1983 PLP 657 (CLC)

Abdullah and 3 others v. Abdul Karim and others P L D 1968 S C 140 ; Malik Din and another v. Muhammad Aslam P L D 1969 S C 136 and Muhammad Yousaf Khattak v. S. M. Ayum and others P L D 1972 Pesh. 175 ref. Alhaj Sardar Bahadur Khan for Petitioner. S. Abdus Salam Sarwar for Respondent. Date of hearing : 18th December, 1982. Lai Hussain alias Lai (petitioner) instituted the present suit for declara tion that the registered sale‑deed dated 13‑1‑1972, being a false and fictitious document, was ineffective against his rights. He denied having received any sale consideration and also denied the execution of the sale‑deed in favour of Bagga (respondent). Similarly the consequent mutation No. 813 attested on 25‑3‑1972, based on the aforesaid deed, was also challenged.

2. The plaintiff‑petitioner's case is that he had never sold his 2/5 share in the suit property (as detailed in the plaint) in favour of the respondent. He also alleged that the document in question was based on fraud which does not bear his signature and that no sale consideration was ever paid to him by the respondent in this regard. He also denied his thumb‑impression on the sale‑deed in question. In the written statement the respondent alleged that 2/5 share of the suit land belonging to the plaintiff was purchased by him on the basis of the agreement of sale dated 18‑2‑1971 on payment of Rs. 3,000 as sale consideration. He alleged that the possession of the land was also delivered to him by the plaintiff.

3. At the trial the plaintiff appeared as his own witness and reiterated that he never executed any sale‑deed in favour of the respondent nor did he receive any sale consideration and the sale‑deed (P. W. 1/1) which had been compulsorily registered in favour of the respondent was not binding on his rights. He also stated that the marginal witness Muhammad Ramzan son of Lai was a near relative of the respondent. Similarly he alleged enmity with Kala Khan the other marginal witness whose nephew had been murdered for which the plaintiff‑petitioner was charged. He produced Muhammad Zaman his brother‑in‑law to support his aforesaid contention. Bagga (D. W.2) stated that the document (Exh. P. W. 1/1) was scribed by the petition‑writer at the instance of the plaintiff. He stated that Rs. 1,500 were paid by him to the plaintiff in the house of Kala Khan at village Tatrela in the presence of Kala Khan and Muhammad Ramzan for which he did not get any receipt. On the following day at the time of the execution of the aforesaid deed the balance of Rs. 1,500 was paid by him to the plaintiff in the presence of the petition writer and the marginal witnesses. He stated that the plaintiff promised that he would get the mutation attested in his favour but on his refusal he got the document compulsorily registered through the Sub‑Registrar. The respondent also produced Ziauddin petition‑writer (D. W. 1) who stated that in his presence the plaintiff and the marginal witnesses had thumb‑impressed the deed in question. In cross‑examination he stated that he did not personally know the plaintiff and the marginal witnesses. He further stated that no sale consideration was paid in his presence to the plaintiff. He did not produce the original register in which the deed was entered as allegedly it was stolen from him.

4. The learned trial Court while relying on the evidence produced by the respondent, dismissed the plaintiff petitioner's suit. His appeal before the District Judge, Hazara, met with the same fate which was also dismissed with costs. Hence this revision.

5. In the original sale‑deed (P. W. 1/1) it is mentioned that the plaintiff has sold the land in suit in favour of the respondent for Rs. 3,

000. The entire sale consideration is stated to have been received by him at his house prior to the execution of the sale‑deed. It is also mentioned that the plaintiff would have no objection to the attestation of mutation in favour of the respondent and that the respondent would be entitled to get the deed compulsorily registered if he so desired. The deed bears the thumb‑impression of Lai Hussain plaintiff and also the thumb‑impressions of Muhammad Ramzan and Kala Khan the marginal witnesses. It, however, may be noted that none of the marginal witnesses had appeared to testify to the execution of the sale‑deed in their presence or to prove the payment of the sale consi deration the plaintiff by the respondent. From the contents of the sale deed it appears that the entire sale consideration was received by the plaintiff at his house before the execution of the sale‑deed and nothing was paid to him in the presence 'of the scribe or the marginal witnesses. But Bagga respondent in his statement mentioned that Rs. 1,500, were paid to the plaintiff in the house of one Kala Khan in village Tatrela and the balance of Rs. 1,500 was paid in the presence of the scribe and the marginal witnesses i.e. Muhammad Ramzan and Kala Khan at the time of the execution of the sale‑deed. As already mentioned. Ziauddin the scribe of the deed had denied any payment having been made to the plaintiff in his presence. The aforesaid Kala Khan in whose house the amount of Rs. 1,500 was allegedly paid to the plaintiff has not been examined nor the other marginal witness Muhammad Ramzan has been produced to prove the payment of the balance of Rs. 1,500 at the time of the execution of the sale‑deed. In this view the evidence it can be safely inferred that the payment of the consideration to the plaintiff for the transaction in question has not been proved. The solitary statement of the respondent that he had paid the entire sale considera tion is not corroborated by the evidence of the only witness i.e. Ziauddin the petition‑writer, and it appears that the respondent purposely withheld the marginal witnesses i.e. Muhammad Ramzan and Kala Khan knowing fully well that they would not support his case as to the payment of the sat consideration to the plaintiff. In these circumstances the mere fact that the sale‑deed was compulsorily registered would be of no benefit to the respon dent.

