1987 PLP 2237 (CLC)

(4) Is the sale‑deed in favour of the defendant No.1 in respect of the suit property invalid? (5) Whether the sale‑deed in favour of Manzoor Ahmad is legal, valid and operative? (6) Relief. The learned Civil Judge vide his judgment dated 28‑7‑1975 found issues Nos. 1, 2 and 3 in favour of the appellant whilst issues Nos.4 and 5 were decided against him. As a result, the suit of the appellant was dismissed and that of respondent No.1 was decreed. The appellant preferred two appeals against the aforementioned judgments and decrees of the trial Court which were also heard together and dismissed by the learned Additional District Judge, Lahore, by his judgment dated 27‑2‑1979. Hence the present two Regular Second Appeals in this Court R.S.A. No. 206/79 having arisen from the suit of the appellant against the respondents whilst R.S.A. No. 207/69 having arisen out of the suit of respondent No.1 against the appellant. The learned counsel for the appellant raised the following contentions:

1. That the Courts below did not go into the propriety of Ex.P.l the receipt which has been arbitrarily rejected by them as fictitious and ante‑dated;

2. That the evidence regarding the aforementioned document has been ignored by the Courts below. He in this connection referred to the statements of P.W.1 and P.W.2 and submitted that had this evidence been taken into consideration the finding given as to the fictitious nature of the receipt could not have been arrived at;

3. That the ignoring of Ex.P.l on the basis that the document was not registered, that it was not written by a Licensed Deed Writer and that it was not on Rs.4 non‑judicial stamp paper was not justified in that neither the document was required to be registered not it was necessary to have it written by a Licensed Deed Writer and the document could at best be impounded if it was not sufficiently stamped;

4. That the document having not been objected to at the time of its admission could not be kept out of consideration as has been held in The Punjab National Bank v. M/s. Dewan & Company and others (PLD 1954 Lah. 525); and lastly.

