Citation Name  : 2007  CLC  1626     LAHORE-HIGH-COURT-LAHORE  Side Appellant : MUHAMMAD AFZAL through L.Rs.  Side Opponent : MUHAMMAD DIN

---Ss. 31, 32 & 33---Rectification of sale-deed---Patent ambiguity existed in sale-deed in question---Said sale-deed purported to convey 77 Kanals, 16 Marlas from appellant to respondent---Area comprised in three Khatas---Relevant. Khata which was the basis of controversy had a total area of 894 Kanals, 14 Marlas---Contention of appellant was that at the time of execution of disputed sale-deed he was owner of 4128/71576 share in said Khata equivalent to 76 Kanals, 7 Marlas in the Khata---Appellant purported to convey 1527/71576 share which was equivalent to 13 Kanals, 2 Marlas---Equivalence, worked out between the undivided share of appellant in the Khata and the area of 76 Kanals, 7 Marlas, mentioned in .the sale-deed in question did not tally---Ambiguity in the sale-decd sought to be rectified, had arisen because in fraction 1527/71576 the numerator had been given in Marlas, while the denominator represented the total number of shares in Khata---Sale-deed in question, itself needed to be examined with the object of removing the patent ambiguity for which respondent had sought rectification---Fraction 1527/71576 being erroneous, it would, in circumstances, be unsafe to rely on same with the object of determining the area actually intended to be sold---Area in Kanals and Marlas, had unambiguously been mentioned in the sale-deed in question---Total area sold was 77 Kanals, 16 Marlas and that figure round mentioned at the head of said document/saledeed---Ambiguity in the sale-deed in question had to be resolved by holding that appellant intended to convey 76 Kanals, 7 Marlas from relevant Khata rather than the fraction 1527/71576 which was the result of error---Courts below had also examined the record while resolving the ambiguity in the sale-deed in favour of respondent---No reason existed to interfere in the impugned decrees concurrently passed by the Courts below.

 

2007 C L C 1626

 

[Lahore]

 

Before Jawwad S. Khawaja, J

 

MUHAMMAD AFZAL through L.Rs.----Appellants

 

Versus

 

MUHAMMAD DIN----Respondent

 

Regular Second Appeal No.33 of 2006, decided on 20th October, 2006.

 

Specific Relief Act (I of 1877)--- 

----Ss. 31, 32 & 33---Rectification of sale-deed---Patent ambiguity existed in sale-deed in question---Said sale-deed purported to convey 77 Kanals, 16 Marlas from appellant to respondent---Area comprised in three Khatas---Relevant. Khata which was the basis of controversy had a total area of 894 Kanals, 14 Marlas---Contention of appellant was that at the time of execution of disputed sale-deed he was owner of 4128/71576 share in said Khata equivalent to 76 Kanals, 7 Marlas in the Khata---Appellant purported to convey 1527/71576 share which was equivalent to 13 Kanals, 2 Marlas---Equivalence, worked out between the undivided share of appellant in the Khata and the area of 76 Kanals, 7 Marlas, mentioned in .the sale-deed in question did not tally---Ambiguity in the sale-decd sought to be rectified, had arisen because in fraction 1527/71576 the numerator had been given in Marlas, while the denominator represented the total number of shares in Khata---Sale-deed in question, itself needed to be examined with the object of removing the patent ambiguity for which respondent had sought rectification---Fraction 1527/71576 being erroneous, it would, in circumstances, be unsafe to rely on same with the object of determining the area actually intended to be sold---Area in Kanals and Marlas, had unambiguously been mentioned in the sale-deed in question---Total area sold was 77 Kanals, 16 Marlas and that figure round mentioned at the head of said document/saledeed---Ambiguity in the sale-deed in question had to be resolved by holding that appellant intended to convey 76 Kanals, 7 Marlas from relevant Khata rather than the fraction 1527/71576 which was the result of error---Courts below had also examined the record while resolving the ambiguity in the sale-deed in favour of respondent---No reason existed to interfere in the impugned decrees concurrently passed by the Courts below.

 

Muhammad Shahzad Shaukat for Appellants.

 

Ch. Riasat Ali assisted by Muhammad Sarwar Sabir for Respondent.

 

Date of hearing: 20th October, 2006.

 

 

JUDGMENT 

JAWWAD S. KHAWAJA, J.---The appellants are the legal heirs of Muhammad Afzal. They impugn the concurrent decrees of the learned trial Court dated 9-12-2000 and of the learned Appellate Court, dated 7-3-2006, whereby a suit filed by the respondent-plaintiff Muhammad Din seeking rectification in the sale-deed (Exh.P.1) dated 22-6-1986, has been decreed.

 

2. The facts of the case are straightforward. There is a patent ambiguity in the sale-deed (Exh.P.1). The said document purports to convey 77 Kanals, 16 Marlas from Muhammad Afzal to the respondent-plaintiff. The area is comprised in three Khatas. The relevant Khata, which is the basis of the controversy in the present case is Khewat No. 1/1, which has a total area of 894 Kanals, 14 Marlas. According to learned counsel for the appellants, Muhammad Afzal aforesaid was at the time of the execution of Exh.P.1, owner of 4128/71576 share in the said Khata equivalent to 76 Kanals; 7 Marlas in the Khata. In the sale-deed (Exh.P.1), Muhammad Afzal purported to convey 1527/71576 share out of Khata No.1/1, which is equivalent to 13 Kanals, 2 Marlas. The sale-deed (Exh.P.1) however, also mentions the area of 76 Kanals, 7 Marlas as the area being sold out of the said Khata.

