JUDGMENT AMIN-UD-DIN KHAN, J. --- Through this civil revision the petitioners have challenged the judgment and decree dated 20-9-1995 passed by the learned Additional District Judge, Liaqatpur whereby their appeal was dismissed-against the judgment and decree dated 29-9-1992 passed by learned Civil Judge Liaqatpur whereby the suit filed by the petitioners was dismissed.
2. The facts, in detail, have been narrated in the judgment of the learned trial Court. The matter in issue is that the petitioners were owners of 92 kanals, 1 marla of land whereas according to the petitioners through fictitious exchange transaction, copy of that registered document is Exh. P-1, the petitioners' property has been exchanged with 9 kanals of land owned by the defendants- respondents. The petitioners-plaintiffs filed a. Suit for declaration challenging the said transaction: The suit was filed on 23-11-1988. The defendants-respondents flied written statement wherein they contested the suit. Learned trial Court after framing the issues invited the parties to adduce evidence in support of their respective claims.
3. The learned counsel for the petitioners-plaintiffs submits that the petitioners-plaintiffs never appeared before the Sub-Registrar, therefore, under Article 84 of the Qanun-e-Shahadat Order, it was necessary for the other party to get thumb impressions compared;.That P.W..1 stated that he is in possession of the suit land and this portion of examination-in-chief was not cross-examined by the defendants-. Respondents; that perusal of Exh.P-5 to Exh. P-7 khasragirdawris show the possession of the petitioners-plaintiffs; that learned trial Court decided Issue No.2 against defendants-respondents, therefore, it was bound to decree the suit as this issue was very pivotal issue; that only one of the defendants appeared as DW-1 and no documentary evidence was produced by the defendants-respondents; that when the impugned exchange deed has been shown at that time the land in dispute was under charge with the Agricultural Development Bank.
4. Today no one appeared on behalf of the defendants-respondents and even no request for adjournment has been sent by the learned counsel for the respondents though the name of the learned counsel for the defendants-respondents was duly notified in the cause list for today. Therefore they are proceeded against ex parte.
5. I have heard learned counsel for the petitioners and have perused the record.
6. I have noticed that when one of the petitioners-plaintiffs appeared in the Court and made statement on oath that they did not appear before the Sub-Registrar for the registration of exchange deed then onus to prove that document shifted on the defendants-respondents to prove the execution and validity of registration of that document, as -original document should have been with the defendants respondents. Certified copy was placed as Exh.P-1. The original was never brought on record by the defendants-respondents. Neither any attesting witness of that document nor scribe of that document nor even party to that document was produced in the Court to prove the said document. The learned trial Court has not even decided rssue No.5 in accordance with law but I have noticed that the findings recorded by learned trial Court on Issue No.1 are not sufficient. Only learned trial Court has observed that on the basis of decision of said issue this issue is decided against the petitioners-plaintiffs and it was answered in the negative. It is not the way to decide the issue. Any issue in the civil proceedings has to be decided on the preponderance of evidence. It is not legal way to record findings on any issue on the whims of a Judge or on the basis of findings of other issues. The basic issue was Issue No.5 which was to be decided independently. The learned trial Court failed to discharge its legal duty while deciding Issue No.5. Even I have noticed that when the execution of the exchange deed was denied by the petitioners-plaintiffs, defendants-respondents being beneficiary of that document were bound under the law to prove this transaction as well as the exchange deed but nothing has come from their side on the record to prove transaction of exchange deed.
7. With regard to possession Issue No.2 has been decided against the defendants-respondents and I have noticed that there is sufficient documentary evidence to prove that the petitioners- plaintiffs are in possession of the suit property. Findings of learned trial Court on Issue No.1 are misinterpretation of the documentary evidence produced by the petitioners-plaintiffs. Therefore, findings on this issue are not sustainable under the law. It is clear in the khasragirdawri that the petitioners-plaintiffs are in possession of the suit-land. Even the defendants-respondents have not proved the delivery of possession of 9 kanals and the house which was allegedly given in exchange to the plaintiffs' party. The factum of the IE possession with regard to the suit-land as alleged by P.W. I was not cross-examined by the defendants-respondents on this point. Therefore, under the law this statement will be presumed to have been admitted by the other party. The defendants- respondents have not produced any documentary evidence. Even statement of DW-1 who is one of the defendants is hearsay evidence. No direct evidence has been produced on the file.
14. In the light of above discussion, findings recorded by the learned trial Court on Issues Nos.1, 3, 4 and 5 are reversed being contrary to law against the documentary as well as oral evidence available on the file. The learned first Appellate Court has not recorded its findings issue-were. It also fell in error while ignoring legal position which has been discussed above and, therefore, reached to wrong conclusion.
15. For what has been discussed above, judgments and decrees passed by both the Court below are set aside and suit filed by the petitioners-plaintiffs is decreed with no order as to costs..