2016 PLP 73 (CLC)

ATIR MAHMOOD, J.

The petitioner filed a suit for declaration against respondents No.4 & 5 and one Samiullah, who died on 13.03.1995. The petitioner contended in the plaint that he was owner in possession of the land, described in headnote of the plaint; that when the defendants asserted ownership over the suit land, the petitioner got checked the revenue record whereupon he came to know that defendant No.1/respondent No.4 had got prepared a forged sale deed dated 21.01.1979 in her favour and on the basis of said registered sale deed, she has also mutated the land in her favour vide mutation No.15.05.1979; that afterwards, defendant No.1 further alienated the suit property in favour of defendants No.2 (since died) & 3 (respondent No.5 in this civil revision) vide registered sale deed dated 03.01.1985 and mutation No.251 dated 05.06.1985; that defendant No.1 was not owner of the land at the time of registration of the sale deed, therefore, she could not alienate the suit property in favour of defendants No.2 & 3; that the petitioner-plaintiff being owner of land to the extent of 96 kanals and 1 marla could not alienate the suit property measuring 36 kanals and 1 marla in favour of defendant No.1 as per MLR 115; since the original transaction in favour of defendant No.1 is violative of terms of MLR, subsequent alienation in shape of gift in favour of defendants No.2 & 3 is also illegal and unlawful and liable to be cancelled.

2. The suit was resisted by the respondents-defendants who also filed contesting written statement. Out of divergent pleadings of the parties, learned trial court framed the following issues:- After recording evidence of the parties and hearing both sides, learned Civil Judge, Lodhran decreed the suit of the petitioner vide judgment and decree dated 25.03.1991. However, in appeal by the respondents, the learned Additional District Judge, Lodhran reversed findings of learned trial court vide judgment and decree dated 14.12.1995 which has been assailed in this civil revision.

3. Learned counsel for the petitioner inter alia contends that the appeal of respondents Nos.1 to 3 was not competent as the alleged transfer of land took place during the pendency of the suit, as such, keeping in view the principle of lis pendens, respondents No.1 to 3 had no right to file the appeal; that respondents No.1 to 3 could not prove the factum of bona fide purchasers and they also did not move any application for their impleadment in the suit proceedings; that at the most, the learned lower appellate court, if accepted version of respondents Nos.1 to 3 of bona fide purchasers, could send the case back to the trial court for impleading them as defendants in the suit; that findings of learned lower appellate court on issues Nos.1 & 2 are contrary to the evidence available on record and it has also failed to apply correct law in this case, therefore, this civil revision be allowed, the impugned judgment and decree be set aside and the judgment and decree of learned trial court be restored. He has relied upon the judgment of the Hon'ble Supreme Court reported as Shujahat Hussain Versus Muhammad Habib and another (2003 SCMR 176).

4. On the other hand, learned counsel for the respondents No.1 to 3 have supported the judgment and decree of the learned appellate court by submitting that the petitioner failed to discharge the initial onus to prove his case that the impugned registered sale deed is a result of fraud and forgery as he never appeared in his affirmative evidence and only appeared when the evidence of the defendants was already recorded. He submits that the PW-1 admitted the sale of the land which fact remained un-rebutted; that the respondents/defendants being the bona fide purchasers of the property in dispute took over the possession of the property and khasra girdawaries were duly prepared showing the names of the respondents; that the documentary evidence excludes the oral evidence and that the violation of MLR 115 could not be assailed before the Civil Court as it was exclusive domain of the land commission or their subordinate officers. It is also submitted that since the petitioner was out of the possession of the property, therefore, simple suit for declaration without seeking the possession of the property was not maintainable and was liable for dismissal. He has relied upon the judgments reported as Mst. Aisha Bibi Versus Nazir Ahmad and 10 others (1994 SCMR 1935), Muhammad Nawaz and 2 others Versus Muhammad Khan and 9 others (2009 CLC 663), Sadiq Ali Versus Raj Din and others (PLD 1992 Lahore 158), Habib Ahmad Versus Muhammad Aslam alias Lashkar (2002 SCMR 1391) and Khawaja Muhammad Naeem and others Versus Tasleem Jan and others (1980 CLC 1483).

