2013 PLP 397 (SCMR)

EJAZ AFZAL KHAN, J.

This appeal has arisen out of the judgment dated 31-1-2011 of a Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi whereby appeal filed by the respondents was allowed, the finding of the learned trial Court was set aside and her suit was decreed in terms of its prayer.

2. Facts relevant for the purposes of this appeal are that the respondents filed a suit against the appellant for declaration to the effect that she is owner of house No. 547-D, Satellite Town, Rawalpindi; that she never transferred it to the respondents and that the transfer letter No.AP-8-1343 issued by Director Housing and Physical Planning Department, Rawalpindi being without consideration is null and void and thus merits cancellation. The suit of the respondents was dismissed vide judgment dated 1-11-2008. She preferred an appeal which was allowed by the learned Division Bench of the High Court by holding as under:-- "

9. As far as issue No.1 is concerned, which has only been challenged in the present appeal. The most important aspect of the case which is ignored by the learned trial court is that if a document is of sale, then, there must be some evidence that the consideration amount was paid and received by the seller. In the written statement, the defendant alleged that he had purchased it in the sum of Rs.1,500,000 and the plaintiff No.1 received the said amount from the defendant in cash in presence of the witnesses. This was so mentioned in para No.11 of the written statement. In the written statement, it is not mentioned that who were those witnesses in whose presence, the payment was made. Even if the payment was made in cash, even then, the ordinary person also get receipt of payment of cash, but neither such receipt was prepared, nor any witness whatsoever in whose presence, the payment was made to the plaintiff No.1 was produced by the defendant. The plaintiff had denied that she ever received any sale price and then, it was upon the defendant to prove that in fact he had made the payment. Even, the defendant himself did not appear in a witness box and instead his attorney appeared in the witness box as D.W.1. The said attorney as D.W.1 only deposed that the house was purchased in the sum of Rs.1,500,000 which was paid in cash. Even this attorney had not deposed that in his presence, the payment was made, nor he had mentioned the names of the witnesses in presence of whom, the payment was made. Thus, the defendant has miserably failed to prove that in fact Rs.1,500,000 was ever paid to the plaintiff No.1 as sale price. The next question which arises for determination is that how and under what circumstances and in what capacity, the plaintiffs remained in possession of the house. The plaintiffs in their evidence had categorically deposed that the house was with them as owners since, it was the stand of the defendant that the house was on rent with the plaintiffs and in the written statement, it was specifically alleged that the written rent deed was also executed. However, when D.W.1, the attorney of defendant appeared as witness, he categorically deposed that the tenancy was oral. In this respect issue No.4 was specifically framed, which had been decided against the defendant. Even a single receipt of payment of rent has not been produced by the defendant, thus, it stands established that the plaintiffs were not occupying the house as tenant. Now if the plaintiffs were not occupying the house as tenant, then, how the defendant allowed them to remain in possession of the house for such a long time. This primarily proves the case of the plaintiffs that they remained in possession of the house as owners. As far as transfer letter which is available on record as Mark-A is concerned, this was produced by the defendant. Though, this was not admissible in evidence, however, the plaintiffs did not object to it and even it is a case of the plaintiffs that the house was transferred, but as security and not as a sale. The perusal of Mark-A clearly shows that it was executed on 23-4-1995 in pursuance of the approval accorded by the Director Housing and Physical Planning Circle, Rawalpindi vide his letter, but the column of letter number and date is blank. Reference of the application dated 18-4-1995 is given in this letter, but no such application has been produced in evidence. Now this is only a transfer letter, which in no way shows that this transfer was in fact a sale, so mere on this letter, it cannot be said that the defendant had purchased this house. It is not denied that plaintiff No.2 was involved in the business of defendant and the evidence is also to the same effect and when neither the sale price is proved to have been paid to the plaintiffs, nor the possession of the house with the plaintiffs as of tenants, then, there remains no doubt in our minds that this house was transferred as a security. Learned counsel for the respondent has also alleged that the plaintiff No.2 left the job in the year 1995, then, till filing of the suit, the plaintiffs kept silent. This contention raised by the learned counsel for the respondent is devoid of force, since, in the plaint it was specifically alleged that the plaintiffs many times approached the defendant for the transfer of the house. Even when plaintiff No. 1 appeared as P.W.1, she categorically deposed that she had many times asked the defendant to return her documents and when she came to know that fraud had been committed with her, she filed a suit. The plaintiff in her statement had showed her ignorance that as to when her husband left the job. However, when the plaintiff No.2 appeared as P.W.2 deposed that he left the job in November, 1995 and the house was transferred on 23-4-1995, so, there is no force in the argument of learned counsel for the respondent that since in the year 1995, the plaintiff No.2 had left the job, so, there was no occasion for transferring the house as security, since the transfer was made prior to his leaving the job. Thus after going through the record, we are of the considered opinion that the plaintiffs have succeeded in proving issue No.1 in their favour and the learned trial Court had committed illegality by deciding issue No.1 against the plaintiffs".

