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Civil Petition for Leave to Appeal No. 190‑P of 1982, decided on 2nd July, 1983.

(Against the judgment of the Peshawar High Court, Peshawar in Civil Revision No. 146 of 1976).

---Art. 185(3) ‑Transfer of Property Act (IV of 1882), S. 58 Mortgagee right, purchase of‑Mortgagee rights not recognized by Court earlier cannot be purchased ‑ Petitioner claiming to have purchased mortgagee rights from plaintiff of suit‑Petitioner claiming no other interest except purchase which he failed to get recognized from Court‑No such right therefore, existed as could be transferred by predecessor‑in‑interest‑Identification of suit property‑Boundaries of land having been provided, identification of such land possible Petition having no merits, leave to appeal refused.

Abdul Samad Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd July, 1983.

The petitioner, an unsuccessful defendant, seeks leave to appeal against the judgment of the Peshawar High Court dated 2‑9‑1982 whereby a civil revision filed by him was dismissed.

The petitioner was recorded purchaser of mortgagee rights of Ghulam Rasool and Alam in respect of Khasra No. 1/518 measuring 1 :Canal and 2 Marlas situate in village Turlandi. He had purchased these rights by two mutations attested on 22‑5‑1973. The plaintiff‑respondents had purchased mortgagee rights in respect of the same land from Khushal Khan. They later instituted a suit claiming that they were mortgagees entitled to possession of the land and that the petitioner had no such interest by purchase from Ghulam Rasool and Alam. The background of this claim was that the predecessor‑in‑interest of the parties, that is, Ghulam Rasool and Alam as plaintiffs and Khushal Khan as defendant, had litigated in respect of the same property and with regard to the same right in Civil Suit No. 516 decided on 23‑11‑1973. In that suit Ghulam Rasool and Alam claimed to be mortgagees of this land, to be correctly so recorded in the revenue record and claimed that Khushal had no interest as mortgagee of this land on account of an exchange with them. This suit had been dismissed. It was thereafter the turn of the purchasers froth Khushal Khan to institute a suit asserting their mortgagee interest in the land and demanding ouster of the petitioner from the revenue record and the property. The trial Court dismissed the suit holding that the previous suit had a different content and import and the property purchased by the plaintiff‑respondents was not identified to be the suit‑property. The first appellate Court reversed this "Wing on the ground that the petitioner claimed no other interest except one under the purchase from Ghulam Rasool and Alam and the purchase was of the same interest which Ghuiam Rasool and Alam had failed to get recognized from the Court. In the first place, therefore, it was held that the petitioner could not have purchased a right which was not recognized by the Court earlier. It was also held that the identity of the property purchased by the plaintiff‑respondents and the interest of Khushal Khan therein was fully established. Hence the suit was decreed. In the civil revision the High Court affirmed these two findings and maintained the first appellate Court's judgment.

The effort of the learned counsel for the petitioner has been to demonstrate that the previous judgment inter‑partes was of no assistance to the plaintiff‑respondents and the identity of the property purchased by them was not established.

We have examined the record. The judgment which the petitioner wants to avoid has not been placed on record. There was in the earlier suit a specific issue "whether the suit land is mortgaged to the plaintiffs" and it was held that it was not. It is from the plaintiffs of that suit that the petitioner claimed to have purchased mortgagee rights. It will follow that they did not purchase any such right nor any such right existed as could be transferred by their predecessor‑in‑interest. As regards the identity of the property, the boundaries of the same had been provided and identifica tion of it was possible and the two Courts have identified it.

We do not find any merit in this petition and leave to appeal is refused.

M. Z. M. Petition dismissed.

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