KANTOLA And Others vs NAZR MUHAMMAD And Other
The petitioners, unsuccessful defendants, sought leave to appeal against the judgment of the Lahore High Court dismissing their regular second appeal. The plaintiff-respondents had filed a suit for possession of disputed land based on an oral sale followed by a mutation. The plaintiffs claimed that their predecessor-in-interest had sold his entire allotted property, but through collusion with revenue authorities, erroneous Khasra numbers were entered in the mutation. The trial court and appellate courts decreed in favor of the plaintiffs, repelling the petitioners' contention that a fraudulent contract was void ab initio and unenforceable. The Supreme Court of Pakistan held that the view taken by the lower courts regarding the enforceability of the oral sale was in conformity with the law, as the evidence showed an oral sale of the entire allotted property and subsequent misdescription could not defeat the claim. Consequently, the Court found no question of law requiring further examination and refused leave to appeal.
- Whether an oral sale of property is rendered void ab initio and unenforceable due to a subsequent misdescription of Khasra numbers in the mutation?
- Can a plaintiff claim possession of property sold under an oral sale when the mutation contains erroneous property numbers resulting from revenue authorities' collusion?
ORDER
1. SHAFIUR RAHMAN, J.--The petitioners who are the unsuccessful defendants seek leave to appeal against the judgment of the Lahore High Court, dated 5-11-1978 whereby a regular second appeal filed by them, was dismissed.
2. On the basis of an oral sale followed by the attestation of a mutation on 30-9-1967 the plaintiff- respondents filed a suit for the possession of the disputed land. Their case was that Jodha the predecessor-in-interest of the petitioners who had been allotted the land against his verified claim had sold to them his entire allotted property but while getting mutation attested he in collusion with the revenue authorities had got some other Khasra numbers mentioned which was not his property. The plaintiff-respondents wanted the possession of the property which had been sold to them and of which they had not been given the possession. Jodha died during the pendency of the suit and was succeeded by petitioner No. 1 who claimed to be the reversioner and petitioners 2-6 claimed the same land on account of a will made by Jodha. The suit was fought, the plea of the petitioners prevailed and their suit was decreed. With slight modification with regard to the area, the judgment and decree of the trial Court was upheld in appeal and second appeal.
3. The main contention of the learned counsel for the petitioners in all the three Courts was that if per allegation of the plaintiff---respondents the sale itself was fraudulent then the contract was void ab initio was unenforceable and on the basis of a fraud committed on them they could not claim a decree with regard to the ownership of the property which was not the subject-matter of the mutation. This plea of the petitioners was repelled by all the Courts holding that the entry and the attestation of the mutation itself gave the indication that it was preceded by an oral sale and statement of the Lumberdar and the witness to that oral sale showed that Judha was selling his entire allotted property. Any subsequent misdescription of the property could not stand in the way of the plaintiff's claim.
4. The learned counsel for the petitioners has reiterated the same submissions before us. We find that on the legal plane the view taken by all the three Courts with regard to the enforcibility of the oral sale which necessarily entails rejection of the defence of the petitioners appears to be in conformity with the requirement of law. There is no further question to be examined in this petition and hence leave to appeal is refused.