2017 PLP 348 (YLRN)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The instant civil revision is directed against the judgment and decree dated 18.6.2005 passed by learned Additional District Judge, Kasur, through which, while allowing the appeal filed by respondents/plaintiffs, the judgment and decree dated 20.6.2003 passed by the learned Civil Judge, Kasur, whereby, suit for declaration filed by petitioner was decreed has been set aside and the suit was dismissed.

2. The facts germane for the disposal of the instant revision petition are that Mohammad Sadiq the petitioner as well as Mst. Sughran Bibi predecessor-in-interest of respondents Nos.11 to 17 had brought a suit for declaration before the learned trial court on 6.4.1998 with the assertion that sale deed No.3469 dated 9.11.1945 (Ex: P2) followed by mutation No.18750 dated 26.2.1998 (Ex: P5) being outcome of fraud, misrepresentation, unlawful and against the facts were inoperative upon the rights of the plaintiffs. The plaintiffs further asserted that the disputed property measuring 1 kanals and 2 marlas fully mentioned in the body of the plaint was owned by Jalal Din, the grandfather of the plaintiffs, who died on 6.10.1948 according to copy of death certificate Ex:P3 and mutation of inheritance No.18493 (Ex:P6) was attested on 22.11.1997 in favour of his legal heirs including Mohammad Din the predecessor-in-interest of the plaintiffs, who died on 10.1.1995 (copy of death certificate Ex: P4) and part of the property measuring 6 marlas and 64 square feet out of the disputed property measuring 1 kanal and 2 marl as was mutated in favour of the plaintiffs. It is further averred in the plaint that at the time of attestation of registered sale deed (Ex:P2) on 9.11.1945 in favour of Nawab Din, defendant No.1, Mohammad Din the executant thereof was not the owner of the disputed property and he was not legally competent to sell/transfer the same in favour of alleged vendee Nawab Din defendant No.1 i.e. the predecessor-in-interest of respondents Nos.1 to 10, as at the relevant time Jalal Din the grandfather of the plaintiffs was the owner of the disputed property and whose inheritance mutation (Ex:P6) was duly attested on 22.11.1997 and the disputed sale deed (Ex: P2) as well as consequent mutation No.18750 dated 26.2.1998 (Ex:P5) came into the knowledge of the plaintiffs 10 days prior to the institution of this suit. Nawab Din predecessor-in-interest of respondents Nos.1 to 10 contested the said suit by filing their written statement.

3. The learned trial court captured the disputed area of fact by striking the following issues:- "

1. Whether the description of the suit property is not given in the plaint, if so what is description of suit property? OPD

2. Whether the suit is not maintainable in its present form? OPD

3. Whether the suit is deficiently valued for the purpose of court fee and jurisdiction? OPD

4. Whether the defendant is entitled to special cost under Section 35-a C.P.C.? OPD

5. Whether the suit is bad for non-joinder of the necessary parties? OPD

6. Whether the suit is time barred? OPD

7. Whether the plaintiffs are estopped by their words and conduct to file the suit? OPD

8. Whether the plaintiffs are the legal heirs of Jalal Din deceased? OPD

9. Whether Mohammad Din deceased sold the suit property to the defendant in his life time? OPD

10. Whether the impugned sale deed is against law, facts, without consideration, fictitious and based on fraud? OPP

11. Whether the plaintiffs are entitled to the decree for permanent injunction as prayed for? OPP

12. Relief."

4. Both the partied led evidence in support of their respective pleas before the learned trial court, who after analyzing the same, decreed the suit vide judgment and decree dated 20.6.2003. Feeling dissatisfied, the respondents / defendants preferred an appeal before the learned lower appellate court, who accepted the same vide judgment and decree dated 18.6.2005, hence this civil revision.

5. The learned counsel for the petitioner has submitted that Nawab Din defendant, predecessor-in-interest of respondents Nos.1 to 10 (hereinafter to be referred as defendant) while practicing fraud got executed the disputed sale deed (Ex:P2) on 9.11.1945 when Mohammad Din was not owner of the disputed property; that the defendant kept the disputed sale deed (Ex:P2) secret and did not get incorporated the same in the revenue record for a considerable time spreading over 53 years, which was brought into the light on 26.2.1998 when consequent mutation No.18750 (Ex: P5) was got attested by him in his favour; that the impugned judgment delivered by the learned lower appellate court is result of misreading and non-reading of evidence, who without appreciating the evidence available on file set aside the well reasoned judgment and decree delivered by the learned trial court; that no doubt regarding the entry of death in the Death Register (Ex:P3), an FIR was lodged and the court of first instance convicted the petitioner / plaintiff, whereas, the said verdict of conviction was terminated with the acquittal of the petitioner/plaintiff by the learned appellate court, but without taking into consideration the said aspect, the learned lower appellate court passed the impugned judgment on erroneous premises of law. He lastly prayed for the acceptance of the instant revision petition, setting aside of impugned judgment and decree passed by the learned lower appellate court and for restoration of the judgment and decree passed by the learned trial court.

