PLJ 2023 Lahore (Note) 23
Specific Relief Act, 1877 (I of 1877)--
----S. 9--Suit for possession--Decreed--Concurrent findings--Unregistered sale-deed--Ownership of respondent was not denied by petitioners--Death of marginal witnesses of sale-deed--Certain witnesses were produced in place of deceased marginal witnesses--Burden of prove--Challenge to--A regular suit for possession was filed by respondent thus in order to prove his case, he has to prove his title over property in dispute and for said purpose, he produced copy of Record of Right which has not been denied by petitioners--Burden to prove said transactions was on petitioner’s shoulders, which they miserably failed to discharge by way of by producing witnesses thereof--There is nothing on record to show that when did witnesses expire as petitioners never endeavored to prove said fact by producing death certificate of said witnesses and thereupon producing other witnesses, who were able to recognize signatures of deceased marginal witnesses, in order to prove their signatures over unregistered sale-deeds--Revision petition dismissed.
[Para 8, 9, 10, 12] B, C & D
Specific Relief Act, 1877 (I of 1877)--
----Ss. 9 & 42--Suit for possession--Availability of remedies--For seeking possession of a property, remedies available to a plaintiff is either to file a summary suit for possession filed under Section 9 of Specific Relief Act, 1877 or a regular suit for possession filed under Section 42 of said Act however distinguishing factor in both these suits is that in former suit, it is not mandatory for plaintiff to prove his ownership over property in dispute whereas in latter suit ownership of plaintiff over property is a sine qua non.
[Para 7] A
Mr. M. Mushtaq Ahmad Dhoon, Advocate for Petitioners.
Date of hearing: 15.9.2022.
PLJ 2023 Lahore (Note) 23
Present: Faisal Zaman Khan, J.
NAWAB (deceased) through L.Rs., etc.--Petitioners
versus
GHULAM MUHAMMAD--Respondent
C.R. No. 41199 of 2022, decided on 15.9.2022.
Order
Through this civil revision judgments and decrees dated 01.12.2021 and 31.05.2022 passed by the learned Civil Judge, Piplan and learned Additional District Judge, Piplan, respectively, have been assailed. By virtue of the former judgment a suit for possession filed by the respondent against the petitioners has been decreed and through the latter the same has been upheld.
2. Succinctly, the facts of the case are that in order to seek possession of the suit property measuring 06 Kanals 19 Marias bearing Khata No. 677, Khatooni No. 1099, Khasra No. 1261/2 situated at Mohallah Nizam Abad Mauza Kundian Tehsil Piplan District Mianwali (Property in dispute) a regular suit for possession was filed by the respondent against the petitioners, in which the latter filed their joint written statement. Out of divergent pleadings of the parties as many as 10 issues were framed; evidence pro and contra was led, whereafter, vide judgment and decree dated 01.12.2021 the suit was decreed. Feeling aggrieved, petitioners preferred an appeal, which was dismissed vide judgment and decree dated 31.05.2022, hence, this civil revision.
3. At the outset of hearing learned counsel for the petitioners has been confronted with the fact that respondent has successfully proved his title over the property in dispute by of producing Exh.P.3 i.e. the copy of the Record of Rights to which there is no denial, whereas, on the other hand counter claim of the petitioners is that they are in possession over the property in dispute on the basis of unregistered sale-deeds, which are available on the record as Exh.D.l to Exh.D.24 and Exh.D.29, but they have failed to prove these documents by producing the marginal witnesses.
4. In spite of his earnest effort, learned counsel for the petitioner has not been able to give any plausible explanation, except to argue that marginal witnesses of the sale-deeds had expired and in place thereof certain other witnesses were produced, which is sufficient to prove the transactions, hence, both the learned Courts below erred in law in deciding against the petitioners.
5. Arguments heard. Record perused.
6. From the perusal of the available record, it transpired that ownership/title of the respondent over the property in dispute as highlighted in Record of Record (Exh.P3) has not been denied by the petitioners however their counter claim is that they are in possession of the property in dispute on the basis of unregistered sale-deeds.
