' This R.S.A. Is directed against the judgment, dated 30-4-2002 passed by learned Addl. District Judge, Lahore whereby appeal brought by appellants against the judgment and decree, dated 28- 7-1998 passed by learned Civil Judge, Lahore was dismissed.
2. Relevant facts for the disposal of this R.S.A. Are that appellants filed suit for possession against the respondent and stated that one Ghulab had three sons, namely Mahanda, Bulanda and Karim Bukhsh. They further stated that Mahanda had one daughter who also died many years ago.
Bulanda had a son namely Suba and he (Suba) died issueless on 7-7-1982. The plaintiffs/appellants being legal heris of Karim Bukhsh (brother of Bulanda who was father of Suba, deceased) became legal heirs of Suba and they were entitled to inherit his property. The plaintiffs/ appellants averred that Suba was owner of land measuring 32 Kanals, 8 Marlas situated in village Niaz Baig, Tehsil and District Lahore. He was also owner of `Shamlaat' land measuring about 15 Marlas situated in Village Hanjarwal Tehsil and District Lahore (details whereof has been given in the alleged sale-deed). Suba was seriously ill before his death and he was not in senses. This illness made him infirm and incapacitated to do any dealing of any type. The plaintiffs learnt on 22-7-1982 that Manzoor Hussain, defendant claimed himself to be purchaser of land of Suba deceased. It was subsequently discovered that defendant fraudulently arranged the purchase of suit-land (measuring 32 Kanals, 8 Marlas and piece of Shamlaat land with shops). In the sale- deed, price of property was shown to be Rs.2,00,000. The plaintiffs stated that it was a fraudulent transaction (Sale-deed No.12024, Book No.1, Volume No.31). After the death of Suba, defendant obtained possession of the suit property in manner not warranted by law and that his possession was not valid. They further stated that Suba, deceased, was not in a position to execute sale-deed due to his illness, therefore, sale-deed was a forged document and it was never thumb-marked by Suba. Also that he was not in a position to appear before Local Commissioner or to make any admission and that sale-deed was without consideration as nothing was received by Suba deceased and that on the death of Suba, plaintiffs being his legal heirs were entitled to inherit suit property. The defendant mentioned in written statement that plaintiffs had no locus standi to file present suit. He asserted that particulars of fraud have not been disclosed, therefore, suit was not maintainable. He further asserted that Suba died of heart failure. The sale-deed was in the knowledge of plaintiffs who actually participated in the execution. He took possession of the property sold to him in pursuance of sale-deed after paying him (Suba) due consideration. The thumb-marks on the sale-deed are that of Suba, deceased. On the pleadings of the parties, following issues were framed:-- ' Issues:--
(1) Whether the suit is not maintainable? OPD
(2) Whether the plaintiffs have no cause of action and locus standi to bring this suit? OPD
(3) Whether the suit is improperly valued for the purpose of court-fee and jurisdiction? OPD
(4) Whether the plaintiffs are estopped by their own conduct to file the present suit? OPD
(5) Whether the description of suit property is wrong, if so, to what effect? OPD
(6) Whether the sale in-question is based on fraud, without consideration, void and liable to be rescinded? OPD
(7) Whether the plaintiffs are entitled to get possession of the suit-land? OPP
(8) Relief.
The parties adduced evidence in support of their respective claims and learned trial Court dismissed the suit brought by appellants/plaintiffs vide judgment, dated 28-7-1998. The appellants filed appeal thereagainst which was dismissed by learned Addl. District Judge, Lahore vide judgment, dated 30-4-2002. Hence this R. S. A .
3. I have heard the arguments and perused the record.
4. As mentioned above Suba was owner of suit property and he transferred the same in favour of respondent vide sale-deed, dated 7-7-1982. The case of appellants is that sale is based on fraud and that Suba had never thumb-marked the sale-deed. However, the case of respondent is that Suba transferred the suit property in his favour through registered sale-deed after receiving its price. The plaintiffs/appellants had examined five witnesses in support of their version. They also produced documents Exh.P.1 to Exh.P.8. On the other hand respondents examined seven witnesses.
The appellants have failed to produce any worthwhile evidence in support of their version.
Admittedly sale-deed was registered through Local Commissioner (Ch. Riyasat Ali Bhinder, Advocate). He appeared as D.W.2 and stated that he knew the parties before the registration of the sale-deed. He further stated that he knew Suba, vendor and Manzoor Hussain, vendee and he attested the sale-deed, dated 4-7-1982 as Local Commissioner and the same bears his signature.
The witness deposed that amount (sale price) was paid in his presence. Manzoor Hussain, vendee paid said amount to Suba, vendor, he read over the sale-deed to Suba, who admitted the same to be correct. He was in good mental and physical condition. Malik Arif Hussain Bajwa and Ghulam Hussain identified him. Muhammad Latif, petition writer also identified him and all the witnesses signed the sale-deed and proceedings were completed at the residence of Suba. D.W.3 Muhammad Latif, petition-writer, D.W.5 Hassan Muhammad (brother of Suba) and D.W.6 Muhammad Ashiq also supported the version of the respondent/defendant. However, as mentioned earlier the plaintiffs/appellants have failed to produce any worthwhile evidence in support of their case. They have not explained how fraud was committed. The case of appellants is that Suba, deceased was not in a position to sell the suit-land but they have not examined any doctor in support of their version. They have produced death certificates as Exh.P.7, according to which Suba died due to fever and heart attack. This document does not support the case of plaintiffs/appellants. Even otherwise according to this document (Exh. P.7) Suba was under treatment of Dr. Muhammad Jamil of Hanjarwal but plaintiffs/appellants have not examined him as a witness. It shows that their claim is baseless.
