2002 PLP 1730 (MLD)

5. The respondents filed an appeal which was allowed vide judgment and decree dated 28‑3‑1994, which has been impugned 'in the present petition.

6. The learned counsel for the petitioners contends that apart from the fact that the learned First Appellate Court misread the evidence, testimony of Faqir Sain, respondent No. 1, who appeared as D.W.1, was also relied upon which was disbelieved by the learned trial Court for valid reasons which were not even adverted to by the learned First Appellate Court. He maintains that there were some peculiar futures of the case which were duly taken notice of by the learned trial Court but were brushed aside by the learned First Appellate Court in an arbitrary manner. He tabulated these features as follows:‑‑ (i) No persons from the village witnessed the sale‑deed including the two Lumbardars. (ii) While the land in dispute is situated in Daska, which was nearer to the place of residence of the parties, the sale transaction was registered at Sialkot. (iii) Ghulam Muhammad who was a material witness and had also purchased the stamp paper was not examined and thus best evidence was withheld., (iv) The stamp paper was not purchased by Chiragh or any of the vendees. (v) The scribe was not examined. (vi) D. W.2, who identified the vendor at ‑the time of registration of the sale‑deed, did not personally know the vendor. (vii) Chiragh was an old and infirm person of about 90 years, not otherwise, capable to understand the transaction, was living with the defendants and was wholly dependant upon them. 6‑A. On the other hand the learned counsel for the respondents contends that Lal, the deceased plaintiff, did not appear in the witness box, instead, his attorney was examined which was by itself fatal. He next contended that execution of a document is a question of fact which stands concluded as a result of reappraisal of evidence by the learned First Appellate Court and therefore, no interference is called for. He next contended that according to the finding of the learned trial Court, the plaintiff was not able to prove his case and therefore, even the initial burden was not discharged. He further submitted that no effort was made by the petitioners to get the thumb‑impression of the vendor, Chiragh, on the sale‑deed examined by a finger‑print expert. It was maintained that the person who impersonated for Chiragh was not identified. It is next contended that a presumption of correctness is attached to a registered document. He next contended that the first suit was dismissed on 13‑9‑1980 and objection was specifically taken in the written statement but no issue was framed. The plea was also raised before the learned First Appellate Court in the memo. of appeal. According to him, it was primarily the duty of the Court to frame proper issue and that the respondents were prejudiced.

7. I have considered the submissions made by the learned counsel for the parties, have carefully perused the record appended to this petition and have examined the reasoning of the learned two Courts. Since it was a judgment of variance, the evidence produced in the case was duly examined which is briefly noted hereunder.

8. Miraj Muhammad Khan, the special attorney of the deceased plaintiff, was examined as P. W.1 stated that Chiragh was the owner of the disputed land, used to live with the respondents. He never sold the land in dispute nor had ever appeared before the Joint Registrar, Sialkot P.W.2, Ghulam Qadir, supported P. W.1. He further stated that Ghulam Muhammad, a marginal witness of the sale‑deed was not resident of village and Chiragh used to live with the respondents. On behalf of the defendants, Faqir Sain respondent No.1, appeared as D.W.1, and claimed that Chiragh was mentally and physically fit who had executed the sale‑deed for which initially earnest money was paid. Chiragh had himself appeared before the Joint Registrar, Sialkot. In cross- examination he stated that bargain was struck through Muhammad Tufail son of Muhammad Hussain (D.W.4). He admitted that at the time of partition of the Sub‑Continent, Chiragh was 50/60 years old. His age, on the date of execution of sale‑deed comes to 80/90 years. Abdul Aziz Advocate was examined as D. W.2 he was a marginal witness of the sale deed and also identified Chiragh before the Joint Registrar. He stated that sale consideration was paid in his presence. D.W.3, Siraj Din, claimed that Chiragh had sold the land to the respondents and he had heard of the bargain. He was not even a witness to the bargain. D. W.4, Muhammad Tufail, claimed that Chiragh had sold the disputed land to the respondents. He claimed to have participated in the bargain but simultaneously stated that his father and other persons had told him that the bargain was struck for Rs.10,

000. He claimed to be present at the time of registration of the sale‑deed. D.W.5, Khurshid Ahmad claimed that he participated in the bargain but also stated that he had heard that the bargain was struck for Rs.10,

000. He admitted that Chiragh was more than 80 years old.

9. Issues No.4 is the material issue which is reproduced below:‑‑ "Whether the impugned transaction of suit land by Chiragh deceased in favour of defendants vide registered sale‑deed dated 10-2-1976 is result of fraud, misrepresentation and impersonation and same as such, is illegal, null and void, against facts and not binding upon the plaintiff? OPP

10. It is correct that the onus to prove the issue was on the plaintiffs but in the circumstances the sworn statements of P. W.1 and P. W.2 were sufficient to shift the onus on the defendants because they were the beneficiaries of the disputed transaction. It may also be noted that it is not a negative fact which is capable of proof, it was the positive which could be proved. It may also be observed that in casks of fraud, forgery or impersonation, direct evidence may not be forthcoming and therefore, facts and circumstances brought out on the record through the evidence are of considerable importance. The learned trial Court dis believed D.W.1, inter alia, on the ground that according to him, the bargain was struck through Muhammad Tufail while Muhammad Tufail as D.W.4 stated that his father and other persons had informed him that the bargain was struck for Rs.10,000 although he claimed to be one of the participants in the bargain. In case he was there, he would not have stated that he was informed by his father and others that the bargain was struck for Rs.10,