5. That in view of the position that Ex.P.1 which, has all the ingredients of agreement of sale was executed on 14‑4‑1968, the sale‑deed in favour of the appellant although dated 18‑10‑1969 shall be deemed to commence from the date of the agreement, viz. 14‑4‑1968 and was, therefore, prior in time to the deed in favour of respondent No.l which is dated 9‑5‑1969. He in this regard referred to Section 48 of the Registration Act and Section 48 of the Transfer of Property Act. On the other hand, the learned counsel for the contesting respondent No.1 contended: First, that the fictitious and ante‑dated character of Ex.P.l stood fully established from the evidence and the learned lower Court having specifically observed to have examined the record and heard the arguments of the parties and then come to the conclusion that Ex.P.1 is a fictitious and ante‑dated document, it cannot be said that the finding has been given without adverting to or by ignoring the record. He submitted that all the essential evidence had been read to the learned Civil Judge at the time of arguments and it was, inter alia, on the basis of following discrepancies pointed out on behalf of the present respondent that the finding about fictitious nature of the document Ex.P.l was recorded: (i) That the Permanent Transfer Deed (Ex. D.1/7) shows that final transfer order in favour of Abdul Wahid, respondent, was made on 14‑12‑1968 and the dispute regarding the transfer of shop being between the appellant and Abdul Wahid, how could it be that during this litigation on 14‑4‑1968 the parties had reached a sale agreement. (ii) That appeal for fixing correct value of the two portions, viz. the shop of Abdul Wahid and the portion of the same property transferred to hanzoor Ahmad, appellant, was also pending till 31‑3‑1969 as is apparent from Ex.D.1/9 and, therefore, it cannot be genuinely said that the parties had reached an agreement for sale on 14‑4‑1968 when they were loggerhead in litigation pertaining to the same property. Secondly, that the suit of the appellant earlier filed on 22‑5‑1969 having been dismissed and that judgment having attained finality as it was not appealed against the present suit was hit by Order II, Rule 2(2) of the Code of Civil Procedure and was, therefore, otherwise not maintainable; Thirdly, that in view of Section 47 of the Registration Act and the enunciation of law in Punjab Banking Co. Ltd. , Lahore v . Muhammad Hassan Khan and others (AIR 1925 Lah. 542), Bomanji Ardeshire Wadia and others v. Secretary of State (AIR 1929 PC 34), and Jainullah and another v. Anu Mia and others (PLD 1964 Dacca 12) it is clear that Ex.P.l had become a performed document through Ex.P.4 the sale‑deed and, therefore, an executory document (Ex. P.1) had to be kept out of field and the only document that could be taken into consideration by the Courts below could be the sale‑deed itself, viz, Ex.P.4 which document had been duly considered as against the sale‑deed in favour of respondent No.l, viz. Ex. D.2 and the latter being prior in time had to be given preference over the former; Fourthly, that the evidence referred to by the learned counsel for the appellant is otherwise also of no consequence in that the testimony on P.W.1 is wholly irrelevant and he was not even shown Ex.P.l as the document on which the sale arrangement was made nor has he himself referred to it in his testimony. As regards the testimony of P.W.2 the learned counsel pointed out that it was not of the person who was a witness, but of a person whose brother was an alleged witness to the document; Fifthly, that the attendant circumstances of the case viz. the filing of the first suit by the appellant which was dismissed for want of compliance of an order of the Court and during the pendency of the said suit the fact of respondent No.2 getting the sale‑deed registered in favour of the appellant without bringing this fact to the notice of the Court at a time when the sale‑deed executed by said respondent No.2 in favour of contesting respondent No.1 had been submitted before the Sub‑Registrar for registration clearly show the collusive nature of the whole series of transaction between the appellant and respondent No.2, thus disentitling the appellant from getting the discretionary relief of a declaration from the Court; Sixthly that non‑reading of the record by the trial Court was not a ground raised before the lower appellate Court and as such should not be allowed to be raised now in the second appeal; Seventhly, that the third contention of the learned counsel for the appellant that the document was not required to be registered etc. is also not tenable inasmuch as these grounds have only been taken as corroborative factors to the finding that Ex.P.1 had no relevance to the controversy; the basic factor for the said finding being that it is only an executory document and has to give way to the document performed, viz. the sale‑deed. In reply the learned counsel for the appellant submitted that Order 11, Rule 2, C.P. C. cannot be pressed into service for non‑suiting the appellant in that the Courts below having held under a specific issue that the suit is maintainable could not give a finding to the contrary while discussing another issue. Having given consideration to the controversy I am of the view that the contentions reaised on behalf of the appellant have no force. Taking the first and the second contentions of the learned counsel for the appellant together it may be observed that on Ex.P/1 the two Courts below have given a concurrent finding that it is a fictitious and ante‑dated document. This concurrent finding being on a question of fact is obviously not open to question in a second appeal. Apart altogether from the above position it may also be observed that the finding is based on reasoning and appraisal of the record. The trial Court has clearly observed that it has examined the whole of the record and heard the arguments. It was not necessary for the said Court to have specifically referred to each piece of evidence before arriving at. a conclusion regarding the document in question. It has been pointed out by the learned counsel for, the respondent that various factors were brought to the notice of the trial Court which have, inter alia, been given in sub‑paras. (i) and (ii) of the first contention of the learned counsel for respondent No.l. These factors could legitimately be taken as valid considerations for holding the document to be ante‑dated and fictitious. It may well be that the trial Court has not referred to the oral evidence on the subject but then as already observed above it is not necessary that every portion of the evidence should be referred to while deciding an issue especially when the. documentary evidence could resolve the controversy. I also find that the evidence referred to by the learned counsel for the appellant as having not been considered by the trial Court does not inspire confidence. P.W.1 was neither a witness to the document Ex. P.1 nor the said document had been admittedly prepared in his presence. It would, therefore, be wholly unnecessary to refer to the oral testimony of this witness regarding the document in question. This witness has stated in his cross‑examination that P.T.D. was issued to Abdul Wahid, respondent, 21 or 3 months after the Biana and that the Bainama was written 4 months thereafter. Now from the document on record the above averment stands belied in that P.T.D. (Ex. D.1/7) has been issued on 1‑5‑1969 which is a date almost about a year and one month after 14‑4‑1968, the date of the alleged Biana. Taking up the testimony of P.W.2 Jamal Din, a brother of Muhammad Siddique, stated to be the witness of Ex.P.1 and of P.W.3 It Muhammad Shafique, I suffice by observing that these two witnesses on their own showing appear to have family relations with the appellant and their testimony cannot be therefore, safely relied upon so as to discard the documentary evidence from which reasonable inferences about the character of the document in question could be drawn, The first two contentions of the learned counsel for the appellant, therefore, fail. The third contention of the learned counsel for the appellant has equally no force in that the document Ex.P.1 was not ignored on the ground of the same being not written by a licensed deed writer or it being not registered or for that matter insufficiently stamped. The basic reasons for rejection of this document were its fictitious and ante‑dated character and it being an executory document was of no value in the presence of a performed document, viz. the sale‑deed Ex. P.

