Nadir Khan vs Mst: Afnana

2012 Y L R 209

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

NADIR KHAN and others---Petitioners

versus

Mst. AFNANA and others---Respondents

Civil Revision No.175 of 2002, decided on 16th September, 2011.

(a)Transfer of Property Act (IV of 1882)---

----S. 53-A---Specific Relief Act (I of 1877), S. 42---Suit for declaration of title on basis of unregistered sale-deed---Plaintiff's plea that he was in possession of suit land on basis of such deed dated 31-8-1967, thus, his rights of ownership were protected under S. 53-A of Transfer of Property Act, 1882---Validity---Un-registered sale-deed, if coupled with delivery of possession, could be used as weapon of attack like present suit---Record showed that suit land purchased by plaintiff formed a very small portion of joint property---Evidence on record was sufficient to prove execution of such deed, but not payment of sale consideration---Mere proof of execution of such deed would not absolve plaintiff from burden to prove that prior to suit sale, his vendor was in possession of joint property and he delivered physical possession thereof to plaintiff under suit sale---Nothing on record was available to prove that prior to suit sale, vendor of plaintiff was in possession of suit land---Entry of plaintiff's possession made in Khasra Girdawri for first time in Rabi-1997 could not be considered as an entry of his possession as owner under suit sale of year 1997---Plaintiff had failed to prove delivery of physical possession of suit land to him under suit sale---Suit was dismissed in circumstances.

Hikmat Khan v. Shamsur Rehman 1993 SCMR 428 and Fazla v. Mehr Din and 2 others 1997 SCMR 837 rel.

(b)Civil Procedure Code (V of 1908)---

----S.115---Revisional jurisdiction--Scope--Such jurisdiction could be exercised in aid of justice, but not to defeat ends of justice.

Abdul Sattar Khan for Petitioners

Mir Adnan Khan Miankhel, for Respondent

Date of hearing: 16th September, 2011.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---Impugned herein is the judgment and decree dated 6-12-2001 of the Additional District Judge, Nowshera whereby appeal of defendant/respondents was allowed by setting aside the judgment and decree dated 26-2-2000 of Civil Judge, Nowshera in favour of plaintiff/ respondents.

The learned counsel for the petitioners contended that the rights of the plaintiff/petitioners are protected under section 53-A of the Transfer of Property Act, as they are in possession of the suit property as owner on the strength of an unregistered sale-deed dated 31-8-1967 and the same was proved in accordance with provisions of Qanun-e-Shahadat Order, 1984. So, acceptance of appeal of respondents by dismissing the suit of petitioners is against the law and liable to be struck down. He further submitted that now as per verdict of the Apex Court reported in Fazla v. Mehr Din and 2 others (1997 SCMR 837), such a document can be used as a document of attack and a party can claim his right of ownership on the basis of the same. His next contention was that the findings of the appellate Court are also against the mandate of Article 56 of Qanun-e- Shahadat Order, 1984 as the appellate Court while making its opinion placed reliance on judgments rendered in a civil case in which the petitioners were not party as said judgments were not the judgments of public nature. Forming an opinion on the basis of such judgments by the appellate Court is not warranted under the law and lastly requested for setting aside of findings of the appellate Court by restoring the decision of learned trial Court.

As against that, learned counsel for the respondents contended that for such a claim, the plaintiff is not only required to prove the document on which he is relying and on the other hand he is also required to prove delivery of physical possession, under the sale, of the suit property at the spot. The plaintiff failed to discharge his burden under the law and thus was rightly non-suited. He thus requested for dismissal of the revision petition.

Submissions made by the learned counsel for the parties were considered and record of the case was gone through with the valuable assistance of learned counsel for the parties.

Perusal of the record would reveal that the plaintiff/petitioners brought a suit for declaration by claiming themselves to be the owners of the suit property on the strength of an unregistered sale- deed dated 31-8-1967. It was also alleged that possession at the spot was also delivered to the petitioners by their vendor Paigham Shah, defendant No.1. The evidence on the record though appears to be sufficient on the face of the record for the execution of sale-deed but the question of sale consideration has not been proved through reliable evidence. There are material contradictions in the statements of the P.Ws. in this regard. The appellate Court has very aptly discussed the entire evidence. But here in this case mere proof of execution of sale-deed would not absolve the petitioners from their burden, who were required to prove delivery of physical possession of the property purchased by them, which is no doubt a joint property and the suit property forms a very small portion of the same. So, this aspect of the case would require thorough probe.

According to law the burden of receiving possession at the spot was on the petitioner. The evidence in this regard if seen, in no circumstances, can be held to be a sufficient evidence to prove physical possession of the property at the spot. There is not a single iota of evidence to reflect that any possession at the spot of the piece of land being part of joint property, was given

to petitioner. Prior to his own possession, the petitioner was also required to prove that his vendor was in actual possession of the joint property and the same was delivered to him under the sale. But the entire evidence on the record would reveal that there is no such evidence. The only evidence of possession is that of the year 1997. Entry of possession is shown to have been made for the first time in Khasra Girdawari in Rabi 1997, copy of which is Exh.P.W.2/1. This entry itself cannot be considered as an entry of possession as an owner, which is reproduced below:--

Perusal of the above quoted entry would suggest that the same appears to be a manipulated one. If true, even then, it cannot be considered as an entry under sale of 1967. The entire oral as well as docu-mentary evidence is completely silent with regard to possession from the date of sale till 1997. So, it is established on the record that the petitioners failed to discharge their burden and their suit was rightly dismissed. The record of the case would further reveal that the vendor of the petitioners namely Paigham Shah was booked in a murder case and was declared proclaimed offender. His property i.e. the suit property was attached vide proceedings under sections 87/88 of Cr.P.C. An attempt through a civil suit for declaration was made by "Nazik Bibi" being legally wedded wife of Paigham Shah, that she was an owner on the basis of Kabeen nama dated 10-4-1969. This declaration was refused to the lady up to the apex Court. Certified copies of the judg-ments were made available on the record of the case. Being judicial record has got presumption of truth and correctness and can be considered by the Courts and such judgments can be looked into in relevancy of facts as provided in Article 55 of the Qanun-e-Shahadat Order, 1984.

As far as legal position of an unregistered deed coupled with possession is concerned that has a protection under section 53-A of Transfer of Property Act. Law of the land like Hikmat Khan v. Shamsur Rehman 1993 SCMR 426 is very much clear and settled. As per the above referred case-law, such a document can be used as a shield in defence. Yes, another development of the case-law has also been made that an unregistered deed coupled with the possession can be used as weapon of attack like in the present case an attempt was made of such nature. Reference in this regard can also be made to case of Fazila v. Mehr Din and 2 others, (1997 SCMR 837). But such an edge cannot be claimed by the present petitioners as they failed to prove delivery of possession under the sale and the entire edifice appears to be tainted with mala fide.

So, findings of the appellate Court in this regard will allow no reason for interference specially when the findings of the Courts below are based on proper appraisal of evidence and the law on the subject and similarly any jurisdictional defect in the exercise of jurisdiction by the Courts below is not established. This discretionary jurisdiction can be exercised in aid of justice and not to defeat the ends of justice.

So, as a sequel to what has been discussed above, this revision petition being meritless is dismissed with no order as to costs.

S.A.K./312/P Petition dismissed.