Mst. Ramzano etc; have filed this revision petition under Section 115 CPC against the respondent Abdur Rashid Khan, impugning the judgment and decree dated 13/4/2009 passed by the learned District Judge-VI D.I.Khan, whereby their appeal was dismissed..
2. Briefly stated facts of the case are that Abdur Rashid, plaintiff/respondent, had filed a suit for declaration and perpetual injunction against the legal heirs of Noor Muhammad deceased, Defendants/Petitioners No. 2 to 8, in respect of the property detailed in the plaint on the basis of agreement deed dated 9/3/1983. According to the averments made in this petition, a bogus and frivolous cognovits was filed on behalf of the defendants/petitioners who when came to know about the same submitted an application on 7/12/1991 in the trial Court for filing of written statement which after contest by the opposite side was allowed on 22/3/2001 which was maintained upto the Apex Court. The following issues were framed:--
1. Whether plaintiff has got any cause of action?
2. Whether plaintiff is estopped to sue by his words and conduct?
3. Whether the suit is incompetent in its present form?
4. Whether the suit of the plaintiff is within time?
5. Whether this Court has got jurisdiction to entertain the present suit?
6. Whether the suit of the plaintiff is liable to be dismissed due to non-joinder of necessary party?
7. Whether the suit of the plaintiff is properly valued?
8. Whether the sale agreement dated 09.03.1983 is result of fraud practiced upon predecessor in interest of defendant?
9. Whether the sale agreement dated 09.03.1983 is champerty in nature?
10.Whether the defendants are entitled for mesne profit at the rate of Rs.5000/- per kanal per year since 12.04.1987 to the present time and at the same rate in future?
11.Whether agreement dated 09.03.1983 is against Martial Law Regulation 115?
12.Whether the predecessor in interest of defendants was owner of the entire property included in disputed agreement by the time of its execution if not its effects?
13.Whether the suit of the plaintiff is liable to be dismissed due to the fact that plaintiff himself violated terms of agreement?
14.Whether the suit of the plaintiff is based upon mala fide and against the law and facts, therefore, liable to be dismissed?
15.Whether the Defendant No. 8 was minor at the time of institution of present suit, if so its effects?
16.Whether the predecessor of defendant received the sale consideration to Rs. 72500/- per kanal and delivered the possession of plaintiff?
17.Whether plaintiff incurred huge amount on the disputed property and constructed the hospital over it?
18.Whether the earlier findings recorded by Hon'ble august Supreme Court is operated res- judicata under Section 11 CPC in present case what so its effects?
19.Whether the admission made by Defendants No. 1, 3 to 6 and 8 in pre-emption suit about the same property who so, its effect?
20. Relief.
Additional issue: `Whether the plaintiff has paid the sale consideration, to Noor Muhammad in pursuance to the fulfillment of condition of agreement dated 09.03.1983? OPP'
3. The parties produced their respective evidence and then the learned trial Judge decreed the suit of the plaintiff, whereas to the extent of 6 kanals, the plaintiff was directed to give this area to the defendants in the light of Ex.PW.5/4. However, on appeal the case was remanded by the Additional District Judge-IV D.I.Khan vide order dated 4/12/2007 but no cross-appeal to the extent of aforesaid six kanals was preferred. On remand, the suit was again decreed by the trial Judge on 20/6/2008 where against the appeal was also dismissed on 13/4/2009. Hence this revision petition.
4. Learned counsel for the parties submitted written arguments which is now part of record.
5. In the written arguments, the stand taken by the learned counsel for the petitioners is summarized below:-- (i)That in a suit for pre-emption filed by Fazal Rahman against the impugned agreement to sell wherein Abdur Rashid respondent was one of the defendants have admitted that Noor Muhammad was still owner of the suit property. This stand was taken in the written statement duly verified by the learned counsel. According to him, later on this plea was changed by the respondent and admitted the execution of the impugned agreement to sell; (ii)That the alleged agreement to sell has not proved through evidence of two marginal witnesses as required under Article 79 of the Qanoon-e-Shahadat Order 1984; (iii)That the payment of sale consideration has not been proved and; (iv)That the impugned agreement to sell was an intention to sell and not sale agreement.
6. On the other hand, on behalf of the respondent/plaintiff, it is submitted:-- Firstly; that no admission has been made in the pre-emption suit by the respondent, Secondly; that it is not the requirement of law to prove the agreement to sell deed by producing two marginal witnesses, Thirdly; that that the sale consideration has been paid and, Fourthly/Lastly; that the matter has been decided by the Apex Court, wherein the transaction indispute has been held to be of sell.
7. I would first discuss the argument regarding the alleged admission by the plaintiff/respondent in the written statement filed in the pre-emption suit.
8. The record reveals that an application which is marked as Ex.PW.5/24 was submitted by the plaintiff/respondent alongwith the legal heirs of the deceased Haji Noor Muhammad in the Court for dismissal of suit on the ground that the pre-emptor had lost cause of action. Para-2 of the said application shows that both the parties have admitted that sale is complete. This para also proves that the entire sale consideration was paid and possession delivered to the plaintiff/respondent.
