' MAULVI ANWARUL HAQ, J.--On 11-2-1992 the petitioners filed a suit against the respondents. In the plaint it was stated that petitioner No.1 and his brother Wazir Shah, who is father of the petitioners Nos.2 to 4, were owners of land measuring 115 Kanals and 16 Marlas, detail of which is mentioned in para 1 of the plaint. Out of that land 15 Kanals and 16 Marlas was ancestral while 100 Kanals were allotted to the said two brothers. Mehr Shah was their third brother. He intended to alienate a portion of the suit-land. A suit was filed by petitioner No.1, wherein a statement was given on behalf of Mehr Shah that he would sell only his share in the ancestral property. Mehr Shah died on 23-12- 1991 and the-petitioners are his only LRs. The respondents forged a sale-deed allegedly executed by Mehr Shah on 22-12-1991, whereby an area of 30 Kanals and 18 Marlas was shown to have been purchased by respondents Nos.1 and 8 Kanals by respondent No.2. The sale-deed was registered in the office of Sub-Registrar, Cantt. Lahore on 7-1-1992. This transaction was stated to be illegal and void for several reasons stated in the plaint. A declaration was accordingly sought. The respondents in their written statement pleaded a valid sale in their favour by Mehr Shah by executing the sale-deed and getting it registered. Following issues were framed by the learned trial Court:--
(1) Whether the plaintiffs have not come to the Court with clean hands? OPD
(2) Whether the predecessor-in-interest of the plaintiffs namely Mehar Shah had sold away suit- land to the defendants? OPD
(3) Whether the defendants are entitled to the special cost under section 35-A, C.P.C.? OPD
(4) Whether the impugned sale-deed executed on 22-12-1991 and registered on 7-1-1992 in favour of the defendants in respect of suit- land is quite false, bogus; illegal, void ab initio and of no legal effect? OPP
(5) If Issue No.4 is answered in affirmative, whether the plaintiffs are entitled to the decree as prayed for? OPP
(6) Relief.
' Evidence of the parties was recorded. Vide judgment and decree dated 26-11-1998 the learned trial Court decreed the suit. A first appeal filed by the respondents was allowed by the Additional District Judge, Lahore on 3-3-2001, who dismissed the suit of petitioner.
2. The learned counsel for petitioners contends that the evidence on record has been misread by the learned A.D.J. While passing the impugned, judgment and decree. According to him the respondents have failed to prove the execution of sale-deed or otherwise a valid sale for consideration in their favour by Mehr Shah deceased.
3. The learned counsel for respondents, on the other hand, contends that the sale was effected by means of registered document and onus to disprove it ought to have been on the petitioner.
According to him notwithstanding discrepant nature of evidence the learned A.D.J. Has correctly relied upon the attending circumstances to hold that Mehr Shah had sold the land to the respondents as alleged by them.
4. I have gone through the copies of record with the assistance of learned counsel for parties. I have already reproduced above material contents of the pleadings of parties. The respondents have pleaded a valid sale for consideration in their favour and further execution and registration thereof. It was for them to prove the said affirmative assertions made by them and thus the burden of Issue No.2 was upon them, which was correctly placed upon them by the learned trial Court. The impugned sale-deed is Exh.D.1 on record. It bears the date of execution as 22-12-1991. There is no dispute that Mehr Shah had died on 23-12-1991. It purports to have been executed by Mehr Shah son of Ghulami Shah in favour of Moulvi Mukhtar and Ashraf son of Acha, respondents. Details are that 30 Kanals and 8 Marlas are sold in favour of Moulvi Mukhtar Ahmad and 8 Kanals to Ashraf.
