MUHAMMAD AMEER BHATTI, J. --- This Revision Petition is directed against the judgment dated 17.12.2004 passed by the learned Trial Court and the judgment dated 07.05.2005 passed by the learned first Appellate Court on suit and appeal respectively, whereby both have been dismissed.
2. The brief facts of the case are that the petitioner filed a suit for declaration to the effect that the petitioner alongwith the respondents were joint owners of House No. 87 measuring 2-Marlas and 31-Square Feet situated in Plot No. 4, Sargodha. It is further averred in the plaint that the purported sale-deed dated 11.04.1995 allegedly executed by Muhammad Hussain deceased, the predecessor -in-interest of the petitioner and the respondents, was illegal, void and ineffective on their rights, with consequential relief that the respondent No. 1 be restrained from alienating the house and interfering in the possession of the petitioner and the immunity is attached with the house. It is added that during the pendency of the suit, respondent No. 1 Nazir Ahmed died, therefore, his successor-in-interest was impleaded as defendant. Respondent No.. 1 filed the written statement by raising preliminary objections and refuted all the factual position of the case. From the divergent pleadings of the parties, issues were framed and parties were allowed to lead their evidence. The learned Trial Court after recording the evidence and providing the opportunity of hearing to the parties, vide judgment dated 17.12.2004, dismissed the suit with cost. The petitioner preferred an appeal which was dismissed on 07.05.2005 by the learned first Appellate Court, hence this Revision Petition.
3. The learned counsel for the petitioner contends that the purported document was registered on the identification of Syed Iftikhar Hussain Shah, the then Lumberdar of the Village but this star witness was not produced in evidence, therefore, it could not be presumed that the document had been proved in accordance with law. The learned counsel for the petitioner by referring the judgments of the learned Courts below; contends that the learned Courts have not adverted to this aspect of the case. Hence the Courts have committed material illegality and irregularity and the judgments impugned are untenable in the eye of law. Further contends that respondents have failed to prove the factum of payment of sale, as neither any specific stand was taken in the plaint that the respondent No. 1 had purchased land by making the payment of Rs. 1,25,000/- nor any witness produced in evidence to testify this fact as required under the law. The learned counsel for the petitioner further contends that from the testimony of witnesses produced by the respondents, it could not be made manifestly clear as to whether the purported document was executed by Muhammad Hussain, vendor.
4. Contrary to this, the learned counsel for respondents Nos. 1 to 9 contends that the concurrent findings of facts have been recorded by the learned both the Courts below, therefore, this Court could not interfere with the findings of facts recorded by both the Courts below unless any perversity has been pointed out by the petitioner, whereas, he has failed to point out any illegality, irregularity and perversity in the judgment of both the Courts below, therefore, this petition is liable to be dismissed. He further contends that both the learned Courts below have rightly held that respondents Nos. 1 to 9 proved the disputed sale-deed, hence this Court cannot substitute the findings of both the learned Courts below merely on the ground that another view could be taken from the reading of the evidence. The learned counsel for the respondents further contends that the sale-deed has been proved by producing the marginal witnesses, therefore, sanctity is attached to the document which is registered in accordance with law, so the petitioner has no case to be interfered with in the concurrent findings of facts recorded by both the learned Courts below.
5. Learned counsel appearing on behalf of remaining respondents contends that the judgment of both the learned Courts below are illegal and unlawful, as they have been deprived them of their legitimate right on the basis of the purposed sale-deed, therefore, this petition may be accepted .And the purported sale-deed may be declared illegal, void and having no legal effects on the legitimate rights of the parties.
6. I have considered the arguments of the learned counsel for the parties and gone through the record of the case.
7. It is observed that the purported sale-deed was got registered on 11.04.1995 on the identification of Syed lftikhar Hussain Shah, Lumberdar of Chak No. 42 Shamali.
According to the sale-deed, Muhammad Hussain, the owner of the property was identified by the said Syed Iftikhar Hussain Shah before the Registrar at the time of registration of this document and this witness .Has not been produced in evidence and there is no explanation for his non- production and this star witness had been withheld by respondents Nos. 1 to 9 and it is settled law that presumption will go against the person who will withhold the important witness on the apprehension that he might record his statement according to the wish of the beneficiary.
Although he was the only witness who identified Muhammad Hussain vendor before the Registrar, otherwise, this document would have not been registered. Another aspect of the case is that the stamp papers was purchased in the name of Muhammad Hussain through .Ghulam Muhammad (who purchased the stamp papers) never produced any evidence. This also established that purported sale-deed was prepared without associating the vendor. Another aspect of the case is that Toqeer Hussain, one of the defendants appeared as D.W.5 and deposed that the stamp papers were purchased by his father whereas this stamp papers were purchased (written at the back of the stamp paper) through Ghulam Muhammad. This also makes manifestly clear that purported sale-deed has been staged with the connivance of the witnesses by producing some other persons before the Registrar. D.W.2 Muhammad Nawaz Registry Moharrar in his testimony admitted that there is no signature of Syed Iftikhar Hussain Shah on the purported sale-deed and under the word "identified" only the name of Syed Iftikhar Hussain Shah, has been written by Registry clerk which is in his handwriting, even then this document was registered by Sub-Registrar and this fact has also been noticed and it is found that no signature is available under the "identified", while only name of Syed Iftikhar Hussain is mentioned. This all shows that the predecessor-in-interest of respondents Nos. 1 to 9 has prepared this purported sale-deed with the connivance of the Registry Branch as well, the witnesses produced to establish his case, therefore, the document itself has been registered without confirming the identification of vendor Muhammad Hussain, is hereby declared illegal, void, without any justification and having no legal effects on .The rights of the petitioner as well as the respondents Nos. 10 to 13. The learned both the Courts below have not adverted to this crucial aspect of the case, resulting in erroneous conclusions. Consequently, the judgments of both the learned Courts below are hereby set aside being based on misreading and non-reading of evidence and having been passed by committing material illegality, irregularity and having no validity in the eye of law. Accordingly, this petition is accepted and the suit of the petitioner is decreed.
8. Since this Court has declared the purported sale-deed. As illegal, void and ineffective on the rights of the legal heirs of Muhammad Hussain deceased, the original owner of the land, therefore, the mutation sanctioned by the Revenue Authority on the basis of this purported sale-deed is also declared illegal, void and the same is also set aside and the revenue authorities are directed to sanction the mutation in the name of all the legal heirs of Muhammad Hussain deceased (original owner of the property in dispute) forthwith.
9. With this direction, this petition stands accepted.
Civil revision /suit decreed.