1987 PLP 1647 (SCMR)

SAAD SAOOD JAN, J.‑‑The petitioners seek leave to appeal from the judgment dated 27‑11‑1979 of the Lahore High Court whereby their second appeal from the Judgment of the Additional District Judge, Faisalabad affirming the judgment and decree of the trial Court was dismissed.

2. The petitioners are the successors‑in‑interest of Feroz Khan and Adalat Khan who were the paternal‑cousins of Yaqub Khan, husband of the respondent, Yaqub Khan died issueless whereupon 1/4th of the land left by him was inherited by the respondent and the remaining came to the share‑of Feroz Khan and Adalat Khan and the sister of Yaqub Khan. On 30‑7‑1961 Feroz Khan and Adalat Khan allegedly executed a sale‑deed in favour of the respondent transferring a part of their share in the said land to her for a sum of Rs.6,000/‑. The sale‑deed was registered on 17‑8‑1961. On 18‑5‑1963 Feroz Khan and Adalat Khan brought a suit for a declaration, inter alia, to the effect that the said sale‑deed was a fictitious document obtained by the respondent through fraud and impersonation and that they had not received any consideration for selling the land. The suit was dismissed by the trial Court after holding that fraud and non‑payment of consideration had not been established

3. From the judgment and decree of the trial Court Feroz Khan and Adalat Khan preferred an appeal before the Additional District Judge. After re‑appraising the evidence the learned Additional District Judge came to the conclusion that the sale was tainted with fraud and the payment of consideration had not been proved. He, however, dismissed the appeal for the reason that the suit had not been brought in the proper form.

4. Feroz Khan and Adalat Khan then preferred a second appeal in the High Court. Presumably for the reason that the conclusions recorded by the Courts below on the main controversy between the parties were at variance the High Court re‑examined the evidence and took the view that the findings of the trial Court on the question of fraud and non‑payment of consideration were more convincing. Accordingly, it reversed the findings of the learned Additional District Judge on these questions and dismissed the appeal. The petitioners now seek leave to appeal from this Court.

5. It may be mentioned that at the trial neither Adalat Khan nor Feroz Khan appeared in the witness box in support of his case. While reversing the findings of the learned Additional District Judge, the High Court also took notice of this omission on their part. In support of this petition the learned counsel contends that the High Court was not right in drawing a presumption adverse to the petitioners on their failure to appear in the witness box for there was otherwise sufficient evidence to support their assertions of fraud and non‑payment of consideration. In this context he referred to the cases of Muhabat v. Abdullah (PLD 1970 Lahore 303), Mrs. Swarnam Iswariah v. K.M.S.R.M, Kanappa Chetty (AIR 1941 Madras 704) and Pandurang Jivaji Apte v Ram Chandra Gangadhar Ashtekar (1983 PSC 909) .

6. It is difficult to accept the contention of the petitioners. From the evidence which has been placed before us all that the petitioners have been able to establish is that at the time of registration of the sale‑deed some persons other than Adalat Khan and Feroz Khan appeared before the Sub‑Registrar. Now, the case of the respondent was that she was an ignorant, illiterate, pardanashin woman; Adalat Khan and Feroz Khan were her relatives to distrust them, and, it were they for the completion of the sale. A copy of the sale‑deed has not been filed in this Court and the evidence laid before us does not show that the respondent was present in person at the time of registration of the sale‑deed. That being so, if some persons other than Adalat Khan and Feroz Khan appeared before the Sub‑Registrar, she cannot be charged with fraud or impersonation, for, the possibility cannot be precluded that those responsible for getting the sale‑deed registered might have purposely produced the wrong persons before the Sub‑Registrar in order to compromise the genuineness of the document. In any event, the evidence shown to us does not lead to the conclusion that no sale at all had taken place or Adalat Khan and Feroz Khan had not received the consideration or executed the sale‑deed. In the circumstances the High Court was justified in drawing an adverse' inference against Adalat Khan and Feroz Khan for not appearing in the witness box in support of their assertions of fraud and non‑payment of consideration and thus offer themselves for cross‑examination to the opposite side. It is unnecessary to comment upon the reported cases cited by the petitioners as, on facts, they can be easily distinguished from the one before us.

7. For the reasons stated above, we find no merit in this petition which is hereby dismissed. K. B. A. /F‑17/S. Leave refused