000. The learned trial Court also noted that D. W.5 also claimed to be a witness to the bargain. He named Muhammad Hussain, Taj, Gulab and Barkat as the persons present at the time of bargain. He thus, excluded D.W.4 from one of the persons in whose presence the bargain for the sale was struck. D.W.1 was disbelieved for another reason. He claimed that the document was attested two days after its execution. The learned trial Court noted that while the sale‑deed was executed on 5‑2‑1976, it was attested on 10‑2‑1976; D. W.1 was rightly disbelieved; but the learned Appellate Court while relying on his testimony, did not advert to the reasoning of the learned trial Court.

11. The learned First Appellate Court also relied on the testimony of D.W.2 who was disbelieved by the learned trial Court on the ground that according to D.W.2 the money forming sale consideration was counted only by Chiragh whereas, according to D.W.4 it was counted by Ch. Abdul Aziz, D.W.2, the two respondents, and D.W.4. The learned First Appellate Court omitted to take notice of the statement of D.W.2, according to which he had identified Chiragh on the asking of Ghulam Muhammad. In this statement D.W.2, did not even assert that he personally know Chiragh except that he stated that once or twice Chiragh had come to his chamber alongwith Ghulam Muhammad, who was related to this witness. From the statement of D.W.2, it is clear that he did not personally know the vendor otherwise there was no occasion for him to say that he identified Chiragh on the asking of Ghulam Muhammad. The only other marginal witness of the sale‑deed, namely Ghulam Muhammad was not examined. Not only he was a material witness but the stamp paper for the sale‑deed was also purchased by him. The learned trial Court also took notice of non‑production of Ghulam Muhammad, but it was brushed side by the learned First Appellate Court on the ground that his non‑production was not material. Another factor duly taken note of by the learned trial Court was that the sale transaction was registered at Sialkot, while the land in dispute was situated in Daska and even according to D.W.1, they go to Daska for the purpose of registration. The learned First Appellate Court observed that it was the sweet will of the parties to get the. document registered either at Daska or Sialkot. I am of the view that since D.W.2, a relative of Ghulam Muhammad, was a practising lawyer at Sialkot, therefore, the document was written and got attested at Sialkot. The stamp vendor who had supplied the stamp paper or the scribe of the document were not produced either.

12. In the nutshell apart from D.W.1 a beneficiary under t e disputed sale transaction, who was disbelieved by the learned trial Court, the only witness examined in support of the due execution of the sale deed was D.W.2. I have no doubt in my mind that as per his own showing he did not personally know Chiragh. Statement of D.W.1, alone, could not otherwise, in the facts and circumstances brought about in the record, be considered sufficient to return the finding of due execution of the sale‑deed by Chiragh.

13. The contentions of the learned counsel for the respondents have been given due consideration. The first contention that non‑appearance of Lal Din as a witness should be impressed as fatal has not, in the facts and circumstances of the case, impressed me, because the case was to be decided on the basis of totality of the circumstances brought out in the evidence. As far as the next contention is concerned, a finding of fact arrived at by ignoring material evidence or misreading material evidence was liable to be interfered with in exercise of revisional jurisdiction. As observed above, the learned First Appellate Court relied on the statement of D.W.2 without noticing that he did not personally know the vendor nor he even so claimed in his statement. The other contention of the learned counsel that even initial burden was not discharged by the plaintiff has also no force in the circumstances of the case. It may be observed that when both the parties lead evidence the question of burden e of proof becomes insignificant, it was for the respondents to establish a valid sale in their favour because they were the beneficiaries thereunder. Therefore, the plaintiffs were not required to get the thumb‑impressions on the sale‑deed examined by an expert. Likewise the contention that the person who was produced instead of Chiragh was not identified is also of no significance because undisputedly the transaction was completed at Sialkot without associating any resident of the village. As far as the contention of the learned counsel that presumption of correctness was attached to a register document is concerned it has no merit because the certificate of registration is not a substitute for proof of due execution of a document when a dispute arises. The contention of the learned counsel for the respondents based on section 11 of the Code of Civil Procedure has no merit. According to the decree sheet, the suit was instituted on 21‑10‑1978 and was decided on 1‑10‑1987. Therefore, there was no question of dismissal of the suit on 13‑9‑1980. It is no doubt correct that primarily it is the duty of the Court to frame proper issues, nevertheless parties are also not absolved to claim proper issues at the proper time. The respondents did not claim proper issue at the proper time and therefore, they cannot be heard, at this stage, to say that they were prejudice.

14. For what has been stated above, this revision petition is allowed, the impugned judgment and decree of the learned First Appellate Court is set aside and the judgment and decree of the learned trial Court is restored. H.B.T./A‑510/L Revision petition allowed.