1993 PLP 462 (SCMR)

WALI MUHAMMAD KHAN, J:

‑‑Siraj Din, predecessor‑in‑interest of the plaintiffs/respondents 1 to 5 herein, was the owner of the suit house bearing No.S.E.‑IV‑5‑S‑19, Sadar Street, Garhi Shahu, Lahore consisting of two rooms, one baithak, kitchen, verandah arid courtyard. He mortgaged the same vide registered mortgage deed executed on 23‑3‑1969 and registered on 23‑3‑1969 (copy Exh.P.l) in favour of Mirza Muhammad Sharif defendant No.1, appellant No.1 herein, in lieu of Rs.5,500 out of which Rs.2,000 was received by him before the Sub‑Registrar while the remaining sum of Rs.3,500 was acknowledged to have been received prior to the execution of the mortgage deed. He subsequently sold the same vide registered sale‑deed dated 18‑11‑196,9, registered on 20‑11‑1909 in favour of Muhammad Idrees and Muhammad Siddique sons of Muhammad Sharif defendants 2 and 3, appellants 2 and 3 herein, for a total consideration of Rs.10,000 in which the mortgage amount was adjusted and the balance of Rs.4,500 was received before the Sub‑Registrar (copy Exh.D.l). Simultaneously with the execution of the sale‑deed the vendor Siraj Din executed a rent note in favour of the vendees/appellants 2 and 3 whereby he agreed to continue in possession of the suit house on payment of Rs.80 per month as rent. He died on 28‑10‑1970 which resulted in the estrangement of relations between them and the default in payment of agreed rent. Appellants 2 and 3 filed an eviction petition bearing No.35/2 of 1978 against the heirs of Siraj Din on the ground of default. On the denial of the relationship of landlord and tenant a preliminary issue to this effect was framed by the learned Rent Controller and the parties were put to trial on this limited question. As a counterblast the respondents filed a suit for declaration to the effect that they are owners of the suit property, that the alleged mortgage deed, sale‑deed and the rent deed are forged, fictitious, fraudulent and without consideration, with a prayer for perpetual injunction against the appellants to restrain them from interference in their possession. This suit was contested by the appellants and they, in their written statements, controverted all the allegations of the respondents in toto. The learned trial Court, keeping in view the pleadings of the parties, framed the following issues:‑‑ (1) Whether the impugned sale‑deed dated 20‑11‑1969, mortgage deed dated 26‑3‑1969 and rent note dated 18‑11‑1969 are void, without consideration and nullity in the eyes of law? OPP. (2) Whether the suit is not maintainable in its present form? OPD (3) Whether the suit is properly valued for the purposes of court‑fee and jurisdiction? OPP (4) Whether the suit is bad for misjoinder of causes of action and misjoinder of parties? OPD (5) Whether the suit is vexatious and frivolous? OPD Evidence led pro and contra on the above issues was recorded and the learned trial Judge on the appraisal of evidence so produced, vide his judgment and decree dated 31‑1‑1981 dismissed the suit of the plaintiffs. Not content with the same, the respondents preferred appeal before the learned Additional District Judge, who with the consent of the learned counsel for the parties, directed the trial Court to record its findings on the issues left undecided vide his order dated 15‑9‑1981 under Order 41, rule 25, C.P.C. and to remit the same back to the appellate Court. The same was complied with by the trial Court vide its findings dated 12‑10‑1981. The learned Additional District Judge after hearing the arguments of the learned counsel for the parties finally came to the conclusion, vide order, dated 10‑9‑1983, that the impugned documents had not been proved according to law, that the passing of consideration had not been established and that the trial Court had not appreciated the evidence in its true perspecitve and accordingly, on the acceptance of appeal, set aside the judgment and decree of the trial Court. It is worthwhile to mention here that the eviction petition was also decided by the same trial Court exercising the powers of Rent Controller and finding relationship of landlord and tenant having been proved the` petition was allowed and the respondents were directed to hand over vacant possession of the disputed premises to the appellants/landlords. An appeal was filed against it also before the same learned Additional District Judge which was also accepted and the eviction order set aside. This time the appellants filed Regular Second Appeal No.308/83 against the judgment of the appellate Court dated 10‑9‑1983 in the civil suit and challenged the judgment of the appellate Court in the rent matter through Writ Petition No.5207 of 1983. Both were heard by a learned Single Judge of the Lahore High Court who vide separate judgments dated 7‑3‑1990 partly