2010 PLP 970 (CLC)

RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.

This is a revision petition arising against the order dated 21-3-2007 passed by the learned Additional District Judge. Burewala whereby appeal of the respondent/plaintiff against the judgment and decree dated 9-5-2006 passed by the learned Civil Judge 1st Class, Burewala was accepted.

2. Brief facts of the case are that Khurshid respondent/plaintiff filed suit for declaration on 8-9-2000 before learned Civil Judge, Burewala against the present petitioner stating in the plaint that he is owner of the suit land measuring 64-Kanals, 1-Marlas situated in Chak No.287/E.B. Tehsil Burewala and petitioner/defendant has no concern with it. The defendant is in possession of land comprising Khasra Nos.17/18 and 5/18 as tenant. He has filed an application to the Revenue Officer for the recovery of possession of this land. Now he has come to know that the defendant has prepared a forged registered Sale-deed No .604/1 dated 6-11-1976 in his favour to prolong his possession over the suit land. This registered sale-deed is without consideration and is a fake and fraudulent document. He has never executed this sale-deed in his favour. The defendant has also completed a fake and forged agreement to sell dated 5-11-1976 in. his favour. And the order dated 31-1-2002 passed by the E.D.O(R), Vehari for restoration of Mutation No.831 dated 25-7-2000, liable to be cancelled. He has asked the defendant to get cancelled the impugned registered sale-deed and the mutation based on that registered sale-deed and to get rectify the revenue record. But he has failed to do so. After recording of oral as well as documentary evidence both the parties' case was decided by the learned Civil Judge vide judgment and decree dated 9-5-2006 suit was dismissed. Being aggrieved by the judgment and decree dated 9-5-2006 passed by the Civil Judge, Burewala, respondent filed an .application before the learned Additional District Judge, Burewala, resultantly, appeal of respondent was accepted.

3. Learned counsel for the petitioner contends that plaintiff has failed to prove his case through cogent and reliable evidence; that marginal witnesses produced by the respondent/plaintiff has admitted their signature on the sale-deed Exh. D.1; that sale-deed Exh.D.1 has been proved through marginal witnesses, who have admitted their signatures but the appellate court set aside the judgment and decree passed by the learned civil court: without any logical basis; that learned trial court has misread the Ex.P-2 in factum of compromise while arriving at its decision; that the appellate court was wrongly influenced by the compromise which is not available on the record; learned appellate court has not properly considered Exhs.D.1. and D.2 presumption of truth is attached with the registered sale-deed which is also 30 years old document, learned appellate court has failed to give effect to sale-deed which is 30 years old document thus, that respondent-plaintiff has taken contradictory pleas at different stages in evidence produced by him is beyond the pleadings which could not be considered; that the appellate court has upset the findings on Issues Nos.1, 1-A, 2 and 5 without considering the relevant record in the true perspective.

4. Consequently learned counsel for the respondent-plaintiff while supporting the judgment and decree of the appellate court contends that plaintiff has categorically denied the execution of the sale-deed; that P.W.-2 Jalal-ud-Din and Khurshid-P.W.3 are the marginal witnesses of the sale-deed but have denied the execution of the sale-deed and in this view of the matter, burden was shifted to the petitioner/defendant, who failed to prove the same. P.Ws. clearly stated that they appeared before the Tehsildar to effect compromise, alleged sale-deed was without sale consideration. Petitioner/defendant has not proved the sale consideration that alleged sale-deed was completed in the year 1976. It was incorporated in the revenue record in 2000 after about 26 years. This fact creates doubt qua genuineness of sale-deed Exh.D.I.

