' SYED SAKHI HUSSAIN BOKHARI, J.---This revision petition is directed against the judgment dated 18- 10-1995 passed by learned Additional District Judge Arifwala whereby appeal brought by petitioner against the judgment and decree dated 25-5-1992 passed by learned Civil Judge, Arifwala was dismissed.
2. Relevant facts for the disposal of this revision petition are that respondents along with their mother filed suit for possession against the petitioner and stated that they are owners of suit-land (measuring 9 Kanals, 12 Marlas Khewat Nos.17 and 29, Khatuni Nos.28 and 6 situated in Chak No,4- EB Tehsil Pak Pattan Shull) and that Ashiq Ali, Muhammad Tasleem and Mst. Shama had mortgaged the same in favour of defendant/petitioner for a consideration of Rs,3,000 vide registered mortgage deed dated 26-10-1976. Thereafter they shifted to Karachi in connection with their business. Waris Ali, plaintiff had not mortgaged his share. The respondents averred that six months back they asked defendant/petitioner for redemption of their land after receiving Rs,3,000 but he said that he is owner of the same. They contacted `Patwari' and on checking of record they came to know that defendant had got executed sale-deed instead of mortgage deed through fraud and forgery with the connivance of `Patwari' and petition writer. The plaintiffs stated that at the relevant time Waris Ali was minor and he has never transferred his share and that price of suit- land was more than Rs,25,000, therefore, sale-deed is liable to be set aside. The petitioner mentioned in written statement that suit is time-barred and that plaintiffs had transferred suit- land in his favour after receiving sale price. Learned trial Court framed issues, recorded evidence and decreed the suit brought by respondents vide judgment dated 25-5-1992. The petitioner filed appeal thereagainst, which was dismissed vide judgment dated 18-10-1995 passed by learned Additional District Judge, Arifwala. Hence this revision petition.
3. I have heard the arguments and perused the record.
4. As mentioned above the case of respondents is that they had mortgaged the suit-land but petitioner got executed sale-deed through fraud and forgery with the connivance of `Patwari' and petition writer. However the case of respondent is that plaintiffs/respondets had transferred suit- land in his favour for a consideration of Rs,3,000 through registered sale-deed. Waris Ali, plaintiff appeared as P.W.1 and stated that at the relevant time he was minor. He further stated that his brothers and mother mortgaged the suit-land on 26-10-1976 and thereafter they shifted to Karachi.
The witness and his brother, Muhammad Tasleem joined Army. They asked the defendant to receive Rs,3,000 for redemption of their land but he refused. The witness deposed that defendant got prepared forged sale-deed with the connivance of petition writer etc. And that price of suit- land was Rs,25,000 per acre at the relevant time. Mst. Shama is aged and `Parda' - observing lady.
P.W.2 Muhammad Tasleem, P.W.3 Siraj Din and P.W.4 Irshad Ali Khan also supported the case of plaintiffs P.W.5 Munir Ahmad Patwari prepared average sale price, Exh.P.1 it is clear from the statements of P.Ws. That respondents/plaintiffs had not executed sale-deed in favour of petitioner.
' The petitioner examined D. W.1, Muhammad Ali, D.W.2 Muhammad Siddique, D.W.3 Bashir Ahmad and he himself appeared as D.W.4 in support of his case. Mst. Shama, plaintiff was `Parda' observing lady. The petitioner has failed to prove that she appeared before Sub-Registrar and transferred suit-land in his favour. According to Exh.P.1 at the relevant time price of suit-land was Rs,6,257/60 per acre. Moreover petitioner has not examined Rajab Ali marginal witness (of sale- deed in question) in support of his case. The case of petitioner is that suit brought by plaintiffs was time-barred. However the case of respondents is that sale-deed in question is based on fraud, therefore, suit is not time-barred. Learned Courts below observed that plaintiffs/ respondents had never sold the suit-land in favour of petitioner/defendant and that actually they had mortgaged the suit-land, therefore, contention of the petitioner is devoid of force. So in the circumstances of the case I find that learned trial Court had rightly decreed the suit brought by respondents/plaintiffs. The judgment dated 18-10-1995 shows that learned Additional District Judge has decided the appeal brought by petitioner after appraisal of entire material available on record.
Paras.Nos.13 and 15 of the said judgment read as under:-- "13. There is no cavil to the proposition that no presumption is attached to a registered document regarding its execution where that document has been challenged as forged one and its execution is disputed. In such a situation the person claiming right or interest under such an instrument has to establish affirmatively that the document was executed. In present case the plaintiffs disputed the execution of document Exh.D.1 on the ground of minority of one of the plaintiffs and Mst. Shama being an illiterate, ignorant and Parda observing lady. There is no proof on record that Waris Ali plaintiff was minor at the time of execution of the document. It has come in evidence that Waris Ali and his two brothers were teenaged and semiliterate at the relevant time. The defendant was however under an obligation not only to have proved the execution of the document but also that the nature of the transaction contained in document Exh.D.1, was fully understood by Mst. Shama plaintiff who was admittedly an illiterate Parda observing lady. I am constrained to say that the defendant/appellant failed to comply with the requirements of law on this aspect. In order to prove the execution of the document Exh.D.1, its scribe and at least one of the marginal witnesses should have been examined. Evidence sheet in this regard is silent. The plaintiffs produced affidavit Exh.P.2 of Abdul Ghani `Lambardar' one of the marginal witnesses who had sworn this fact that he had witnessed execution of mortgage deed between the parties and not that of sale-deed. Rajab Ali the other marginal witness was not examined by the defendant and presumption in law is that had he appeared he would not have supported the defendant on this point. Payment of consideration has not been proved. Bashir Ahmad Sub-Registrar, admits that nothing was paid in his presence.
The statements of Muhammad Ali Stamp-vendor and Muhammad Siddique claiming to have witnessed the execution are absolutely immaterial.
15. The defendant had questioned that maintainability of the suit on the premises that the plaintiffs ought to have filed a suit for cancellation of documents instead of filing a suit for declaration.
Defendant's plea is that the plaintiffs seek to establish their title in the property but cannot establish the same without removing the obstruction of the sale-deed to which they have been a party, then they must in such a situation get the sale-deed cancelled under section 39 of the Specific Relief Act. Above proposition shall not hold field in present case because the plaintiffs are out of possession and they cannot be permitted to obtain merely a decree for the cancellation of the instrument, according to which if found genuine they would have no title to the suit-land. The circumstances of the case therefore demand that the plaintiffs should ask for declaration of title and for possession. Section 39 of the Specific Relief Act is not attracted to the facts of the present case because the relief sought is direly one under section 42 of the Specific Relief Act along with possession of the subject-matter. Objection raised by the defendant/appellant was not well- founded. The defendant's next objection is that the suit was barred by time. A transaction dated 26-10-1976, has been challenged by filing a suit in the year 1987 by stating that cause of action for filing the suit accrued one month earlier where the plaintiffs learnt about fraud. Limitation in case when the plea of fraud and misrepresentation has been taken would start for the date of knowledge as has been held by their lordship in 1990 SCM R 1031. From the combined effect of the averments made and evidence produced by the plaintiffs it can be safely held that the suit was filed within time."
' It is well-reasoned judgment. There is no illegality or infirmity in the impugned judgments. Likewise there is no misreading or non-reading of evidence, therefore, there is no justification to disturb the concurrent findings recorded by learned Courts below.
5. The upshot of the above discussion is that this revision petition has no force and the same is accordingly dismissed. No order as costs.