1987 PLP 1061 (CLC)

(5) Relief. Fazal Din plaintiff was examined as P. W.1, and Munshi Abdur Rahman Ahlmad as P.W.2. The plaintiffs produced copy of Khata No. 6/6 (Exh. P.1), copy of Jamabandi (Exh. P.2) and copy of mutation (Exh. P.3) and closed their evidence. On the other hand, the petitioners examined Muhammad Anwar Muharrir Registry (D.W.1), Abdul Hamid brother of the petition writer (D.W.2), A.G. Pasha Handwriting Expert (D.W.3), Faqir Muhammad (D.W.4), Wali Muhammad (D.W.5) and Mehtab Din defendant as D.W.6. Besides, oral evidence they produced registered sale‑deed (Exh. D.1), Register petition‑writer (Exh. D.3), report of the Handwriting Expert (Exh. D.4). The learned trial Judge vide his judgment, dated 26‑5‑1980, under issues. Nos. 1 and 4‑B, held that the transaction in question was hit by M. L. R.64, while deciding issue No. 2 he found that the land in dispute was sold for Rs.10,

000. Issue No. 4 was not pressed, thus decided against the petitioners. Under issue No. 4‑A it was held that the plaintiffs were not estopped to challenge the sale, while deciding issue No. 3 the learned trial Judge found that the plaintiffs received Rs.10,000 from the defendants for sale of the suit land. They neither offered nor paid that amount to the vendees. He, therefore, observed that they had not approached the Court with clean hands. Accordingly he refused to deliver possession of the suit land to them and dismissed both the suits. The rival parties preferred appeals against the decrees for dismissal of their suits. The learned Additional District Judge, Sheikhupura on 25‑1‑1981 vide impugned judgment disposed of the appeals and observed that once the learned trial Judge held the sale in question void under M.L.R.64, he ought to have decreed the suit for possession of the suit land subject to payment of Rs.10,000 received from the vendees. Accordingly he decreed respondents' suit for possession of the land subject to payment of Rs.10,000 to the vendees, and dismissed the suit of the petitioners. Aggrieved by the aforesaid judgments and decrees the petitioners have invoked the revisional jurisdiction of this Court in the matter.

3. Learned counsel for the petitioners contended that the evidence on the record shows that the plaintiffs alienated their entire holding in favour of the petitioners and delivered possession thereof to them. The petitioners are in possession of the total land eversince the date of sale. Consequent upon the subsequent increase of the land due to Killa Bandi the respondents in collusion with the revenue staff got Mutation No. 845 cancelled and instituted suit for possession of 84 Kanals 1 Marla of land against the petitioners. it was further contended that the provisions of section 92 of the Evidence Act were misconstrued to hold that the evidence could not be led to contradict, vary, add or substract the terms of document (Exh. D.1). Learned counsel lastly contended that the learned lower Courts misread evidence on the record and committed material illegality to hold that the transaction in question was hit by M.L.R.64.

4. Learned counsel for the respondents, on the other hand, submitted that admittedly the sale‑deed itself shows that the plaintiffs/respondents had only alienated 82 Kanals 19 Marlas of land, no oral evidence could be of any legal significance to prove that the transaction of sale was for 84 Kanals 19 Marlas of land. He, however, was unable to controvert the factum of respondents' suppression of material facts in the plaint and in the testimony of Fazal Din plaintiff as P.W.1 and reconcile his position about the affidavit sworn by him at the time of sale, to the effect, that the sale transaction related to the entire land owned by the plaintiffs in the Estate.

5. I have gone through the entire record with the assistance of the learned counsel for the parties. In my opinion the parties to the transaction were clear on the date of sale that the vendors alienated their entire holding in the estate to the vendees. The vendors, therefore, raised no objection in delivering possession of the whole land in favour of the vendees. The petitioners are in continuous possession of the entire holding measuring 84 Kanals I Marla eversince they had purchased the same. The fact that the respondents instituted suit for possession of 84 Kanals 1, Marla of land and not 82 Kanals 19 Marlas sufficiently indicates that they had sold their entire holding in favour of the petitioners. The factum of mentioning 82 Kanals 19 Marlas in the' sale‑deed, was an error or omission, which would not vitiate the sanctity of the transaction itself, when parties to the documents were under a mistake of fact and the document did not record correctly what was originally intended by them. In that eventuality under section 92, proviso (1) of the Evidence Act the parties can be allowed to prove what the original intention was and to provide relief accordingly. Section 92 of the Evidence Act reads:‑

92. Exclusion of evidence of oral agreement.

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or substracting from, its terms: Proviso (1).‑‑Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration or mistake in fact or law. Proviso (2) ................................................... Proviso (3) ................................................... Proviso(4) ................................................... Proviso (5) ................................................... Proviso(6) ................................................... Proviso (1) embodied in section 92 of the Evidence Act pre‑supposes the validity of the transaction evidenced by the document but if the validity of the transaction is impeached the inquiry into the nature of transaction could, therefore, be undertaken. The oral evidence produced by the petitioners particularly statement of Abdul Hamid (D.W.1), A.G. Pasha (D.W.3) considered with the documents Exhs. D.3 and D.4 leave no room for doubt that the respondents alienated their entire holding in the estate in favour of the petitioners. The transaction of sale of the whole land, therefore, did not contravene the provisions of M. L. R.

64. The petitioners are in legitimate possession of the disputed property as bona fide vendees thereof, the suit for possession of the land in dispute instituted by respondents was not maintainable. Even otherwise, it is significant to observe that the respondents, did not acknowledge in the suit the receipt of Rs.10,000 as consideration of the sale transaction, nor made offer for payment at the trial rather attempted to regain the land sold by them on a technical plea. This conduct of the respondents manifestly shows. that they approached the Court as plaintiffs with unclean hands. It is proved from evidence on record that the respondents themselves delivered possession of the entire land to the petitioners pursuant to sale of the suit land, they, therefore, could not rely on the provisions of Martial Law Regulation 64 of 1959 to deprive the purchasers of the suit land. In somewhat similar circumstances, the Supreme Court in Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 S C M R 314 observed:‑ We agree with the learned Judge of the High Court that due to the agreement wherein the petitioner had undertaken to do an that was necessary for formally completing the sale and having parted with the possession after receiving the consideration, he could not rely on either para. 25 of Martial Law Regulation 64 of 1959 or on section 19 of the Colonization of Government Land (Punjab) Act (V of 1912) so as to non‑suit the purchasers. "

6. For the foregoing reasons the impugned judgments and decrees suffer from illegality and thus set aside. Consequently the suit filed by the respondents is dismissed and the suit instituted by the petitioners stand thus decreed. These petitions are allowed with costs throughout. S. Q. /M‑7/L Petition allowed.