2000 PLP 531 (MLD)

(5) Whether the plaintiff is owner in possession of the suit land, if so, whether sale‑deed, dated 25‑2‑1986 and Mutation No.372 are illegal, void and inoperative qua the rights of the plaintiff? OPP. (6) Relief. In support of her stand, the plaintiff/respondent examined Gaman P.W.1 and Munshi Ghulam Muhammad her special attorney P.W.2. Her learned counsel produced copies of documents Exh .P.1 to P.4 referred earlier. In rebuttal, the defendants/petitioners examined Jafar Ali D.W.1, Riaz D.W.2 and one of the defendants/petitioners Muhammad Hussain appeared himself as D.W.3. Their learned counsel produced documents Exhs.D.2 to D.30.

9. After going through the evidence produced by the parties, the trial Court dismissed the suit of the plaintiff/respondent vide judgment and decree, dated 25‑10‑1993. The plaintiff/respondent felt aggrieved of the said judgment and decree and filed an appeal which was accepted vide judgment and decree, dated 22‑1‑1995. Hence this civil revision. C.R.No.240 of 1995

10. This civil revision is directed against the judgment and decree, dated 22‑1‑1995 passed by the learned Additional District Judge, Chiniot, whereby he reversed the judgment and decree, dated 27‑9‑1994 passed by the learned Civil Judge Chiniot, whereby he dismissed the suit of the plaintiff/respondent filed against the defendants/petitioners.

11. Briefly stated the facts are that land measuring 48 Kanals 1 Marla is alleged to have been purchased by the defendants/petitioners vide sale‑deed, dated 19‑11‑1985 regarding which Mutation No.410, dated 31‑3‑1987 was sanctioned. The stand of the plaintiff/respondent is that she never alientated the said land vide sale‑deed and mutation referred above and the said documents are false and fabricated. Her stand was controverted by the defendants/petitioners.

12. From the divergent pleading of the parties following issues were framed by the Trial Court:‑ (1) Whether the plaintiff has got no cause of action against the defendants in view of preliminary objection No. l of the written statement? OPD. (2) Whether the plaintiff is estopped by her words and conduct to file the present suit? OPD. (3) Whether the suit is wrongly valued for the purposes of court‑fee and jurisdiction? OPD. (4) Whether the defendants are entitled to Special Court under section 35‑A, C.P.C.? OPD. (5) Whether the suit is not maintainable in its present form? OPD (6) Whether the registered sale‑deed, dated 19‑11‑1985 and Mutation NoA10, dated 31‑3‑1985 is illegal, against the facts, collusive, void, based on fraud and inoperative upon the rights of the plaintiff? OPP. (7) If issue No.6 above is proved in affirmative then whether the plaintiff is entitled to the decree for declaration to the effect that she is owner in possession of the suit land described in the headnote of the plaintiff? OPP. (8) Relief. In support of her stand, the plaintiff/respondent examined Ahmad Ali P.W.I, Mukhtar Ahmad P.W.2 and Munshi Ghulam Muhammad P.W.3 her special attorney. Her learned counsel produced documents Exhs.P.l to P.3 and then closed her evidence. In rebuttal, the defendants /petitioners examined Shahadat Khan D.W.1 and Ahmad Ali D.W.2. Their learned counsel produced documents Exhs.D.2 to D.5 and then closed evidence.

13. After going through the evidence produced by the parties, the trial Court dismissed the suit of the plaintiff/respondent vide judgment and decree, dated 27‑9‑1994. The plaintiff/respondent felt aggrieved of the said judgment and decree and filed ,an appeal which was accepted vide judgment and decree, dated 22‑1‑1995. Hence this civil revision. C. R. No. 199 of 1995

14. This civil revision is directed against the judgment and decree, dated 22‑1‑1995 passed by the learned Additional District Judge, Chiniot, whereby he reversed the judgment and decree, dated 25‑10‑1993 passed by the learned Civil Judge, Chiniot, whereby he dismissed the suit of the plaintiff/respondent filed against the defendant/petitioner.

