' AYESHA A. MALIK, J.--- This R.F.A. Is filed against judgment and decree dated 15-12-2009 by the learned Civil Judge Lahore wherein the suit filed by the respondent No,1 was decreed in his favour.
2. The brief facts of this case are that the respondent No,1 filed a suit for declaration, possession and mandatory injunction in relation to a piece of land located in Fortress Stadium, Lahore Cantt. It is the case of respondent No,1 that he is the lessee of 16 Marlas of land adjacent to. Shops Nos.5 and 6 and opposite Bundu Khan Restaurant in Bolan Block Fortress Stadium, Lahore under a Lease Agreement dated 18-7-1995. It is also his case that this land is non-transferable and that he never sold the said land to the appellants, never received any money from them and never sought transfer of the land in their favour through the respondents Nos.2 and 3.
3. On the other hand, it is the case .Of the appellants that the respondent No,1 sold them his lease hold rights under the Lease Agreement dated 18-7-1995 for Rs,7,000,000/-. In this regard an agreement to sell was executed between the parties on 29-7-2001 and payment was made in two instalments, Rs,3,000,000/- and Rs,4,000,000/- respectively. Transfer was made in favour of the appellant No,1 on the request of the respondent No,1 through the offices of the respondents Nos.2 and 3. To effectuate the transfer the respondent No,1 made a request for transfer in favour of the appellant No,1 dated 28-5-2001, Exh.D.3 and paid the transfer fee to the respondents 2 and 3, Exh.P.4/1 and Exh.P.4/2. After the transfer, the appellants have been paying the rent to the offices of the respondents Nos.2 and 3 and have been enjoying possession of the land in dispute. It was on 24-1-2006 that the respondent No,1 filed a suit against the appellants stating that he never sold any lease hold rights for the land to them.
4. Ten issues were framed in the suit, of which the relevant issue, as decided by the learned Civil Judge Ist Class, Lahore was issue No,8. It reads as follows:--- "Whether the so-called agreement is the result of collusion and connivance between the defendants? OPD
5. The respondent No,1 appeared himself as a witness and produced two other witnesses. He produced receipt of payment Exh.P.W.4/1 and Exh.P.4/2 showing payment to the respondents Nos.2 and 3 for transfer fee on 25-9-2001 and 10-10-2001. He says that this was actually for construction purposes. On the other hand, the appellant No,1 appeared in person and produced two witnesses.
She produced letters and documents issued in her name by the offices of the respondents Nos.2 and 3 as Exh.D.1 to Exh.D.23. She produced receipts of payment of rent as Exh.D.21 to Exh.D.51 and she produced the register for issuance of stamp paper for the agreement to sell as Exh.D.52. The photocopy of the agreement to sell was produced as Mark A and receipt of payment of Rs,4,000,000/- in favour of the respondent No,1 was produced as Mark B. The original transfer letter was produced as Exh.D.53.
In its findings, the learned Judge decreed the suit in favour of the respondent No,1 on account of the following facts:---
(1) The original agreement to sell was not produced in court. In its place a Photostat copy was produced and referred to as "Mark-A".
(2) The payment made by the appellants could not be proved on account of the contradictions in the dates of the encashment certificates, showing the date when the payment had come into the account of appellant No,1 and the date of payment to the respondent No,1.
(3.) Original request for transfer issued by the respondent No,1 marked as Ex.D.3, from which the signature of the respondent No,1 could not be verified.
' The findings on the basis of the aforementioned facts are as follows:-- "Therefore, the plaintiff has successfully proved that he is still entitled to hold the plot in dispute in his name and the transactions allegedly made by the defendants are void ab anitio and based on fraud /fictitious and alleged agreement Mark-A and transfer letter Exh.D.3 are declared to be the result of fraud, collusion and convenience of the defendants and hereby cancelled, hence this issue is decided affirmative in favour of the plaintiff and against the defendants. All other issues decided in favour of the plaintiff based on the findings of the aforesaid issue."
