2009 PLP 714 (YLR)

JAWWAD S. KHAWAJA, J.

The dispute in this case relates to a plot of land which, admittedly, was owned by Niaz Din (predecessor-in-interest of the petitioners). The petitioners impugn the appellate judgment and decree dated 21-12-2000 whereby the decree of the learned Trial Court dated 19-5-1979 was set aside and as a result; a declaratory suit filed by Niaz Din was dismissed.

2. The facts of this case are straightforward. Niaz Din, as noted above, was the owner of the suit property. Mirza Muhammad Ismail, who was the defendant in the case and is now represented by the respondents, claimed that Niaz Din had sold the suit property to him through a sale-deed dated 19-12-1973. Niaz Din, however did not present the deed for registration and nor did he appear before the Sub-Registrar for this purpose.

3. Ismail therefore, sought the registration of the said sale-deed by applying to the concerned Sub-Registrar Niaz Din was summoned by the Sub-Registrar, where he disputed the sale-deed. The Sub-Registrar, however proceeded under section 74 and section 75(1) of the Registration Act for the purpose of compulsorily registering the deed and passed an order to this effect on 2-7-1974. Thereafter on 10-7-1974 Niaz Din filed his declaratory suit out of which this petition has arisen. In the plaint he challenged the order of the Registrar dated 2-7-1974 and also asserted title to the suit property. He specifically pleaded fraud in paragraph 8 of his plaint. It was, inter alia, alleged by him that he and Ismail had been fighting each other through protracted civil and criminal litigation and, as such, there was no occasion for him to execute the alleged sale-deed dated 19-12-1973. His thumb-impressions on the sale-deed, he alleged, had been procured by means of an elaborate fraud, the particulars of which were pleaded in the plaint.

4. In an earlier round of litigation, the matter came up before the High Court in R.S.A. No. 448/80. This appeal was decided on 5-4-1999 and the matter was remanded. The relief sought by Niaz Din in his suit was partially allowed inasmuch as the order of the Registrar dated 2-7-1974 was declared to be without lawful authority, void and without jurisdiction. The remand was made with the object of determining the case question, which has been encapsulated, is issue No.2 framed by the learned Trial Court in the following terms:-- "Whether the alleged sale-deed dated 19-12-1973 is vitiated by fraud? OPP"

5. The parties have led extensive evidence, the most important part of which is the testimony of Ismail himself. He appeared in Court as D.W.2 and deposed that a bargain had been struck whereby Niaz Din had agreed to sell the suit property to him for a sum of Rs. 2,500 Ismail conceded in his cross-examination that long drawn-out litigation between him and Niaz Din was pending in various civil and criminal Courts even on the dated 4-10-1978 when he appeared as a witness in the case. There is no explanation whatsoever as to why Niaz Din would sell the suit property to Ismail despite the pendency of such contentious litigation between them. Learned counsel, for the respondents attempted to argue that a compromise had been effected between Niaz Din and Ismail through the intervention of Mushtaq to bring to an end the contention between them. This statement, however, is not credible at all, firstly because there is no compromise on record and nor was any such compromise presented before any of the Courts in which litigation between Niaz Din and Ismail was pending at the time. Secondly, it is importantly to note that had there been any compromise between the parties and if, indeed, the sale-deed was a result of such compromise, there would have been no occasion whatsoever for the litigation between the partiers to continue even four years after the sale-deed was allegedly executed.

6. Another important circumstance, which detracts from the veracity of the defence pleaded by Ismail, is the consideration mentioned in the sale-deed. It has been established on record through the testimony of the Halqa Patwari Sarfaraz Khan (P.W.3) and Exh. P.W.3/1, which is a chart of quinquennial prices that the average price of land in the area was Rs.4,348 per Marla. According to this average price, the suit property would have a value of Rs.17,000 approximately, it is, therefore, not possible to believe that the said property would have been sold for Rs.2,500 only and that too when there, admittedly, was enmity between the parties which is apparent from the protracted and acrimonious litigation referred to above.

7. The above circumstances were duly noted by the learned Trial Court, which proceeded to decree the suit filed by Niaz Din. Unfortunately, the learned Appellate Court has not taken note of the same or met the reasoning of the leaned Trial Court. It has stressed the fact that the deed writer Fateh Ali was examined by Niaz Din as P.W.4 and he testified against Niaz Din. For every good reasons, noted in the judgment of the learned Trial Court, the testimony of Fateh Ali has not been believed. It has inter alia, been noted by the learned Trial Court that the licence of Fateh Ali and deed-writer was cancelled by the learned District & Sessions Judge in 1969 because he had made interpolations in a deed. Moreover the entire evidence had to be weighed by the learned Appellate Court but this was not done. From the available evidence taken 'as a whole, the unreliable testimony of Fateh Ali (P.W.4) could not have been made the basis of overriding the strong evidence, which preponderantly supported the case set up by Niaz Din.

8. At this point, it may also be noted that although Ismail deposed that he had obtained a receipt for payment of the sum of Rs. 2,500 no such receipt was produced on record. Furthermore, there was no plausible explanation for this material omission. This is all the more intriguing because a photocopy of the alleged receipt was, according to Ismail, filed with his written statement. When Ismail appeared in Court as D.W.2 he was cross-examined about the original receipt. His response, incredibly, was that he did not remember where it was. The learned Trial Court, therefore, was justified in drawing an adverse inference against Ismail that he was untruthful and that there was no receipt made by Niaz Din.

9. There is yet another aspect of the case which appears not to have been brought to the attention of the learned Courts below. Ismail, in his testimony stated that he and Niaz Din had entered into an agreement of sale one week prior to the sale-deed dated 19-12-1973. This statement is belied by the fact that the stamp paper for the sale-deed was issued from the treasury on 29-9-1973 i.e. almost three months prior to the alleged execution of the sale-deed. Learned counsel for the respondents could not explain this circumstance. He, however, 'contended that the stamp paper had been purchased by Niaz Din three months earlier in order to perpetrate a fraud on Ismail. This submis sion is not credible at all. Firstly, I do not see how Niaz Din could have used the stamp paper to defraud Ismail. Secondly, it is not believable that Niaz Din would have incurred an expense in paying for stamp paper without any apparent use for it.

10. In view of the foregoing discussion, the impugned appellate judgment and decree dated 21-12-2000 is set aside. As a result, the decree of the learned Trial Court dated 19-5-1979 is affirmed. The petitioners shall also be entitled to their costs throughout. H.B.T./F-39/L Petition allowed.