' CH. SHAHID SAEED, J.---Through this single judgment, I intend to dispose of Civil Revisions Nos.1021 and 1022 of 1992 as identical questions of law and facts are involved therein.
2. Brief facts giving rise to the Civil Revision No,1021 of 1992 are that defendants Nos.1 to 3 were owners of land measuring 57 kanals 18 marlas situated in village Ganaishpur, Tehsil Nankana Sahib who agreed to sell the same to the plaintiff Taj Din in consideration of Rs,33,000 out of which Rs,20,000 was given as advance and agreement to sell was executed on 5-2-1987. It was further agreed between the parties that defendants would execute the sale-deed in favour of the plaintiff till 30-3-1988. Thereafter the plaintiff was always willing to perform his part of the agreement but the defendants sold out the disputed land to one Mukhtar Ahmad etc, petitioners (herein) who had full knowledge of agreement to sell. It was prayed in the plaint that the defendants be directed to execute the sale-deed in favour of the plaintiff after receiving the remaining amount and they also be restrained from interfering into the possession of the plaintiff.
3. In other Civil Revision No,1022 of 1992 the subject matter of the land in dispute was regarding property measuring 83 kanals and 8 marlas situated in Village Ganaishpur, Tehsil Nankana Sahib owned by respondents Nos.2 to 6 Abdul Ghani etc., who agreed to sell the same to Taj. Din plaintiff- respondent No,1 herein, for consideration of Rs,48,000 and agreement to sell was executed on 18-2- 1987 and they received the amount of Rs,35,000 as earnest money. It was further agreed to execute the sale-deed in favour of plaintiff till 30-3-1988. It is stated in the plaint that the plaintiff was remained ready to perform his part of the agreement but the respondents Nos.2 to 6 sold out the disputed land to respondents Nos.7 to 10 the subsequent purchaser who had full knowledge of agreement to sell. It was prayed in the plaint that 'the defendants be directed to execute the sale- deed in favour of the plaintiff after receiving the remaining amount and they also be restrained from interfering in the possession of plaintiff.
4. Defendants appeared before the learned trial court and contested the suit by tooth and nail while submitting their written statement. Out of the divergent pleadings of the parties necessary issues were settled. Both the parties got recorded their oral as well as documentary evidence.
Learned trial court after hearing the arguments of learned counsel for both the parties dismissed the suits of the respondent No,1 Taj Din vide separate judgments and decrees dated 20-7-1991.
Plaintiff Taj Din filed an appeal against the judgment and decrees dated 20-7-1991, which was accepted by the learned Additional District Judge, Nankana Sahib on 6-6-1992. Feeling aggrieved by the said judgment and decree petitioners/ subsequent purchasers have filed two separate civil revisions.
5. It is pertinent to mention here that already the Civil Revisions in hand have been decided by this court vide consolidated judgment and decree dated 6-11-2001. Against which respondent No,1 filed Civil Appeal No,1433 of 2004 before the Hon'ble Supreme Court of Pakistan which was accepted with the concurrence of learned counsel for both the parties vide order dated 20-1-2011 and the impugned consolidated judgment passed by this court was set aside. Case was remanded to this court with a direction to decide the same afresh after hearing the arguments of learned counsel for both the parties.
6. Learned counsel for the petitioners has argued that document Exh.P.1, which is an agreement to sell dated 5-2-1987, has not been proved on the record in accordance with provisions of Qanun-e- Shahadat Order, 1984. He has referred to the statements of P.W.1 to P.W.4 and argued that issues Nos.1 and 2 were rightly decided by the Civil Judge in favour of respondents Nos.1 to 3 and non- suited the plaintiffs. Muhammad Shafique, P.W.2, petition-writer was known to the plaintiff Taj Din and was not a licensed petition writer. He has further argued that no number has been endorsed on the document Exh.P.1 by the petition-writer Muhammad Shafique and that said Muhammad Shafique, P.W.2, has stated that he knew Salim for the last five years, who was his class-fellow. It is further argued that the amount of sale has not been stated by P.W.2 and he was not aware about the names of the parties. He was not keeping the register and thumb impressions were in different inks and that both the marginal witnesses are from different village. Further argued that there are material contradictions in the statements of the P.Ws. That all the P.Ws. Are inter se related with each other. Learned counsel further maintained that the plaintiff was aware of the fact that the agreement to sell was a forged document, therefore, he has never asked for comparison of the disputed and admitted thumb impressions on the agreement Ex.P.1. Learned counsel further argued that since no evidence in rebuttal has been led and Exh.P.3 and Exh.P.4 relied upon by the respondents could not have been relied upon because these documents were neither shown nor confronted to the petitioners, and was with a purpose to create evidence after filing the suit.
7. Learned counsel for the respondents Nos.2 to 4 argued that Exh.P.1 is forged document and the same has no value in the eyes of law. Further states that no agreement to sell was executed in favour of the respondent No, 1 . Actually the land in dispute was sold to the petitioners and mutation was attested in their favour. Further maintained that there is no admission on the part of the vendors and the learned appellate court has wrongly interpreted the cross-examination of the D.Ws. 2 and 3. Lastly, learned counsel has supported the judgment and decree of the learned trial court.
