MUHAMMAD AMEER BHATTI, --- Through this revision petition, the petitioners have challenged the judgment and decree dated 09.03.2000 whereby the learned first Appellate Court after setting aside the judgment and decree dated 15.09.1997, passed by the learned Trial Court, dismissed the suit of the petitioners.
2. The brief facts of the case are that one Noor Ahmed s/o Haji Kher Din, predecessor-in-interest of the present petitioners filed a suit for cancellation of sale-deed bearing document No. 15462 registered in the office of Sub-Registrar, Lahore on 26.07.1973 on the ground that Meraj Din defendant/respondent No. 1 has got registered a forged sale-deed in his favour. Although, Mst. Imam Bibi has never executed any sale-deed in favour of defendant/respondent No. 1. It is also claim of the petitioners that the suit land was in joint "Khata" and factum of forgery has come in their knowledge at the time when the partition of joint "Khata" was going to be held. The written statement was filed by the respondents who controverted the facts of the case and also raised preliminary objections. From the pleadings of the Arties following issues were framed:---
1. Whether the suit is not maintainable in its present form? OPD
2. Whether the suit is barred by time? OPD
3. Whether the suit is bad for mis-joinder of parties and causes of action? OPD Whether the sale-deed dated 26.07.1973 is forged, fictitious and without consideration? OPP
5. Relief.
3. After framing of issues, parties led their evidence according to the onus of issues. The learned Trial Court after hearing the parties decreed the suit in favour of the plaintiffs/petitioners and consequently cancelled the impugned sale-deed dated 26.07.1973. This judgment and decree was challenged by Meraj Din defendant/respondent No. 1 and the learned first Appellate Court vide his judgment dated 09.03.2000 accepted the appeal and set aside the judgment and decree of the learned Trial Court, Consequently, the suit of the present petitioners was dismissed.
4. I have considered the arguments of the learned counsel for the petitioners and perused the record.
5. Although the onus of issue No. 4 "whether the sale-deed dated 26.07.1973 is a forged, fictitious and without consideration" has been on the shoulder of the plaintiffs who produced three P.Ws.
According to the settled law, it was the duty of the defendant/respondent No. 1 to prove the transaction strictly in accordance with law, as he is the beneficiary of that transaction.. According to the evidence of the defendant/respondent No. 1, as he produced two marginal witnesses of this sale--deed D.W.2 and D.W.3 in support of his case. I have gone through the evidence F of both the D.Ws, and reached on this conclusion that none of them has made any statement about the appearance of Mst. Imam Bibi before the Registrar nor they deposed about the putting 'of thumb impression before them and nothing is reflected from their evidence that any consideration has been paid before them. It is amazing that even the first Appellate Court has relied of the evidence of said D.Ws. And held that the execution been proved by producing the marginal witnesses. It is matter of record that after the six months of registration of this sale-deed, the lady/executant has died at the age of 90 years. I do agree with the contention of the learned counsel for the petitioners that the lady has not independent advice at the time of registration of this case. The other relatives/legal heirs were also living in the same vicinity, have not been taken into confidence. It shows that the sale-deed has been procured by committing some fraud and forgery, even otherwise it was the duty of the beneficiary of any document to prove the transaction strictly in accordance with law and especially in the case of a lady, it was the duty of the beneficiary to prove through cogent evidence that the executant had been explained about the transaction and shall at that time an independent advice. None of the witness has uttered a single word about the passing of the consideration. Even D.W.3, the defendant himself appeared and did not depose any word about the passing of the consideration amount, even from the evidence of ally the D.Ws. It cannot be found out that a lady has appeared before the Registrar and put her thumb impression before Item. It is settled law that the beneficiary has to prove not only the passing of the consideration but also prove the putting of thumb impression of the executant before the Registrar through independent and marginal witnesses. It is 'appropriate to re-produce the total examination-in-chief of the D.W.1 to D.W.3 who were stated to be the marginal witnesses of the Registry and defendant No. 1:--- {{URDU TEXT}} From the evidence of the defendants, it can be easily established that the transaction has been made without passing any consideration and even without producing the lady before the Sub- Registrar in the presence of the witnesses hence the order of the learned first Appellate Court is based on mis-reading and non-reading of the evidence which cannot sustain in the eyes of law.
Civil revision ,