2002 PLP 1002 (MLD)

Respondent No.1 brought a suit for declaration, permanent injunction and cancellation of "Iqrar Nama" dated 5-6-1988 regarding sale of Plot No.42-Y-2, Madina Town, Faisalabad alleging the same to A be forged and fictitious. In the suit, she pleaded that said plot was transferred in her name after the death of her husband Ghulam Muhammad and neither she nor her husband had carried out any constructions as F.D.A. had not transferred possession of the suit plot to them. She further pleaded that on the advice of respondent No.3 i.e. Muhammad Siddique she made the registered general power of attorney in favour of Muhammad Tufail on the same date as the agreement to sell i.e. 5-6-1998 which she claimed to have been cancelled on 29-8-1988. In para. 8 of the plaint she also admitted that on the instructions of respondent No.3 she had thumb-marked number of blank papers and that petitioner and respondents Nos.2 and 3 conspired against her to fabricate the abovesaid "Iqrarnama" 5-6-1988 and without her knowledge and information, they also deposited the balance sale consideration of Rs.11,424 in F.D.A. in the name of her and husband for transfer of proprietary rights. Upon contesting written statement issues were framed and trial was held. The learned Civil Judge dismissed respondent No. 1's suit with costs vide judgment and decree, dated 26-3-1990. On appeal, learned Additional District Judge Faisalabad decreed the, suit of respondent No.1., hence the present revision petition against the said judgment and decree.

2. On 22-9-1994, F.D.A. was also impleaded as respondent in this revision petition. Learned counsel for the petitioner has argued that respondent No. 1 on threat of cancellation of 4 plots illegally obtained by her transferred-the suit property to the petitioner through "Iqrarnama" dated 5-6-1988 (Exh.P.1/1) and also executed a General Power of Attorney in favour of petitioner's brother Muhammad Tufail throug a General Power of Attorney dated 5-6-1988 registered on 6-6-1988. And further that respondent No. 1 admitted deposit of dues by the petitioner in F.D.A. It was further contended that learned Additional District Judge failed to consider the evidence of respondent No.1 herself appearing as P.W.1 wherein she failed to discharge the onus of issue relating to the falsehood of said "Iqrarnama" which contrarily was duly proved through evidence of the marginal witness D.W.1 and that of the petitioner himself appearing as D.W.2. It was further contended by the learned counsel for the petitioner that the learned Additional District Judge misinterpreted the law by holding that production of one attesting witness was insufficient to prove an 'agreement to sell/Iqrarnama and relied upon the case of "Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh" (1998 SCMR 760), "Manzoor Hussain khan v. Mst. Asia Begum and 21 others" (1990 CLC 1014) to contend that production of attesting witnesses was not necessary. .

3. Contrarily, learned counsel for the respondents supported the impugned judgment and decree by stating that D.W.1 was an interested witness and cannot be relied upon at all.

4. Learned counsel appearing for F.D.A. alongwith representatives of the authority who produced the record of F.D.A. relating to the said plot, without any reservation stated that on death of Ghulam Muhammad, the suit plot was transferred, to his heir who in turns got it transferred in the name of respondent No.1, why, also fraudulently obtained double allotment of Plot No.562-B as well. Necessary proceedings against her shall be taken in due course. It was also stated by the learned counsel for F.D.A., after survey of the plot record that sale/transfer by respondent No.1 in favour of the petitioner was duly registered in the record of F.D.A., and that petitioner had deposited all the dues and possession thereof has been transferred on the basis of affidavits and according to the record petitioner was living since long in the house constructed upon the said plot.

