2008 PLP 1062 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioners seek leave to appeal against judgment dated 7-11-2001, passed by a learned Single Judge of the Lahore High Court, Lahore in Civil Revision No.2118 of 1994.

2. The relevant facts of the case are that late Lal Din, predecessor -in-interest of the respondents, instituted a suit for declaration with possession against the petitioners calling in question the validity of registered sale-deed dated 10-2-1976 purported to have been executed by late Chiragh, real brother of said late Lal Din plaintiff, for the sale of the suit property measuring 12 Kanals and 13 Marlas for a consideration of Rs.10,000 in favour of the petitioners. The civil suit of late Lal Din, predecessor-in-interest of the respondents, was decreed by the Civil Judge, Daska, by judgment and decree dated 4-10-1978. The petitioners preferred an appeal which was allowed by the Additional District Judge, Daska, District Sialkot, by judgment and decree dated 28-3-1994. Therefore, the respondents filed Civil Revision No.2118 of 1994 which was allowed by the Lahore High Court, Lahore, by the impugned judgment, dated 7-11-2001. Consequently, the judgment and decree of the First Appellate Court were set aside and of the trial Court were restored. Hence this petition for leave to appeal.

3. The learned counsel for the petitioners argued that the petitioners had produced sufficient evidence to prove the validity of transaction of sale of the suit property and execution of registered sale-deed by late Chiragh, who was real uncle of the petitioners. It was next contended that the respondents were not able to discharge the onus of proof on issues Nos.4 and

6. The original sale-deed (Exh.P.1) was thumb-marked by vendor late Chiragh on five different places. Even otherwise, presumption of correctness was attached to the registered sale-deed including the payment of sale consideration in view of the provisions of sections 52, 58 and 60 of the Registration Act. Reliance was placed on the case Pirla and others v: Noora and others PLD 1976 Lah.

6. The petitioner No.1 appeared as D. W.1 and Abdul Aziz as D.W.2. Both of them categorically stated that the sale price was paid to late Chiragh in their presence. Similar statements were made by other" defence witnesses Siraj Din, Muhammad Tufail and Khurshid Ahmad. The mere fact that the stamp paper for the sale-deed had not been purchased by Chiragh, would not be fatal to the case as the execution of the sale-deed was proved by cogent evidence on record.

4. On the other hand, the learned counsel for the respondents argued that the best evidence of a disinterested witness namely Ghulam Muhammad was withheld by the petitioners. The suit-land was situated in Tehsil Daska whereas the sale-deed was executed and registered at Sialkot. Abdul Aziz, Advocate, D.W.2 had admitted to have identified late Chiragh at the instance of Ghulam Muhammad. It was lastly submitted that Chiragh was an old and infirm person of over 90 years who passed away shortly after the alleged transaction of sale.

5. We have heard the learned counsel for the parties at length and have also gone through the available record. We find that Ghulam Muhammad who was stated to have purchased the stamp paper and was also shown as a marginal witness on the sale-deed was not produced by the petitioners. No independent witness knowing late Chiragh personally had identified him before the Sub-Registrar. Even D.W.2 Abdul Aziz, Advocate, had stated that he had identified vendor on the asking of Ghulam Muhammad. Instead of getting the sale-deed registered at Daska, the petitioners got the same executed and registered at Sialkot for which no reason was assigned. The stamp paper was not purchased by either of the parties. In view the facts and circumstances of the case, the High Court was justified in setting aside the judgment and decree passed by the First Appellate Court and restoring those of the trial Court whereby the suit of the respondents was decreed in their favour. No exception can be taken to the findings as recorded by the High Court. The impugned judgment does not suffer from any legal infirmity so as to warrant interference by this Court. This is not a fit case for grant of leave to appeal.

6. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly. S.A.K./F-19/S Leave refused.