6. Conversely, the learned counsel for the defendant while refuting the arguments of the learned counsel for the petitioner has argued that the disputed sale deed (Ex:P2) was a registered document, which was 30 years old document and attained presumption of truth under Article 100 of Qanun-e-Shahadat Order, 1984; that the learned lower appellate court after applying correct law rightly observed that Ex:P2 was duly attested by Mohammad Din in favour of Nawab Din defendant and that the property in dispute was owned by Mohammad Din, who duly got attested the disputed sale deed. He lastly prayed for the dismissal of the instant civil revision.

7. Arguments heard. Record perused.

8. The bone of contention between the parties has been reflected in issues Nos.9 and 10 and the conflicting findings rendered by the learned courts below thereon require redetermination by this court. The basic case of the petitioner as embodied in the plaint is that the property in dispute was owned by their grandfather namely Jalal Din, but their predecessor-in-interest Mohammad Din was not owner of the same in the year 1945 and the disputed sale deed (Ex:P2) was got executed by the defendant while playing fraud. To discharge the onus of above referred issues, Charagh Din aged 85/86 years was produced by the petitioner as PW 1, who categorically deposed that Jal al Din had died about 1-1/4 years after the creation of Pakistan, who never sold the disputed property to any person. Petitioner/ plaintiff Mohammad Sadiq also appeared as PW 2 and deposed that Jalal Din was the owner of the disputed property, who died in the year 1948, whereas, his father Muhammad Din died in the year 1995. Both the said PWs were cross-examined at length by the learned counsel for the defendant, but nothing adverse could be elucidated to shatter the veracity of their version. The petitioner also produced copy of 'Jama Bandi' for the year 1945-1946 (Ex:P1), perusal of which reveals that in the year 1945-1946 Jalal Din the grandfather of the plaintiff was owner of the disputed property. The copy of disputed sale deed was also produced by the petitioner/plaintiff as Ex:P2 which reveals that it was Mohammad son of Jalal Din, who got executed it in favour of Nawab Din defendant on 9.11.1945. There is no material available on file to negate the assertion of the plaintiffs that in the year 1945 their grandfather Jalal Din was owner of the disputed property.

9. No doubt, the plaintiffs had produced copy of death entry of Jalal Din, according to which, he was died on 6.10.1948. However, the said entry was cancelled by the concerned administrator vide order dated 30.7.1998 and admittedly regarding the same, a criminal case was also got registered against the petitioner/ plaintiff, who was convicted vide order dated 27.11.2001 by the Special Judicial Magistrate, but the said verdict of the conviction was set aside by the learned lower Additional Sessions Judge vide his judgment dated 20.4.2002 (Ex:P9), while observing as under:- "prosecution has not ascertained the correct date of death of Jalal Din by any evidence. It is a vague statement that he died before 11.4.1945 and even then no proof of this assertion has been given in the court. There was no sufficient evidence on record to connect the accused with the offence. The conviction and sentence are therefore against facts as well as are illegal. Hence the conviction and sentence are set aside and the accused/appellant is acquitted from the charge by giving him benefit of doubt."

10. The said judgment was not further assailed by the state or the defendant by filing any revision or appeal before the higher forum and attained finality. Even the disputed sale deed was got executed in the year 1945, but the same was not brought into picture till 1998, when for the first time, the consequent mutation No.18750 (Ex:P5) was got attested by the defendant in his favour on the basis of disputed sale deed (Ex:P2). It is also worth while to note that prior to the attestation of consequent mutation (Ex: P5) the disputed property had already been mutated in favour of the legal heirs of Jalal Din vide mutation No.18493 (Ex: P6) on 22.11.1997. The said cogent evidence is available on the file to prove the stance of the petitioner/plaintiff. However, to rebut the same respondents produced Mohammad Arshad, the Revenue Patwari, as DW.1, who brought the relevant revenue record and during the cross-examination, he admitted that according to his record the date of death of Jalal Din was recorded as 3.4.1946. He further explained that Nawab Din the predecessor-in-interest of the respondents was not entered as owner of the disputed property in his record. The defendant also produced Fazal Din, special attorney, as DW3, who also admitted in his cross-examination that according to the 'Jama Bandi' for the year 1985-1986 Jalal Din was the owner of the disputed property and prior to that Mohammad Din was not reflected in the revenue record as owner of the disputed property. It is significant to note that the alleged vendee Nawab Din did not appear before the learned trial court as a witness.