 

3. It is quite obvious that the equivalence, worked out between the undivided share of Muhammad Afzal in the Khata and the area of 76 Kanals, 7 Marlas mentioned in the sale-deed do not tally. The only question, which remains to be decided, is the true intention of the parties to the sale-deed. It is only when this intention is determined that the patent ambiguity in the sale-deed (Exh.P.1) can be resolved. The case set up by the respondent-plaintiff was that Muhammad Afzal had agreed to sell 76 Kanals, 7 Marlas out of Khata No.1/1. The defence raised by Muhammad Afzal was that he had only intended to sell 1527/71576 share out of Khata No.1/1, which was equivalent to 13 Kanals, 2 Marlas and not 76 Kanals, 7 Marlas as set out in the sale-deed.

 

4. Learned counsel for the respondent-plaintiff has controverted the arguments advanced on behalf of the appellants. He has, in particular, drawn the attention of the Court to the concluding few lines of the sale-deed (Exh.P.1). Therein the appellants have expressly recorded that after-

selling the land comprised in the sale-deed, they have become Ghair Malik. This is a clear indication that the land owned by the appellants in the disputed Khewat was intended to be conveyed to the respondent-plaintiff.

 

5. In addition to the above, I have examined Exh.D.11, Exh.P.4 and Exh.D.7 out of the extensive Revenue Record produced in evidence by both sides. From these documents, read in the light of the abovenoted stipulation in the sale-deed, it has become apparent that the ambiguity in the sale-deed has arisen because in the fraction 1527/71576, the numerator has been given in Marlas while the denominator represents the total number of shares in Khata No.1/1, if the numerator and the denominator were both expressed either in Marlas or in shares, the area of the appellants, as per earlier Jamabandis; would have come to 28 Kanals, 1 Marla in the joint Khata. To this would be added a further area of 55 Kanals, 18 Marlas which purchased by the appellants in Khata No.1/1 vide Mutation No.121 (Exh.P.5) sanctioned on 31-3-1984. As a result the total holding of Muhammad Afzal in the said Khata would become 83 Kanals, 19 Marlas. It is apparent from the record including para.1 of the written statement filed by the appellant that some land owned by them was sold by them through other transactions, including a sale of 1 Kanal, 9 Marlas mentioned in the written statement itself.

 

6. In the light of the above discussion, the sale-deed (Exh.P.1) itself needs to be examined with the object of removing the patent ambiguity for which the respondent-plaintiff had sought rectification. It is clear to me, based on the record of the case, as discussed above, that the fraction 1527/71576 is erroneous. It would, therefore, be unsafe to rely on the same with the object of determining the area actually intended to be sold to the appellants. On the other hand, the area in Kanals and Marlas, has unambiguously been mentioned in the sale-deed. The total area sold is 77 Kanals, 16 Marlas. This figure finds mention at the head of the document and also on page 2 thereof. The main component of this area (which is comprised in Khata No.1/1) has also been expressly mentioned as 76 Kanals, 7 Marlas. There is no dispute as to the two other Khatas, being Khewat No.15/15 and Khewat No.21/20 out of which small areas measuring, in all, less than 2 Kanals were sold through the sale-decd (Exh.P.1). In this view of the matter, the total area sold through the sale-deed (Exh.P.1) is quite clearly 77 Kanals, 16 Marlas. This total area cannot be arrived at except on the basis that 76 Kanals, 7 Marlas out of Khewat No.1/1 was included in the sale-deed. If the appellants' contention is accepted that only 13 Kanals, 2 Marlas out of Khewat No.1/1 were intended to be sold, there will be two insurmountable difficulties in the case. Firstly, the total area of 77 Kanals, 16 Marlas, which is clearly mentioned in the sale-deed, will not be established and, secondly, the contention would also be contrary to the contents of the written statement filed by the appellants wherein they have slated that only 20 Kanals out of Khewat No.1/1 were intended to be conveyed through the aforesaid sale-decd. It is clear that even according to the aforesaid contents of the written statement and the testimony of the D.Ws. the fraction 1527/71576 which finds mention in the sale-deed (Exh.P.1) in relation to Khata No.1/1 is incorrect because the fraction converts to 13 Kanals, 2 Marlas of the total Khata rather than 20 Kanals admitted in the written statement to have been sold by Muhammad Afzal.

 

7. In view of the foregoing discussion, I am not left in any doubt that the ambiguity in the sale-deed (Exh.P.1) has to be resolved by holding that Muhammad Afzal intended to convey 76 Kanals, 7 Marlas from Khata No.1/1 rather than the fraction 1527/71576 which is a result of the error noted above.

 

8. The learned. Courts below have also examined the record while resolving the ambiguity in the sale-deed in favour of the respondent-plaintiff. In the circumstances, I find no reason to interfere in the impugned decrees concurrently passed by the learned Courts below. This appeal as a consequence, is dismissed.

 

H.B.T./M-188/L Appeal dismissed.