P L D 2021 Peshawar 159 (PLP)

SAHIBZADA ASADULLAH, J.

The petitioners through this Civil Revision Petition under section 115 Code of Civil Procedure, 1908 have challenged the judgment and decree dated 03.9.2020 passed by the learned Additional District Judge-I, Tank who affirmed the judgment/ order dated 03.12.2019 passed by the learned Senior Civil Judge(J), Tank, whereby suit filed by the respondent was decreed.

2. Precisely the facts necessary for adjudication of instant petition are that respondent was owner in possession of the property measuring 199-kanal and 1-1/2 marla comprising survey No. 210 situated at Mouza Tajori. Parties have been embroiled in chain of civil litigation over inheritance of their predecessor since 1982. The apex Court has rendered the final verdict on 4.6.2012. A review petition thereagainst, however, is sub judice. Further, Execution petition titled Muhammad Jan v. Akbar Khan etc. is pending disposal before the court of Senior Civil Judge, Tank and during the execution proceedings revenue office was directed to attest mutation in favour of entitled LRs. The petitioner No. 2 posed the respondents that execution of decree is not possible without attesting inheritance mutation of their mother Mst. Shah Bibi. In this backdrop, respondent No. 1 was called to Malik Iran Gul's Baithak, where, Patwari Halqa Shams ud Din obtained his thumb impression and signature on certain documents. Like exercise was undertaken from deceased Haider Khan, then alive, in the property. Subsequently, they came to know that impugned mutation No. 906 dated 11.4.2013 has been sanctioned in favour of petitioner No. 1 which being false, fraudulent, collusive and without consideration is inoperative upon the rights of respondent, hence, was questioned in a declaratory suit. The suit was contested by respondents/defendants by filing written statement. Learned trial court after having heard the parties, decreed the suit vide judgment dated 03.12.2019. On appeal preferred by the petitioner, learned appeal Court dismissed the appeal vide judgment and decree dated 30.9.2020, hence this Revision Petition.

3. Orders of the trial court, as well as, the appellate court were examined in light of arguments at preliminary stage.

4. Out of the general canvass of the claims and dispute for adjudication between the parties, the issue calls for consideration is that whether the mutation No. 906 dated 11.4.2013 is justified under the law? The petitioners claimed that they had singed and thumb impressed the mutation No. 906 attested on 11.4.2013 in presence of witnesses as well as revenue staff, therefore, mutation in question has rightly been attested in their favour. In the trial of suit, the stance of the petitioners was, however, totally negated by the respondent/defendant claiming that no sale was effected between the parties regarding suit property in view of mutation No. 906 supra and the petitioners have no concern with the ownership and possession of the suit property.

5. With a view to determine the matter in controversy, the submissions made have been considered in the light of the pleadings and other documents filed along with the revision petition. It is discernable from the record that in evidence session, the petitioners/plaintiffs produced Muhammad Irfan, NOK as PW-1 who produced the entire relevant revenue record pertaining the impugned Mutation No. 906 dated 11.4.2013. He also produced the Fard Patwar of Mutation No. 906 attested 11.4.2013 and mutation No. 906 attested on 11.4.2013. In addition to above, perusal of the Roznamcha Mouza Tajori for the year 2013 (Ex.PW-2/8 pertaining to the period from 8th April 2013 to 10th April 2013 indicate no reference of sale. Admittedly, there could be no two opinions that, when a mutation is questioned, that too, on account of for being without consideration, the beneficiary thereof has to prove a transaction appearing therein and its attestation according to law.

6. It is an established principle of civil dispensation of justice that generally, the initial burden to prove a claim, is on the party seeking the aid of the Court, but this 'onus of proof' shifts and oscillates. Once the parties have adduced their respective evidence in support of their claims, then it is 'preponderance of evidence', which rules the scale of relief. It is only when the Court deciding the lis is unable to decide the matter on the evidence produced by the parties, that the significance of onus of proof would be revived and govern the decision. To prove the alleged sale transaction, the burden of proof was upon the petitioners. Before delving deeper into the merits of the case, it is meaningful to highlight that payment of sale price is the essential ingredient of sale as defined in section 54 of the Transfer of Property Act, 1882.