accepted the Regular Second Appeal and while maintaining the judgments of the lower two forums qua the sale‑deed and rent deed, dismissed the suit of the plaintiffs/respondents regarding the mortgage deed. The writ petition was resultantly dismissed. Two Petitions for leave to appeal, bearing Nos.358/90 and 359/90 were filed against the aforementioned judgments of the High Court in which leave was granted and hence the instant two Civil Appeals bearing Nos.950 of 1990 and 951 of 1990, respectively. Since both the appeals involve common questions of law and fact they are being disposed of through this consolidated judgment. The leave granting order is as follows:‑‑‑ "In dismissing the appeal of the petitioners with regard to the sale -deed and the rent note, the learned Single Judge was mainly influenced by the fact that both these documents were in possession of the petitioners, yet they had not cared to produce them in the Court. He took the view that in the absence of original documents, secondary evidence with regard to their contents was inadmissible under Article 77 of the Qanun‑e‑Shahadat. Learned counsel for the petitioners points out that the original sale‑deed was in fact produced before the Court which after examining the same had allowed the petitioners to place a copy thereof on the record. In the circumstances it could not be said that the original sale‑deed was not produced in the Court by the petitioners. The High Court was, therefore, not justified in the decreeing the suit of the respondents with regard to the sale‑deed at least. The contentions raised in support of these petitions need examination. Leave to appeal is granted:" We have heard Mr. Asif Saeed Khosa, Advocate, for the appellants, Mr. Gangvi, Advocate, for the respondents and have perused the record of the case. The learned counsel for the appellants vehmently argued that the mortgage deed, sale‑deed and the rent note had been proved according to law and that the finding of the lower forums whereby the evidence with regard to the execution of sale‑deed was brushed aside, was erroneous. According to him, the appellant‑1 had tendered the original sale‑deed before the Court at the time of his evidence as D.W.4 and the Court returned the same to him after its perusal and exhibited the certified copy thereof without any objection by the respondents. He thus explained that there was sufficient compliance with the procedural law contained in Order 13 of the Civil Procedure Code regarding production of documentary evidence and that the learned lower forums legally erred in holding that primary evidence had been withheld. The learned counsel for the respondents, on the other hand, controverted the submissions of the learned counsel for the appellants and additionally argued that the payment of the consideration had not been established which was a sine qua non for the completion of the sale transaction in dispute. We have given our anxious consideration to the arguments advanced on either side. The impugned transactions of mortgage and sale are evidenced through registered deeds. The heirs of Siraj Din denied the execution of both of them and dubbed them as forged, fictitious, fraudulent and without consideration. The learned trial Court while framing issues in the case, failed to frame an issue regarding the valid execution of the deeds in question placing burden on the defendants/transferees but 'couched Issue No.1 in a manner which presupposes the existence of the deeds and required the plaintiffs/respondents to prove the allegation of fraud etc. alleged by them and the burden specifically placed upon them. They neither objected to the framing of this issue in the existing shape nor applied to the Court for framing an issue regarding due execution of the deeds and placing the burden of proof upon the defendants/vendees. Needless to mention that the parties are expected to lead evidence on the issues framed in the case keeping in view the burden of proof placed on particular party. The wrong framing of the issues probably misled the parties in the discharge of burden placed upon them. The plaintiffs/respondents produced Ghulam Badar Bukhari P.W.1, scribe of the mortgage deed (copy Exh.P.1) who stated that the impugned mortgage deed was scribed by him at the instance of Chaudhry Siraj Din, predecessor‑in -interest of the respondents in favour of Mirza Muhammad Sharif defendant/appellant No.1, however, no mortgage money was paid in his presence and rightly so because the payment of part of mortgage money had been paid prior to the execution of mortgage deed and remaining was paid before the Sub‑Registrar on the third day of the execution thereof. This witness was never confronted with the mortgage deed scribed by him but since he was a ‑witness for the plaintiffs/respondents they