1989 PLP 3656 (MLD)

(b) Civil Procedure Code (V of 1908)-- ‑‑‑S.115‑‑Revisional jurisdiction, exercise of ‑Concurrent findings of fact based on evidence on record, though could not be interfered with in revisional jurisdiction, but such finding of fact if suffered from mis‑construction, mis reading and non‑reading of material brought on record or mis‑application of law declared by superior Courts, held could not be sacrosanct and could be interfered with in revisional jurisdiction by High Court. Mushtaq Ahmad Khan for Petitioner. S. M. Rashid for Respondent. Date of hearing: 4th February, 1989. JUDGMENT. This revision petition has arisen from a suit filed by respondent against the petitioner for specific performance of agreement of sale of house in dispute. The suit was contested by the petitioner. The learned trial Court after framing issues and recording evidence decreed the suit by judgment dated 8‑9‑1986. The petitioner assailed judgment and decree in appeal filed by him before the learned lower appellate Court which has also been dismissed through judgment and decree dated 5‑4‑1988.

2. Learned counsel for the petitioner argued that the two Courts below have grossly misread and mis‑construed the evidence on the record and the findings recorded by them regarding execution of the agreement of sale in question and alleged payment of entire sale price to the petitioner did not stand proved even if the evidence produced by the respondent is taken on its face value. In order to appreciate the arguments, I have examined the entire record with the assistance of the learned counsel for the parties. It is manifest from the facts established on the record that on 25‑9‑1980 when the disputed agreement was executed, the petitioner purchased a brick‑kiln from respondent for a consideration of Rs.(i0,000 which amount was paid by the petitioner to the respondent. This fact was admitted by respondent when he examined himself as his own witness. The agreement in dispute was produced in evidence as Ext.P.1. To prove its execution by the petitioner, the respondent examined Allah Ditta son of Siraj Din as P.W.I. This witness stated that when he signed this document, it bore the signatures of both the parties. He further, stated that he singed the said document after asking the present petitioner and before signing the same this witness read it. It has not been stated by this witness that this document was thumb‑marked by the petitioner in his presence. It has also not been stated that this document before the petitioner thumb‑marked it was read over to him. In cross examination, he admitted that payment of an amount of Rs.20,000 did not take place in his presence nor the said writing took place in his presence and that he signed it because he was required to do so by the petition‑writer. P.W 2 is the petition‑writer who scribed this agreement Exh.P.1. He stated that he wrote this agreement on the instructions of petitioner and respondent and after he had written the same the respondent signed and the petitioner thumb‑marked it. He stated that P.W.1 also put his signatures. In the cross examination this witness admitted that on the said date two documents were executed. A suggestion was put to him that in fact a transaction for the sale of brick‑kiln was written by him and through fraudulent means the agreement in dispute was also got thumb marked by the petitioner. He stated that Zare‑Beh i.e. Rs.20,000 was paid after he had gone, whereas an amount of Rs.60,000 was paid by the petitioner in his presence. From the evidence of both these witnesses, it is manifest that no one stated that the document Ext.Pl was read over to the petitioner and after acknowledging the correctness of its contents after having fully understood, then he put his thumb impression. The respondent himself when appeared stated that the entire amount of price was received by petitioner and one year period was settled within which the sale‑decd was to be registered. He admitted that there was also a transaction of sale of brick‑kiln by him to the petitioner. He was given a suggestion that taking undue advantage of the illiteracy of the petitioner he got his thumb impression on the disputed agreement of sale fraudlently. On the other hand the petitioner when examined himself, clearly stated that he did not know about the writing and execution of Ext.P.1, whereas there ways a transaction of sale regarding brick‑kiln and his thumb impressions were got in that connection. He specifically stated that the market price of the house in dispute the subject matter of the disputed agreement was Rs.1,50,000 and that he was in possession of the property. He stated that the agreement v4as a fabricated document. He also stated that he did not receive Rs.20,000 from the respondent. The statement of petitioner about market value of the house was not questioned in the cross examination. In the cross‑examination he admitted that he thumb marked a writing at the instance of respondent and that Ext.Pl bore his thumb impression. The statement of petitioner if read as a whole, it emerges there from, that his case was that he did not enter into an agreement for sale of the house with the respondent and that there was a transaction of purchase of a brick‑kiln from the respondent in respect of which the respondent got his thumb impressions on the document. The petitioner is illiterate. No witness of respondent stated that an amount of Rs.20,000 as claimed by respondent was paid to the petitioner in his presence. The petitioner is still in possession of the house. The market value of the house was claimed to be Rs.1,50,000 by the petitioner in evidence which was not challenged in cross‑examination which shall be deemed to have been taken as correct according to the rule laid down by the superior Courts. Reference may be made to Syed Iqbal Hussain Versus Mst. Sarwari Begum (P L D 1967 Lah. 1138). If the respondent had paid the entire sale price of the house to the petitioner and there was nothing more to be paid, I fail to see any justification as to why a regular sale‑deed was not got executed and registered. A man of ordinary prudence would not pay the entire sale‑price without getting the sale‑deed registered or at least having the possession of the property. These matters had material bearing upon the most crucial question regarding the execution of document Ext.Pl by the petitioner and its genuineness and was a very strong circumstantial evidence which has neither been adverted to nor duly taken note of. Such circumstantial evidence can validly be taken into consideration as evidence while determining the plea of fraud in respect of execution of a document. This view rinds support from judgment reported as State versus Habibur Rahman and others (P.L.D.1983 S.C.286).

