P L D 2024 Balochistan 147
Before Gul Hassan Tareen, J
UMAR FAROOQ and another ---Petitioners
Versus
MUHAMMAD USMAN and 7 others ---Respondents
Civil Revision No. 634 of 2022, decided on 17th April, 2024.
Transfer of Property Act (IV of 1882) ---
----S. 8--- Specific Relief Act (I of 1877), Ss. 8, 42 & 54--- Suit for possession, declaration
and injunction---Operation of transfer ---Maxim "res accessoria sequitur rem principalem" ----
Applicability ---Concurrent findings of facts by two Courts below ---Scope ---
Petitioners/plaintiffs sought restraining the respondents/defendants from using the street
leading to their houses ---Suit and appeal filed by petitioners/plaintiffs were dismissed Trial
Court and Lower Appellate Court respectively--- Validity ---Provision of S. 8 of Transfer of
Property Act, 1882 is based on maxim "res accessoria sequitur rem principalem", which means that "an accessory follows the principal things" ---Principle underlying section 8 of
Transfer of Property Act, 1882 is that transferor must not derogate from his own transfer ---
Rule regarding transfer is that the transferor conveyed all that he was possessed of in the
property transferred ---Such presumption may be rebutted by use of express words or such
words which limit the interest which the transferor intends to convey by necessary
implication ---Transfer of disputed property to transferees included transfer of everything
annexed to it permanently and would get not only disputed property but also easements
annexed to it ---Petitioners/plaintiffs were transferors of land to respondents/defendants and
claimed exclusive right to the exclusion of transferees to pass through subject street on the strength of dominant heritage ---Besides petitioners/plaintiffs, their transferees had a legal
right to pass through the subject street ---High Court in exercise of revisional jurisdiction
declined to interfere in concurrent findings of facts by two Courts below ---Revision was
dismissed in circumstances.
Jamil Ahmed Khan Babai for Petitioners.
Kaleemullah Quresh for Respondents Nos. 5 to 7.
Muhammad Ali Rakhshani, Addl. Advocate General (AAG) for Respondent No.8.
Date of hearing: 4th April, 2024.
JUDGMENT
GUL HASSAN TAREEN J. ---From concurrent judgments and decrees of learned
Senior Civil Judge, Zhob (Trial Court) and learned District Judge, Zhob (Appellate Court) whereby, petitioners' suit was dismissed, instant civil revision petition has been filed.
2. Facts of the case, briefly stated, are that in December 2018, petitioners had instituted
Civil Suit No.62/2018 for declaration, possession and perpetual injunction against the respondents alleging therein that the grandmother of respondents Nos.1 to 4, Ghulam Fatima was lessee of two houses bearing No.A/89 -A admeasuring 10017.75 sq.ft. and A/89
admeasuring 5332 sq.ft. situated at Jirga Hall Road, Zhob. The house No.A/89 has its front which opens upon a street which leads to the Adalat Road, Zhob, whereas, a street
admeasuring 11x78 is situated at the back of such house. The house No.A/89- A opens in
such street ("subject street") which leads to the Jirga Hall Road. When the lessee, Ghulam Fatima passed away, both houses devolved upon her two sons namely Muhammad Asif and Muhammad Asim (predecessor of respondents Nos.1 to 4). The said two legal heirs mutually partitioned whereby, house No.A/89 fell into the share of Muhammad Asif and house No.A/89- A along with a portion admeasuring 9x18 and the subject street f ell into the share of
Muhammad Asim. The partition was acted upon and a small door in the house No.A/89
which would open in the subject street was permanently closed along with two windows.
Vide contract dated 12 January 2010, Muhammad Asif sold out house No.A/89 to the respondent No.5 and executed a power of attorney dated 4 May 2010 and the attorney transferred the lease hold rights of the house No.A/89 in favour of respondents Nos.6 and 7. On 13 March 2015, respondents Nos.1 to 4 sold out house No.A/89- A to the petitioner No.2
in exchange of Rs.5,230,000/ - and a contract was executed by the petitioner No.1 on behalf
of petitioner No.2. In August 2016, petitioner No.2 shifted his uncle in the house No.A/89- A.