5. It is pertinent to note that Mubarak Ali, plaintiff/appellant got registered criminal case against respondent and others regarding the sale-deed in-question but accused was acquitted vide judgment, dated 24-5-1999. So in the circumstances of the case I find that learned trial Court had rightly dismissed the suit brought by appellants. The judgment, dated 30-4-2002 shows that learned Addl. District Judge has decided the appeal after appraisal of entire material available on record. Paras. Nos.13 to 16 of the said judgment read as under:-- "(13) It is contention of the appellants that the impugned sale-deed is based upon fraud and deceased Suba never thumb-marked the impugned sale-deed. But appellant has neither specifically described that how fraud was committed and in what term the impugned sale-deed is a forged document. The evidence ied by appellant is not sufficient in this regard. P. Ws. 2 to 4 have not stated anything regarding the commission of forgery and it is only the appellant himself appeared as P.W.5 and stated that the impugned sale-deed is fake and also stated that opinion was taken from Finger Print Bureau who declared that thumb-impression of Suba is fake and forged. But in this regard only oral evidence of appellants is on record and there is no corroboratory evidence adduced by the appellants. Although the appellant has produced the copy of report of Finger Print Expert in the statement of his counsel as Exh.P.4, regarding which objection was raised by counsel for the respondent. In order to produce the copy of report of Finger Print Bureau, the appellant has not produced the Finger Print Expert in evidence, therefore, that report is inadmissible. It is pertinent to mention that it is the case of the appellant that deceased Suba never thumb-marked on the impugned sale-deed. But during cross-examination on the witnesses of respondent i.e. D.Ws. 6 and 7 is as under:-- ' During cross-examination of D.W.6, the suggestion was made "it is incorrect that Suba was ill and due to ailment, his thumb-impression was marked on the impugned sale-deed". Similarly the respondent Manzoor Hussain D.W.7 was given suggestion "it is incorrect that humbimpression of Suba was procured when he was unconscious against his consent". This suggestion clearly shows that the appellant is not exactly aware of his case and he is giving suggestion against his pleadings. It is pertinent to mention that D.W.7 is also given a suggestion "it is incorrect that Suba neither executed sale-deed nor marked his thumb-impression on the sale-deed". The appellant is blowing hot and cold in the same breath which law does not permit. Further D.Ws produced by respondent as already discussed above, have specifically and categorically stated that Suba was in good health and he thumb-marked on the impugned sale-deed before them.
(14) It is also the contention of the appellant that the impugned sale-deed was without consideration and in order to prove this, the evidence led by appellant is not sufficient, as P.Ws. 2 to 4 has not stated anything regarding consideration. They merely stated that Suba deceased was not in a need of money, which necessitated to dispose of his property through impugned sale- deed. Only P.W.5 appellant has stated that the impugned sale-deed was without consideration.
Except his sole oral evidence, there is no corroboratory piece of evidence on record. On the other hand, the respondent has produced Ch. Riyassat Ali, Advocate Local Commissioner D.W.2, who has categorically stated that the payment was made before me and purchaser Manzoor Hussain had made payment to the Suba seller. Similarly, D.W.3 Muhammad Latif, petitioner-writer has also stated that payment was made by Manzoor Hussain to Baba Suba and Baba Suba handed over the amount to a person who was standing beside him. Similarly D.W.5 who is the brother of Suba stated that payment was made to Suba by Manzoor Hussain in front of me. The respondent himself appeared as D.W.7 who has stated categorically that he purchased the suit property in consideration of Rs.2,00,000 and Suba after receiving the amount delivered it to his brother Hassan Muhammad and nephew Ameer Ali. The evidence of appellant regarding consideration is not confidence inspiring and he has failed to prove that the impugned sale-deed was without consideration. It is pertinent to mention that appellant P.W.5 in his cross-examination deposed, he had no knowledge that Suba was handed over the sale proceed to his nephew.
(15) It is the contention of appellant and his witnesses P.Ws.2 to 4 that Suba was not in need of money, therefore, he was not necessitated to dispose of his property. For selling property, need is not necessary if a person is competent and is not suffering from any infirmity then he can dispose of his property according to his will. In this regard it is pertinent to mention that appellant while appearing as P.W.5 admitted in his cross-examination that deceased Suba sold his property of Shadiwal in his life-time and that property was sold few months prior to the disputed property. He also admitted that the property of Shadiwal was sold in consideration of Rs.7,00,000. If appellants' contention is admitted for the sake of arguments then he has not given any explanation of this fact that why Suba had sold his property of Shadiwal.
(16) In the light of my above findings. I am of the view that the appellant has failed to prove that at the time of execution of impugned sale-deed, Suba was seriously ill which made him infirm and incapacitated and impugned sale-deed is based on fraud and without consideration, therefore, I upheld the findings of the learned trial Court on this issue."
It is well-reasoned judgment. There is no illegality or infirmity in the impugned judgments. Even otherwise as stated earlier appellants have not produced any worthwhile evidence in support of their case. So the findings recorded by learned Courts below on Issues Nos. 6 to 7 are affirmed. The findings on other issues were not challenged before learned Additional District Judge. I find that impugned judgments are just and proper, therefore, there is no justification to set aside the same.
6. The upshot of the above discussion is that this R.S.A. Has no force and the same is accordingly dismissed. No order as to costs.