2002 PLP 1643 (YLR)

Date of hearing: 7th May, 2002. Through the filing of the present revision petition, the petitioners/defendants, have called in question judgment and decree dated 30‑3‑1994, whereby the learned Additional District Judge accepted the appeal, filed by the respondent, and set aside the judgment and decree dated 16‑6‑1993 passed by learned Civil Judge, through which, he dismissed the suit for declaration tiled by the respondent.

2. Facts leading to the filing of the present petition are that Khushi Muhammad respondent/plaintiff filed a suit for declaration, against the petitioners to the effect that he is owner of the land measuring 33 Kanals and 3 Marlas (elaborately described in Para. 1 of the plaint) and that sale‑deed dated 25‑8‑1987, is illegal, based on fraud and does not affect his rights qua the land in question. It was asserted in the plaint that the respondent, in fact leased the said land for a period of six years to the petitioners and as a matter of fact executed a lease deed, but subsequently it transpired that the petitioners, fraudulently and in connivance with the staff of the Revenue Department and Sub‑Registrar and taking advantage of the simplicity of the respondent instead of preparing a lease deed got executed a registered sale‑deed dated 25‑8-1987, thus the same is based on fraud. therefore, it may be declared illegal. It was further‑averred in the plain that the land could not have been sold as the same was mortgaged in favour of Agricultural Development Bank. The petitioners contested the suit, thereby taking preliminary objections, inter alia, pleading that the respondent, on 25‑8‑1987, transferred the suit land for a consideration of Rs.1,20,000 executed a sale‑deed in favour of the petitioners, which was duly registered with the Sub‑Registrar, and pursuant thereto possession was also delivered to the vendees and since then they are in occupation of the land in question as complete and full‑fledged owner.

3. Out of the divergent pleadings of the parties, the learned Civil Judge framed as many as eight issues, recorded both oral as well as documentary evidence of the parties and the learned Civil Judge dismissed the suit vide judgment and decree dated 16‑6‑1993. Feeling discontented Khushi Muhammad filed an appeal before the appellate forum and the learned District Judge accepted the appeal decreed the suit of the respondent and set aside the judgment and decree of the learned trial Court vide judgment and decree, dated 30-3‑1994, hence the present revision petition.

4. The learned counsel for the petitioners has contended that the respondent could not prove' that any lease deed was executed by him in favour of the petitioners and that the land in dispute was, in fact, leased out to the petitioners. He has further contended that the petitioners proved the execution of sale‑deed dated 28‑8‑1987, through production of unimpeachable evidence, which proves to the hilt that Khushi Muhammad, in fact, executed a sale‑deed qua the land in question in favour of the petitioners. He has further submitted that the learned First Appellate Court has passed the impugned judgment completely by passing the oral and documentary evidence on record, which is sufficient to prove execution of the sale‑deed in favour of the petitioners and he has illegally set aside the well‑reasoned judgment rendered by learned Civil Judge.

5. Conversely, the learned counsel for the respondent while supporting the impugned judgment has contended that in fact land in question was leased out to the petitioner, but taking advantage of the illiteracy and simplicity of Khushi Muhammad, the petitioners fraudulently, got the sale‑deed executed from him, and thus sale‑deed is liable to be cancelled.

6. Although as many as eight issues were framed, but the main controversy between the parties hinges around Issue No. 1, which is to the effect that whether sale‑deed dated 25‑8‑1987, is illegal and in effective upon the rights of the respondent. The onus of this issue was rightly placed upon the plaintiff. From the reading of the contents of the plaint, it is evident that the case of the respondent was that he in fact executed a lease deed in favour of the petitioners, but through a clandestine manner the petitioners got executed from him the impugned sale deed. Although the respondent's witnesses, as rightly appreciated by the learned trial Court, deposed that the land in dispute was leased out by the respondent, but strangely enough no lease deed, even a photo copy was ever produced by the respondent on record. It is not the case of the respondent that the sale deed is the same instrument, which was executed by Khushi Muhammad deeming it to be as the lease deed. Examination of the sale deed shows that the thumb‑impressions of respondent's witnesses are not there, meaning thereby that these witnesses were not present at the time of the execution of the sale‑deed or/and they did put their thumb‑impression on another instrument, which has not been produced by the, respondent. The only inference which can be drawn from this, is that either there was no alleged lease deed, about whom the witnesses of the respondent have categorically stated or the said document has purposely been withheld, as the same should have been in possession of the respondent. Non‑production of the alleged lease deed has grossly prejudiced the case of the respondent, as in the absence of the lease deed the only document which remains in the field is the sale‑deed (Exh.D.1). The respondent could not bring any evidence record to show that how the sale‑deed illegal and inoperative against his rights.

7. On the other hand, in order to rebut whatever evidence produced by the respondent, the petitioners amongst other have produced certified copy of sale‑deed on record, which was admitted in evidence as Exh.D.1. In order to prove the sale‑deed, the petitioners produced D. W.1, scribe of the sale‑deed, who has, inter alia, stated that he scribed the said sale‑deed on the asking of Khushi Muhammad, the said sale‑deed was read over to the parties to the document who admitted it as correct the vendor thumb marked the same the marginal witnesses signed in his presence and one of the petitioners also put his thumb‑marked on the document. One of the marginal witnesses namely Nabi Bakhsh has also appeared as D.W.2, who has completely corroborated evidence of the D.W.1. Furthermore, in order to prove the registration of the sale deed, Naib Tehsildar was also produced as D.W.3. It has been held in Nazir Ahmad v. Muhammad Rafique 1993 CLC 257, that in order to prove a document the statement of one of the marginal witnesses and scribe of the document is sufficient, when the document is actually executed in the presence of the scribe and parties attesting witness have signed the same in his presence then, the scribe could be treated as attesting witness, although, he has not signed the document in that capacity. As noted above, the scribe wrote the document, read over to the parties, who thumb‑marked in his presence and so did the marginal witnesses. In view of this, the petitioners have been able to prove the execution of the sale‑deed by producing one marginal witness, D.W.2 and the scribe D.W.1, who under the facts and circumstances of the case although appeared and signed as scribe, yet could be treated as an attesting witnesses.

8. So far as the objection regarding that fact that the property could not be sold; as the same was mortgaged either in favour of Central Government or with the Agricultural Development Bank, suffice it to say that there is no legal impediment in selling mortgaged property, as the mortgage always travels with the property and not with the person. There is no prohibition in law to sell the mortgaged property, and the property can be sold subject to the rights of the mortgagees in the property in question. From the perusal of Exh.D.1, is is apparent that the parties were conscious about the fact of mortgage of property and, therefore, it was mentioned in the sale‑deed that the property has already been mortgaged in favour of the Central Government. It was specifically incorporated in the said sale‑deed that the vendees will pay the mortgaged money to the Central Government, thus, it cannot be said that the mortgaged disputed property could not be sold.

9. I have examined both the judgments and find that the judgment rendered by learned Civil Judge is legal, more apt to the fact and circumstances of the case and unexceptionable as compared to the judgment rendered by learned District Judge, which has been passed in complete oblivion of the record of the case and law on the subject, and the same definitely calls for interference this Court:

10. Upshot of the above discussion is that the present revision petition stands accepted and the impugned judgment and decree dated 30‑3‑1994, passed by learned Lower Appellate Court is hereby set aside and the judgment and decree dated 16-6-1993 passed by learned Civil Judge is hereby restored with no order as to costs. H.B.T./S‑506/L Revision accepted