2020 PLP 1039 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

In short, necessary facts of instant appeal were that present appellant instituted suit for declaration and permanent injunction asserting therein that disputed property was devolved upon him from the legacy of his father through attestation of inheritance mutation; that the appellant was addict of heroin and the respondent being his co-villager took him to hospital on 17.02.1991 for his treatment where under the garb of affidavit to be submitted for treatment, his signatures/thumb impressions were procured on blank stamp as well as ordinary papers; that subsequently it learnt that sale deed dated 17.02.1991 (Exh.D1) qua afore noted area of the appellant was executed and registered in favour of respondent by playing fraud/misrepresentation, whereas neither transaction of sale effected nor consideration was passed on; that possession also never changed hands and the appellant also did not appear before the Sub-Registrar for attestation of sale deed. Through the suit instituted on 26.05.1991 (just after three months of the registration of impugned sale deed), its cancellation was sought, which obviously was resisted by the defendant/beneficiary. The learned Trial Court after receiving and appreciating the available evidence dismissed the suit on 11.04.2013, which despite being assailed through appeal was maintained by the learned District Court vide judgment dated 02.06.2016 and to call in question their unanimous decisions this second appeal was preferred.

2. Malik Abdul Wahid, Advocate, learned counsel for the appellant/plaintiff argued that the sale deed (Exh.D1) was challenged while raising serious allegations, as such, the onus was upon the beneficiary to prove its execution/attestation as well as transaction reflected therein, but despite non-availability of solid and trustworthy evidence the pivotal issues were answered in his favour. He further emphasized that neither in his pleadings the defendant provided essential details with regard to purported original transaction nor the latter could prove it through the available material. Mr. Malik while going through the evidence examined on behalf of defendant further pleaded that the basic ingredients of the sale transaction were not established and that whatever evidence was led by respondent, it being beyond pleadings as per principle of secundum allegata et probata was liable to be ignored. He also added that both the marginal witnesses (DWs.1 and 2) of impugned sale deed examined on behalf of defendant/beneficiary were closely related and their depositions being interested were not trustworthy. It is next argued on behalf of learned counsel for appellant that Identifier, Scribe, Stamp Vendor and Sub-Registrar being the independent persons could belie the allegations raised by the appellant, but they were withheld despite their availability, as such Courts below were bound to antagonistically infer against the beneficiary and well established law so far on the subject was not applied, hence the impugned decrees cannot be sustained. In contra, Mr. Khawar Ikram Bhatti, Advocate, learned counsel for the respondent/defendant submitted that the moment appellant admitted his signatures over the disputed sale deed (Exh.D1), there left nothing for the beneficiary to prove the same through scheme provided under the law. He further emphasized that the disputed sale deed being registered instrument attained strong presumption of correctness and learned Courts below were perfect to hold that appellant/plaintiff was under obligation to prove his case. He lastly added that concurrent decrees of the learned lower fora cannot be interfered with while invoking jurisdiction provided under section 100 of the Code, 1908 and prayed for dismissal of appeal.

