' MIAN SAQIB NISAR, J.---The suit for declaration and permanent injunction filed by Mst. Ummat-ul- Islam, the predecessor-ininterest of the respondents, against the petitioner, was decreed by the learned Trial Court; however, on appeal, which was partly accepted, the suit was dismissed to the extent, that the plaintiff respondent has failed to prove, that the sale-deed in favor of the petitioner is invalid, but awarded a decree to the respondent and against the petitioner, to the extent of an amount of Rs,10,00,000, as the consideration of sale, which according to the Court was not proved by the petitioner to have been paid to the respondent.
2. Brief facts of the case are, that according to the case of the respondent/plaintiff, she claims to have never sold the suit-land measuring 80 kanals to the petitioner, through sale-deed No, 469, dated 11-2-1984 which sale was challenged by her as being the result of fraud, misrepresentation etc. And also invalid for the lack of the payment of consideration. The petitioner contested the suit, she set out the defence, that the sale-deed was validly executed by the respondent in her favor, for the consideration, mentioned in the deed, thus, keeping in view the pleadings of the parties, the learned Trial Court was pleased to frame the issues including the important issue i,e,No,4, "Whether the sale-deed No,469, dated 11-2-1984 is illegal, void, without consideration, based on fraud and misrepresentation". The parties produced their evidence and as mentioned earlier, the learned Civil Judge, was pleased to decree the suit in favor of the respondent and against the petitioner, vide judgment and decree, dated 15-12-2000 and annulled the sale. Against the above, the petitioner preferred an appeal, and the learned Appellate Court after scanning through the evidence on the record, has come to the conclusion that "the sale-deed No,469, dated 11-2-1984, Exh.P.3/D.1 is quite a valid document, having been executed by the plaintiff with the intention to transfer title of the land mentioned therein, in favor of the defendant and without any stint of fraud or misrepresentation therewith, whereas, the payment of consideration/sale price has not been proved and the plaintiff is therefore, entitled to receive the same from the defendant side at the rate of minimum average Rs,10,00,000 (ten lacs) (at the rate of Rs,1,00,000 per 8 Kanals) and the defendant side as such is liable to pay the said amount to the plaintiff. The issue thus stands decided accordingly".
' Both the parties feeling dissatisfied challenged the aforesaid judgment and decree, before this Court; the petitioner filed the instant civil revision, whereas the respondent filed R.S.A. No,18 of 2002, which obviously was against the conclusion/decision of the learned Court of Appeal, that the sale- deed is a validly executed document. In this R.S.A., the respondent subsequently moved C.M. No, 2- C/2002, upon which the order, dated 7-5-2002 was passed, which reads as below:--
(1) "The appellants, through this application, are seeking permission for the withdrawal of the appeal, on the ground that they are satisfied with the Judgment under the appeal. Further prayer for the refund of the court-fee has also been made.
(2) This application to the ex cut of the prayer for the withdrawal of the appeal is allowed and the accompanying appeal (R.S.A. No,18 of 2002) is dismissed as withdrawn."