5. Heard, Record perused.

6. Sale-deed Exh.D.1 is a public document and being more than 30 year old, therefore, presumption of truth is attached to it as envisaged in Article 101 of Qanun-e-Shahadat Order (10 of 1984). Reliance is placed on Mst. Naseem Fatima v. Sheikh Ala-ud-Din and others (PLD 2005 SC 455) Safdar Hussain v. Muhammad Azam Khan (PLD 2009 Lahore 247). Respondent/plaintiff has badly failed to discharge his burden of proof. Learned appellate court while upsetting the well-reasoned judgment of the learned trial court has observed that sale-deed was executed on 6-11-1976 and same was incorporated in the Revenue Record in 2000. Under section 42 of the West Pakistan Land Revenue Act (XVII of 1967) no period of limitation has been prescribed for entry and attestation of mutation on the basis of registered sale-deed. It is the duty of the Registration Authority to send the "Parcha Registry" to the concerned a Revenue Authority for the entry and attestation of the mutation. It is settled principle of law that where vendee or transferee did not present registered deed for entry of mutation, then it was the duty of the Revenue Authority to enter an appropriate mutation in the revenue record on the basis of "Parcha Registry" directly sent .by the Registration Authority, Reliance is placed on Umar Din v. Muhammad Anwar (2005 YLR 67).

7. Learned appellate court was influenced by the oral evidence regarding the compromise deed, which was not available on the record. It is pertinent to mention here that Ex.P-2 was not decided due to the compromise, rather, it was decided on merit. Learned appellate court has accepted the oral evidence of the plaintiff by ignoring the documentary evidence available on record. Ghulam Haider P.W.1, Jalaluddin P.W.2 and Khurshid P.W.3, who have admitted their signatures on sale-deed Exh.D.1/1, Exh.D.1/2, Exh.D.1/5, after admitting the signature on the sale-deed there was no justification for the appellate court for setting aside the well-reasoned findings of the Civil Judge on issue No.1. Learned appellate court white passing the impugned judgment has not properly considered Exh.D.1, Exh.D.2 in its true perspective. Sale-deed, Exh.D.1 registered document has been proved by the petitioner/ defendant as well as by the plaintiff/respondent.

8. Learned appellate court has ignored the fact of provision of sections 52, 58 and 60 of the Registration Act. Endorsement by the Sub-Registrar on the back of the sale-deed stating some portion of consideration money paid in his presence and acknowledged to receive earlier is proof of the payment of the consideration. Under section 60 of the Registration Act, 1908 presumption of truth is attached with the registered instrument. Defendant has validly discharged its burden in proving the sale-deed. Reliance is placed on case of Pirla and others v. Noora and others (PLD 1976 Lahore 6). Learned appellate court has even, ignored the provision of Articles 102, 103, 70, 72 of Qanun-e-Shahadat Order (10 of 1984) which clearly laid down that document exclude the oral evidence but in the present case learned appellate court while arriving at the conclusion has relied upon the oral evidence produced by the plaintiff and ignored the documentary evidence. Reliance is placed on the cases of Pirla and others v. Noora and others (PLD 1976 Lah. 6), Haxzrathullah v. District Council Haripur (1997 SCMR 1570), Mst. Taj Bibi v. Syed Ahmad Shah (1989 SCMR 1001), Feroze Khan and others v. Mst. Waziran Bibi (1987 SCMR 1647) and Muhammad Tufail v. Abdul Aziz through Legal Heirs (PLD 1998 Lahore 37). Learned appellate court has ignored that respondent/ plaintiff has taken different pleas at different stages and thus, evidence produced by the respondent/plaintiff was beyond the pleadings of the plaintiff. Plaintiff has failed to prove exchange deed, compromise deed or plea of fraud plea of influence, plea of cheating, undue influence. These pleas are contradictory to each other and the same were ignored by the appellate court. Fact remained that Exhs.D.1 and D.2 has been proved by the defendant and even plaintiff had not denied his signature over them. In this view of the matter, contention of the learned counsel for the respondent/plaintiff that sale-deed was without sale consideration has lost its significance. The inference drawn by the learned appellate court was contrary to the law and facts and material available on the record, same is to be corrected through exercise of revisional jurisdiction. 10.(sic) In view of the above, this revision petition is accepted and judgment and decree dated 21-3-2007 passed by the learned appellate court is set aside, resultantly, suit of the petitioner/plaintiff is hereby dismissed. M.U.Y./K-52/L Suit dismissed.