After some time, respondents Nos.5 to 7 opened the windows and the door in the subject street. Petitioners also came to know that respondents Nos.5 to 7 besides, transfer of house No.A/89, also transferred half of the subject street in their names. Petitioner No.2 deposited the transfer tax for transfer of the lease hold rights of house No.A/89- A, but respondent No.8
delayed the transfer for, respondent No.6 had made an application to the respondent No.6 for obeyance of transfer. In prayer clause, petitioners prayed for declaration that, respondent No.8 with the connivance of respondent Nos. 5 to 7 has illegally held in abeyance the transfer of patta/lease in favour of petitioners; mandatory injunction, to direct the respondent
No.8 to transfer lease of house No.A/89- A and the subject street in the name of petitioner
No.2; possession of 9x18 sq.ft. and perpetual injunction.
3. The respondents Nos. 1 to 4 submitted a conceding written statement while the
respondents Nos. 6 and 7, a contesting. On such pleadings, the learned Trial Judge framed following issues and additional issues: --
"1. Whether the suit is hit by the non - joinder and mis -joinder of necessary parties or not?
2. Whether no cause of action accrued to the plaintiff against the defendants and suit is not maintainable under Order VII, Rule 11 C.P.C?
3. Whether the public street/way in question is not part and parcel of the patta of A/89 -
A?
4. Whether the plaintiffs purchased 5200 sq feet property bearing house No.A/89 - A
situated at Jirga Hall from defendants Nos. 1 to 4 through agreement?
5. Whether the defendants Nos.5 to 7 have purchased only 10017.75 sq feet and they are
illegally occupied in excess area/the disputed portion 9x18 sq feet?
6. Whether the defendant No.8 with the connivance of defendanst Nos.5 to 7 have illegally withhold transfer as patta in the name of plaintiffs?
7. Whether the plaintiff is entitled for relief claimed?
8. Relief?
Additional issues: --
1. Whether a portion of the disputed property measuring 9x18 sq.ft. is not the part of the house bearing No.A/89, rather is apart of the house bearing No.A/89 -A?
2. Whether the disputed street is a public street or a private street?
3. Whether the defendants Nos.5 to 7 as per patta in the name of defendants Nos.5 to 6 are allottees purchasers of 10017.75 sq.ft. but they have illegally occupied excess area?
4. Whether the defendant Nos. 5 to 7 have their road on the front side of their house bearing No.A/89 and their house has gate doors in the said road on front side?
5. Whether the disputed street is a part and parcel of house bearing No.1/89 -A?
6. Whether the disputed property was agreed to be sold out by defendants Nos.1 to 4 to defendants Nos. 5 to 7 through arbitrator Molvi Obaidullah Mardanzai provided that the defendants Nos.5 to 7 would not be entitled to utilize the disputed street"
Petitioner examined the representative of respondent No.8 as PW -1 who tendered in evidence
the record of houses and the subject street as Ex.P/1 - A to Ex.P/1- 9. Petitioners examined
two oral witnesses as PW -2 and PW -3 and finally petitioner No.1 appeared on oath on his
behalf and as attorney of petitioner No.2.
Respondents Nos. 1 to 4 examined one oral witness and the respondent No.1, on his
behalf and on behalf of respondents Nos. 2 to 4, appeared on oath.
Respondents Nos. 6 and 7 examined one oral witness and produced the representative
of respondent No.8 as DW -3 who tendered the record of both houses and the subject street as
Ex.D/2- A to Ex.D/2 -F and finally, the respondent No.6 on his behalf and on behalf of
respondent No.7 appeared on oath.
After completion of trial, the Trial Court vide judgment and decree dated 16
September 2021 decreed the suit merely to the extent of transfer of the lease of house
No.A/89- A in the name of petitioner No.2 which was affirmed on appeal by the Appellate
Court vide impugned judgment and decree dated 30 July 2002.
4. Mr. Jamil Ahmed Khan Babai, learned counsel for the petitioners states that
respondents Nos. 5 to 7 had purchased only the house No.A/89 from Muhammad Asif and the attorney of Muhammad Asif was authorized to transfer the house whereas, respondents Nos. 5 to 7 illegally transferred half of the subject street in their names which had fallen in the share of predecessor of respondents Nos. 1 to 4 out of mutual family partition. He placed reliance on the case reported as Bahadur Khan v. Karim Gul PLD 2022 Balochistan 51.