5. Having considered the record and arguments of rued counsel for the parties, I re-examined the pleadings and evidence of the case in view .of the divergent judgments rendered by the Courts below. In the plaint, the petitioner has categorically admitted that she had thumb marked blank papers on the advice of respondent No.3 i.e. Muhammad Siddique and had also executed ayower of attorney dated 5-6-1988 in favour of Muhammad Tufail i.e, the brother of the petitioner which was duly registered on 6-6-1988. She also admitted that F.D.A. dues were deposited by the petitioner alongwith respondents Nos.2 and 3 and that possessions thereof was not hers. Appearing as P.W.1, she again made the same admission but failed to give a plausible reason of her thumb marking blank papers and executing a General Power of Attorney in flavour of petitioner's brother only on the asking of respondent No.3 whom she had known for a very short while. Her story that it was to get the work done from F.D.A, does not inspire any confidence in the perspective of the cumulative reading of her entire statement as P.W.I. Her statement is full of contradiction, incredible claims and inconsistencies rendering the same untrustworthy. Initially she denied having her thumb-mark in document but thereafter stated that she had fixed her thumb upon blank paper but, stated that she cannot recognize her own thumb-impression upon any of the documents. She also stated that she does not know respondents Nos.2 and 3 while at the same time stating that she had thumb-marked blank papers and general power of attorney of. Muhammad Tufail on the instructions of respondent No.3. She also stated she had never visited the said plot and was unaware as to who was in possession and who constructed the house and she was not sure about its area and price. She also denied her appearing in the Courts ever before but later admitted that number of her cases were pending; in the Courts. Interestingly she also answered the Court question by stating that she had not thumb-marked the plaint and she was illiterate and that the General Power of Attorney- was in the name of Muhammad Siddique respondent No.3. It is significant to mention that Exh.P.1/1 was produced in the Court by the petitioner in original on the, application of respondent No. 1 about she failed to seek reference of the same for comparison of thumb-impressions by an expert. The onus of proof of important Issues Nos.5 and 6 was OPP. Respondent No. 1/plaintiff failed to discharge the onus of proof.

6. Contrarily examination of evidence of petitioner as D.W.2 and that of Muhammad Siddique appearing as D.W.1 being the attesting witness of Exh.P.1/1 is consistent, coherent, reasonable and confidence inspiring D.W.1, categorically stated that he was the attesting witness of Exh. P.1./1 which was duly thumb-marked by respondent No. I who also received the consideration amount and that the possession of the suit property was duly handed over to the petitioner on payment of the sale consideration and that the petitioner deposited the F.D.A. dues as well. In the case of "Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh" (1998 SCMR 760), the Hon'ble Supreme Court of Pakistan was pleased to hold that:-- "even one marginal witness was enough to prove execution of agreement to sell if his statement was confidence-inspiring and production of two marginal witnesses thereof was not necessary." This Court in the case of "Manzoor Hussain Khan v. Mst. Asia Begum and 21 others (1990 CLC 1014) held that under Article 79 of the Qanun-e-Shahadat Order of 1984, agreement to sell was not required to be attested by witnesses and that provisions of Article 79 of Qanun-e- Shahadat Order cannot be applied to the agreement to sell. In view thereof, production of two marginal witnesses or the scribe in the present case was not necessary.

7. The learned Additional District Judge failed to consider the effect of statement of P. W.1/respondent No.1 and also misread the evidence of D.W.1 and D.W.2. Further more the learned Additional District Judge also misinterpreted the law by rejecting Exh.P.1/1 for non-production of two attesting witnesses of Exh.P.1/1 and holding that production of only one attesting witness i.e. D.W.1 was insufficient to prove the said "Iqrarnama". In the present case under Article 78 of Qanun-e-Shahadat Order, petitioner adequately proved execution of EXh.P.1/1 by respondent No. 1 and transfer of the suit property to him by her upon receipt of sale consideration. The record of F.D.A. also proves the transaction, transfer, handing over of possession by respondent No.1 to the petitioner.

8. In view thereof, this petition is accepted, judgment and decree dated 5-5-19512 passed by the learned Additional District Judge, Faisalabad are set aside and judgment and decree dated 26-3-1990 of the learned Civil Judge, Faisalabad are upheld. As a result the suit of respondent No. 1 shall stand dismissed. There shall, however, be no order as to costs. H.B.T./M-1006/L Revision petition accepted.