' MAULVI ANWARUL HAQ, J.---On 4-5-1989, the respondent No.1 filed a suit against the petitioner and the other respondents. In the plaint it was stated that the suit-land mentioned in the plaint was owned by the petitioner who sold it to the respondent No.1, received consideration of Rs.20,000 and executed a sale-deed on 29-10-1981 and delivered the possession to him. It was further stated that since it took some time in writing the document, the document was not presented for registration. It was then stated that the petitioner is denying his title. No relief was claimed against the respondents Nos.2 and 3. A declaration was sought that he is owner is possession of the suit-land.
The petitioner filed a written statement wherein he denied having executed the sale-deed or to have sold the land to the petitioner or to have received any money from him. Issues were framed.
Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 31-5-1992. The first appeal filed by respondent No.1 was allowed by a learned Additional District Judge, Chiniot who decreed the suit of the respondent No.1 as prayed for.
2. Learned counsel for petitioner who is also supported by the learned counsel for applicants in C.M.
No.2 of 2002 who alleged to have purchased the suit property from the petitioner, argued that there is no evidence on record of the execution of the sale-deed by the petitioner in favour of the respondent No. 1 . The learned counsel for respondent No.1, on the other hand, has tried to argue that execution of the sale-deed stands proved.
3. I have examined the copies of the records with the assistance of learned counsel for the parties.
Now the sale-deed dated 29-10-1981 is Exh. P.1. It purports to bear the thumb-impression of the petitioner. It is stated to be scribed by Nusrat Ali and attested by Shammas-ud-Din and Rustam witnesses. Rustam appeared as P.W.1, he stated that Exh.P.1 was got scribed and he put his thumb- impression on it. Now it will be seen that this witness has not at all stated that the petitioner executed the sale-deed by affixing his thumb-impression or signatures on the documents in his presence. Shammas-ud-Din, the other witness, has not been produced and there is no reason forthcoming on the record as to why the said witness was not brought in the witness-box. The said scribe Nusrat Ali has appeared as P.W.2. He stated that he wrote Exh.P.1 on the instructions of parties. He admitted in his cross-examination that the petitioner is not personally known to him.
Needless to state that this witness also has not stated anything about the execution of the document by the petitioner. The third witness is the respondent No.1 himself. On the other hand, the petitioner appeared as D.W.4 who stated that he had not agreed to sell the land to the petitioner and that he had not executed any sale-deed. He further stated that the land came to him in a private partition and had been in his possession and that two years ago he gave the land on contract {{URDU TEXT}} to Falak Sher.
3-A. The examination of the said evidence on record shows that there is no evidence on record of the execution of the said document by the petitioner in favour of the respondent No.
1. No witness appeared for respondent No.1 who has so stated and so far as the statement of respondent No.1 is concerned, the same stands rebutted by the statement of the petitioner.
4. Now the learned trial Court had correctly read the evidence and dismissed the suit. The learned Additional District Judge, on the other hand, has proceeded to observe that beyond any shadow of doubt, the petitioner has thumb-marked the sale-deed Exh.P.1. I wonder as to basis of what evidence learned Additional District Judge has made the said observation. Then he proceeds to observe that since the respondent No.1 filed an application that the thumb-impression of the petitioner on the sale-deed be compared with his admitted thumb-impression and that the application was contested by the petitioner, it is to be presumed that Dad the prints been sent for comparison, the report would have been against the petitioner. This observation borders on perverse.
5. The impugned judgment and decree passed by learned Additional District Judge on 3-10-1994 falls squarely within the mischief of section 115 of C.P.C. And cannot be sustained. The civil revision is accordingly allowed. The impugned judgment and decree dated 3-10-1994 of learned Additional District Judge-I, Chiniot is set aside and the one passed by learned trial Court on 31-5-1992 dismissing the suit of respondent No.1 is restored with costs throughout.