5. Mr. Kaleemullah Quresh, learned counsel for the respondents Nos. 5 to 7 supported
the impugned judgments and states that petitioners failed to prove that they are exclusively
entitled to pass through the subject street. He states that if half of the area of the subject
street is excluded, respondents Nos. 5 to 7's area would reduce from what they had actually purchased. Finally states that respondents Nos. 5 to 7 are utilizing the subject street which is joint in the record of respondent No.8 and refers to Ex.D/2- A and Ex.D/2 -B.
6. Heard and have gone through the record.
7. Petitioner had pleaded that after death of original lessee, Ghulam Fatima, house
No.A/89 fell into the share of her elder son Muhammad Asif and house No.A/89- A, disputed
property (9x18) and the subject street fell into the share of predecessor of respondents Nos. 1 to 4, Muhammad Asim (private partition). The disputed property (9x18 sq.ft.) was sold by the respondents Nos. 1 to 4 to the respondents Nos. 6 and 7 vide contract dated 25 April 2012 (Ex.D/2- E). Petitioner's witness, in his examination in chief stated that respondents Nos. 1 to
4 had sold out the disputed property to the respondents Nos. 6 and 7. Petitioner's attorney (petitioner No.1) also affirmed such fact in his examination in chief that, respondents Nos. 1 to 4 had sold out the disputed property to the respondents Nos. 6 and 7 for a price of Rs.250,000/ - which the respondents Nos. 1 to 4 had received. Thus, the Subordinate Courts
have rightly held that respondents Nos. 6 and 7 are in the legal possession of the disputed property.
8. So far as rest of the claim of petitioners regarding the subject street is concerned, they
failed to prove that, subject street fell into the share of respondents Nos. 1 to 4's predecessor in result of mutual family partition. The subject street was equally recorded in the names of lessees of house Nos.A/89 and A/89- A. Where the subject street would have been fallen into
the share of the predecessor of respondents Nos. 1 to 4 in result of mutual family partition, he should have given the effect of such partition into the record of subject street and incorporated his name as the exclusive lessee of the subject street. Petitioners pleaded that petitioner No.2 purchased the house No.A/89- A on 13 March 2015. Petitioners' attorney in
his examination in chief stated that, in the office of Municipal Committee, he came to know that the subject street was recorded in equal proportion to the house No.A/89 and house No.A/89- A. He during his cross -examination admitted it correct that, on 01 December 2010,
the house No .A/89 was recorded in the name of respondents Nos. 6 and 7 and the subject
street was recorded in equal proportion to the house No.A/89 and the house No.A/89- A. (Q.
No.5). In March 2015, when petitioner No.2 had purchased the house No.A/89- A, he had not
objected upon the entry pertaining about half of the subject street (389.68 sq.ft.) in the names
of respondents Nos.6 and 7 (Ex.D/2- A). Petitioners should have examined all documents
relating to the house No.A/89- A at the time of purchase of such house on t he doctrine of
caveat emptor. Under section 55(1)(b), the Transfer of Property Act, 1882 (Act 1982), the
respondents Nos. 1 to 4 were bound to produce to the petitioner No.2, on his request for
examination all documents of title relating to the house No.A/89- A. Since, petitioners had
not examined the record and did not request for examination of documents at the time of purchase of house No.A/89- A, therefore, they are estopped from challenging the title of
respondents Nos. 6 and 7's lease hold rights in res pect of the subject street, who are recorded
lessees of, half of the subject street since December 2010 which was not ever challenged by
their transferor, Muhammad Asif or any of his legal heirs. Hence, the Subordinate Courts have rightly held that respondents Nos. 6 and 7 are entitled to utilize the subject street. The petitioners had not pleaded the decision of arbitrators in respect of the subject street, hence evidence of arbitration, being departure from pleading, could not be looked into. Hence,
petitioners failed to prove that they are exclusively entitled to pass and re -pass through the
subject street, thus the impugned judgments are unexceptionable.
9. Yet the instant case has another aspect too. In para No.1 of plaint, petitioners pleaded
that the grandmother of respondents Nos. 1 to 4, Ghulam Fatima was lessee of two houses
bearing Nos.A/89 and A/89- A which on her death, devolved upon her two sons Muhammad
Asif and Muhammad Asim. Both brothers mutually partitioned whereby house No.A/89 fell into the share of Muhammad Asif and house No.A/89- A, along with the subject street and a
portion admeasuring 9x18 sq.ft. (162 sq.ft.) [i.e. disputed property] fell into the share of Muhammad Asim. In prayer clause (C), petitioners had sought as under:
"C. Declaration be made that the defendants Nos.5 to 7 having purchased only 10017.75 sq.ft, as such, they are illegally in excess area/the disputed portion of 9x18 sq.ft. description is mentioned in para No.4, and such excess area is the share of the
house of plaintiff No.2 bearing No.A/89 - A, as such the defendants Nos.5 to 7 be
directed to handover possession of such area to the plaintiff."
