' MIAN FASIH-UL-MULK, J.---Petitioner through instant revision petition, has questioned the concurrent findings of the two Courts below, whereby suit for declaration filed by him was dismissed by Civil Judge, Mardan vide his judgment and decree dated 30-6-2003 and his appeal against the same also met the same fate when learned Additional District Judge-II, Mardan vide his judgment and decree dated 20-12-2004 dismissed his appeal.
2. Concise facts of the case are that petitioner filed a suit for declaration, perpetual prohibitory injunction and specific performance of contract against respondents to the effect that he is in possession of the suit property measuring one kanal 18 marlas, haying purchased the same from respondent No, 1 Mukamil Shah through an agreement to sell dated 2-1-1996 (Exh.P.W.2/1) for a sale consideration of Rs,50,000, who after receiving the sale consideration, delivered possession of the property in his favour.
3. Learned counsel for petitioner submitted that the learned trial Court has based its findings on very minor and immaterial contradictions in the statements of witnesses and that the learned appellate Court has also fallen into the same error; that petitioner was non-suited on the " ground that original agreement to sell was not produced in evidence, which is quite a mis- reading of evidence on part of the appellate Court because scribe and marginal witnesses of the said deed have clearly stated that they have seen the original agreement and no objection was raised by respondents at the time of its exhibition, meaning thereby that the original agreement was duly produced for perusal of the Court and its photo copy was placed on file as Exh.P.W.2/1; that the second ground which prevailed with the learned appellate Court that petitioner and respondents are not recorded in periodical record as owners or occupier of the land in dispute is also against the revenue record, as respondents are recorded as owners in occupation through their father Litafat Shah, who died much prior to the execution of the agreement and respondents are his legal heirs, besides mutation of inheritance of Litafat Shah was also placed on the record; that petitioner has fully established that he is in possession of the suit property from the date of execution of the agreement and not only the witnesses of petitioner but the Patwari Halqa and witness of respondent too has clearly admitted the possession of petitioner on the property in question; that the alleged difference in the signature of respondent on the deed in question and the register of petition writer is not of much significance, as the register is not relevant for proving the deed and slight difference in signatures is but natural; that the Court itself has not made any comparison nor has examined it through expert, hence the same cannot affect the merits of the case; that the appellate Court has wrongly concluded that sale consideration was not paid in presence of scribe, as this was not at all the case of petitioner nor the deed indicated so that consideration was paid' at the time of execution. On the other hand petitioner has fully proved that sale consideration was paid to respondent in the village before scribing of the deed; that alleged relationship of petitioner with witnesses is not fatal in a civil matter and that there is only one contradiction in the statements of witnesses i.e, whether payment was made to the respondent in the Hujra or house, however, such sort of contradiction in the circumstances of this case and examination of witnesses after sufficient time is of no help to the other side when no explanation has been asked from the witnesses whether the same was paid in the hujra/house of petitioner or of respondent; hence judgments of the Courts below being suffering from mis-reading and non- reading of evidence are liable to be set aside and suit of petitioner deserves acceptance.
4. Learned counsel for respondents on the other hand submitted that the alleged contradictions in the statements of witnesses are not of a minor character but material in nature, as burden to prove payment of sale consideration was on petitioner but he failed to discharge the same; that petitioner has stated that he paid Rs,50,000 to respondent Mukamil Shah in the village but could not produce any independent witness to show that in whose presence it was paid or where it was paid and P.W.3- and P.W.4 being closely related to petitioner, their evidence in this regard coupled with the alleged contradiction, whether same was, paid in the hujra of respondent or in the house of petitioner, was liable to be brushed aside, and that possession of the suit land was not peaceful but through force about which an F.I.R. Was lodged against the petitioner and others. The learned counsel, therefore, concluded that the learned Courts below have rightly appraised the evidence on record and the impugned judgments are not open to any exception in the revisional jurisdiction of this Court.
5. Learned counsel for the parties were heard and record of the case was perused.
6. Record of the case would reveal that Patwari Halqa appeared as P.W.1 and stated that petitioner is in possession of the suit property as mentioned in the site-plan, Exh.P.W.1/2. The scribe of agreement deed dated 2-1-1996 in his statement stated that petitioner along with Mukamil Shah respondents and the witnesses had come to his office and though sale consideration was not paid in his presence but the fact regarding its payment was acknowledge by respondent No, 1 . He further admitted that though MC number of respondent was not recorded in his register but the same was duly mentioned in the deed. Gulab Shah appeared as P.W.3 and stated that the deed in question was scribed at the instance of parties in his presence. He further stated that the sale consideration was paid in his presence and that suit property being in his possession as tenant was given in possession of petitioner on the direction of Mukamil Shah respondent. P.W.4 Wali Khan stated that sale consideration was paid by petitioner to respondent No,1 in the house of Ali Ahmad.