The record further indicates that in the pre-emption suit, Defendant No. 2 while appearing as DW-2 in cross-examination admitted in the declaratory suit (instant suit), that all the defendants have admitted the claim of the plaintiff/respondent except two defendants. That pre-emption suit was dismissed on the basis of having no cause of action in khasra No. 2666/-. This Court had also decided two civil revision petitions wherein it has been held that the agreement to sell was in fact a sale. In appeal before the Apex Court, it was held that the transaction between the parties is sale. It was also held in the pre-emption suit that the agreement to sell was in fact sale transacted between the parties.
9. Reverting to the second contention of the petitioners about the lack of proof of the agreement to sell, I may refer to the relevant law. It is to be noted that in the instant suit, an application for temporary injunction was filed which was granted by the Court. The contesting defendants did not oppose it, instead all the defendants except Defendants No. 2 and 7 admitted the claim of the plaintiff/respondent and accepted the agreement to sell as complete sale alongwith delivery of possession to him. The agreement to sell is available on file as Ex.PW5/4. This deed is witnessed by four witnesses and executed on 9/3/1983.
10.The contention of petitioners is that agreement to sell is not witnessed by two marginal witnesses as required by Qanun-e-Shahadat Order 1984.
11.Article-79 of Qanun-e-Shahadat Order 1984 deals with the execution of documents required by the law to be attested by two witnesses which is reproduced below:-- ARTICLE 79 PROOF OF EXECUTION OF DOCUMENT REQUIRED BY LAW TO BE ATTESTED.
If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been., called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence".
12.I may also refer to Section 68 of the Evidence Act 1872 which is reproduced below:-- Proof of Execution of Documents required by law to be attested.
"If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will which has been registered in accordance with the provisions of the Registration Act 1908, unless its execution by the person by whom it purports to have been executed is specifically denied."
13.I reproduced the above provisions of law for the reason that in this case the impugned agreement to sell deed was executed in March 1983, while the Qanun-e-Shahadat Order was promulgated in the year 1984. Therefore, execution of the sale deed in this case is to be proved in the light of Section 68 of the Evidence Act and not in accordance with Article, 79 of Qanun-e- Shahadat Order 1984.
14.I may further refer to a judgment of this Court reported as Mst. Said Kazaban and others Vs. Momin Khan and others (2004 M LD 655), where in para-7 it has been held as follows:-- "The plea of the learned counsel for the petitioner that sale deed (Ex.PW.5/1) being not proved by two attesting witnesses in terms of Article 79 of Qanun-e-Shahadat is bad in the eye of law is misconceived. There can be no denial of the fact that under Section 68 of the Evidence Act, examination of one attesting witness was the requirement of law to prove the execution of a document/deed. Section 6 of the General Clauses Act provides that repeal shall not effect anything not enforce or existing at the time of which the repeal takes place. The new law of evidence, i.e. Qanun-e-Shahadat came into existence in the year 1984. The sale deed (Ex.PW-5/1) in question was scribed in 1963 and the present suit was filed in the year 1983 prior to the promulgation of Qanun-e-Shahadat 1984, therefore, the execution of the deed was to be proved in the light of Section 68 of the erstwhile Evidence Act, 1872 and not under Article 79 of the Qanun- eShahadat 1984. In this context, reference may be made to the authority of Supreme Court given in Civil Petition No. 557-1/99 decided on 6/3/2002."
15.In view of the above provision of law, I hold that since the agreement to sell was executed in the year 1983, therefore, Section 68 of the Evidence Act, 1872 would be applicable to the case in hand wherein the requirement is only one witness which burden has been duly discharged by the plaintiff/respondent.
16.In the circumstances discussed above, I am of the firm view that the agreement to sell has been proved and it is also proved that it was a complete sale because possession has been delivered.
17.Next argument is regarding the payment of sale consideration. In this respect, Issue No. 6 has been framed by the trial Court alongwith additional issue which is also to the same effect. The plaintiff has produced evidence in the trial Court in this respect through which he has succeeded in proving the payment of sale consideration.
18.M/s. Muhammad Bakhsh, Muhammad Shafi and Allah Wasaya appeared in the trial Court and deposed that theplaintiff/respondent Abdur Rashid on 30/7/1985 has paid the sale consideration amounting to rupees fifty-two lacs, one thOusand, eight hundreds and seventy-five to Haji Noor Muhammad in his shop as per agreement deed dated 9.3.1983 and in lieu of possession, the plaintiff/respondent paid some further amount to Muhammad Bakhsh.
19.There is no evidence in rebuttal. Therefore, it is proved beyond any shadow of reasonable doubt that the plaintiff/respondent had paid the entire sale consideration.
20.. In nutshell, the plaintiff has proved his case through cogent evidence. Therefore, while placing reliance on the dictum handed down by the Apex Court in the case of Muhammad Idrees and others Vs. Muhammad Parvez and others (2010 SCM R 5), I hold that since both the Courts below of competent jurisdiction have given concurrent findings on question of fact or law, therefore, it cannot be disturbed by this Court in the exercise of its revisional jurisdiction under Section 115 CPC unless it is pointed out that such findings suffer from material irregularity, illegality, misreading, non-reading or jurisdictional defect which are lacking in the case in hand.
21. As a corollary to what is discussed above, I find no substance in this revision petition which is hereby dismissed, leaving the parties to bear their own costs.