2007 PLP 2808 (YLR)

MUHAMMAD SAIR ALI, J--Petitioner's suit for declaration and perpetual injunction allegedly filed on the basis of a registered sale-deed dated 21-8-1983 to seek. establishment of his title was dismissed by the learned Civil Judge Jaranwala through judgment and decree dated 28-2-1993. The petitioner's appeal there against was also dismissed by the learned Additional District Judge Faisalabad through judgment and decree dated 3-6-1996. Hence the present civil revision.

2. As per the learned counsel for the petitioner, the petitioner's suit was admittedly based upon a registered sale-deed dated 21-8-1983 showing purchase of the suit-land from Noora (predecessor-in?-interest of respondents Nos.l to 6) and Akbar (respondent No.7) at a price of Rs.11,

000. But upon the death of Noora inheritance mutation in favour of respondents Nos.l to 6 was entered on 27-4-1986 in respect of the suit-land. Hence the petitioner had to file his suit. Contesting written statement thereto was filed by the respondents. The learned trial Court framed seven issues. Evidence was recorded. The petitioner's suit as well as appeal were dismissed by the learned courts below where against the learned counsel for the petitioner contends that ingredients of sale were completed and the learned courts below committed material irregularity by ignoring that the suit comprised of two parts of two Kanals each belonging to different owners out of whom respondent No.7 Akbar was alive but did not appear nor was he produced by respondents Nos.l to 6 to disprove the sale. Further contends that the document (Exh.P.1) was an admitted document and the price mentioned therein was also admitted by the respondents but their actual dispute was that the suit-land was mortgaged at mortgage price of Rs.11,000 and was not sold.

3. The learned counsel for the petitioner was heard and record examined. ?

4. Despite service, none of the respondents appeared, They were therefore proceeded against ex parte through order dated 22-12-2006. ?

5. The petitioner's suit was structured and purported right was developed on the basis of registered saie-deed dated? 21-8-1983 (Exh.P-1) incorporating purchase of suit-land from Noora and Akbar at a price of Rs.11,

000. Issue No.1 thereto was framed by the learned trial Court placing its onus upon the petitioner plaintiff. The issue reads as under: Whether registered Deed No.1442 dated 21-8-1983 was validly executed in favour of the plaintiff? O.P.P."

6. As the respondents claimed the suit-land to have been mortgaged and not sold by Noora and Akbar wherefor Issue. No.6 on the ' basis of pleadings of the respondents was framed by the learned trial court reading that as to whether suit-land was mortgaged to the plaintiff by the defendants and he fraudulently executed the registered sale-deed in his favour instead of the mortgage deed. Onus thereto was on the defendants. The parties led their evidence.. The learned courts below concurrently concluded this question of fact against the petitioner. The learned courts below analyzed the evidence and held that the petitioner had failed to prove the sale of the suit-land incorporated in registered Sale-deed No.1442 dated 21-8-1983 in his favour and also failed to prove the payment of the sale price of Rs.11,

000. Contrarily the learned courts below held that the respondents had proved their version that the suit-land was mortgaged for the mortgage price of Rs.11,000 which was fraudulently claimed by the petitioner plaintiff to have been sold by the respondent defendants. The reasoning concurrently weighing with the learned courts below was that the important witnesses of the sale-deed were not shown or confronted with the sale-deed (Exh.P-1) to prove its writing by the petition writer Iqbal Hussain (P.W.1) and to have been attested through signatures/thumb? impressions by the marginal witnesses (P.W-3 and P.W-4).

7. The contention of the learned counsel for the petitioner there against is that mere production of the sale-deed as Exh.P-1 was adequate and the petition writer did state that he had written the sale-deed in favour of the petitioner. And that the margin ii witnesses (P.W-3 and P.W-4) also stated that they signed as marginal witnesses on the sale-deed. It is an admitted fact that Exh.P-1 (the purported sale-deed) was not shown to the petition writer Iqbal Hussain (P.W-1) to prove that this document was written by him incorporating the purported sale-deed. The learned courts below were thus justified in holding that Iqbal Hussain's evidence being in vacuum was of no help to the petitioner. Similarly the purported witnesses (P.W-3 and P.W-4) were also not confronted with their signatures/thumb impressions on the alleged sale-deed to prove that it was on this document that they had attested their signatures where for the value of their evidence was also lost. The emphasis of the learned counsel for the petitioner was that the sale-deed was made by two persons; Noora and Akbar. And that Noora died and his legal heirs (respondents Nos. 1 to 6) were impleaded as defendants while the second owner Akbar (respondent No.7) was still alive but had not been produced by the defendants to deny the sale and sale-deed. As the onus to prove the sale and the sale-deed was on the petitioner plaintiff, it was his duly to produce one of the purported vendors i.e. Akbar (respondent No.7) to admit or deny his thumb impressions/signatures upon the sale-deed and receipt of consideration thereof. Bare reacting of issue No.1 also shows that it was the duty of the petitioner plaintiff to prove execution,. registration and making of the sale-deed in his favour by Noora (predecessor-in-interest of respondents Nos.1 to 6) and Akbar (respondent No.7) and he was also bound to prove the receipt 2 of sale price. The main litigated question was whether the sale was made by the owners in favour of the petitioner or not. The claim of the respondents was that if was mortgage against mortgage money of Rs.11,000 of the suit-land and not the sale. Issue No.6 was thus framed by the learned trial court. This issue was offshoot of Issue No.1; the proof or disproof of which hinged upon the entire adjudication of the matter. It has not been shown that the learned courts below misread or overlooked the evidence. It has also not been shown that the learned courts below committed material irregularity, excess of authority or mis-exercise of authority. The petitioner as per concurrent findings of fact based upon evidence was unable to prove Exh.P-1 in his favour. This Court therefore does not find any legal infirmity in the impugned judgments and decrees to revisionally interfere therein. As such, this civil revision is dismissed.

9. As the respondents were proceeded against ex-parte, there is no justification to impose the costs upon the petitioner. F.B./M-160/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.