6. Learned counsel for the appellants argued that, the impugned judgment and decree does not consider any of the evidence produced by the appellants. The learned Judge has simply relied upon the fact that the original agreement to sell was not produced in court and some minor contradictions in the dates of payment. Important documents produced by the appellants were totally ignored by the learned Civil Judge. He referred to Exh.D.1 being the letter requesting refund of security money in the amount of Rs,25,000/- by respondent No,1 to respondent No,2. He argued that this refund was made to the respondent No,1 since the lease hold rights were transferred to the appellant No,
1. He further submitted that Exh.D.2 was ignored where respondent No,1 thanked the respondent No,2 for authorizing the transfer in favour of appellant No,
1. Similarly Exh.D.8 was ignored where appellant No,1 applied for transfer in her favour and thereafter all correspondence with the respondents Nos.2 and 3 was with the appellate No,1, since she held the leasehold rights of the land.
7. Learned counsel for the respondent No,1 argued that the appellants could not produce the original agreement to sell because there was no such document and without the original document they have no case. He further argued that the appellants could not prove that any consideration was paid to the respondent No,1. It is the case of the respondent No,1 that the appellants have failed to prove the execution of the agreement to sell and payment of consideration, hence they have failed to prove a sale of the leasehold rights in their favour. He placed reliance on 2007 SCM R 1719 and 2007 SCM R 1884, PLD 1971 SC 838 and PLD 1989 SC 335.
8. We have heard the learned counsel for the parties and reviewed the record available on the file.
' There are three essential questions which arise in this R.F.A.
(A). The case of respondent No,1 as pleaded and prayed for in his plaint and the evidence produced in terms thereof to prove his case.
(B) The loss of the original agreement to sell and its effect thereof.
(C) The appreciation of the evidence and the weightage given to the evidence under the law by the learned Civil Judge.
' We will take up each of these questions separately.
' A. The suit filed by the respondent No,1 was a suit for declaration, possession and permanent injunction restraining the respondents Nos.2 and 3 from executing any further document in favour of the appellants. Suit was originally filed in 2006 and an amended plaint was filed subsequently on account of order dated 5-3-2007. The case of the respondent No,1 as set out in the amended plaint, is that he obtained lease-hold rights in the land vide a lease agreement dated 18-7-1995 and since then he has been the lessee of the land. He pleads that the respondents Nos.2 and 3 in collusion with the appellants committed fraud and transferred the property in favour of the appellants. He admits that some business deal related to the property was under negotiation with the appellants, however, since the deal never finalize& no agreement to sell was executed. We have heard the counsel for the respondent No,1 at length. He has argued that the case of the respondent No,1 is one of fraud, possession and entitlement to title. The respondent No,1 states in his plaint that the transfer in favour of the appellant No,1 is fraudulent and that he was defrauded by the appellants and the respondents Nos.2 and 3. However, he has given no detail of the fraud, no description of how he was defrauded and has produced nothing in his evidence to establish a case of fraud. It is settled law that a person who takes a plea of fraud must prove each and every aspect of the fraud.
Order VI, Rule 4 of the Civil Procedure Code 1908 provides that:- "4. Particulars to be given where necessary.--- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid; particulars (with dates and items if necessary) shall be stated in the pleading."
' When fraud is the basis of the action or defence then its particulars have to be furnished. Reliance is placed on a case titled "Mst. Sahib Noor v. Haji Ahmad (1988 SCM R 1703) wherein it was held that:--- "In the case of Eliza F.T. Higgs Vatcher and others v. Henry Paull and others AIR 1914 Privy Council 184 it was held that "their Lordships are of the opinion that where charges of fraud are intended to be made, full particulars thereof ought to be given in the pleadings, either as originally framed or as amended for that purpose." The ingredients of 'fraud' were enumerated as follows:--- "In order to establish fraud it must be proved first that a representation was made; secondly that this representation was untrue; thirdly that it was untrue to the knowledge of the person making it; and fourthly that it induced the contract."