3. Arguments heard and record perused.

4. Having gone through the contents of plaint and written statement, this Court came to the conclusion that vide paras 4 to 8 ex facie, the appellant raised serious questions with regard to alleged original transaction as well as execution of disputed sale deed (Exh.D1), but admittedly written statement is silent regarding essential details qua venue, date and names of witnesses to assert when, where and before whom the original transaction was settled leading to execution/attestation of document under challenge. The principle of "secundum allegata et probata" that a fact has to be alleged by a party before it is allowed to be proved is fully applicable in such situation, which has full command of provisions of Order VI, Rule 2 and Order VIII, Rule 2 of the Civil Procedure Code, 1908. Anyhow, the appellant/plaintiff while appearing as PW3 fully endorsed his pleadings and the moment he reiterated that he was took to hospital for his treatment and some blank papers were managed to be signed/thumb marked in the garb of his admission in the hospital, whereas neither sale settled nor consideration paid, rather by using said papers, forged and fictitious disputed sale deed was grafted, onus shifted upon the beneficiary not only to rebut the allegations raised by the adversary, but to prove that actually a fair deal of sale was effected, alleged consideration paid and plaintiff voluntarily appeared before Stamp Vendor, Scribe and Sub-Registrar as well. The emphasis of Mr. Bhatti, learned counsel for beneficiary that the moment executant admitted his signatures over disputed document, beneficiary was not required to prove the same as per scheme of law is not well founded. No doubt, the appellant/plaintiff admitted that his signatures/thumb impressions were procured, but with clarity/distinction that those were obtained in the garb of his affidavit to be submitted for his treatment and admission in the hospital. In such situation, it was imperative upon the beneficiary to prove the contents of document on which the executant admitted his signature. It is well established by now that mere admission of putting thumb impression or signatures by any person on some disputed instrument without proving the contents thereof would not amount to prove its execution in terms of Article 78 of the Qanun-e-Shahadat Order 1984. In arriving at this view, I am fortified by the verdict laid down in the landmark judgments reported as Abdul Hameed v. Mst. Aisha Bibi (2007 SCMR 1808) and Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah (2007 SCMR 1884). The next contention of learned counsel for respondent/beneficiary that registered instrument attained strong presumption of correctness, as such it was not mandatory to strictly prove its attestation is again fallacious. It is by now well settled principle of law that whenever the execution or validity of a purported registered document is denied, such instrument loses sanctity of being presumed to be correct, rather its veracity would depend upon quantum and quality of evidence to be produced to prove its lawful execution. Reliance can be placed upon judgments reported as Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1), Khan Muhammad v. Muhammad Din through L.Rs. (2010 SCMR 1351), Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others (2006 SCMR 1144) and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245). In the latter case, the apex Court concluded in the following words:- It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction of which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness of document. Whereas, the Hon'ble Supreme Court in Khan Muhammad's case supra while dealing with one disputed registered sale deed held as under:- It is settled principle of law that who lodges a fact must prove it on the well-known maxim of Secundum allegata et probata. It is also settled principle of law that the appellant is a beneficiary of the aforesaid documents, therefore, it is the duty and obligation of the appellant to prove the documents as pointed out by the learned counsel in accordance with the provisions of Qanun-e-Shahadat Order, 1984. See 1979 SCMR 549 (Akhtar Ali v. University of the Punjab), 1992 SCMR 2439 (Haji Muhammad Khan and others v. Islamic Republic of Pakistan). It is well settled principle of law that initial burden to prove execution of documents is on party which is relying on documents. Once this onus is discharged, burden to prove factum of fraud or undue influence or genuineness of documents shifts to party which alleges fraud. Additionally, under section 60 of the Registration Act, 1908, only a restricted presumption is attached that registration proceedings were regularly and honestly carried out by the attesting officer, but the said presumption attached to its certificate is always rebuttable and whenever the execution of an instrument is denied, then the presumption is deduced to have been sufficiently rebutted and onus lies upon the person, who alleges execution to prove that for the transaction effected between the parties, the document was executed/registered. The presumption in favour of a registered instrument does not dispense with the necessity of showing that person, who admitted the execution before the attesting officer was not an imposter, but the genuine one. Reliance can be placed upon the judgment reported as Gopal Das v. Siri Thakir Gee and others (AIR 1943 PC 83). This view has also been conceived by the Division Bench of this Court in Siraj Din v. Jamila and another (PLD 1997 Lahore 633) and Fakhar-ud-Din through L.Rs. v. Muhammad Iqbal and others (2015 CLC 994).

5. Adverting to evidence led on behalf of beneficiary, the first one was Riaz Ahmed (DW1), one of the attesting witnesses of sale deed (Exh.D1), who without giving the detail of original transaction as well as execution of sale deed, simply worded that plaintiff had sold out 44 Kanals 07 Marlas of his area to respondent/defendant and in lieu thereof sale deed was executed, which after being signed by him and co-witness Muhammad Akram, in presence of Ghulam Mustafa and Lumberdar was presented before the Revenue Officer, who attested the same. The said star witness during his cross-examination in clear words uttered that:- He also admitted that second marginal witness (DW2) was his relative. Whereas Muhammad Akram (DW2), the other signatory in the capacity of attesting witness in his statement-in-chief did not utter that transaction settled or payment was made before him, whereas, he thereafter in his cross-examination deposed as under:- His such part of deposition was not only beyond the contents of impugned sale deed, wherein it was specifically mentioned that:-- rather also contrary to that of DW

