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2006SCMR315 [Supreme Court of Pakistan] Present 2006SCMR315 [Supreme Court of Pakistan] Present: Sardar Muhammad Raza Khan, Mian Shakirullah Jan and Nasir-ul-Mulk, JJ MIR AKBAR----Petitioner versus SHER BAHADUR and others----Respondents Civil Petition No.493-P of 2004, decided on 1st December, 2005. (On appeal from the judgment, dated 12-5-2004 passed by the Peshawar High Court, Peshawar in Civil Revision No.40 of 1997). Per Nasir-ul-Mulk, J.; Sardar Muhammad Raza Khan, J. agreeing; Mian Shakirullah Jan, contra---- Specific Relief Act (I of 1877)--- ----S. 8---Civil Procedure Code (V of 1908), O.VI, R.17 & O.VIII, R.1---Constitution of Pakistan (1973), Art.185(3)---Recovery of possession---Written statement, amendment of---Effect---Plaintiffs sought possession of suit property on the basis of registered sale- deed executed in the year, 1929, while defendant claimed to be the owner on the basis of unregistered sale-deed executed in favour of his predecessor-in-interest, in the year, 1902---Suit was concurrently dismissed by Trial Court and Appellate Court but High Court in exercise of revisional jurisdiction decreed the suit filed by plaintiffs on the ground that in first written statement the defendant raised the plea of adverse possession while in amended statement he claimed to be the owner on the basis of unregistered sale- deed executed in favour of his predecessor-in-interest---Validity---Genuineness of the deed of the year, 1902 was open to doubt as in the first written statement filed by defendant plea of adverse possession was taken and neither the sale-deed was mentioned nor defendant pleaded that he had become owner by purchase---Defendant had filed amended written statement six months later in which for the first time he claimed that his forefather had purchased the house through unregistered deed in the year, 1902---Such plea appeared to be an afterthought, because had the property been purchased by the predecessor-in-interest of defendant, he should at least have mentioned so in his first written statement even if he had not been in possession of the deed at the time--- Defendant in his first statement had taken the plea of adverse possession only--- Witnesses mentioned in the deed of year, 1902 could not have been alive at the time of recording of evidence, however no other supporting evidence was produced to prove the document---Supreme Court did not believe that the deed of year, 1902 pressed into service by defendant was genuine, and even if so, could not have precedence over the registered deed of year, 1929---Plaintiffs and not the defendant were the owners of the suit house---Supreme Court declined to interfere in the judgment and decree passed by High Court---Leave to appeal was refused. Mushtaq Ahmad v. The State 2004 SCMR 530 ref. Per Mian Shakirullah Jan, J. (Minority view)--- Civil Procedure Code (V of 1908)--- ----O. VI, R.17 & O.VIII, R.1---Amended written statement---Effect---When once amended written statement is filed, with permission of Court, and issues are re-examined and the deficiency in framing of issues is made up by framing additional issue, in the light of amended written statement and the permission or grant of leave is not challenged, the same then attains finality---Previous averments made in written statement, which is superseded by subsequent written statement, and even when no question was asked from defendant about the necessity or ground of second written statement, cannot be taken a ground for knocking out the defendant. Document--- ----Appeal to Supreme Court---Scope---Validity of document---Determination--- Jurisdiction of Supreme Court---Trial Court and lower Appellate Court found document in question as a genuine document while High Court did not interfere in such finding--- Effect---Question of validity of such document could not be raised before Supreme Court. Ghulam Muhammad and others v. Malik Abdul Qadeer Khan and others PLD 1983 SC 68 rel. Specific Relief Act (I of 1877)--- ----S. 8---Registration Act (XVI of 1908), S.17---Transfer of Property Act (IV of 1882), S.53-A---Constitution of Pakistan (1973), Art. 185(3)-Recovery of possession--- Preference of registered document over unregistered document---Protection of part performance---Plaintiffs sought possession of suit property on the basis of registered sale- deed executed in the year, 1929, while defendant claimed to be the owner in possession on the basis of unregistered sale-deed executed in favour of his predecessor-in-interest, in the year, 1902---Suit was concurrently dismissed by Trial Court and Appellate Court but High Court in exercise of revisional jurisdiction decreed the suit filed by plaintiffs--- Validity--- View of High Court about preference of registered deed over unregistered deed, when the possession was