PLJ 2008
Present: Maulvi Anwar-ul-Haq and Syed Asghar Haider, JJ.
Mst. FATIMA BIBI etc.--Appellant
versus
IMDAD ULLAH KHAN, etc.--Respondents
RFA No. 580 of 2001, on 21.11.2006.
Partition--
----Suit for separate possession of 1/2 share by partition--Cloase relationship--Document was not got executed--Respondents sought a decree of separate possession 1/2 share by partition and also share in the rent of the said property--In writen statement plea of estoppel by rule of acquiescence taken that plaintiff remained silent spectators which constructions being raised in suit property and that adverse possession matured into ownership further pleaded that predecesor of plaintiff sold away his share in the suit property to predecessor of defendants--Held: Proceeded to take pleas which are mutually destruction on the claim that they are in adverse possession on the other hand they say that predecessor of respondent had sold away his share in the house for a consideration of specified amount--Further held: High Court afraided such part of the statement cannot be looked into simple reason that it was not at all the plea in the written statement. [Pp. 214 & 215] A & B
Possession of Co-owner--
----Possession of respondent or their predecessor in interest was that of co-owner and inured also for the benefit and then the respondents--RFA dismissed. [P. 215] C
Mr. Taqi Ahmad Khan, Advocate for Appellants.
Mr. Anwar Akhtar, Advocate for Respondent No. 1.
Respondent No. 2 deleted vide Order dated 8.9.2005.
Mr. Muhammad Sultan Qasuri, Advocate for Respondent No. 3 to 6.
Date of hearing: 21.11.2006.
Judgment
Maulvi Anwar-ul-Haq,
J.--On 19.9.1994, the respondents filed a suit against the appellant. We may
state in the very beginning that the appellants are the L.Rs
of Inayatullah Khan while the respondents are LRs of Muhammad Tufail Khan who
were real brothers and sons of Ahmad Shah. In the plaint it was stated that the
house described in
1. Whether the plaintiffs have got no cause of action and locus standi? OPP.
2. Whether the suit is without legal authority and therefore not maintainable? OPD.
3. Whether the plaintiffs are estopped by their conduct and words to bring the present suit? OPD.
4. Whether the defendants have become owners by virtue of adverse possession? OPD.
5. Whether the predecessor of the plaintiffs has sold the property to the defendants? OPD.
6. Whether the property is partitionable? OPD.
7. Whether the suit is time barred? OPD.
8. Whether the plaintiffs are the owners of 1/2 share in the property? OPP.
9. Whether the plaintiffs are entitled to get the exclusive possession of the property up to the extent of their share? OPP.
10. Whether the plaintiffs are also entitled to recover mesne profit, if so to what extent? OPP.
11. Relief.
Evidence of the parties was recorded. All the issues were answered in favour of the respondents. A preliminary decree was passed on 23.7.2001 by the learned trial Court. The respondents were further held to be entitled to recover rent at the rate of Rs. 500/- per month per shop with effect from the date of filing of the suit till the actual partition.
2. Mr. Taqi Ahmad Khan, Advocate, learned counsel for the appellants contends that Inayatullah Khan having admittedly been forcibly dispossessed on 9.7.1969, the suit for possession filed in the year 1994 was barred by time. Further contends that the petitioners have been watching the predecessor of the respondents raising construction and remaining silent are estoppal of their conduct from filing the suit. Urges with vehemence that it stood proved on record that Inayatullah Khan had paid off Muhammad Tufail who had accordingly given up his right in the suit property. Further contents that there is inconsistency interse Paras 20 and 21 of the impugned judgment qua the right of rent payable to the respondents. Learned counsel for the respondents, on the other hand, support the impugned judgment and decree. According to them Inayatullah had managed to get the property recorded in the settlement records in his own name exclusively. This led to a long drawn litigation which was ultimately finalized in the Ho'ble Supreme Court of Pakistan in the year 1980 and they were declared ultimately to be co-owners and the suit for partition accordingly was within time. Further contention is that the appellants being fully aware that the property is joint and construction done by their predecessor would be entirely at his own risk and there is no question of estoppel. Regarding the said inconsistency, learned counsel for the respondents concede that the amount of Rs. 500/- in Para-21 has to be read as Rs. 400/-as stated in Para-20 of the impugned judgment.
