2011 PLP 870 (CLC)

MAZHAR ALAM KHAN MIANKHEL, J.

Through this single judgment, I intend to dispose of Civil Revisions Nos.220 and 299 of 2002 having, common questions of law and facts between the same parties.

2. The parties to the suits are legal heirs of one Hazrat Shah, resident of Prang, Hassan Khel, Tehsil and District Charsadda, who had issues from his two wives. The plaintiffs/petitioners (hereinafter called petitioners), by claiming themselves to be the owners in possession of the properties mentioned in both the suits to the extent of their respective Sharai shares, have challenged the sale of a suit house through registered Deed No.88 dated 10-5-1995 and sale of 78 days' income in a ,year from the Tomb of Baba Sahib in one suit and a sale of landed property measuring 1 Kanal, 1 Marla again through registered Deed No.89 dated 10-5-1994 incorporated in the Revenue Record vide Mutation No.1298 dated 6-7-1994 in the other suit, both in favour of Ghulam Haider Shah son of Hazrat Shah (defendant No.1).

3. The defendant/respondent No.1 (hereinafter called the respondent), claiming it to be a genuine sale in his favour by his father denied the claim of petitioners by filing his written statement. The trial Court after recording pro and contra evidence of the parties, dismissed both the suits through its separate judgments and the appellate Court vide its judgments in two separate appeals dismissed the same.

4. Learned counsel for the petitioners submitted that the petitioners have proved their case through cogent and reliable evidence but the two Courts below have wrongly dismissed their suits. The respondent, being the beneficiary of both the registered deeds in his favour, was under the bounden duty to have proved the sales in his favour through a convincing and reliable evidence as the propositus of the parties was admittedly an old and infirm person of 93 years of age who was not accompanied and identified by his well-wishers before the Sub-Registrar at the time of registration and the persons identifying him before the Sub-Registrar were strangers to him; the sale consideration was also not proved through cogent evidence. Similarly, sale in favour of one of the legal heirs by excluding others, on the face of it, is not understandable specially when the old man died within few months thereafter. The factum of independent advice at the relevant time to such a vendor is yet another important aspect which too was also not proved by the respondent. The two Courts below have wrongly placed the burden of proof on the petitioners in the given circumstances. The dismissal of suits was against the law.

5. As against that,, the learned, counsel for respondent submitted that both the sales, referred above, were genuine and sale consideration was also proved on the record; as the transfer of property in favour of respondent was made through registered deeds, so presumption of truth was attached to the same and it was for the petitioners to have produced sufficient evidence for its rebuttal. They were also required to have proved the factum of fraud in this regard. On their failure to discharge their burden, the two Courts below have rightly dismissed both the suits of petitioners and, being concurrent findings of facts by the two Courts below, cannot be interfered with in exercise of revisional jurisdiction under section 115, C.P.C.

6. Arguments of learned counsel for the parties were heard and record of the case was perused. The record of the case would reveal that two sales, referred above, in favour of respondent were challenged, by the petitioners being based on fraud, collusion etc. The petitioners in support of their claim produced as many as three witnesses, whereas the respondent produced as many as seven witnesses in defence including the respondent himself and marginal witnesses of the deeds. Perusal of the evidence produced by respondent No.1 apparently would reveal that requirements of Article 79 of the Qanun-e-Shahadat Order, 1984 were complied with but the other facts on record were ignored and even not discussed or considered by the two Courts below. Credibility of the evidence of respondent was also not discussed in the peculiar circumstances, of the case. The two Courts below mainly discussed the failure of petitioners to prove the factum of fraud alleged by them.

7. The respondent himself had filed a suit against his father, namely Hazrat Shah by claiming himself to be the owner of property on the strength of an unregistered sale-deed dated 6.79-1993, wherein the landed properties of Mauza Chatli Tapu and Mauza Geedar along with a house were the subject-matter. The other legal heirs of Hazrat Shah i.e. the petitioners and other respondents were not' parties in that suit. The suit was contested by his father but later on said suit was dismissed for non-prosecution. The record of that suit was part and parcel of evidence in this suit but the same was not even discussed. The impugned sale-deeds are of the period when the suit of respondent was pending adjudication and the defendant in that suit (vendor of the impugned sales) was in contest with him.

8. Perusal of the judgments of the two Courts below would further reveal that only registration of the sale-deeds was the persuasive factor to hold that impugned sale-deeds being registered deeds have got presumption of truth and correctness, and thereby, shifted the burden on petitioners to prove the factum of fraud. But, the courts below have totally ignored the settled law of the land that in such like situation, when alienation of property is made through sale, gift etc. from an old age and infirm person, Pardah-nasheen lady or an illiterate person, the burden of proof of said alienation is always on the beneficiary of said transaction, irrespective of the fact that such transaction was effected 'through a registered deed. Though the basic presumption of truth is attached to a registered deed which is only with regard to its execution and not with regard to its contents. Whenever authenticity of a registered deed is questioned, then beneficiary of the deed alone, under the law, is required to prove genuineness of the transaction embodied in the registered deed through cogent, reliable and confidence-inspiring evidence. It is the settled law of the land with regard to the 'transaction effected through mutations or registered deeds. Reliance in this regard, amongst others, can be placed on Abdul Majeed and others v. Muhammad Subhan and others 1999 SCMR 1245, Lutuf-ur-Rehman and others v. Zahoor and others NLR 1999 SCJ page 433 and Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729 The relevant excerpt of Abdul Majeed's case reads as under:- "Everything which finds mention in the registered deed or Revenue Record must not invariably be accepted without proof of their execution, genuineness and authenticity. It is axiomatic principle of law that a registered deed, by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not, by its own force, be sufficient to prove the genuineness of the transaction to which it purports, unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they, by their own force, would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution' and genuineness of document."

9. Since both the cases were not dealt with in accordance with the settled law of the land so, in this view of the matter, remand of the case has become inevitable. Hence, both the revision petitions are. hereby allowed and the judgment 'and decrees of the appellate Court in both the appeals are set aside and the cases in hand are sent back to the learned Court of appeal to re write the judgment in the light of observations made above on the available record by giving opportunity of hearing to both the sides. Since the parties are in litigation since 1994, so the learned Court is supposed to decide the appeals within a period of one month of the receipt of files. The parties are directed to appear before the appellate Court on 28-1-2011. No order as to costs. H.B.T./106/P Case remanded.