4. The contention of the learned counsel for contesting respondent No.1 that reference in the impugned judgments to he document being not registered or insufficiently stamped or not written by a licensed deed writer is only of corroborative nature to the finding qua the document as mentioned above in the context of the aforementioned discussion also appears to be correct. The fourth contention of the learned counsel for the appellant is also not well founded, firstly for the reason that the document was not kept out of consideration by the Courts below, but they after considering the same did not rely thereon for reasons given, and secondly because it is not correct to say that it was allowed to be exhibited without any objection inasmuch as when this document was exhibited through the testimony of P.Ws. 2 and 3 objection was raised though it was overruled. Adverting now to the last contention of the learned counsel for the appellant it may be observed that the document Ex.P.4 cannot derive any assistance or support from the document Ex.P.1 as in the former the latter has nowhere been refered to even. In addition the reasoning given by the Courts below for discarding the document Ex.P.1, inter alia is that it is an executory document only which has lost all utility in view of the registered sale‑deed pertaining to the same property, viz. Ex.P.4 which is a performed document on the basis of which the appellant claims title and that the contest, therefore., only remained between the two registered documents, viz. Ex.P.4. the sale‑deed in favour of the appellant and Ex.D.2 the sale‑deed in favour of respondent No.l. The above finding by the Courts below has a valid basis having been supported by a number of authorised cited in their respective judgments and I see no reason to differ with them. Reference to Section 48 of the Registration Act by the learned counsel for the appellant also appears to be not relevant in that the said Section lays down the preference of a registered document over an oral agreement or declaration relating to an immovable property with the exception in cases where the agreement or a declaration has been accompanied or followed by delivery of possession and the same constitutes a valid transfer under any law for the time being in force. The case of the appellant as can be gathered from the plaint of his suit is that he is in possession of the property in dispute in pursuance of the sale‑deed in his favour and that a declaration be given that the sale‑deed in favour of respondent No.1 pertaining to the same property is invalid qua his rights as purchaser thereof and for restraining him from interfering in his such proprietary rights It has never been the case of the appellant that there is an oral agreement of sale of the property in dispute in his favour and that that oral document was accompanied or followed by delivery of possession. Before parting with the case it may be observed that the contention of the learned counsel for the contesting respondent that in the attendant circumstances of the case the equitable relief of a declaration should not be allowed to the appellant as he had not come to the Court. with clean hands and in collusion with the other respondent was trying to deprive respondent No.1 from his legitimate right of perfecting his title to the property by taking possession thereof appears to have force. The chain of circumstances that when respondent No.1 tried to enforce his right for compulsory registration of the document executed in his favour by respondent No.2, the appellant filed his first suit on the basis of document Ex.P.1 and during the pendency of the suit and after respondent No.1 had made an application in the said suit for being impleaded as a party he filed a compromise and when that was refused and a direction was given to implead respondent No.1 as a party and convert the suit to one for specific performance on the basis of Ex.P.1, he got a sale‑deed' executed and registered in his favour. from respondent No.2 and then when in non‑compliance of the direction of the Court the said suit was dismissed he filed another suit obviously claiming rights in the property on the basis of a registered document in his hand which has‑ now been held to be invalid qua the rights of respondent No.1 being of later date trying to fall back on document Ex.P.1 do cast doubts on the bona fides of the transaction between the appellant and respondent No.2. In view of the foregoing discussion I find no merit in these appeals which are accordingly dismissed with costs. A.A./M‑225/L Appeals dismissed.