8. On the other hand, learned counsel for the respondent No,1 Taj Din has argued that agreement (Ex.P.1) was exhibited in evidence, by producing the marginal witnesses and scribe. That no objection was raised at the time of production of the document as to formality of proof, the document has to be read in evidence because where a document has been admitted into evidence without objection in the trial Court, it cannot be considered at appellate stage. The learned counsel has contended that the plaintiff has discharged his onus of proof placed on him of issue No,1 and 2 under Article 79 of Qanun-e-Shahadat Order, 1984 by producing scribe of agreement to sell Muhammad Shafique as P.W.2 and two marginal witnesses. Learned counsel for the. Respondent No,1 has further maintained that during the cross examination defendants/vendors have admitted that property was sold to the respondent No,1 through agreement to sell but thereafter the same was sold to the petitioners/ subsequent purchasers.
Learned counsel lastly argued that in the light of admission on the part of the defendants the learned appellate court has rightly decreed the suit in favour of respondent No, 1.
9. Arguments heard. Record perused.
10. The main question which has to be determined by this court whether the respondent No,1 has proved the agreement to sell Exh.P.1 through cogent and confidence inspiring evidence or not. The whole case of the respondent No,1 depends upon the document Exh.P.1. The claim of the respondent No,1 was that he purchased the land measuring 57 kanals 18 marlas situated in village Ganaish Pur, Tehsil Nankana Sahib through an agreement to sell from the defendants Nos.1 to 3 in consideration of Rs,33,000 out of which Rs,20,000 was paid as advance money. The target date was 30-3-1988 but the defendants Nos.1 to 3 did not get executed the registered sale-deed in favour of the respondent No,1 and sold the property in dispute to the defendants Nos.4 to 8. To prove Exh.P.1 Taj Din plaintiff produced Muhammad Tahir Khan and Saleem Javed the two attesting witnesses of the said document. Taj Din himself appeared as P.W.1 and reiterated the contents of his plaint. The attesting witnesses also supported the version of the plaintiff. Muhammad Shafiqe Naz petition writer appeared as P.W.2 and stated that Exh.P.1 was written by him and the same bore his signatures. He further deposed in his statement that Exh.P.1 was read over to the defendants who thumb marked the same in token of its correctness. P.W.3 and P.W.4 also stated that Exh.P.1 was written and executed in their presence and the parties to the said transaction had thumb marked the same.
11. On the other hand Khusi Muhammad while appearing as DW.1 had deposed that he had not struck any bargain in respect of the suit land with the plaintiff nor any amount was received by him nor any agreement was executed in favour of the plaintiff. He further deposed that Iqrar Nama in question was forged one. Defendants No,2 Ramzan Bibi and defendant No,3 Jamila appeared as DW.2 and DW.3 respectively and got recorded their statements to the effect that no agreement for sale was executed by them in favour of the plaintiff and Exh.P.1 was a forged document They unequivocally stated that the property in dispute was sold to one Mukhtar Ahmed. Admittedly the onus of issues Nos.1 and 2 was upon the plaintiff and he was thus required to establish the execution of agreement Exh.P.1. Plaintiff has very successfully proved the issues Nos.1 and 2 by producing two attesting witnesses and scribe of Exh.P.1. Defendants Nos.1 to 3 have taken the plea that Exh.P.1 was result of fraud and collusiveness but they have not produced any solid evidence in that regard. It is settled law that if any party takes plea of fraud then he is bound to prove the same through solid evidence. Reliance can be made to the case of Yasin alias Muhammad Hussain and 7 others v. Muhammad Siddique and 5 other 1994 CLC 836.
12. The other important aspect of the case is that during the cross examination DW.2 Mst.Ramzan Bibi has admitted in her cross-examination that land in dispute was sold to the respondent No,1 and agreement to sell was written in his favour. She further admitted that after receiving excessive amount from Mukhtar Ahmed the land thereafter was sold to him. Mst. Jamila Bibi has admitted in her cross-examination that because they have sold the property to one Mukhtar due to which the earlier agreement was refused. The admission on the part of the defendants supports the version of the respondent No,1 to the effect that Exh.P.1 was a genuine document and initially the property was sold to Taj Din. The contention of learned counsel for the petitioners and respondents Nos. 2 to 4 that the said admission being vague cannot be read in favour of the plaintiff has no force and the same is repelled.