11. Before dealing with the above referred evidence and arguments of learned counsel for the parties addressed at the bar, it is pertinent to mention the definition of sale provided in Section 54 of Transfer of Property Act, 1882, as under:- "Sale is transfer of ownership in exchange for a price paid or promised or part paid and part promised." The essential ingredients of the sale are:- 1. the parties; 2. the subject matter; 3. the transfer of conveyance; and 4. the price or consideration."

12. The case of the plaintiffs is that the subject land had never been sold out to the predecessor-in-interest of the respondents and no transaction of sale was effected or settled between them and that at the relevant time, Mohammad son of Jalal Din was not owner of the disputed property, but Jalal Din was still owner of the same and it was not possible that Mohammad could have got attested the disputed sale deed without any title in favour of the defendant. The said stance stood proved by oral as well as documentary evidence and the onus was shifted upon the defendant to prove the validity of the alleged sale deed. It was also incumbent upon the beneficiary/defendant to prove the sale transaction embodied in Ex:P2 and he should have produced the witnesses in whose presence the bargain of sale was struck and the price was paid to the alleged executant. If payment of consideration of alleged sale has not been proved on the record, then there can be no sale in the eye of law. The defendant failed to establish on record the essential elements of the valid sale and if any of the ingredients of sale is missing, then the defendant has to suffer as it was his duty being beneficiary of the transaction to prove the same. No doubt, the disputed sale deed (Ex:P2) was a registered document, which attained more than 30 years life and as per law a rebutable presumption was attached thereto, but no absolute presumption of its execution could be attached within the meaning of Article 100 of Qanun-e-Shahadat Order, 1984. Attaching presumption of execution of document was a matter of great care and caution in cases involving rights of parties to the properties. The presumption so attached to the disputed sale deed was weakened when the same was not brought into picture by the defendant/vendee for more than 53 years which tended to raise suspicion about the genuineness of the document. It is not essential for a court to attach presumption to the execution of a document more than 30 years old in all the cases without attending to the other relevant facts and circumstances of each case merely because any such presumption was claimed to be attached to such document. It is well settled law that presumption of execution of such document is permissible and not imperative even if the document be a 30 years old and was produced from proper custody.

13. It is also worthwhile to note that neither the original sale deed was brought on the record by the defendant/vendee nor any attesting witness thereof was produced during the trial. Even no application to seek permission for producing copy of the document by leading secondary evidence was moved by the defendant. The basic question was fully established by the petitioner / plaintiff by producing cogent evidence in the shape of Jamanndi (Ex:P1) that the disputed property was owned by Jalal Din in the year 1945 when the disputed sale deed was executed in favour of the defendant. The learned lower appellate court without appreciating the cogent evidence available on file as discussed above reversed the findings of the learned trial court on the above referred issues, which are not sustainable in the eye of law. As such the findings of the learned lower appellate court on issues Nos.9 and 10 are hereby reversed and the findings delivered by the learned trial court on the said issues are maintained.

14. As issues Nos.9 and 10 have been decided in favour of the petitioner/plaintiff, issue No.11 is also decided in favour of the petitioner/plaintiff. Rest of issues Nos. 1 to 8 were decided by the learned trial court in favour of the petitioner/plaintiff, whereas, vide impugned judgment and decree learned lower appellate court also affirmed the findings of the learned trial court on issues Nos.1 to 4, 6 and 8, but reversed the findings on issues Nos.5 and

7. The conclusion of the learned lower appellate court on issues Nos.5 and 7 is also not sustainable as the said issues only related to misjoinder of necessary parties as well as estopple and when pivotal issues Nos.9 to 11 have already been decided in favour of the plaintiffs, the findings of learned lower appellate court on issues Nos.5 and 7 are also reversed.

15. Sequel of the above discussion is that the instant civil revision is allowed, impugned judgment and decree dated 18.6.2005 passed by the learned lower appellate court is hereby set aside and the judgment and decree dated 20.6.2003 passed by the learned trial court, whereby, suit of the plaintiffs was decree, is hereby restored. ZC/M-19/L Revision allowed.