Petitioner himself appeared as P.W.5 and deposed that he had purchased the suit land from respondent No,1 in consideration of Rs,50,000, who had handed over possession at that time. He further disclosed that he paid the sale consideration in the village and then came to Katchery and executed the deed.
7. In rebuttal, respondent No,1 did not appear before the trial Court, being placed ex parte, whereas respondent No,2 recorded his statement through special attorney namely Ghani Rehman, his driver, who simply denied the execution of deed and stated that possession of the suit land was obtained by petitioner by force, regarding which an F.I.R. Was lodged. He further stated that defendant No,2 is in the village and healthy. He further admitted that petitioner is residing in the suit house. About defendant No,1 he stated that he is a crippled person.
8. As per revenue record, the land in question is ownership of Mian Hikmat Shah son of Haji Mian Muqadar Shah, wherein father. Of respondents Litafat Shah is entered as ghair-dakhilkar, being son of Mian Hikmat Shah. As per site plan, Exh.P.W.1/2, petitioner is shown in possession of the suit land.
Similarly, Anwer Baig, Petition Writer in the very beginning of his statement has stated that he has seen the original deed dated 2-1-1996, copy of which is Exh.P.W.2/1. The marginal witnesses to the deed in question have also stated so in their statements; hence the ownership of respondents, being sons of Litafat Shah and production of original sale agreement, Exh.P.W.2/1, before the trial Court stands proved from record and also no objection was raised by respondents on the same at the time of exhibition.
9. So for possession of petitioner over the suit land is concerned, the same also stands admitted and established from record. The objection of respondents was only to the extent that the same was not peaceful but by force and an F.I.R. Was lodged in this regard. At Page-69 of the file, there is an order of Judicial Magistrate-II, Mardan dated 21-6-2001, whereby petitioner along with 5 other accused was acquitted of the charge as the prosecution had failed to produce evidence in the case. This being so, the contention of respondents loses weight that possession of the suit land was obtained by petitioner through force.
10. A look at the evidence of petitioner would reveal that he has successfully proved the execution of agreement deed by producing its scribe as well as marginal witnesses, The points on which the suit of petitioner was dismissed are that the scribe had not written the NIC number of respondent in the Register and the signature of respondent on the register as well as deed were different. If the NIC number was not mentioned in the register, the same was duly written on the deed and though as per statement of scribe there was difference in between the signatures of respondent on the deed and the register but either the Court itself made any comparison nor the same were referred to an expert for opinion and only on this score, the genuineness of the agreement deed cannot be doubted in view of overwhelming evidence available on file.
11. It is also an admitted fact that sale consideration was paid to respondent in the village before scribing the deed. The learned Courts below have, however, drawn up an adverse inference from the statements of P.W.3 and P.W.4, as according to P.W.3 the sale consideration was paid in the hujra of defendant and according to P.W.4 the sale consideration was paid in the house of petitioner. In the case of Wali Muhammad v. Saif-ur-Rehman (2004 CLC 610) it has been held that:- - "When a word is not defined in the relevant statute/law, help has to be taken from the dictionary....
Words "Dera" and Haveli" are not distinguishable and denote dwelling, residents/house."
' It is also a fact that the disputed house and plot originally belonged to responders and it follows that one witness may have considered the house in occupation of petitioner as hujra or room of respondents.
12. As per conclusion of appellate Court, petitioner when came to the witness box, he narrated a new story by submitting that on the day of execution of deed, respondent No,1 along with his son had come in the morning time to his house and the suit land was firstly demarcated. In fact, there exists no difference between the statements of witnesses and petitioner nor the same can be considered as a new story rather it is an explanation of the events done before scribing of the deed. True, petitioner has stated that respondent No,1 is a cripple person but it is equally true that petitioner was not cross-examined as to whether at the time of execution of the deed, he was crippled nor the respondents themselves produced any evidence of such infirmity of respondent No,1 in their evidence. On the other hand, the deed was executed on 2-1-1996 whereas statement of petitioner was recorded on 27-6-2000, therefore, this point too was not a cogent one for discarding the evidence of petitioner. As the statements of witnesses were recorded after a long period, therefore, such minor discrepancies in the evidence are not sufficient for non-suiting the petitioner.