held to be that of the defendant and he was also held by High Court to be entitled to the improvements and it was plaintiffs who were enforcing their right against defendant, was not in consonance with the judgment of Supreme Court in case titled Ali Rehman v. Fazal Mehmud and 8 others, reported as 2003 SCMR 327--- Most important ingredient of S.53-A, of Transfer of Property Act, 1882, was transfer of possession in favour of transferee--- If such pronounced and tangible act of transfer of physical possession was in favour of transferee, the equity must favour him and he be allowed to defend his possession even on the basis of unregistered deed---In order to examine the question prevailed with High Court in the light of the judgment of Supreme Court, and also to examine the question so raised, in the light of record to be made available at the time of hearing of appeal, it was a fit case for grant of leave. Ghulam Muhammad and others v. Malik Abdul Qadeer Khan and others PLD 1983 SC 68 and Ali Rehman v. Fazal Mehmud and 8 others 2003 SCMR 327 ref. Haji Muhammad Zahir Shah, Advocate Supreme Court for Petitioner. Jan Muhammad Khan, Advocate-on-Record for Respondent. Date of hearing: 20th April, 2005. JUDGMENT NASIR-UL-MULK, J.--- The petitioners seek leave to appeal from the judgment and decree of the Peshawar High Court, dated 12-5-2004 by which the civil revision filed by the respondents, Sher Bahadur and another, was allowed, the concurrent findings of the trial and the Appellate Court set aside and consequently, the suit of the respondents/plaintiffs was decreed as prayed for. By the impugned judgment and decree the petitioner/defendant was ordered to hand over vacant possession of the suit house to the plaintiffs within a period of three months, who in turn were held entitled to improvement made in the suit house to the value of Rs.36,668. 2. The suit for possession was brought by the respondent in the Court of Civil Judge, Swabi on 4-4-1983 by Sher Bahadur and another for possession of a house measuring 6 Marlas, 1 Sarsai, in occupation of the petitioner/defendant. The plaintiffs claimed that their predecessor-in-interest had purchased the house through registered sale-deed on 4-1- 1929. That the defendants were inducted in it as tenants on payment of Khakshora and rendering services, who had about a year earlier refused both. The defendants filed two written statements, one on 15-6-1983 and the other on 6-12-1983.In the first statement the defendants denied having paid Khakshora to the plaintiffs or were tenants but averred that they remained in adverse possession for more than 12 years as owners. In the second statement the defendants pleaded ownership by purchase on the basis of unregistered sale-deed of the year 1902. The trial Court thereafter framed additional issue regarding this claim of the defendants. After recording of evidence the trial Court found the defendants to be owners of the suit house on account of the unregistered sale-deed coupled with the defendants possession of more than 70 years. These findings were upheld by the District Judge. The High Court in the impugned judgment however, accorded preference to the registered sale-deed of 4-1-1929 recorded in favour of the plaintiffs predecessor-in-interest, over the unregistered deed of 1902 on which reliance was placed by the defendants. 3. The learned counsel appearing for the petitioner submitted that the petitioners have proved the purchase of the house through the unregistered sale-deed of 1902. He pointed out that the Registration Act of 1908 had not come into force at the time when the said sale-deed was executed, which accounts for its non-registration. He further submitted that admittedly the petitioners have remained in possession for over 70 years and there was no evidence to show that they had remained in possession as tenants as neither payments of Khakshora nor rendering services by them to the plaintiffs had been proved. The learned counsel cited Mushtaq Ahmad v. The State 2004 SCMR 530 to advance the proposition that unregistered sale agreement followed by delivery of possession will have precedence over registered deed regarding the same immovable property. 4. The learned Advocate-on-Record, appearing for the respondent on notice submitted that the document of 1902 was fabricated and that is why it was not mentioned in the first written statement filed by the defendants. He further submitted that the registered sale- deed is to be given preference over the unregistered deed produced by the defendants, whose authenticity is ever otherwise doubtful. 5. It seems that the parties are not in dispute that both the deeds of the years 1902 and 1929 pertain to the same suit house, although in the earlier deed instead of house, a vacant site is mentioned.
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