From the endorsement on the back of page No.1 of this document it appears that one Aman Ullah Khan, Advocate, was appointed as local commission for recording statements of parties. The other endorsements as to presentation of documents admission of execution and receipt of consideration are made by the said Local Commission. The document is witnessed by Raza Mustafa, admittedly the son of Mukhtar Ahmad respondent and one Muhammad Latif son of Muhammad Hussain. The said Raza Mustafa is also stated to have identified the said vendor namely Mehr Shah. The Local Commission has appeared as D.W.1. According to him he attested the document Exh.D.1 as Local Commission. He had met Mehr Shah vendor personally and had obtained his thumb impression on the document. He stated that he had checked NIC of the said vendor and also got him identified. In Cross-examination he stated that he had scribed document Exh.D.1 and this had been done on the instructions of respondent. According to him' he had met Mehr Shah for the first time in village Gowandi when he went to obtain his thumb impression on the stamp papers. He was appointed as Local Commission by Sub-Registrar, Lahore Cantt. He admitted that he had himself filed an application for being appointed as Local Commission whereupon he was so appointed and for this he was instructed by Mukhtar Ahmad. Whereas he admitted that he had written on the application that it was being filed by him on behalf of Mehr Shah. He 'admitted that no amount was paid in his presence. According to him Raza Mustafa was also present. He stated that he did not know him at all. He admitted that Raza Mustafa is son of Mukhtar Ahmad, respondent. He also admitted that he did not try to contact Lumberdar of the village nor any other respectable of the village for identification of Mehr Shah vendor. Regarding the other witness Muhammad Latif he states that the witness was known to him for the, last 10/15 years as they had studied together. He had taken Muhammad Latif along. He admitted that he always took him along when he had to attest a document as Local Commission. He stated that he wrote Exh.D.1 in his office. 7-Turner Road, Lahore.
5. Raza Mustafa appeared as D.W.2. He stated that he is son of respondent Mukhtar Ahmad and Mehr Shah is also known to him. According to him he is a marginal witness of Exh.D. 1, which bears his signature and Mehr Shah had put his thumb impression in his presence. In cross- examination, unlike D.W.l who is scribe of the document, this witness has made a different statement that the document was written in the Courts at Lahore Cantt, where Mehr Shah was also present, whereas the Local Commission stated that Raza Mustafa was already present in the village where he went to get thumb impression of Mehr Shah. D.W.2 further states that he was called to the Courts by Local Commission. According to him the stamp papers had been purchased by Aman Ullah Khan, D.W.l. Respondent No.l, Mukhtar Ahmad, appeared as D.W.3. Now he states in* his cross- examination that the stamp papers were purchased in his name. According to him the document was written by the Local Commission in Lahore city and he does not remember as to where it was written. Raza Mustafa is his son, who had identified the vendor. He further stated that the document was written in Courts at Lahore Cantt. And Muhammad Latif had attested the document there. He was called upon to explain why Muhammad Latif, the other marginal witness, has not been produced. He replied that his counsel has advised him against producing the said witness.
6. On reading of the said evidence it goes to show that all the three relevant witnesses have made false statements. Even otherwise a valid execution of document and payment of consideration has not at all been proved. The learned ADJ has also closed his eyes to said statements of witnesses on record and has observed that since Mehr Shah had earlier made an application for getting copy of Jamabandi and since he was trying to sell his land as the petitioner had filed a suit restraining him from doing so and it would be deemed that there is valid execution of sale-deed and a valid sale has been made in favour of respondents for consideration. To my mind said observations are perverse. There is no evidence on record that said Mehr Shah, in fact, filed said application before the Deputy Commissioner. The fact remains that there is no evidence on record that Mehr Shah has executed Exh.D.l and had received consideration. The other attending circumstance is that he had died the very next day after ttje said proceeding by the Local Commission and further that what was the occasion for Mm to sell the land when he had no need to do so. I, therefore, do find that the impugned judgment of the learned A.D.J. Is result of misreading rather failure to read the entire evidence on record and it cannot sustain. The CR is accordingly allowed with costs throughout. The impugned judgment and decree dated 3-3-2001 passed by the learned A.D.J., Lahore is set aside and the one passed by the learned trial Court is restored.