3. The instant revision has come up for hearing today and the learned counsel for the petitioner has argued, that in the impugned judgment the learned Appellate Court has clearly concluded, that the sale-deed is a validly executed document by the respondent, as the amount of the consideration has been mentioned therein and also to have been received by the respondent, therefore, the Court was in law to read the deed as a whole and could not hold, that the sale consideration remained unpaid; moreover, independent of the above, the petitioner has been able to prove that the consideration was duly paid, and in this behalf, the statement of D.W.1, who was the Tehsildar/Sub-Registrar at the time of the registration, has clearly deposed that the amount of Rs,1,00,000 was admitted by the respondent before him, to have been received by her; this part of the statement of the witness has not been subjected to cross-examination; he was an official, neutral and unbiased witness and had no cause of making an incorrect deposition. Besides, D.W.2 and D.W.3 have also made similar statements about the payment of the consideration. Above all, the payment/receipt of the consideration is mentioned in the sale-deed Exh.P.3/D1 and this being a document in writing, the respondent could not lead any oral evidence to controvet the written sale-deed, when the said deed, as mentioned above, has been accepted by the learned Court of Appeal, to be a genuine document, and against which the R.S.A. Brought by the respondent, has been unconditionally withdrawn feeling satisfied by the said judgment. It is also mentioned, that according to the provisions of section 55 of the Transfer of Property Act, 1882, the learned Court below could not grant the relief of Rs,10,00,000 (ten lacs rupees) to the respondent, because the amount of Rs,9,00,000 (nine lacs rupees) was not even the part of the consideration, rather it was only Rs,1,00,000, and this amount of Rs,9,00,000 in fact has been imposed upon the petitioner as a penalty and the learned Court below to this extent had no jurisdiction. It is further submitted, that the average of the price calculating at Rs,1,00,000 per 8 Kanals, is also an imagination of the learned Appellate Court, as there has no evidence on the record in this regard. Furthermore, that under no law or principle of equity, the learned Appellate Court, could grant the relief of the payment of Rs,10,00,000, by the petitioner to the respondent, as this was not even her case/claim in the suit. In support of his contentions, learned counsel for the petitioner has relied upon the judgments reported as Hakim Ali v. Sakhi Muhammad and 16 others (1996 SCMR 354), Shahid Nasim and 2 others v. Syeda Imtiaz Khatoon (PLD 1997 Lahore 243), Syed Sardar Shah and 2 others v. Qazi Masood Alam and 5 others (2003 CLC 857) and Sarfraz Ahmad and 36 others v. Mst. Sakina Bibi and 35 others (PLD 1985 Journal 121).
4. Confronted with the above, learned counsel for the respondent states, that all the witnesses appearing for the petitioner, are closely related, and thus, the possibility of their making untrue statements cannot be ruled out. In fact, the petitioner, was the daughter of the respondent's real brother, who being the religious scholar and elder of the family had an influence upon the plaintiff respondent, thus, it is an exercise of such influence, that the document has been fraudulently procured from the respondent. It is also argued, that the petitioner was an old, infirm and illiterate lady and had no independent advice of any male member such as her sons, therefore, in the light of the judgment reported as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), the sale by such a lady cannot be considered to be a valid.
5. I have heard the learned counsel for the parties. The most important aspect of this litigation is, that the respondent herself having challenged the decree of the learned Appellate Court regarding the verdict of valid execution of the document had withdrawn the R.S.A. Filed before this. Court, as mentioned earlier. Now the questions which remain for the determination are, whether the learned Appellate Court after having come to the conclusion, that the sale was validly made, still could hold that the consideration was not paid, and if that being so, whether it is the amount of Rs,1,00,000 which was to be paid by the petitioner to the respondent or Rs,10,00,000 besides, whether such amount which is not paid by a buyer to a seller can be recovered in the present suit, or can only be considered a charge upon the property and for the recovery thereof, the respondent has to bring a specific/separate suit.
6. I have perused the impugned judgment and the. Record. In my view, the learned Appellate Court, had fallen in serious error in holding, that the amount of Rs,1,00,000 was not paid to the respondent as the consideration; there has been a clear statement in this behalf by the DW1/Syed Iftikhar Ali Shah, the Sub-Registrar, to whom no attribution of either being biased or partisan can be made; his statement in this regard has also not, been subjected to cross-examination. Thus, the settled principle of the law that a fact deposed in the examination-inchief, if not cross-examined, shall be deemed to have been admitted, squarely applies to the matter in hand. Moreover, the sale-deed which is a written document and once the execution of the document is held by the leained Appellate Court, to have been validly made by the respondent, the respondent in view of the provisions of Article 102 of the Qanun-e-Shahadat Order, 1984, could not controvert through oral evidence that the payment was not made to her. Lastly, it is held, that the respondent had never in the suit claimed either the recovery of the amount decreed in her favor, or even the amount of Rs,100,000; she being the plaintiff has led no evidence to prove, that the value of the property was that, which has been granted to her by the learned Appellate Court, thus, the decision in this behalf is based upon no evidence cannot sustain.
' For all what has been stated above, the judgment and decree of the learned Court of Appeal to the extent of directing the petitioner to pay a sum of Rs,10,00,000, to the respondent is invalid, which is hereby set aside. Accordingly, this revision is allowed.