13. Moreover defendants Nos.4 to 8 have not produced any reliable evidence to prove that they were bona fide purchaser of the suit property. Mukhtar Ahmed one of the defendants has appeared as DW.6, according to this witness mutation was attested in their favour in respect of the land in dispute. He further stated that the plaintiff has not told them that they had purchased the land in dispute and that they should not purchase the same. But from the perusal of record it reveals that in both the suits defendants Nos.4 to 8 and defendants Nos. I to 3 have filed their joint written statement. Record further reflects that subsequent purchasers of the property were well aware about this fact that property in dispute has already been sold out. The conduct of the all the defendants show that they having in league with each other just to deprive the respondent No,1 from the property in dispute sold the same to defendants Nos.4 to 8. It is also an admitted fact that in written statement jointly filed by the defendants it has not been specifically pleaded on behalf of the defendants Nos.4 to 8 that they were bona fide purchasers of the property in dispute. It is pertinent to mention here that defendants Nos.1 to 3 original vendors have not challenged the judgment and decree of the learned appellate court. It means that they have accepted the claim of the respondent No,
1. Moreover the contention of learned counsel for the petitioners that all the P.Ws. Produced by the respondent No,1 were inter se related, therefore, they all are interested witnesses and their evidence cannot be believed. The said contention is without substance and the same is repelled because the evidence of witness cannot be brushed aside only because of his relationship, if otherwise it is disinterested and credible. Reliance cannot be made to the case of Abdul Rahim v. Mukhtar Ahmed and others 2001 SCM R 1488.
14. The main contention of learned counsel for the petitioners as well as respondents Nos.2 to 4 was that Exh.P.1 has not been proved and there was no admision on the part of the DW.2 and DW.3 because the two sentences attributed to the said DWs could not have been read in isolation, but the total statements which have been made by the above said ladies with reference to their context, have to be read, and in this process if some erroneous admission has been made by the two illiterate ladies that could have not been the basis for recording a finding that the agreement in question was genuinely executed by the defendants in favour of the plaintiffs. The said contention is also without substance because the original vendors DW.2 and DW.3 have categorically admitted that earlier the land was sold to the plaintiffs and agreement to sell was written in their favour but subsequently the said land was sold to the respondents Nos.2 to 4. If whole the statements of the said DWs are read even then the admission on their part cannot be denied. It is settled law that the circumstances of each case must determine whether a prudent man ought to act upon the supposition that the facts exist from which a liability is to be inferred.
What circumstances will constitute proof can never be the subject of a general definition. But one thing is clear that in civil cases what is required or considered sufficient is preponderance of probability, while, in criminal cases, any of the serious consequences of an erroneous condemnation both to the accused and the society, the persuasion of guilt must amount to such a moral certainty as convinces the minds of the tribunals, as reasonable meaning beyond all reasonable doubts. So I am not convinced with the arguments of learned counsel for the petitioners as well as respondents Nos.2 to 4 that there is no admission on the part of the defendants.
15. On query, learned counsel for the petitioners as well as respondents except respondent No,1 admitted that they neither filed any suit for the cancellation of Exh.P.1. Another contention of learned counsel for the petitioners was that Taj Din never moved an application before the Civil Judge to send the disputed thumb impressions of Khushi Muhammad and his sisters for examination to the Expert. The alleged agreement was referred for expert opinion on the application moved by the defendant but the samples send to the Expert were tampered with by the plaintiffs because they were the beneficiary of the said document but no report or criminal case was got registered against the plaintiff. When there is clear cut admission on the part of the defendants regarding Exh.P.1 then there was no need to get opinion from the Expert regarding the genuineness of the signatures of the vendors on the agreement to sell. From the perusal of whole the record I am of the candid view that the plaintiff has succeeded in discharging the onus of issues Nos.1 and 2 by approving the execution for sale agreement Exh.P.1 relating to land in dispute.
16. In other suit filed by the respondent No,1 there is also clear cut admission on the part of DW.2 and DW.3. After going through the oral evidence produced on behalf of the parties and reading the same in conjunction with the above noted admission made by the defendants Nos.2 and 3 in their cross-examination, I am of the considered view that the plaintiff has succeeded in establishing that in fact the defendants Nos.1 to 5 have agreed to sell the land in dispute in favour of the plaintiff in consideration of Rs,48,000 and in this respect agreement in question Exh.P.1 was genuinely executed by them in favour of the plaintiff of the suit land. Plaintiff has successfully proved Exh.P.1 by producing two attesting witnesses as well as scribe of the said document. In the said case petitioners who claim themselves as bona fide purchasers C did not produce any solid and confidence inspiring evidence in support of their version. Record further reflects that possession was not delivered to the petitioners. During the pendency of CPLA petitioners forcibly took the possession of the land in dispute from the respondent No,
1. Upon the said act of the petitioners contempt proceedings were initiated against them and during the said proceedings petitioners submitted apology for having violated the order of the Hon'ble Supreme Court of Pakiitan and prayed for forgiveness. The said apology was accepted by the apex court of this country and the possession of the disputed property was returned to the respondent No,
1. If the defendants Nos.2 to 6 were bona fide purchasers of the property in dispute and the mutation was attested in their favour then why the possession of the property was not given to them. It means the said mutation was sanctioned in favour of so-called bdna fide purchasers having in league with the original vendors. Learned counsel for the petitioners have failed to point out any illegality or material irregularity in the impugned judgments and decrees passed by the learned Addl: District Judge Nankana Sahib.
17. For the foregoing reasons, there is no force in both the civil revisions filed by the petitioners, hence the same are dismissed with no order as to costs.