. I disagree with this argument. There is no such requirement of law that to establish a transaction of benami motive has to be stained with malice. The requirement of law is to see character of transaction and intention of the parties at the time of the transaction, which is not necessarily required to be criminal one. In this regard the relation of the parties sometimes can be quite important. It was not uncommon in our society to purchase properties in the names of spouse or children or even brothers or parents.

24.To prove the source of consideration, the Respondent produced manifold evidence, oral and documentary. Exh.P8 is receipt dated 23.09.1984 (hereinafter referred to as the ‘Receipt’) issued by Muhammad Yar, the general attorney of seller-Allah Bakhsh. The Receipt reflects that the payment was made, on equal basis, by the Respondent and Petitioner No.1 in the following words:-

امروزہ رجسٹری کی بمطابق خواہش وریام و خان محمد مزکوران کی خان محمد مزکور تکمیل کروا رہا ہوں۔ زر بیع مبلغ دو الکھ سات ہزار پانچ صد روپے روپے نصف جن کے مبلغ ایک الکھ تین ہزار207500 روپے سکہ رائج103750 سات صد پچاس روپے

Civil Revision No. 69095 of 2017

والوقت اسالمی جمہوریہ پاکستان ہوئے ہیں نقد ازاں خان محمد پسران سمندا اقوام ممبرا،مسمیان وریام ساکنان چمکڑی والہ چنیوٹ سے برابر وصول پا لئے ہیں۔

25.One Kamal Din appeared as PW-6 and confirmed that the payment was made in his presence in the manners narrated in the Receipt and as claimed in the suit. The Receipt contains thumb impressions of the parties and the said witness. Iqrarnama dated 19.12.2003 is brought on record as Exh.P9, which also contains thumb impressions of the Respondent and Petitioner No.1 and two attesting witnesses namely Mulazim Hussain (PW-4) and Farid (PW-5). Exh. P9 (iqrarnama), enfolds acknowledgement by the Petitioner No. 1, confirming the entire chain of events narrated in the Suit, besides his undertaking to transfer the Suit Land in the name of the Respondent. The source and payment of consideration is also acknowledged as follows in the Exh.

P-9:-

مشترک خاندان کے تحت رہتے اور زمیندارا کرتے ہیں۔ خان محمد سربراہ ہے۔ وریام کھیت میں کام کرنے اور کروانے کی ذمہ داری نبھاتا ہے۔ جبکہ خان محمد سربراہ ہونے کی وجہ سے نگران کے طورپر کام کرتا ہے۔ امدن و خرچ کا حساب و کتاب خان محمد کے اختیار میں ہے۔ امدن کی رقم خان محمد اپنے پاس جمع رکھتا ہے۔ ہر دونوں برادران میں مشترک طور پر

Civil Revision No. 69095 of 2017

مشترک کاروبار زمیندارا کی امدن میں سے قیمت ادا ) رجسٹر بیع نامہ1 کر کے زرعی اراضی بذریعہ کنال8 اراضی بقدر2.5.1973 مورخہ398 نمبری )2 مرلے ازاں اطاعت حسین ولد محبت حسین19 5.3.1984 مورخہ819/1 رجسٹرڈ بیع نامہ نمبری )3 مرلے ازاں محمد یار ولد بہادر18 کنال5 رقبہ بقدر 23.9.1984 مورخہ7097/1 رجسٹرڈ بیع نامہ نمبری مرلے ازاں ہللا بخش ولد شمس18 کنال38 رقبہ بقدر مرلے واقع موضع15 کنال53 الین منجملہ رقبہ بقدر تحصیل چنیوٹ2 موضع چنیوٹ نمبر،جات کوڑالہ ضلع جھنگ خرید کر رکھا ہے۔ اراضی مذکورہ کے ہر برادران نصف نصف کے مالکان ہیں ۔ دو

26.The above acknowledgement was proved through unshaken examination of the marginal witnesses (PW-4 and PW-5) as well as stamp vendor (PW-7). The scribe since was not alive, his nephew appeared as PW-8, recognizing the handwriting and signature of the scribe.

Record keeper from A.D.C. office also appeared to confirm the register of stamp. Upon request of Petitioner No.1 his thumb impression on the acknowledgement was sent to Finger Print Bureau, Punjab for comparison which gave following opinion:-

“Opinion, The impression marked as Q on the Agreement document No. 4865 dated 09.12.2003 (Ex.PA) is identical with the left thumb impression (K/L) of Khan on his stamp paper. Nine characteristic points of identity have been charted and illustrated in detail by means of descriptive symbols in the enclosed

Civil Revision No. 69095 of 2017

set of photographic enlargements marked as

Q/Q...K/L/L”.

Note:- For evidence, the Summons can be sent on Fax No. 042-99211372

Sd/-

1.Name (M. Shafiq-ur-Rehman)

2.Rank S.I/Expert

3.Dated 18.04.2014

The opinion of the Expert in Case of Waryam V/S Khan etc is forwarded for information along with documents mentioned above.

27.Muhammad Shafiq-ur-Rehman, Sub-Inspector / Expert Finger Print Bureau, Lahore was summoned by the learned trial Court, on the specific request of the Petitioner No.1, who has not just confirmed the expert report but specifically refuted the possibility of scanning the thumb impressions on the stamp paper and also ruled out any possibility of forgery, during his cross- examination. The evidence, in favour of the Respondent, is in a complete chain, which is substantiating each other.

This evidence though denied by Petitioner No.1 and his witnesses but preponderance of evidence on record is suggestive that the consideration was paid jointly by the Respondent and Petitioner No.1.

28.As far as the argument of Mr. Bashir Ahmad Mirza, learned counsel for Petitioner No.2 that he being bona-fide purchaser of the Suit Land is entitled to the

Civil Revision No. 69095 of 2017

relief as per Section 41 of the Transfer of Property Act, 1882 is concerned, it is noticed that there is no denial of the fact that he has purchased the Suit Land during the pendency of the lis, hence, there is no force in the arguments in view of the law settled by Honourable Supreme Court of Pakistan in case titled“ Muhammad Ashraf Butt and others Vs. Muhammad Asif Bhatti and others”(PLD 2011 SC 905) and reiterated in case titled “Mst. Tabassum Shaheen Vs. Mst. Uzma Rahat and others” (2012 SCMR 983) that rule enshrined in section 52 of the Transfer of Property Act, 1882 describes that the rights of the parties of the suit, who ultimately succeed in the matter are not effected in any manner whatsoever on account of alienation, and the transferee of the property shall acquire the title of the property subject to the final outcome of the lis. The Honourable Supreme Court of Pakistan in the said cases has left no cavil to the proposition that the transferee of the suit land, even the purchaser for value; without notice of pendency of the suit, in the ordinary judicial parlance known as a bona- fide purchasers, is bound by the result of the suit in all respects, as his transferor would be bound and the transferee cannot acquire any legal title free from the

Civil Revision No. 69095 of 2017

clog of his unsuccessful transferor, and for all purposes has to swim and sink with his predecessor-in-interest.

29.The upshot of the above discussion is that the titled civil revisions have no merits and, therefore, these petitions are dismissed but the parties shall bear their own costs.

(Sultan Tanvir Ahmad) Judge

Announced in open Court on___________

Judge

Irfan Shah