were bound by his statement and the High Court rightly came to the conclusion that the mortgage had been established. The statement of Ali Muhammad P.W.2, the attesting witness of the mortgage deed, is to the same effect. These two witnesses instead of supporting the plaintiffs' case contradicted them from which it can be safely concluded that the plaintiffs/respondents had not come to Court with clean hands and part of their claim having been negatived by their own witnesses, their denial about the execution of the sale‑deed cannot be accepted as gospel truth particularly when their predecessor Siraj Din who executed the documents before the independent qualified deed writers and attesting witnesses and received consideration before the Sub‑Registrar, during his life time, never challenged the .documents: in question or denied receipt of consideration. On the other hand, the defendants/appellants produced Muhammad Bashir D.W.1, the scribe of the sale‑deed, who deposed that he had scribed the sale‑deed at the instance of Siraj Din who put his signature thereon. The witness produced his register showing the entry with regard to the sale‑deed at S.No.552, the names of Haji Muhammad Latif and Mirza Muhammad Sharif as witnesses of the deed and the signature of Siraj Din against the relevant entry. He also testified to the correctness of the rent note and its entry at S.No.553 of the same date. Strangely enough, this witness was not cross‑examined and the presumption can safely be drawn that his version was accepted by the opposite party viz., the plaintiffs/respondents. Muhammad Latif D.W.2 who was a B.D. Member and apparently disinterested witness, deposed that Siraj Din had duly executed the mortgage deed, sale‑deed and the rent deed in question which bore his signatures as attesting witness. The defendant appeared his own witness and produced the original sale‑deed which, as stated earlier, was returned to him by the Court after perusal and its copy exhibited as Exh.D.2.. Muhammad Sharif had appeared before the Sub- Registrar on behalf of his sons appellants 2 and 3 at the time of registration of the sale‑deed and the payment of sale consideration. He was not cross examined either about the due execution of the sale‑deed or the payment of sale consideration before the Sub‑Registrar. In view of the evidence detailed above, we are fully convinced that the sale‑deed and the rent note were duly executed by Siraj Din and the consideration therefor was duly paid to him. Nevertheless, the learned Single Judge of the High Court has taken pains in discussing the legal aspect of the case and dilating upon the various provisions of the Qanun‑e‑Shahadat and the Civil Procedure Code with regard to production and proof of documents. There is no cavil with the legal requirement of law as discussed by the learned Judge of the High Court and we would have readily concurred with him if the original sale‑deed had not been tendered in evidence by appellant No.1 while stating the case of the appellants as D.WA He did comply with the mandatory provision of the Civil Procedure Code by producing the primary evidence viz., the registered sale -deed and if the trial Court rest contended with exhibiting the certified copy thereof and returned the original presumably for safe custody, without any objection by the opposite side, we do not find any fault on the part of the defendants/appellants in not insisting upon the Court for exhibiting the original. It is by now well‑settled that registered document has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness. There is no evidence worth the name on the file to show that the sale‑deed was forged and fictitious. On the contrary the attesting witnesses and the scribe have testified to its genuineness. The mere fact that their statements do not mention the perusal of the original sale‑deed at the time of their examination cannot per se lead to the conclusion that their veracity is doubtful. For the foregoing reasons, we accept both the Appeals bearing Nos.950/90 and 951/90, set aside the impugned judgment of the High Court and dismiss the suit of the plaintiffs/respondents in Appeal No.950 in toto. We also set aside the impugned judgment of the High Court in Appeal No.951/90 and by accepting the writ petition filed by the appellants, set aside the judgment of the Additional District Judge and restore that of the Rent Controller dated 31‑1‑1981. However, the learned counsel for the appellants has voluntarily allowed one year's time to the respondents for vacating the suit house. Accordingly, the respondents are directed to vacate the suit' house within one year and continue payment of Rs.80 per month. They shall vacate the house voluntarily within the stipulated period. There is no order as to costs. AA./M‑1706/S Appeals accepted.