5. Respondents Nos.4 & 5 have already been proceeded against ex parte vide order dated 05.06.2003.

6. Arguments heard. Record perused.

7. The emphasis of the petitioner is on the following points:- (i) That the respondents Nos.1 to 3 were not eligible to assail the judgment and decree of the learned trial court as they were not party to the proceedings before the trial court and precluded to file the appeal as they never filed any application before the trial court for impleading them as defendants. (ii) That the respondents Nos.1 to 3 failed to prove that they were bona fide purchasers of the property during pendency of the suit. (iii) That the respondents Nos.4 and 5, being the beneficiaries of the disputed document, failed to prove the execution of the sale deed by production of two marginal witnesses as well as to prove the payment of consideration amount. The first two points raised by the learned counsel for the petitioner are not sustainable. It is observed that any person who is adversely effected from any judgment and decree has a right to file an appeal against the same. The case of the respondents Nos.1 to 3 is that they being the bona fide purchasers of the property have every right to contest the judgment and decree. Admittedly, the respondents Nos.1 to 3 are the subsequent purchasers of the property and the question as to whether they are the bona fide purchasers of the property could only be decided if they were impleaded as defendants in the suit. The respondents Nos.1 to 3 claimed while filing their appeal that they purchased the property through sale mutation dated 20.12.1990 after due verification of ownership of the respondents No. 2 to 4 (in the appeal) as the names of the said respondents were duly incorporated in the record of rights and there was no restraining order on the record whereby the property could be shown to be under any lien, therefore, in my view, the respondents Nos.1 to 3 were legally entitled to file the appeal against the impugned judgment and decree. Reliance is placed upon the judgment of the august Supreme Court in a case titled Sahib Dad Versus Province of Punjab and others (2009 SCMR 385). The relevant paragraph of the said judgments is reproduced as under:- "It is true that the petitioner was not a party to the said revision petition, but it is equally true that he, under the law, could have challenged the said order. It has been held in the case of H.M. Saya & Co. v. Wazir Ali Industries Limited PLD 1969 SC 65 that a stranger to a suit or a proceeding can file an appeal if he adversely affected by an order in that suit or proceeding". (Emphasis Provided).

8. As far as the next argument of the learned counsel for the petitioner is concerned, it is observed that in order to prove his case the initial burden to prove issues Nos.1 and 2 was upon the petitioner/plaintiff, who produced PW-1 Ghulam Rasool and he deposed in his examination-in-chief that according to his record Mst. Shehzadi Ejaz Parveen (respondent No.4) purchased the disputed property vide registered sale deed No. 31005 dated 24.10.1978 which was duly incorporated through mutation dated 03.12.1979, meaning thereby that the transaction of sale is admitted by the witness of the petitioner. He did not depose that any fraud or forgery was committed by the said respondents at the time of execution of sale deed. He also deposed that on 21.01.1979, Shehzadi Ejaz Parveen respondent No.4 was not owner of the property in village and on the same date she became the owner of the property by purchasing the land from Khuda Bakhsh, the petitioner. The petitioner did not challenge the version of his own witness. However, he did not appear before the learned trial court in his affirmative evidence and reserved his right to appear as his own witness after the evidence of the defendants. I am of the considered opinion that the petitioner failed to discharge the initial onus to prove his case i.e. issues No. 1 and