The august Supreme Court of Pakistan in the case of Saheb Khan through Legal Heirs v.
Muhammad Pannah (PLD 1994 Supreme Court 162) has held that:-- "Minor discrepancy in the statement of plaintiff-EffectPlaintiff could not have been non-suited on minor contradiction in his statements when such statements were recorded after several years."
' In the case of Haji Din Muhammad through Legal Heirs v. Mst. Hajra Bibi and others (PLD 2002 Peshawar 2), a learned Division Bench of this Court has also held that:- "Picking and choosing of minor contradictions giving own meaning on presumption and conjecture not amounting to pragmatic and positive inference and approach---Judge is supposed to draw conclusion keeping in view the entire evidence and the substance of whole statement---One sentence cannot be torn out of context- Party is not to be penalized for slip of tongue or imprudent/utterance---Court should visualize and evaluate the veracity, capacity and mental level of witnesses and should not test and expect from a layman to improvise, compose extempore answers who as a matter of fact were not used to face lawyers tricky, abrupt and intricate questions---Presiding Officer should apply his mind with great care and caution--- Parties should not be non-suited for such petty and trivial drawbacks not fatal on material facts-- -Courts are supposed to concentrate on theme, pith and substance of a statement and not to chalk out a selective piece of evidence.
13. I also find myself in agreement with the contention of learned counsel for petitioner that relationship of witnesses with plaintiff/petitioner would hardly matter in a case of civil nature. The Hon'ble Lahore High Court in the case of Nawab Din v. Abdul Khaliq and anther (2004 M LD 827) has laid down as under:- "Execution of - Proof - Witness - Only relatives and friends of a party coming to attest document in his favour---Such friendship between party and attesting witnesses would not be enough to brush aside impact of their evidence.
14. It is well settled that civil cases ought to be decided on probabilities only as to which of the party has probably proved its case or in other words which of the party being true should succeed and be granted the relief. In the case of Yar Muhammad Khan v. Bashir Ahmad (PLD 2003 Peshawar 179), this Court has held that:-- "Such approach by courts below ran counter to sound judicial principles because rules and standards for appraisal of evidence in civil cases were different from those employed in criminal cases as the law has laid down different standards of proof for different categories of cases."
15. Keepings in view the above facts and circumstances of the case, I am of the view that both the Courts below have failed to appreciate the evidence in its true perspective and have committed an illegality by non-suiting the petitioner. The whole evidence on record has not been taken into consideration but selective minor parts and insignificant conflicts were allegedly made foundation for refusal to grant relief to the petitioner. Another interesting aspect of the case is that respondent No,2 is a pro forma defendant while respondent No,1 is the executant of the agreement to sell, who has been proceeded ex parte in both the Courts below and has not contested the suit nor respondent No,2 has produced any cogent evidence in rebuttal to the suit of petitioner. In such a situation, when neither respondent No,1 has appeared in the witness box nor respondent No,2 subjected himself to cross-examination, hence presumption can be drawn that they had nothing to say in support of their stand. In the case of Messrs Kashmirian (Pvt.) Ltd through Shomaila Loan Marker and 6 others v. Ghulam Nabi Gujjar and another (2006 CLC 482), a learned Bench of the Sindh High Court has laid down that:-- "Non-production/withholding of best evidence by a party without showing any plausible reason-- -Effect---Presumption would be that had such evidence been produced, same would have gone against such party---Non-appearing of a party as his own witness in support of his case would make his claim highly doubtful."
16. It has now become settled that where the concurrent findings of facts by the courts below are found perverse, arbitrary or fanciful the same could be interfered with in exercise of revisional jurisdiction of the High Court under section 115, C.P.C. In this case too, the findings of both the courts below are not only arbitrary but fanciful and the result of mis-appreciation of law. Reliance in this regard can be placed on the dictum laid down by the august Supreme Court of Pakistan in the case of Muhammad Akbar v. Mst. Manna and 3 others (2001 SCM R 1700). The judgment and decrees of the Courts below are, therefore, not sustainable in the eyes of law.
17. Consequently, this court has no option but to allow this revision petition by setting aside the findings of the two courts below and suit of the plaintiff-petitioners stands decreed with no order as to costs.