1. Whereas, the defendant (DW3) in his statement-in-chief stated on oath that on 17.02.1991 he had purchased the land by making payment of Rs.333,000/-. He also admitted during cross-examination that plaintiff and his brother were addicted to heroin. Although the beneficiary lastly examined Bank Manager (DW4) to prove that through two bearer cheques (Exh.D6 and 7), an amount of Rs.150,000/- out of sale consideration was paid to the vendor/plaintiff, but his statement was not liable to be relied upon for the counts; firstly that the defendant/respondent in his written statement absolutely made no reference that any part of sale price was paid through cheques, and in such situation, it could not be considered, because no one can be allowed to set out a new case beyond the scope of his pleadings. Reference may be made to Moiz Abbas v. Mrs. Latifa and others (2019 SCMR 74); secondly, the cheques were written and drawn on 06.03.1991 and 14.04.1991, whereas the impugned sale deed had already been executed/registered on 17.02.1991; thirdly, neither it was established that those contained signatures/thumb impressions of the appellant/plaintiff nor confronted to the latter, as such the cheques were liable to be discarded because it would be unfair to the party against which these were going to be used. The principle that a document can only be used against a party/person is covered by Article 140 of the Qanun-e-Shahdat Order, 1984, which corresponds to section 145 of the Evidence Act, 1872, hence such confrontation was mandatory. See Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 SC 750), Syed Muhammad Sultan v. Kabir ud Din and others (1997 CLC 1580) and Mukhtar Ahmad and 4 others v. Taj Din and 3 others (2002 YLR 2660) and finally, DW4 in his cross-examination admitted that at the time of presentation of these cheques, he was not posted in the concerned branch, as such his deposition was not helpful to the beneficiary in any sense.

6. The additional setback of the case of vendee/respondent was that during cross-examination, he frankly admitted that possession was never handed over to him. As defined under section 54 of the Transfer of Property Act, 1882, "sale" is transfer of ownership of immoveable property in exchange for a price paid or promised or partly paid or partly promised. In order that a transaction may be "sale", the payment of price must be contemplated. It must be followed by delivery of possession. Whenever these ingredients are lacking, mere registration of sale deed will not be operative to pass title to the vendee.

7. Despite the fact that there were four Lumberdars and a Councilor in the concerned Revenue Estate, but none of them was accompanied at the time of attestation of sale deed (Exh.D1), rather Lumberdar of city Gujranwala was made available to identify the vendor before the Registering Officer, which further doubted the valid/genuine attestation of the deed in dispute.

8. Mr. Khawar Ikram Bhatti, Advocate, learned counsel for the respondent/defendant has no answer on his part to justify withholding of Identifier, Stamp Vendor and Sub-Registrar. There is nothing on record that they at the relevant time of trial were not available. Indeed, they being independent persons were the best witnesses to belie the allegations of the appellant/plaintiff. Through them, it was possible to prove that stamp papers were purchased, sale deed scribed at the instance of the alleged executant and it was he who voluntarily appeared before the Sub-Registrar to acknowledge the transaction and contents of documents when these were presented for registration. Non-production of these vital witnesses has constrained this Court to infer under Article 129(g) of the Qanun-e-Shahadat Order, 1984 that had they been examined, might have gone hostile to the beneficiary.

9. In fact, both the Courts below without appreciating the evidence available on behalf of vendee to consider whether the transaction was proved or not proceeded to dismiss the suit merely for the reason that sale detailed in Exh.D1 was pre-empted by mother of the plaintiff and the latter also made some admissions. Suffice it to hold that the act of any other (even if she was mother of the plaintiff) would not amount to apply principle of estoppel to a person, who asserted his own independent right to sue. This Court has minutely gone through the statement of the plaintiff (PW3) and found nothing alleging to have made admission qua any of the ingredients of transaction or series of acts performed for the registration of Exh.D

1. The Courts below should be conscious of the fact that PW3 was an addicted person and might not be as alert as a prudent one. The Court was bound to appreciate his statement as per its substance and pith, who could not be non-suited while torning out one or two sentences of his deposition. It is well established by now that admission, which is wrong on a point of fact or is made in ignorance of a legal right, cannot be given binding effect. See Barkhurdar v. Muhammad Razzaq (PLD 1989 SC 749).

10. The last argument of learned counsel for the respondent that concurrent findings of fact rendered by the learned Courts below cannot be disturbed while exercising jurisdiction under section 100 of the Code, 1908 is without any substance as well. The same can be interfered with when it is found to be result of any mis-reading and non-reading of evidence or ended in wrong conclusion being contrary to law. To arrive at this view, I am fortified by the judgment reported as Mst. Nazir Begum v. Muhammad Ayyub and another (1993 SCMR 321) wherein the apex Court held in the following manner:- "Concurrent findings of fact recorded by the trial Court and the first appellate Court can only be disturbed in second appeal if there is a mis-reading or non-reading of evidence which has led to wrong conclusions." Since the Courts are expected to deliver justice, which is not only to be done, but also seen to be made and cannot shut their eyes or turn a deaf ear to perverse conclusion based on patent errors of law. In this particular case, the said principle was not followed, rather the findings of the learned lower fora were based against the available material and law on the subject was also not applied correctly, as such impugned decrees could not sustain.

11. The narrative of the above discussion is that this Appeal succeeds, the decrees of learned lower fora are hereby set aside and suit of the appellant is decreed. No order as to cost. ZC/M-24/L Appeal allowed.