2. Reliance is placed upon a judgment of this Court reported as Mst. Sharman and 211 others Versus Syed Ali Hussain and 8 others (2006 YLR 130). There is no cavil to the proposition that the contesting defendants, being the beneficiaries of the disputed document were under a legal obligation to prove the factum of due execution of the registered sale deed. The said respondents/defendants produced Ashiq Husain as DW-1 who deposed that he is a Lumberdar of the area and the petitioner Khuda Bakhsh alienated 36 kanals 8 marlas of land to the defendants and he identified the said Khuda Bakhsh. He also deposed that Khuda Bakhsh, the petitioner put his thumb impression before the petition-writer. He also deposed that the petitioner put his thumb impression before the Sub-Registrar after receiving the cheque of Rs.30,000/-. During cross-examination, he admitted that today he had not seen the original sale deed as it was not produced before him to testify his signature. During the entire cross-examination, no suggestion was put to him that Khuda Bakhsh never put his thumb impression upon the registered sale deed nor it was confronted to him that Khuda Bakhsh never received the cheque of Rs.30,000/-. DW-2 Koray Khan deposed in his examination-in-chief that bargain was struck in his presence for an amount of Rs.30,000/- and payment was to be made before the Sub-Registrar. He deposed that the property in dispute is in possession of the defendant No.1, who subsequently alienated the same to his brother Sami Ullah (defendant No.2). During cross-examination, he stated that at the time of registration of sale deed he was present and Allah Yar petition-writer wrote the sale deed. He denied the suggestion that no bargain was struck in his presence. DW-3, Allah Yar the petition-writer deposed that on the asking of Khuda Bakhsh Exh.D1 was written by him which is duly entered in his register "Wasika Navees" of the year 1997. Even no suggestion was put to this witness that he did not write any sale deed. DW-4 Muhammad. Siddique, Registry Moharrar deposed that Exh.D2 is an attested copy of the registered sale deed which is duly entered in the register vasika navees of the year 1990. He deposed that the said register is thumb marked by Khuda Bakhsh as well as signed by Shehzadi Ejaz Parveen (defendant No.1) identified by Ashiq Hussain Shah. The defendant No.1 Shezadi Ejaz Parveen appeared in the witness box as DW-4 and she deposed that she purchased the property through sale deed from Khuda Bakhsh for a consideration of Rs.30,000/-; that Khuda Bakhsh put his thumb impression; that Khuda Bakhsh is her brother-in-law ( ). She deposed that as a witness of the sale deed, her husband Malik Ashiq appeared and Khuda Bux was duly identified by Ashiq Hussain Shah Lumbardar. She also deposed that payment of Rs.30,000/- was made through cheque. In the cross-examination, no suggestion was put to this witness that the petitioner never appeared before the Sub-Registrar for registration of the sale deed. Though a suggestion has been put that the registered sale deed is forged and fictitious document but it has nowhere been confronted to her that the thumb impressions of the petitioner, on the sale deed are forged and fictitious. Keeping the evidence of both the parties in juxta position it becomes crystal clear that the petitioner miserably failed to establish on record that the disputed sale deed in favour of the respondent No.4, Shehzadi Ejaz Parveen was forged and fictitious document. The argument of the learned counsel for the petitioner that only one marginal witness was produced in evidence and there is no other eye-witness, therefore, the sale deed is not in accordance with the provisions of Qanun-e-Shahadat Order, 1984, is mis-conceived as in the year 1979, the Qanun-e-Shahadat Order, 1984 was not in existence, therefore, the provisions of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 could not be attracted. The appearance of one marginal witness of the document, whose credibility could not be shaken in the cross-examination, is sufficient to prove the existence of a valid sale deed which is duly registered with the Sub-Registrar. Even otherwise, the disputed sale deed is a registered document and in order to discredit it a very heavy burden was upon the petitioner but he failed to do it by appearing in the witness box in his affirmative evidence and there-after by any cogent evidence produced in rebuttal of the respondents/ defendants. Reliance is placed upon the judgment of the Hon'ble Supreme Court reported as Habib Ahmad Versus Muhammad Aslam alias Lashkar (2002 SCMR 1394). The relative paragraph of the said judgment reads as under:- "As regards the proof of execution of the sale-deed in question suffice it to say that the sale-deed is a registered document and the respondents are in possession of the suit land on the basis thereof therefore, non-examination of its attesting witnesses is not fatal. Last but not the least, no concrete instance of mis-reading or non-reading of evidence has been highlighted by the learned counsel for the petitioners". (Emphasis Provided)

10. As far as the argument of the learned counsel for the petitioner that the sale in favour of the respondent No.4/defendant was in violation of MLR 115 and therefore the transaction was void abi initio is also without any substance as the Civil Court had no jurisdiction to declare any such sale deed as void. The exclusive domain, in order to challenge the same, was of the Land Commission. Reliance is placed upon the judgment of this Court reported as Muhammad Nawaz and 2 others Versus Muhammad Khan and 9 others (2009 CLC 663). The relevant paragraph of the said judgment reads as under:- "Apart from the said facts apparent on the face of record the settled rule of law is that jurisdiction to declare any transaction to be void under M.L.R. 115 exclusively vests in the land Commission or its subordinate officers and jurisdiction of the Civil Court as also all other Tribunals/Authorities is absolutely excluded as laid down in the case of Mst. Aisha Bibi being relied upon by the learned counsel and which has since been followed by all Courts in the country. The impugned judgment and decree of the learned Additional District Judge, therefore, is wholly without lawful authority". (Emphasis Provided).

11. There is yet another aspect of the case that the petitioner miserably failed to prove that he is still in possession of the property. His own witness PW-1 admitted that the property was alienated to the respondent No.4/defendant and the witnesses of the respondents categorically deposed that the possession lies with the respondents. Furthermore, the documentary evidence produced as Exh.D3 to Exh.D5 categorically established the possession of the respondent, Mst. Shehzadi Ejaz Parveen in her own rights. It is well settled principle of law that the documentary evidence excludes the oral evidence as a witness can tell a lie but document cannot. Furthermore, Exh.D3 to Exh.D5 remained un-rebutted, therefore, I am of the considered opinion that the petitioner, not being in possession of the property at the time of filing the suit, was under a legal obligation to seek relief of possession while filing the suit, therefore, the suit of the petitioner was also barred under section 42 of the Specific Relief Act. Resultantly, this civil revision being devoid of any force is hereby dismissed. MH/K-2/L Revision dismissed.