15. Briefly stated the facts are that land measuring 75 Kanals 12 Marlas is alleged to have been sold by the plaintiff/respondent vide sale‑deed, dated 1‑4‑1986. Mutation No.375, dated 30‑4‑1986 is alleged to have been incorporated on the basis of said documents EXhS.P.I and P.2 and thereafter closed evidence. In rebuttal, the defendant/petitioner examined Ch. Allah Diya D.W.1, Abdul Samee D.W.2, Muhammad Ramzan D.W.3 and he appeared himself as D.W.4. His learned counsel produced documents Exhs.D.3 to D.22.

17. After going through the evidence produced by the parties, the trial Court dismissed the suit of the plaintiff/respondent vide judgment and decree, dated 25‑10‑1993. The plaintiff/respondent felt aggrieved of the said judgment and decree and filed an appeal which was accepted vide judgment and decree, dated 22‑1‑

995. Hence this civil revision.

18. Arguments have been heard and record perused.

19. So far as C.Rs. Nos.238 to 240 of 1995 are concerned, it is submitted by learned counsel for the defendants/petitioners that the plaintiff/respondent has assailed sale‑deeds executed in favour of the defendants/petitioners on the ground that she never alienated the land vide sale‑deeds referred in each transaction, that she filed suit through her general attorney Sardarzada Fazal Abbas, as is evident from the contents of each plaint, that admittedly, neither Sardarzada Fazal Abbas was examined in the Court nor his general power of attorney was brought on record nor the plaintiff/respondent Iffat Sultana cared to get herself examined in any suit, that the plea of fraud raised by the plaintiff/respondent could only be substantiated if the plaintiff/respondent had appeared herself in Court, that the trial Court has non‑suited the plaintiff/respondent mainly on Issues Nos.2 and 5 in C.R. No.238 of 1995 which relate to the maintainability of the suit in its present form as well as to the effect if the plaintiff/respondent is in possession of the suit land etc., that the onus of proof of Issue No.2 was on the defendants/petitioners who have discharged the onus by producing evidence which has not been rebutted. While elaborating his contention, he submitted that suit for declaration could be filed only if it is proved that the plaintiff/respondent is in possession at the relevant time; that to prove her possession at the relevant time, the plaintiff/respondent has relied upon copy of Jammabandi Exh.P.3, as well as copy of Khasra Girdawari Exh.P.4: that a perusal of Jammabandi P.3 as well as copy of Khasra Girdawari P.4 clearly reveal that both these documents pertain to the year 1983‑84; that admittedly the suit had been filed in the year 1986, so it was incumbent upon the plaintiff/respondent to bring on record documentary evidence providing her possession over the suit land at the time of filing the suit, that the plaintiff/respondent failed to adduce any evidence to prove her possession over the suit land in 1986 as such the‑ suit in its present form was not maintainable and the learned trial Court has rightly decided Issue No.2 in favour of the defendants/petitioners and against the plaintiff/respondent. He further contended that even possession of the defendants/petitioners is proved from the evidence produced by the plaintiff/respondent. So far as findings on issue No.5 are concerned, he submitted that the trial Court has very elaborately discussed the said issue referring to the oral evidence as well as documentary evidence produced by the parties. However, the learned Additional District Judge has neither discussed the evidence referred by the trial Court nor has given any reasoning for reversing the said findings. He further contended that the documents produced by the defendants/petitioners clearly establish that the plaintiff/respondent had executed the said sale deeds in favour of the defendants /petitioners. He specifically referred to the statement of Muhammad Shakil, Tehsildar/Sub‑Registrar (D.W.1) who categorically stated that the sale‑deed in each case was attested by him. He thus submits that the trial Court has rightly dismissed the suit of the plaintiff/respondent and judgment of the learned Additional District Judge merits reversal.

20. So far as C.R. NO‑199 of 1995 is concerned, it is submitted by learned counsel for the defendant/petitioner that the instant transaction was for Rs.2,55,000, out of which a sum, of Rs.20,000 was paid as earnest money, that sale‑deed was executed on 1‑4‑1986 whereas earnest money of Rs.20,000 was paid on 15‑11‑1985, that Mutation No.375 was sanctioned on, 30‑4‑1986, that payment of amount has been certified by the husband of the plaintiff/respondent Iffat Sultana, as is evident from document Exh.D.l, that regarding this payment of earnest money, Rapt Roznamcha Waqiatti No. 185, dated 12‑3‑1986 Exh.D.7 has also been entered, that to rebut this stand of the defendants/petitioners, it was incumbent upon the plaintiff/respondent to produce Muzaffar Abbas who was never produced, that similarly neither Sardarzada Fazal Abbas general attorney of the plaintiff/respondent was produced nor his general power of attorney was produced or referred, as such the very institution of the suit is not in accordance with law. He further submitted that the trial Court has dismissed Issue No.6 which is relevant for the adjudication of the matter in dispute in an elaborate manner whereas the said judgment has been reversed by a slipshod order, passed by the learned Additional District Judge. He also adopted the other arguments advanced by learned counsel for the defendants/petitioners in C.Rs. Nos.238 to 241 of 1995.