7. The term 'sale' is defined under section 54 of the Transfer of Property Act 1882 as under:- "Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised." Bare reading of the above definition manifests that a valid sale transaction is constituted when the following essential elements are provided by the vendee:- (i) The valid sale agreement. (ii) The parties to the sale transaction. (iii) The sale consideration fixed and paid; and (iv) The subject matter of the sale transaction. In case any one of aforementioned ingredients is found missing the transaction would not fall within the definition of sale. The expression 'in exchange for a price' used in Section 54 of the Transfer of Property Act 1882 is very significant. It manifests that price is an essential ingredient in a sale and no transaction of sale can be said to be completed in the eye of law unless price was fixed or paid or part paid and part promised. In addition to above, in evidence, it is divulged that impugned mutation Ex.PWs-1/2 has been entered, as it evident from the daily diary Ex.PWs-2/5, at the instance of Bashir Khan who has not been produced. It underwent the process of scrutiny at the hands of Muhammad Amin Khan DW-3 the then Girdawar Circle. Indeed, neither sellers nor marginal witnesses signed/thumb impressed in his presence. More importantly, Mulazim Hussain, Naib Tehsildar who accorded sanction to the mutation also categorically admitted that the sellers have not signed and thumb impressed in his presence. In the same breath, the marginal witnesses (PW-5 and PW-6) to the impugned mutation were examined before the Court, albeit, they refused to record any statement viz authenticity or otherwise of the mutation. It is worth mentioning that attorney for the petitioners Jam Muhammad (DW-7) has admitted that the sale was struck by all his brothers and sisters who entered the mutation but this fact did not find credence from the daily diary maintained by the concerned Patwari (Ex.PW-8/2).

8. In the present case, the preponderance of evidence, is surely in favour of the respondent, as he was able to produce strong and sufficient evidence in support of his claim, while the petitioners were unable to produce any solid and credible evidence to rebut their claims, and more so the entire evidence produced by the petitioners was not worthy of credence to diminish the evidentiary value of what was produced by the respondents. Thus, it cannot be said that the evidence produced by the parties was evenly balanced for the principle of onus of proof to be made applicable, therefore, the petitioners have desperately failed to prove the sale transaction appearing/embodied in the impugned mutation Ex.PW-1/2 by producing the witnesses in whose presence the sale price was paid.

9. Article 103 of Qanun-e-Shahadat Order, 1984 is corresponding provision of section 92 of the repealed Evidence Act, 1872. There is no cavil to the principle laid down in the provision of Article 103 of the Qanun-e-Shahadat Order 1984, however, the fact remains that this is subject to the provisos. Proviso (1) supra clearly manifests that any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration or mistake in fact or law. In effect to the above quoted proviso, therefore, where a case is one when the validity of sale deed is itself in question either because of misrepresentation, fraud or non-payment of consideration, the evidence could be led not to alter the terms of document but to prove its invalidity. Reliance be made upon Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 Supreme Court 519).

10. It is well settled that a false acknowledgement of receipt of price by a recital in a deed does not stop the seller from giving evidence as against the buyer that he has not received payment. It is settled law, that notwithstanding an admission in a sale deed that the consideration has been received, it is open to the vendor to prove that no consideration has been actually paid, if it was not so, facilities would be afforded for the grossest frauds.' But such a recital may give rise to a presumption of payment. It is an established principle of law that where a sale was effected through registered sale deed in which amount of consideration was mentioned, same could not be construed to be a sale without consideration though it could altogether be a different matter whether payment of that consideration was made or not. However the party who has acknowledged the receipt of consideration in the sale deed can show that he did not receive it. In the case of Parshotam Das v. Yar Ali (AIR 1928 Oudh 439) it was laid down that mere registration of sale deed does not operate to pass the title to the vendee or to pass any interest in the property purported to have been sold to him where there is no proof of the transfer of possession of the property nor of the payment of consideration. It is an established principle of law that in civil cases issues are resolved on preponderance of evidence. Both the Courts below have rightly appreciated the evidence in its true perspective.

11. There are concurrent findings of facts recorded by both the learned Courts below which are backed by reasoning and based on proper appraisal of evidence thus the same cannot be interfered with in a mechanical manner. The petitioners have to show some gross mis-reading of evidence or material irregularity in the judgments under challenge for invoking the revisional jurisdiction of this Court in terms of Section 115 of The Code of Civil Procedure (V of 1908). The petitioners have failed to point out any such circumstance. The concurrent findings of the Courts below cannot be set at naught in revisional jurisdiction only on the basis that from the reappraisal of evidence available on the record some other view is possible. The revisional jurisdiction is circumscribed to the eventualities mentioned in Section 115 of the Code of Civil Procedure (V of 1908). Reference in this respect can be made to the cases of "Noor Muhammad and others v. Mst. Azmat-e-Bibi" (2012 SCMR 1373), "Mst. Zaitoon Begum v. Nazar Hussain and another" (2014 SCMR 1469) and "Administrator, Thal Development through EACO Bhakhar and others v. Ali Muhammad" (2012 SCMR 730).

12. No failure or irregularity in exercise of jurisdiction is found, while passing the impugned judgments by Courts below interference, therefore, is declined. Consequently the instant Revision Petition, sans merits is dismissed in limine. SA/100/P Petition dismissed.