The plaint and prayer clause (C) of petitioners' suit reveal that disputed property [i.e.
9x18 sq.ft.] was part of house No.A/89- A. Respondents Nos. 1 to 4 in their common written
statement pleaded that respondents Nos. 5 to 7 had tried to occupy the disputed property,
however, they and the respondents Nos. 5 to 7 appointed Obaidullah Mardanzai as arbitrator
and according to the oral award of said arbitrator, they had sold out the disputed property to the respondents Nos. 5 to 7. Respondents Nos. 6 and 7 in their common written statement pleaded (para No.6), that they had purchased the disputed property from the respondents Nos. 1 to 4, in exchange for a price of Rs.250,000/ -. The PW -2, Baran Khan in his
examination stated that on intervention of arbitrator (PW -2 and Obaidullah Mardanzai),
respondents Nos. 1 to 4 sold out the disputed property/room, to the respondents Nos. 6 and 7 and received Rs.250,000/ -. The relevant in the examination in chief of PW -2 is reproduced
hereunder;
"Defendant No.1 had objection on one door of such room, which opened towards east in street which is northern and southern. Defendant No.1 wanted that this door should be closed, upon which, defendant No.6 expressed consent."
The petitioner No.1 in his examination in chief stated that respondents Nos. 1 to 4 had sold out the disputed property to the respondents Nos. 6 and 7 on the condition that they would not keep any concern with the subject street. The petitioner No.1 in his cross -examination
stated that, respondents Nos. 1 to 4 had sold out the disputed property to the respondents Nos. 6 and 7. (Answer No. 16).
10. According to the petitioners and respondents Nos. 1 to 4's pleadings and evidence, the
disputed property was part of plot No.A/89- A and fell into the share of respondents Nos. 1 to
4 and latter, they had sold it out to the respondents Nos. 6 and 7 and such disputed property has a door and window which open in the subject street. Thus, after purchase of the disputed property, respondents Nos. 6 and 7 became owners of a part of the house No.A/89- A,
therefore, they had right to pass and re -pass through the subject street. At this juncture,
section 8 of the Transfer of Property Act 1882 is relevant which reads:
"8. Operation of transfer. Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof.
Such incidents include, where the property is land, the easements annexed thereto, the
rents and profits thereof accruing after the transfer, and all things attached to the earth;
and, ...
and, where the property is a house, the easements annexed thereto, the rent thereof
accruing after the transfer, and the locks, keys, bars, doors, windows, and all other
things provided for permanent use therewith; and...
and...
Section 8 is based on the maxim "res essorira requiter rem principaleur" which means that "an accessory follows the principal things". So the principle underlying this section is that transferor shall not derogate from his own transfer. The rule regarding transfer is that the transferor conveyed all that he was possessed of in the property transferred. This presumption may be rebutted by use of express words or such words which limit the interest which the transferor intends to convey by necessary implication.
The transfer of disputed property to the respondents Nos. 6 and 7 included transfer of
everything annexed to it permanently. Therefore, the respondents Nos. 6 and 7 would get not only the disputed property but also the easements annexed to it. Petitioners are transferors of respondents Nos. 1 to 4 and since, they had claimed exclusive right, to the exclusion of respondents Nos. 6 and 7, to pass through the subject street on the strength of dominant heritage i.e. house No.A/89- A, therefore, besides the petitioners, their second set of
transferee, that is, respondents Nos. 6 and 7, have a legal right to pass through the subject street.
I have gone through the contract dated 25 April 2012 (Ex.D/2- E) whereby, respondents
Nos. 1 to 4 had sold out the disputed property (9x18 sq.ft.) in the house No.A/89- A, to the
respondents Nos. 6 and 7, but in the Ex.D/2 -E, a different intention is not expressed or
necessarily implied, that respondents Nos. 6 and 7 would not be entitled to pass through the
disputed street.
For afore discussion, the impugned judgments are upheld. Civil revision petition is
dismissed with no order as to costs.
MH/57/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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