2006 PLP 796 (MLD)

SARDAR MUHAMMAD ASLAM, J.

The facts giving rise to this civil revision are that the mother of the petitioner filed a suit for declaration to the effect that sale-deed No.3293 dated 12-11-1988 is liable to be cancelled being the result of fraud and misrepresentation. The respondent filed his written statement and pleaded that the sale-deed and receipt of earnest money were lawfully executed. Out of the pleadings of the parties various issues were framed. After recording the evidence of both the parties the learned trial Court decreed the suit in favour of the petitioner. Feeling aggrieved the respondent filed an appeal, which was allowed and the judgment and decree passed by the learned trial Court were set aside vide judgment dated 21-11-2001 which is being impugned through this civil revision. Reasoning advanced by the Appellate Court was that vendee was also an, illiterate person and presumption of truth is attached to sale-deed. He relied on the statement made by the Tehsildar.

2. Learned counsel for the petitioner contends that the petitioner was a Paradanashin illiterate lady, not in possession of independent advice of a person having fiduciary relation.

3. On the other hand, learned counsel for the respondent submits that sale-deed was executed by Mst. Janat Bibi of her own free-will after receiving a sum of Rs.80,000 as its sale consideration.

4. Heard. Record perused.

5. D.W.3 is the only marginal witness who appeared in Court. He was working as Munshi with Inayat All Shah petition writer. In cross-examination, he submitted that the sale-deed Exh.D.1 does not contain his residential address. He concedes that Sadar Hussain, the other marginal witness has also not recorded his address. He also conceded that money was not exchanged/paid in his presence. He, however, stated that one Muhammad Sharif had accompanied the defendant. D. W.4 Sharif is the son of defendant who stated that plaintiff transferred the property to the defendant against a consideration of Rs.80,

000. At that time plaintiff's son Yousaf also accompanied her. Defendant Muhammad Sultan appeared himself as D.W.S. He corroborated his version mentioned in the written statement. D. W.2 Tehsildar stated that he did not know vendor personally and sale consideration was not paid in his presence.

6. Exh.D.1 is the sale-deed which was attested by Nazir Ahmad D.W.3. Safdar the only other marginal witness was not produced. Even the stamp vendor and scribe has not been produced. The executaut, Mst. Janat Bibi was not related either to the respondent or the marginal witnesses. She was not in possession of any independent advice. No person of her confidence was associated with the alleged transaction.

7. Under Articles 17 and 79 of Qanun-e-Shahadat Order, 1984 at least two witnesses are required to prove a transaction. Only one marginal witness has been produced who, too, is not aware of the details and has conceded that the petitioner Janat Bibi was net accompanied by any person at the time when Exh.D.1 was being authored by the petition writer. Admittedly, she is an illiterate Pardanashin lady/village woman. No person of her confidence accompanied her. Heavy onus lay on defendant to prove the transaction which they failed to discharge.

8. Reasons given by the appellate Court in reversing the judgment are not sustainable. Defendant being uneducated and old will not bring his case, in any exception. He had to prove the transaction by cogent evidence. Presumption of truth attached to sale-deed is only to the extent of its registration and not execution. D.W.2 Tehsildar deposed that he had no personal acquitance with vendor.

9. Learned trial Court took note of para-2 of the written statement which contained an averment that before execution of sale-deed an agreement was written and a receipt of payment of Rs.50,000 was issued. Photocopies of agreement and receipts were annexed with the written statement. Suggestion was given to P.W.2 that he was a signatory of agreement. However, the defendant elected not to produce these documents in evidence. Non-production of these documents goes a long way against the hallowness of his stand in pleading and evidence. 10.? For what has been stated above, the Civil Revision is allowed, the impugned judgment of Appellate Court dated 21-11-2001 is set aside and that of the learned trial Court dated 13-3-2001 is restored. M.H./M-1262/L?????????????????????????????????????????????????????????????????????????????????? Revision allowed.