1996 PLP 202 (CLC)

(3) Whether the suit is within time? (4) Whether the suit is bad for non‑joinder and misjoinder of necessary parties? (5) Whether the suit is bad for misjoinder of cause of action? (6) Whether the suit is competent in its present form? (7) Whether the suit has not been verified in accordance with law and as such liable to be dismissed? (8) Whether the suit is malicious and is filed to blackmail the defendant? (9) Whether the suit is frivolous and defendants are entitled to compensatory costs. (10) Whether defendants Nos. 3 and 4 are entitled to decree for Rs.19,000 against defendant No. 1 in case suit is decreed in favour of the plaintiff? (11) Whether this Court has the jurisdiction to decree relief for recovery of rent, of the suit land? (12) Whether the plaintiff is entitled to the decree for possession of the suit land on the grounds `alit `bay', `jeem' and `hay' mentioned in relief 8 of the plaint? (13) Whether the plaintiffs are entitled to the decree for recovery of Rs.3,600 as rent of the suit land and damages (against defendant No.3)? (14) Whether the plaintiff is entitled to the decree of Rs.5,600 against defendant 4 as rent of the suit land and damages? (15) Relief. The parties led their respective evidence pro and contra and on the assessment thereof the learned trial Court concluded that the plaintiff was entitled to 11/41 share in the `Patta Dwami' possessed by defendant No. 1 and granted him decree to that extent and dismissed the suit as against defendants 2 to

4. Sultan Khan plaintiff and Badar Zaman feeling aggrieved filed appeal before the District Judge who vide his judgment/decree dated 20‑11‑1991 dismissed both the appeals but observed that the share of Badar Zaman would be to the extent of 26‑

48. Badar Zaman still dissatisfied with the said judgment has impugned the same in this Court through this revision petition.

4. Learned counsel for the petitioner contended that the crux of the case in that Badar Zaman had purchased the share of Miskeen defendant No. 1 and Mst. Zulekha. In this regard he referred to the statement of Miskeen who had categorically admitted to have sold his right in favour of the petitioner. Learned counsel also referred to the statement of Faridoon Khan P.W.1 who in unequivocal terms stated that as the plaintiff backed out and defied the agreement by defaulting in payment of balance of Rs.1,000 to Miskeen, therefore he sold the property to Badar Zaman, petitioner. As against this learned counsel for respondent referred to Each. D.W.1/1 and argued that Miskeen was not full owner of the property but was a lease holder and therefore he could not sell the title and also urged that since there are concurrent findings of facts, therefore, they warrant no interference by this Court.

5. I have given due consideration to the submission of the learned counsel for the parties and have gone through the record of the case.

6. The plaintiffs entire evidence is self‑contradictory and is not confidence inspiring. The plaintiffs own statement is that no bargain was struck by him with Miskeen in the village but the same was arrived at in presence of the marginal witness when the deed was written by the deed‑writer at Abbottabad which in all took 5 to 7 minutes. He said that both the marginal witnesses namely, Faridoon and Shah Zaman met him at the bus stand by chance who accompanied him to the deed‑writer. Before the execution of the deed, he and Miskeen did not converse about the deal but Miskeen executed the deed in his favour and he paid him the amount. But all this was belied by Faridoon P.W.1 who stated that he was called from a hotel and before his arrival deed had been written. He stated that bargain was struck for Rs.1,250 between Miskeen and the plaintiff out of which Rs.250 were paid as earnest money and for the balance amount he stood the surety but plaintiff refused to pay the same. He stated that at the time of signing the document he objected to the price of Rs.99 as entered in the deed but both Miskeen and the plaintiff told him that it was a matter between them so he should not have any objection. Later plaintiff breached his promise and refused to pay Rs.1,000 to Miskeen, due to which Miskeen transferred his rights to Badar Zaman. Muhammad Sharif deed‑writer (P.W. 3) did not say even a word that deal was made in his presence or that any payment was made before him. Shah Zaman marginal witness (P.W. 6) stated that deed P.W. 1/1 was scribed by P.W. 3 in Court premises but no bargain was struck there, only deed was written. He stated that deal between Miskeen and the plaintiff was made in the house of Miskeen on preceding evening, and in the following morning they all i.e., the plaintiff, Miskeen and marginal witness came together from village to Court premises at Abbottabad for execution of the deed. The above resume would show that none has supported each other on any material point. It is well‑settled law that the plaintiff must prove his case on the strength of his own evidence and cannot take advantage of the shortcomings of the defendant's case: Onus in this case heavily laid on the plaintiff which he has not been able to discharge satisfactorily, so the consequence would be that he must fail. There is a well‑known maxim `dubio secundum reum potius quam secundum actorem litom dori opertert, which means that where the case is doubtful, the decision should be given for the defendant rather than for the plaintiff. On 18‑5‑1995, this revision petition was heard at some length and it was argued by the learned counsel for the petitioner that he had redeemed the leasehold rights from Miskeen and has thus become the owner of the property. Since Miskeen had been placed ex parte, therefore, he was summoned to appear before the Court who in compliance attended the Court and affirmed that he entered into an agreement with the plaintiff to mortgage his rights to him but he was defrauded, hence he cancelled the previous agreement and sold his rights to Badar Zaman, the petitioner. He reiterated and confirmed his earlier statement made before the Trial Court as D.W. 2 and stated that now the petitioner is the owner of the property. In such circumstances the deed Exh. P.W. 1/1 besides being unregistered and unadmissible cannot be attached any sanctity and is thus not worth credence. About Exh. P.W. 1/2, the Trial Court has observed that defendant No. 2 had no title in the property so she could transfer none to any body, hence plaintiff could not claim anything on the basis of the said deed. Under the law, a party who seeks judgment from a Court as to any right or liability, must prove all the facts which he alleges and on which the existence of that right or liability depends, and in case he fails to prove the existence of those facts which constitute the right or liability he is seeking: to enforce, he must fail. A deed between the parties must reflect the mutually arrived agreement between them and if it does not convey their direction of mind and objects as they intended to convey, then its sanctity becomes doubtful. It is necessary for binding a person executing a deed that there should not only be a materially executed document but it must also speak o the mental equation of executor with the other party arrived at mutually for the purpose. As the plaintiff awfully failed to establish and substantiate his claim by any cogent evidence, therefore, his suit deserved dismissal. In view of the above, this revision petition is accepted with costs, the impugned judgment and decree is set aside. The suit of the plaintiff‑respondent stands dismissed. AA./1840/P Revision accepted.