' On review of the plaint we note that the respondent No,1 has not explained anywhere in his plaint or even through evidence how the appellants took possession of the property. On being asked this question, counsel for the respondent No,1 argued that the appellants had illegally taken possession of the property and in fact were trespassers. This explanation cannot be accepted as there is a period of five years wherein the appellants had possession and for which the respondent No,1 claims they were trespassing. From July, 2001 to the date of filing of the suit, the appellants have paid the rent of the land. It is note worthy that the respondent No,1 is also the owner of Shops, Nos.5 and 6, adjacent to the land in dispute, for which he has been paying the rent. However throughout this time he has not paid the rent for the land. This means that he was fully aware of the fact that the rent for the land was being paid by the appellants. These are material facts, which are relevant to the case of the respondent No,1 and necessary to the case of the appellants. The learned Judge has totally ignored the material facts of the case. Also in the instant case, there is no evidence whatsoever to explain the refund of the security deposit by the Respondent No,
1. There is no detail of the fraud, no date as to when he gained knowledge of the fraud. The respondent No,1 has failed to explain why the appellants have deposited rent with the respondents Nos.2 and 3 from July, 2001 to date. Also the respondent's No,1 case that the lease is non-transferable is contrary to section 8 of the Lease Agreement, which allows a transfer of leasehold rights subject to permission by the Fortress Stadium. Hence the very basis of his case is not in accordance with the Lease Agreement.
Therefore we are of the opinion that the respondent No,1 failed to prove his case of fraud. As to his case of forgery on the agreement to sell, we are of the opinion that if no case of fraud was established between the respondents Nos.3 and 4 and the appellants then the case of the espondent No,1 on forgery also fails. This is because even though he denies signatures on Mark-A, Mark-B, Exh.D.2 and Exh.D.3, he does A not justify the deposit of the transfer fee, the receipt of Rs,4, 000,000/- the refund for the security deposit or the fact that the appellants deposited the rent for the five years. Hence we are of the opinion that the respondent No,1 has not made out his case of fraud and as such is not entitled to possession.
' B. It has been argued that the original document being the original agreement to sell was not produced by the appellants; hence they had no legitimate defence in the suit of the respondent No,
1. The appellants case is that the original agreement to sell got lost and with the permission of the court, through secondary evidence, they were able to prove that a sale of the leasehold rights had taken place in favour of the appellant No,
1. The record of this case shows that an application to allow secondary evidence was filed by the appellants on 21-6-2008. Reply was filed by the respondent No,1 on 25-6-2008 and an order was passed on 12-9-2009 allowing the appellants to produce secondary evidence. In the form of secondary evidence, the appellants set out their case.
The execution of "Mark-A" was proved with the help of P.W.2 and P.W.3. Payment of Rs,7,000,000/- was proven with the help of Exh.D.6 and Exh.D.7 which shows the deposit of Rs,3,000,000/- into the account of appellant No,l. Balance payment of Rs,4,000,000/- was proved through Mark B being a hand-written receipt by the respondent No,l. Then the transfer of the leasehold rights was proved through a series of documents, right from a request by the respondent No,1 to transfer the land to the appellant No,1 being Exh.D.3, the claim for refund of security money by the respondent No,1 Exh.D.1 and Exh.D.2 being a request to start construction of the restaurant by the respondent No,1 wherein he thanks the respondents 2 and 3 for authorizing the transfer in favour of the. Appellant No,l. It is the case of the appellants that based upon the aforementioned documents they have made out a case that the agreement to sell was executed and that payment was received by the respondent No,1, hence the transfer in favour of the appellant No,1 favour was valid and legal.
' A review of the judgment especially the findings on Issue No,8 shows that the learned Judge did not consider the evidence tendered by the appellants. The most striking feature, is that much emphasis was placed on "Mark-A" whereas the original transfer letter was produced in Court as Exh.D.53 showing that the property in dispute was transferred in favour of the appellant No,
1. In the presence of the original transfer letter, the existence of and the proof of the agreement to sell becomes irrelevant. In fact, this case has been incorrectly decided under the provision of secondary evidence of the Qanun-e-Shahadat Order, 1984 when the original transfer letter was available on the record and there was other relevant evidence for the Court to consider.