6. The learned counsel for the respondent referred to the statement of Azad Khan Finger‑Impression Expert (O. W. I) and contended that the sale‑deed in question was found to bear the thumb‑impression of the plaintiff and, therefore, the execution of the document stands proved as against the plaintiff. But the fact remains that the payment of the sale considera tion to the plaintiff has not been proved. It is well‑established that the, opinion of an expert, which has no binding effect on the Court, is to beg considered as any other piece of evidence in the case. An expert is legally required to give sufficient reasons which form the basis of his opinion to, convince the Court that the opinion is well‑founded. In this case although the expert has deposed to the similarity of the two thumb‑impressions but he has ‑hardly been able to give good reasons in support ‑of his opinion. Admittedly he had not received any‑training in any School or College in this respect and his knowledge is based on the experience which he had gained in the course of his service. It can not be denied that the opinion of an expert in order to prevail with the court must be backed by reasons, failing which it would‑have no value whatever. The learned counsel also referred to the fact of the registration of the document in question under section 75 of the Registration Act, 1908 and contended that the document having been regis tered according to law would have a binding effect on the rights of the plaintiff petitioner. It is evident that on the refusal of the plaintiff‑petitioner to get the document registered, the respondent resorted to the provision of section 75 of the Registration Act and got the document registered in the absence. of the petitioner. Even if the evidence of the Finger‑Impression Expert coupled with the fact of the registration of the document is taken into consideration, the fact remains that no title in the property has passed for failure to prove the passing of the sale consideration. Mere registration of a sale‑deed would not operate to pass title to the vendee in the absence of the proof of the passing of the sale consideration and delivery of possession. It appears that the plaintiff is alleged to have sold his 2/5 share of `hissadari malkiat' out of the joint property in which the respondent is also a co-sharer to the extent of 215 share. In the Fard jamabandi of 1967‑68 (Exh. P. W. 1/i), the land in dispute is shown as `Shamilat‑e‑Deh' in which the plaintiff and Bagga (respondent) are shown as co‑sharers and the land is shown in the cultivation possession of the plaintiff. There is no evidence that the possession of the share of the plaintiff in the joint property was ever delivered to the respondent. Therefore, for the reason that neither the possession of the property is delivered nor the payment of the sale considera tion is proved, the mere registration of the sale‑deed would not operate to create title in favour of the vendee.

7. The learned 'counsel for the respondent relied on Abdullah and 3 others v. Abdul Karim and others (1), Malik Din and another v. Muhammad Aslam (2) and Muhammad Yousaf Khattak v. S. M. Ayum and others (3) to contend that any objection regarding the defect in the method of proof of a document cannot be raised at a subsequent stage once the document has been admitted into the evidence without any objection in the trial Court and that an objection as to the form of proof must be taken at the earliest possible opportunity. It is urged that in this case the sale‑deed in question stood duly exhibited on the file without any objection by the plaintiff petitioner and, therefore, the mode of proof of the document cannot be questioned at this stage. However, it is apparent that in the, case in hand a declaration is sought by the plaintiff‑petitioner that the sale‑deed in question is a false and fictitious document, the execution whereof and the receipt of the sale con sideration are denied. The very existence of the document in question is (1) PLD1968 SC140 (2) PLD1969SC136 (3) P L D 1972 Pesh. 175 challenged in the proceedings. Thus, it cannot be said that merely because the document was exhibited in the trial Court without any objection, the authenticity thereof stood proved and the plaintiff was precluded to challenge its validity.

8. The defendant‑respondent has miserably failed to lead evidence to prove the payment of the sale consideration to the plaintiff, nor is there any evidence to prove that the plaintiff has parted with the possession of the disputed area in favour of the respondent. In the circumstances of the case it is difficult to hold that the title in the property has passed in favour of the respondent.

9. For the aforesaid reasons it is obvious that the findings arrived at by the Courts below suffer from mis‑reading of the evidence as none of the marginal witnesses to the deed has been examined in the case and there was no evidence that the defendant‑respondent had paid the sale consideration to, the plaintiff‑petitioner. Therefore, by accepting the revision, the judgments and decrees of both the learned Courts below are set aside and decree prayed for is granted in favour of the plaintiff‑petitioner against the respondent with no order as to costs. M. A. K. Petition accepted.