3. Learned counsel appearing on behalf of the appellant contended that where the respondents themselves made an application before the Deputy Director District Housing Committee, Rawalpindi for the transfer of the house and then made a statement before the said officer admitting therein the transfer of the house through sale to the appellant, she could not subsequently turn round to deny that. He next contended that though respondent No.1 averred in the plaint that this transfer was for the purpose of security as her husband used to transact business in millions on behalf of the appellant but this fact remained unproved and unsubstantiated. Arguing further, the learned counsel maintained, that application moved by the respondent, for the transfer of the house and the order passed thereon being official documents are blessed with the presumption of regularity, therefore, they have to be preferred over oral evidence particularly when their execution has never been disputed at any stage by the respondents before or after the institution of the suit. Possession of the house, the learned counsel argued, is no doubt, with the respondent but this was in her capacity as tenant, therefore, it would do little to strengthen her claim of ownership. Concluding his arguments, the learned counsel submitted that the finding of the trial Court, dismissing the suit of the respondent was based on proper appraisal of evidence, therefore, it could not have been reversed when it suffered from no error or infirmity.

4. Learned counsel appearing on behalf of the respondents contended that the appellant could not adduce any evidence to prove that the transfer was in the nature of sale; that it was for consideration and that the consideration passed hands, therefore, the suit was rightly decreed.

5. We have gone through the entire record carefully and considered the submission of the learned counsel for the parties.

6. The case of the respondents as set forth in the plaint is simple and straightforward. She stated that the house in dispute was transferred for the purpose of security pursuant to the demand of the appellant as her husband was transacting business on behalf of the appellant in millions. When examined- in-chief she admitted that she appeared before the Deputy Director District Housing Committee to affirm about the nature of the transfer but strangely enough her statement was not seriously challenged during the course of her cross-examination. Nor was she confronted with any document showing that the house in dispute has ever been transferred through sale. Even if it is assumed that it is a sale, where did it take place, what was the consideration, how, when and where was it paid are the questions which find no answer much less satisfactory from the record. What was the occasion for the respondent to retain possession of the house is yet another query which finds no satisfactory reply from the record. The appellant, no doubt, stated in his written statement that her possession over the house in dispute is in her capacity as tenant but again no credible oral or documentary evidence was brought forth to give it the substance of proof. Appellant himself could have given the first hand account of the actual transaction but he on account of his failure to appear in person left many things alleged unproved and unsubstantiated. When faced with this state of things, the learned counsel for the appellant asked for the permission to examine additional evidence by referring to Rule 27(1)(b) of Order XLI of the C.P.C., as examination of such evidence, in his view, is necessary for the pronouncement of a balanced judgment. He in support of this assertion also relied on the judgments rendered in the cases of "Syed Phul Shah v. Muhammad Hussain and 10 others" (PLD 1991 SC 1051), "Zar Wali Shah v. Yousaf Ali Shah and 9 others" (1992 SCMR 1778), "Khurshid Ali and 6 others v. Shah Nazar" (PLD 1992 SC 822) and "Muhammad Tariq and others v. Mst. Shamsa Tanveer and others" (PLD 2011 SC 151). We would have countenanced the prayer of the leaned counsel for the appellant for examination of additional evidence, but since the infirmities in the evidence of the appellant highlighted above are too fundamental to be cured by the evidence sought to be examined, we do not feel inclined to permit this exercise which, to our mind, has no other purpose but to prolong the agonies of the parties. The judgments cited in this behalf being distinguishable on legal and factual turf do not have any relevance to the case in hand.

7. The long and short of whatever has been discussed above is that the impugned judgment being based on proper appreciation of law and fact is unexceptionable and thus merits no interference. We, therefore, finding no merit in this appeal dismiss it, with no order as to the costs. MWA/N-1/SC Appeal dismissed.