2016 PLP 1719 (MLD)

HAIDER ALI KHAN, J.

This revision petition is directed against the judgement and decree dated 22.11.2006 of the learned Additional District Judge-I/Izafi Zilla Qazi, Swat whereby appeal of the respondent against the judgment and decree dated 13.12.2004 of the learned Civil Judge-IX/Illaqa Qazi, Swat has been accepted.

2. Precise and relevant facts of the case are that the petitioner/plaintiff filed civil Suit No. 227/1 on 20.1.2001 for declaration, cancellation of sale deed No. 136 dated 31.3.1985 and perpetual injunction against the respondent to the effect that he is owner in possession to the extent of his half share in the suit land falling in Khasra No. 62 measuring 20-Kanal, 7-Marla situated at village Kanju, Tehsil Kabal and in this regard the sale deed No. 136 dated 31.3.1985 prepared by the respondent is fake, bogus and ineffective upon his rights. The respondent/defendant also filed a counter suit for possession and perpetual injunction bearing Suit No. 1/1 on 20.12.2001 against the petitioner in respect of the same disputed land to the effect that he purchased the disputed property through registered deed No. 136 dated 31.3.1985 from his father Mushkar on the basis whereof Mutation No. 156 was attested on 12.9.1989. Written statements were submitted in both the cases which were consolidated by the trial Court. Both the parties recorded their respective evidence in support of their contentions and at the conclusion of the trial suit of the petitioner for declaration was dismissed whereas suit of the respondent for possession was decreed vide judgment and decree dated 24.7.2003. The petitioner assailed judgment of the trial Court through two appeals which were accepted by the learned appellate Court on 09.10.2003 and the case was remanded to the trial Court for decision afresh after recording statement of the bank official concerned alongwith record. On remand of the case, the trial Court summoned the official of Allied Bank Branch Mingora along with record, recorded his statement and thereafter decreed suit No. 227/1 of the petitioner whereas suit of the respondent bearing No. 1/1 was dismissed vide consolidated judgment dated 13.12.2004. The respondent challenged the judgment and decree of the trial Court before the learned appellate Court who vide judgment and decree dated 22.11.2006 accepted the appeal of the respondent and set aside the judgment and decree of the learned trial Court. Hence, the instant revision petition.

3. Arguments heard and record perused.

4. Perusal of the record would reveal that the parties are real brothers inter se and the present controversy is with regard to land namely Quanj Patay measuring 20-Kanal and 7-Marlas falling in Khasra No. 62 situated in village Kanju. Contention of the petitioner is that the disputed land was owned by father of the parties namely Mushkar who gave it in joint possession of the parties during his life time vide deed dated 25.9.1984. The mentioned deed is available on the record as Ex.PW-1/1 according to which father of the parties handed over the land in dispute to both the parties on bitai ( ) with the condition that none of the parties will transfer it to any third person in any manner and after the death of their father the same will be distributed by the parties in equal shares. The petitioner has produced marginal witnesses of the deed as PW-2 and PW-3 who have supported the petitioner's contention. Contrary to the above contention of the petitioner, the respondents has produced registered deed No. 136 dated 31.3.1985 available on the record as Ex.DW-3/1 according to which he has purchased the disputed property from his father against sale consideration of Rs.60,000/- and on the basis of the above registered deed Mutation No. 104 was attested on 12.9.1989. In support of the above document, the respondent also produced marginal witnesses of the deed as DW-4 and DW-5 who have also supported the contention of the respondent.

5. Record shows that both the parties have produced documentary as well as oral evidence in support of their respective contentions but at this juncture there arise few questions which have made the sale transaction allegedly carried out by the respondent as suspicious. Admittedly, the disputed land has been allotted to Mushkar, father of the parties, during the first settlement which was completed in the year 1986 which fact goes against the respondent because when he had purchased the disputed land from his father in 1985 then for what reason the land was recorded in his name in the Revenue Record during the first settlement which got completed just one year after the alleged purchase. Similarly, the respondent has admitted in his cross-examination that the suit land is in possession of the petitioner. He also adopted another stance that the petitioner cultivated the suit land on his behalf and he had paid him Barkha (half share in the produce) thereof but there is nothing on the record to show that the petitioner cultivated the land as tenant of the respondent. Another important question is that when the father handed over possession of the disputed land to the parties and effected a conditional partition thereof between his sons, how and for what reasons he resiled from his previous undertaking he had made in 1984 and instead carried out a sale transaction with the respondent at the back of the petitioner who was also his son and entitled to his shari share in the disputed land after his death. The mode and manner in which the alleged transaction was carried out by the respondent is against the ordinary course of business and shrouded in suspicion and lack of transparency.

6. It is also noticeable that the respondent has not proved the payment of sale consideration to his father. The respondent has repeatedly stated that he paid the sale amount to his father in the office of Tehsildar but Muhammad Sirajuddin (DW-2) reader of Tehsildar Kabal has admitted in his cross-examination that: In this regard learned counsel for the petitioner produced copy of judgment of the apex Court reported as 1984 SCMR 94 relied upon by the learned trial Court as well wherein four essential elements of sale have been mentioned i.e (i) the parties (ii) the subject-matter (iii) the transfer or conveyance and (iv) price or consideration. If existence of the former two elements of sale transactions be admitted at the time of execution of the alleged deed even then the sale was incomplete as neither possession was formally handed over to the respondent nor the sale consideration was paid at the time of execution of the sale deed. Even, the bank official recorded his statement as C. W. but his statement is also not capable of giving any support to the respondent's contention.

7. It is also noticeable that the alleged sale deed Ex.DW-3/1 bears two distinct dates. A bare reading of the deed shows that the date shown above the thumb impression of the seller is 30.31985 whereas below his NIC number the date has been entered as 16.5.1977. If the deed be considered to have been thumb impressed by father of the parties on 16.5.1977 the question arises why did he give the disputed property to his two sons vide deed dated 25.9.1985 (Ex.PW-1/1) which is an admitted and proved fact on the record as discussed earlier. This fact gets no clarification from the evidence produced by the respondent. The above facts and circumstances have made the status of sale deed Ex.DW-3/1 as highly doubtful, therefore, the same cannot be relied upon in favour of the respondent.

7. In view of what has been discussed above, the learned appellate Court has not properly analysed the evidence on the record and non-suited the petitioner against the facts of the case. Therefore, this revision petition is allowed, the impugned judgment of the learned appellate Court is set aside and the judgment of the learned trial Court, whereby suit of the petitioner was decreed, is restored. Resultantly, suit of the petitioner is decreed against the respondent. ZC/161/P Revision allowed.