Furthermore, the learned Judge failed to consider the fact that the respondent No, 3 in his written statement categorically stated that the respondent No,1 requested for the transfer in favour of the appellants and that upon his request the transfer was executed. In our opinion, there was no need for the appellants to prove the agreement to sell in the presence of Exh.D.53 and Exh.D.10 being the letter issued by the Assistant Secretary Fortress Stadium confirming the lease in favour of the appellant No,
1. Therefore, the learned Judge has erred by deciding the case simply on the basis of the agreement to sell.
' C. With respect to appreciation of evidence, the learned Judge has failed to consider the entire evidence exhibited by the appellants. The appellant No,1 has a transfer letter in her favour. She has also proved the deposit of monthly lease from 2001 to date with the respondents Nos.2 and 3 and her possession of the property was admitted by the respondent No,1. She was also able to prove through evidence the correspondence with the respondents 2 and 3 regarding the transfer and the intended construction on the land. Conversely the respondent No,1 could not explain why he had written to the respondents regarding the transfer in favour of the appellant. The explanation regarding Mark B the refund of it security deposit and deposit of Rs,3,000,000/- as transfer fee are not satisfactory nor proved in evidence. As to the issue of payment of Rs,7,000,000/- to the respondent No,1, the evidence shows that payment of Rs,.4,000,000/- was made on 26-9-2001 "Mark-B" to the respondent No,l. Exh.D.6 shows that Rs,3,000,000/- was transferred to the Account of appellant No,2, which as per appellant No,1 statement was paid to the respondent No,
1. In this regard we note that respondent No,1 paid the transfer fee Exh.P.4/1 and Exh.P.4/2 on 26-9-2001 and 3-1-2001 after receipt of the said amount from the appellant No,
1. Furthermore, his statement that this was actually payment related to construction is neither corroborated in evidence nor does it stand to reason that such a large sum is paid in 2001 and then no construction is undertaken by the respondent No,l. The appellant No,1 was able to prove through evidence that payment was made to the respondent No,1, that she enjoyed possession and that she paid the monthly lease amount to the respondents 2 and 3. The contradictions relied upon in the dates for the payments do not , carry the weightage given thereto for proving the case of the respondent No,l. Meaning that the learned Judge, in the presence of the evidence produced by the appellants, should not have relied solely upon the receipts and its dates. The appellant No,1 had produced sufficient evidence to establish payment and transfer in her favour. As such to ignore this evidence shows that the learned Judge did not apply his mind to this case at all. Finally a review of the evidence of the respondent No,1 reveals that he appeared himself as a witness, denied every aspect of the case of the appellants and stated that Exh.D.2 and Exh.D.3 do not bear his signature. There is nothing in the evidence whereby he has proved his case of fraud or explained the possession in favour of the appellants or the payment of the monthly lease by the appellants. Evidence must relate to the facts pleaded by a party as its purpose is to prove that fact. Evidence makes the existence of the fact or its nonexistence more probable or less probable. Therefore the weightage given to the evidence is based on its strength to prove .The fact or set of facts. Hence in the instant case the respondent No,1 had set out a case of denial as opposed to adducing evidence in support of his material facts. Furthermore, even though the respondent No,1 denied his signature on the letters, receipt and agreement to sell, once the appellants were able to establish the payment of monthly lease amount to the respondent 2 and 3 and the possession in their favour, the burden was on the respondent No,'1 to prove his case. In this regard we are of the opinion that the respondent .No,1 has failed to discharge his burden and has failed to prove his case. The evidence exhibited by the appellants carries more weight in establishing their case and the learned Judge could not have decided the entire case on the agreement to sell or the contradictions in the dates of the receipts.
9. In the light of the findings, this appeal is allowed, impugned judgment is set aside and the suit filed by the respondent No,1 is dismissed. No order' as to costs.