7. For seeking possession of a property, the remedies available to a plaintiff is either to file a summary suit for possession filed under Section 9 of the Specific Relief Act, 1877 or a regular suit for possession filed under Section 42 of the said Act however the distinguishing factor in both these suits is that in the former suit, it is not mandatory for the plaintiff to prove his ownership over the property in dispute whereas in the latter suit ownership of the plaintiff over the property is a sine qua non.
8. In the above backdrop, since a regular suit for possession was filed by the respondent thus in order to prove his case, he has to prove his title over the property in dispute and for the said purpose, he produced copy of Record of Right (Exh.P.3), which has not been denied by the petitioners.
9. As regards the counter claim of the petitioners, since they were the beneficiaries of the unregistered sale-deeds, therefore, in view of law laid down in judgments reported as Islam-ud-Din (deceased) through L.Rs. and others v. Mst. Noor Jahan (deceased) through L.Rs. and others (PLJ 2016 SC 616) Phull Peer Shah v. Hafeez Fatima (2016 SCMR 1225), Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1), Ibrahim Kamal v. Mst. Malooka Bibi and others (2012 SCMR 1), and Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others (2010 SCMR 1370) burden to prove the said transactions was on their shoulders, which they miserably failed to discharge by way of producing the witnesses thereof, therefore, the same remained unproved, thus, an adverse inference has to be drawn against them. Reliance can be placed on Muhammad Naeem Khan and another v. Muqadas Khan (deed) through LRs. and another (PLD 2022 S.C. 99), Mst. Zarsheda v. Nobat Khan (PLD 2022 S.C. 21), Muhammad Sarwar v. Mumtaz Bibi and others (2020 SCMR 276), Naveed Akram and others v. Muhammad Anwar (2019 SCMR 1095), Riaz Ahmed v. The State (2010 SCMR 846) and Lal Khan v. The State (2006 SCMR 1846).
10. As regards the argument of the learned counsel for the petitioners that since the marginal witnesses had expired, therefore, other witnesses were produced to prove the execution of unregistered sale-deeds, it shall not be out of place to mention here that in case and as asserted by the learned counsel for the petitioners that the marginal witnesses had expired, there is nothing on the record to show that when did they expire as the petitioners never endeavored to prove the said fact by producing the death certificate of the said witnesses and thereupon producing other witnesses, who were able to recognize the signatures of the deceased marginal witnesses, in order to prove their signatures over the unregistered sale-deeds, therefore, both the learned Courts below have rightly decided against the petitioners.
11. Even otherwise, unregistered sale-deeds were produced by the petitioners as Exh.D.1 to Exh.D.24 and Exh.D.29 and as production and proof of a documents are two separate segments and mere production of documents would not mean that they have been proved as well, thus, petitioners, even otherwise, have failed to prove their case. For reference reliance can be placed on Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172), Dawa Khan through L.Rs. and others v. Muhammad Tayyab (2013 SCMR 1113), Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others (2007 SCMR 1884), Imam Din and 4 others v. Bashir Ahmed and 10 others (PLD 2005 S.C. 418), Fazal Muhammad v. Mst. Chohara and others (1992 SCMR 2182) and Khan Muhammad Yusuf Khan Khattak and S.M. Ayub & 2 others (PLD 1973 S.C. 160).
12. Since the learned counsel for the petitioners has not been able to point out any jurisdictional defect or procedural impropriety in the impugned judgments and decrees passed by both the learned Courts below, therefore, in view of judgments reported as Mst. Zarsheda v. Nobat Khan (PLD 2022 S.C. 21), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 S.C. 13), Nizam-ud- Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24), Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.W.F.P. Peshawar and others (2015 SCMR 799), Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif (PLD 2015 SC 137), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Haji Muhammad Din v. Malik Muhammad Abdullah (TLD 1994 SC 291) no interference can be made by this Court in the concurrent findings rendered by the Courts below.
13. In view of the above, this revision petition being devoid of any merits is dismissed.
(Y.A.) Petition dismissed
0 Comments