21. Conversely, the judgments and decrees have been supported by learned counsel for the plaintiff/respondent.

22. It is evident from the facts stated above that in all civil revisions, different pieces of land have been sold through different sale deeds on the basis of which different mutations have been attested in favour of the vendees/defendants/petitioners. The stand of the plaintiff/respondent in all the suits is that she had not alienated the suit land and all documents are the result of fraud and forgery. It is evident from the record that initially the suit was filed by the plaintiff/respondent through her general attorney Sardarzada Afzal Abbas. However, it is fact that neither Sardarzada Fazal Abbas appeared in Court nor his general power of attorney was brought on record. It is also fact that later on, the plaintiff/respondent chose to appoint one Munshi Ghulam Muhammad as her special attorney, and it is he who has been produced and examined in support of contentions of the plaintiff/respondent. The plaintiff/respondent has challenged the transaction on the plea of fraud and misrepresentation. Her stand is that she never appeared before the Sub‑Registrar at the time of execution/attestation of sale deeds and some other lady was produced and the sale‑deeds were got attested. The best evidence to prove this contention was the statement of the plaintiff/respondent herself. She neither appeared herself nor produced her initial general attorney Sardarzada Fazal Abbas. On the other hand, she produced one Munshi Ghulam Muhammad as her special attorney. To rebute her stand, the defendant/petitioner Muhammad Yar has examined the most important witness Muhammad Shakil, Sub‑Registrar D.W.1 who categorically stated that he had attested the sale‑deed in each case and that a lady had appeared who was duly identified by the Lambardar on whose identification he finally attested the sale‑deed. Statement of Sub‑Registrar coupled with the statements of other witnesses examined in each suit clearly prove that transaction in question in each suit has taken place and sale‑deeds had been executed by the plaintiff/respondent in favour of the defendants/petitioners. Thus the findings of the trial Court on this score are based on correct appreciation of evidence and the learned Additional District Judge was not justified in reversing the said findings.

23. The suit filed by the plaintiff/respondent‑is also not maintainable on the ground that the suit for declaration could only be filed if it is proved on record that the plaintiff/respondent was in possession of the land at the relevant time. The suits have been filed during year 1986. To prove her stand, the plaintiff/respondent has brought on record copy of Khasra Girdawari as well as copy of Jamabandi in each suit. A perusal of these documents reveals that these pertain to the year 1983‑

84. The suits having been filed in the year 1986, it was incumbent upon the plaintiff/respondent to bring on record documentary evidence to prove her possession over the suit land at the time of filing the suit. This has not been done and this fact alone proves that the. suits for declaration were not maintainable. The factum of possession of the defendants/petitioners over the suit lands stands proved even from the evidence produced by the plaintiff/respondent. The trial Court has very elaborately dealt with this aspect of the matter and has returned its findings. The said findings have been reversed by the learned Additional District Judge without referring and discussing the evidence brought on record and analyzed and scanned by the trial Court. Thus, the finding on the question of maintainability of each suit recorded by the learned Additional District Judge are hereby reversed and that of the trial Court restored.

24. Similarly, the trial Court in each case has discussed the evidence regarding the execution of the sale‑deed which has not only been discussed in its true perspective but has been ignored by the learned Additional District Judge while recording evidence under the relevant issue pertaining to the execution of the sale‑deed in each suit. The plaintiff/respondent has failed to substantiate her stand as discussed above.

25. The upshot of the above discussion is that all the civil revisions are accepted and the judgments and decrees passed by the learned Additional District Judge are set aside and that of the learned Civil Judge are hereby restored. H. B. T./M‑1192/L Revision accepted.