6/24/2020 2010 C L C 116

2010 C L C 116

[Lahore]

Before Abdul Sattar Goraya, J

SULEMAN and another----Petitioners

Versus

ATAULLAH and 5 others----Respondents

Civil Revision No.939 of 2005, heard on 21st May, 2009.

Specific Relief Act (I of 1877)---

----Ss. 31 & 39---Suit for rectification of sale-deed---Revision petition---There being some dispute with
regard to Khasra No. of land in question, suit was filed under S.39 of Specific Relief Act, 1877 for
rectification of sale-deed in respect of suit-land---Both the Trial Court and Appellate Court had concurrently
decreed the suit---Validity---If any contradiction was found in the actual position and Khasra number, it was
the description given in the sale-deed which would prevail and not the actual Khasra number---Sufficient
evidence had been brought on the record to establish that the plaintiffs were in possession of the house
constructed on land in question which was surrounded by the boundary walls and the Pacca construction had
been raised thereon---Mere fact that in the sale-deed, incorrect Khasra number was mentioned, would not
disentitle the plaintiff to retain the residential property owned and possessed by them---Both the courts
below had minutely seen the matter and issue involved had been determined by scanning the evidence with
microscopic vision---Case was of concurrent finding of fact and interference in exercise of jurisdiction
under S.115, C.P.C., was not possible---Judgments and decrees of both the courts below being rich in detail,
revision petition against said concurrent judgments was dismissed.

Fazal Hussain and another v. Abdul Hamid PLD 1971 Lah. 89; PLD 1970 SC 63; AIR 1960 SC 941; (1906)
3 CLJ 561 (PC); (1897) 1 CWN 574; (1897) 1 CWN 189; (1870) 14 SWR 474; (1903) 7 CWN 615; AIR
1920 Pat. 82; ILR 26 Cal 845; (1913) 18 IC 745; Muhammad Rafique v. Amar Shahzad 1999 YLR 610;
Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 and Abdul Rahim and another v.
Mrs. Janntay Bibi and 13 others 2000 SCMR 346 ref.

Wali Muhammad Chaudhry for Petitioners.

Irshad Ahmad Qureshi for Respondents Nos.1 and 2.

Date of hearing: 21st May, 2009.

JUDGMENT

ABDUL SATTAR GORAYA, J.--- By means of this revision application, judgment and decree dated 17-2-
2005 passed by the learned Additional District Judge, Gujranwala and that of the learned trial Judge dated
30-11-2004 have been brought under impeachment.

2. The facts as disclosed in the plaint are that Asghar Ali-defendant No.3 was owner in possession of the
suit-land measuring 3 Kanals, 8 Marlas and land measuring 4 Kanals, 12 Marlas falling in Khasra No.186,
situated in the revenue estate of Mouza Attawa Tehsil and District Gujranwala. Defendant No.3 executed a
General Power of Attorney in favour of defendant No.4-M.A. Mazhar by which he was empowered to
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alienate the land measuring 1 Kanal, 1 Marla and one Sarsai in the name of defendant No.5 in the suit. Sale-
deed is shown to have been registered on 18-2-1986. Defendant No.5 sold the above said land to the
plaintiffs through a registered sale-deed dated 10-4-1991; whereafter it was surrounded by a boundary wall
and the construction was raised thereon. In due course of time, there arose some irritant issue and the matter
was reported to the police for an action against the suitors, which necessitated instituting the suit. Defendant
No.3 also transferred some land in favour of defendant No.5 vide registered sale-deed dated 18-2-1986 in which
Khasra No.185 was shown in place of Khasra No.186 inadvertently. The suit was fundamentally filed under
section 39 of the Specific Relief Act for rectification of the sale-deed. The averments contained in the plaint
were emphatically denied being incorrect and divergent pleadings of the parties gave rise to the following
issues:--

( 1 ) Whether the property purchased by the plaintiffs is situated in Khasra No.186 not in 185? OPP

(2) Whether the plaintiffs are entitled to a decree for declaration along with mandatory and prohibitory
injunction on the grounds mentioned in the plaint? OPD

(3) Whether the plaintiffs have no cause of action? OPD

(4) Whether the defendants Nos.3 and 4 are unnecessary parties? OPD 3-4

(5) Whether the suit of the plaintiffs is barred by law of limitation? OPD

(6) Whether the suit has not been properly valued for the purpose of Court fee? OPD

(7) Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD

(8) Relief.

On conclusion of trial, the learned trial Judge vide judgment and decree dated 30-11-2004 decreed the suit in
favour of the respondents. An appeal taken against the said judgment and decree before the learned Additional
District Judge failed on 17-2-2005.