3. As has been noticed above, admittedly on the same day, there was also transaction of purchase of brick-kiln by the petitioner from respondent for an amount of Rs.60,000 which was admittedly paid by him. If simultaneously there was an agreement of sale of the house of the petitioner in favour of the respondent and an amount of Rs.20,000 was paid to the petitioner as alleged, there was no occasion and at least no explanation has been brought on record, as to why these two amounts passed hands from one party to the other and were not adjusted, i.e. the petitioner should have been paid Rs.40,000 on account of price of brick‑kiln.

4. The mere admission of presence of thumb impression on Ext.Pl by the petitioner did not legally constitute admission of execution of the said document. The evidence brought by the petitioner on the record and his statement if read as a whole clearly makes out, that he had denied the execution of the document as agreement of sale and pleaded fraud, as he was only party to a sale transaction of brick‑kiln. As has been earlier mentioned Ext. Pl was not proved to have been read over to petitioner before his thumb impression was obtained. There are strong reasons to hold for the above reasons that while executing transaction of sale of brick‑kiln, fraud was played upon the petitioner and his thumb impression was obtained on his agreement also through mis‑representation. The rule is firmly settled that execution of document by an illiterate person should be viewed strictly. In judgment reported as Taj Din Versus Abdur Rehman (P L D 1963 (W.P) Kar. 825) it was held that even if the presence of signatures on document are admitted by such a person, presence of that would not by itself be proof of its execution by person concerned, if its execution proposition that concurrent findings of facts based on evidence produced in the case are not to be interfered with in revisional jurisdiction. However, the law is well established that a finding of fact is not sacrosanct if it suffers from in is‑construction, mis‑reading and non‑reading of material brought on the record or mis‑application of law declared by superior Courts. In the light of the above discussion, I am of the considered view that in this case the two Courts below have misread and mis‑construed the evidence and also did not consider the above mentioned circumstances which established beyond doubt that the execution of agreement of sale Ext.P1 by the petitioner was not proved and that it was outcome of fraud. The Courts below thus committed material irregularity and illegality in exercise of their jurisdiction. The revision petition succeeds. It is accepted. The impugned judgments and decrees of both the Courts below are set aside and the suit fled by the respondent for specific performance of agreement in dispute is hereby dismissed with no order as to costs. H.B.T./S‑499/L