3. We have gone through the trial Court records with the assistance of the learned counsel for the parties. The pleadings have already been reproduced above. Upon a reading of the same, a denial of entitlement of the respondents of ½ share in the suit property is not to be read into written statement filed by the appellants. They have however proceeded to take pleas which, to our mind, are mutually destructive. On the one hand they claim that they are in adverse possession on the other they say that predecessor of the respondents had sold away his share in the house to Inayatullah for a consideration of
Rs. 250000/. Be that as it may, we have examined the evidence Ex. P1 is the judgment dated 2.4.1980 of Hon'ble Supreme Court in CPLA No. 1093/76 ultimately upholding the order passed by the DSC, Sialkot dated 13.11.1968 allowing insertion of name of Muhammad Tufail alongwith Inayatullah Khan in the transfer document in respect of the suit property. Ex. P. 3 is a copy of PTD incorporating the said order dated 13.11.1968. There is no manner of doubt in our mind that Muhammad Tufail was owner of « share in the suit property which has devolved upon the respondents.
4. Now coming to the said contention of the learned counsel the only relevant piece of evidence is statement of Habibullah Khan, appellant as D.W. 7. Now we have already reproduced above the relevant portion of the written statement. Precise plea taken is that after a long drawn litigation Muhammad Tufail sold away his share to Inayatullah for a consideration of Rs. 25000/- which was paid to him. Now in his statement Habibullah proceeded to state that a joint claim of two brothers was value at Rs. 16000/- price of the house was fixed at Rs. 9000/- which was adjusted against the claim of Inayatullah and he gave balance Rs. 7000/- and Rs. 1000/- in cash to Muhammad Tufail and thus the matter was settled. We are afraid this part of the statement cannot be looked into for the simple reason that it was not at all the plea in the written statement. Then he proceeded to state that from time to time Inayatullah gave Rs. 25000/- to Muhammad Tufail. Then he stated that in 1969 Muhammad Tufail claimed that « share of the house belongs to him whereupon he was told that the matter stands settled and they kicked him out. Proceedings under Section 145 Cr.P.C. were initiated which were decided in their favour and thereafter Muhammad Tufail has been accepting them as owner till 1983 when he died. Now we may refer here to the statement of Imdadullah Khan, respondent as PW-1. Now said Imdadullah Khan, respondents as PW. 1 denied that their father ever sold his share. Now it was suggested to him and he denied that Inayatullah Khan has paid Rs. 25000/- to the said witness or his brothers. It was never suggested to him that his father received Rs. 25000/- and sold the house to Inayatullah.
5. Now a perusal of the judgment Ex. P 1 and the order Ex. P. 2 shows that the two brothers remained in litigation from 1968 to 1980 when the matter was finally decided by the Hon'ble Supreme Court of Pakistan. We, therefore, affirm the findings recorded by the learned trial Court that there is no evidence that Muhammad Tufail sold his share to Inayatullah Khan as alleged by the appellants. We also called upon the learned counsel to demonstrate as to whether any such settlement or factum of sale was brought to the notice of any settlement authorities or this Court or the Hon'ble Supreme Court. The answer, of course, is in negative.
6. Learned counsel have vehemently urged that since admittedly Muhammad Tufail was forcibly dispossessed, the suit became barred by time. We are afraid nothing turns on the said fact in favour of the appellants. The reason being that the question of title remained sub-judice and ultimately it was held that Inayatullah is a joint owner of the suit house to the extent of « share. This being so, the possession of the respondent or their predecessor-in-interest was that of a co-owner and inured also for the benefit of Muhammad Tufail and then the respondents. It also appears upon reading of Ex. P1 and P. 2 that the two brothers had inherited the property from their uncle Din Muhammad who had died issueless. This being so, rule laid down in the case "Ghulam Ali and others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) became fully applicable to the facts and circumstance of this case. It is further to be noted that earlier ouster is being alleged not on the basis of said factum of forcible dispossession but on the allegation that Inayatullah Khan had purchased the share of Muhammad Tufail and paid him consideration, which allegation has not been proved on record. There is thus no question of any ouster and the possession of the appellant being adverse to the respondents.
7. The inconsistency pointed out stands resolved by concession shown by the learned counsel for the respondents. The RFA is accordingly dismissed with costs through out. However the impugned judgment is corrected inasmuch as in para-21 of the judgment date 23.7.2001 of the trial Court in the last but 3rd line Rs. 500/- shall be read as Rs. 400/-. The records of the learned trial Court be remitted back immediately.
(M.S.A.) RFA dismissed.