3. Learned counsel for the petitioners argued that both the Courts below misread and misinterpreted the evidence
available on the file. Bitterly argued that section 31 of the Specific Relief Act has a limited scope and the
rectification could only be made with consent of the vendor and not otherwise.

4. Conversely, learned counsel for the respondents contended that under section 31 ibid, the Court enjoys ample
jurisdiction to correct the error, if there was, in the registered sale-deed. Further argued that no misreading and
non-reading is available in the impugned judgments recorded by both the Courts below.

5. I have heard the learned counsel for the parties at some considerable length.

6. Exh.P.15 in the case is an important document. By the said sale-deed, the land was sold in favour of
respondent No.5 which finds. mentioned in Khasra No.185 but the description given in the deed shows presence
of 15 feet street towards South and 20 feet towards East of 9 Marlas plot, In the similar manner, D(11.P.16 is a
copy of the sale-deed by which land was sold to respondent No.5 measuring 12 Marlas, 3 Sarsai which
discernibly shows Bazar 20 feet on its North and East. Sale-deed Exh. P.17 made by respondent No.5 in favour
of the petitioners is about 1 Kanal, 1 Marla and 3 Sarsai having 25 feet Bazar in its North and 25 feet street in its
South, 20 feet Bazar in East and house towards the West side. The above description shown in the various sale
deeds tally with the property owned and possessed by respondent No.1. The evidence by both the Courts below
has fully been scanned with due care and cautions who came to the conclusion that the property in dispute is
situated in Khasra No.186 and necessary correction shall be made and Khasra No.186 shall be written in place of
Khasra No.185.

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7. The proposition of law is too settled to admit any debate that if there is any contradiction found in the actual
position and Khasra number, it is the description given in the sale-deed which will prevail and not the actual
Khasra number. Similar question came up for consideration before this Court in Fazal Hussain and another v.
Abdul Hamid PLD 1971 Lah. 89 in which it was held that if there is any contradiction or difference between the
actual Khasra number and the description of the property, surely the description given in the sale-deed will
prevail. The relevant portion of the judgment reads:---

"The emphasis in this rule is on the identification of the property and it has never been held that a suit
should be dismissed or that a plaint should be rejected on account of any alleged "insufficient
description"--See Rani Hemanta Kumari Debi v. The Secretary of State for India-in-Council (3), Kazem
Sheik and others v. Danesh Sheik (4), Jaladhar Mandal v. Kinoo Mandal (5), Syed Reza Ali v.
Poornanund Chuckerbutty (6), Durga Churn Law and others v. Kala Chand Biswas and others (7),
Rameshwar Singh v. Sadanand Jha and others (8), Raja Narain Das and others v. Shama Nando Das
Chowdhury and others (9) and Nasir Mea v. Arman Ali Mea and others (10). Again in this case -even
though the plaintiff did not file the site-plan the same was filed 'by the contesting defendants and, as
such, the objection cannot be given any serious consideration. So far as the boundaries etc., are
concerned, even though they do not figure in the plaint nevertheless it cannot be said that the defendants
were under any mistake as to the identification of the suit plot.

(1) PLD 1970 SC 63, (2) AIR 1960 SC 941, (3) (1906) 3 CLJ 561 (PC), (4) (1897) 1 CWN 574, (5)
(1897) 1 CWN 189, (6) (1870)14 SWR 474, (7) (1903) 7 CWN 615, (8) AIR 1920 Pat. 82, (9) ILR 26
Cal 845, (10) (1913) 18 IC 745."

8. In the case in hand, sufficient evidence has been brought on the record to establish that the respondents are in
possession of the house which is surrounded by the boundary walls and the Pacca construction has been raised
thereon. Mere fact that in the sale-deed, incorrect Khasra number was mentioned, would not disentitle the
respondents to retain the residential property owned and possessed by them. I am also fortified in my view by
Muhammad Rafique v. Amar Shahzad 1999 YLR 610. Both the Courts below have minutely seen the matter and
the issue involved has been determined by scanning the evidence with microscopic vision. The case has been
examined with the parameters provided by section 115, C.P.C. This is a case of concurrent finding of fact and
interference in exercise of jurisdiction under section 115, C.P.C. is not possible. Reference may be made to
Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431 and Abdul Rahim and another v. Mrs.
Janntay Bibi and 13 others 2000 SCMR 346. The judgments and decrees of both the Courts below are rich in
detail. The Herculean efforts made by the learned counsel for the petitioners could not display the Himalayan
existence that the respondents are in possession of the residential property which was sold to them and it is
surrounded by boundary walls and Pacca construction raised thereon.

9. For whatever has been stated above, the petition has no merit and the same is dismissed, however, the parties
are left to bear their own costs.

H.B.T./S-121/L Petition dismissed.

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