' ABDUS SATTAR ASGHAR, J. This civil revisionunder Section 115 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 19.02.2011 passed by the learned Civil Judge, Chunian whereby suit for specific performance lodged by Muhammad Shafi respondent No, 1 now deceased and represented by his legal representatives/respondents No, 1(a) to (k) was decreed in his favour against Gama Masih respondent No, 2 now deceased and represented by his legal representatives/respondents No, 2(a) to (j). It further assails the judgment and decree dated 05.10.2013 passed by the learned Additional District Judge, Chunian whereby petitioner's appeal was dismissed and the judgment and decree of the learned Civil Judge was upheld.
2. It is argued by the learned counsel for the petitioner that the impugned judgments and decrees passed by the learned Courts below are against law and facts based on misreading and n- reading of evidence; that Muhammad Shafi deceased respondent No, 1 failed to produce second attesting witness of the agreement to sell namely Muhammad Hussain as required under Articles 17 and 79 of the Qanun-e-Shahadat Order 1984; that the petitioner is bona fide purchaser with value without notice: that the second attesting witness namely Muhammad Hussain appeared in the witness-box as DW-1 in support of the petitioner and corroborated the contentions set-forth in the written statement; that the concurrent findings of the learned Courts below based on misreading and non-reading of evidence causing serious miscarriage of justice are liable to set aside in exercise of revisional jurisdiction of this Court.
3. Arguments heard. Record perused.
4. Perusal of the record transpires that Muhammad Shafi deceased respondent No, 1 sought specific performance of agreement to sell dated 26.1.1999 (Exh.P.1) allegedly executed by Gama Masih owner of the suit plot in his favour in consideration of Rs, 1,25,000/-. Contents of the agreement to sell (Exh.P.1) reveal that total consideration amount was paid to the vendor and possession of the suit plot was also delivered in favour of the vendee namely Muhammad Shafi respondent. Exh.P.1 bears thumb impressions of both the contracting parties namely Gama Masih and Muhammad Shafi. It is signed by attesting witness namely Muhammad Sadiq son of Allah Din and thumb marked by the other attesting witness namely Muhammad Hussain son of Muhammad Din. Suit for specific performance was lodged by Muhammad Shafi on 9.8.2005 against Gama Masih (deceased) through his legal representatives and Muhammad Aslam petitioner who allegedly claimed a subsequent transaction of oral sale of the suit plot through mutation No, 13925 dated 4.7.2005 allegedly executed by the legal heirs of Gama Masih in his favour. The suit was resisted by the petitioner being defendant No, 10 alleging himself as bona fide purchaser with value without notice through oral sale mutation No, 13925' dated 4.7.2005 allegedly executed by legal heirs of Gama Masih in his favour. Respondents No, 2(a) to (j) legal heirs of Gama Masih defendant No, 1 filed their consenting written statement before the learned Trial Court in favour of Muhammad Shafi deceased respondent No, 1/the plaintiff.
5. Following issues were framed by the learned Trial Court as arising out of the divergent pleadings of the
(1) Whether the plaintiffs have no cause of action? OPD10
(2) Whether the suit is time-barred? OPD10
(3) Whether the valuation of the suit for the purpose of Court-fee and jurisdiction is incorrect?
OPD10
(4) Whether the defendant No, 10 is bona fide purchaser with consideration without notice? OPD10 .
(5) Whether the suit is false and frivolous, thus defendant No, 10 is entitled to compensatory cost, as prayed for? OPD10
(3) Whether the plaintiffs are entitled to decree for declaration and for possession through specific performance with permanent injunction as prayed for? OPP
(7) Relief.
6. Parties led their pro and contra evidence in support of their respective claims. Riaz-ul-Hassan deed-writer the scribe of the impugned agreement to sell dated 26.1.1999 appeared in the witness- box as PW-1 and categorically deposed that it was scribed by him on the direction of Gama Masih in favour of Muhammad Shafi and that the vendor Gama Masih had acknowledged receipt of consideration amount of Rs, 1,25,000/- as well as delivery of possession to the vendee Muhammad Shafi. Muhammad Anwar (PW-2) stamp-vendor appeared in the witness-box and stated that he had issued the stamp paper of Exh.P.1 worth Rs, 100/- in favour of Gama Masih who had marked his thumb impression on the back-side of the stamp paper which also bears his seal and signature.
Muhammad Sadiq son of Allah Din (PW-3) attesting witness of Exh.P.1 appearing in the witness-box categorically stated that the parties were known to him; that Muhammad Shafi had purchased the plot in question from Gama Masih in consideration of Rs, 1,25,000/- and Gama Masih had executed the stamp-paper (Exh.P.1) in favour of Muhammad Shafi who is in use and possession of the plot for the last 10 years and that he had put his signatures Exh.P.1/3 as witness and that it was also thumb marked by Muhammad Hussain, Muhammad Shafi and Gama. He further stated that consideration amount of Rs, 1,25,000/- was paid by the vendor to Gama Masih in his presence and Possession was also delivered to Muhammad Shafi and The stamp paper (Exh.P.1) was scribed by Riaz Shah deed-writer which was read over to Gama. Despite lengthy searching cross-examination nothing material elicited in 'favour of the petitioner. Muhammad Ashfaq son of Muhammad Shafi (deceased) appeared in the witness-box as PW-5 and reiterated the assertions as set-forth in the plaint. On the other hand, petitioner himself appeared in the witness-box as DW-1 and produced two witnesses namely Muhammad Hussain (DW-2) attesting witness of the agreement to sell dated 26.1.1999 (Exh.P.1) and one Siddique Masih DW-3).
7. It is pertinent to mention that the legal heirs of Gama Masih vendor did not support the petitioner's version regarding the impugned sale in his favour vide mutation No, 13925 dated 4.7.2005. The petitioner has miserably failed to bring any speck of ocular or documentary evidence in order to substantiate his plea of bona fide purchaser with value without notice. Learned counsel for the petitioner has laid much emphasis on his argument that Muhammad Shafi vendor (deceased) respondent No, 1 failed to produce second witness namely Muhammad Hussain to prove the lawful execution of the impugned agreement to sell (Exh.P.1) and that in fact said Muhammad Hussain appeared as DW-2 from the petitioner's side. The truth has been surfaced during the cross-examination upon Muhammad Hussain DW. Admittedly lmran son of Muhammad Shafi had enticed away daughter of Muhammad Hussain (DW-2) in the year 2005 and later on contracted marriage with her. Muhammad Hussain got registered a criminal case against Muhammad lmran wherein wife of Muhammad Shafi was also implicated as an accused.
Admittedly lmran and daughter of Muhammad Hussain did not turn up after the year 2005 and are residing at some unknown place. It is therefore obvious that Muhammad Hussain resiled on account of his above-said grudge against the legal heirs of Muhammad Shafi vendee and for this reason he did not opt to appear as PW rather deposed as DW being connived with Muhammad Aslam. In such circumstances, non-appearance of Muhammad Hussain as PW is understandable.
8. It is settled principle of law that in civil matters it is the preponderance of evidence which goes to prove or disprove a point in issue. Preponderance of evidence in civil matters is not judged on the touchstone of the proof in a criminal matter where the charge is required to be proved to the hilt on the basis of unimpeachable evidence. In a civil case a mere preponderance of probability is sufficient basis for decision, whereas in a criminal case alleged guilt is to be proved beyond any reasonable doubt. Unlike criminal cases, in a civil case, it cannot be said that the benefit of doubt' must go to defendant. Reliance is made upon Muhammad Ilyas v. Ghulam Muhammad and another (1999 SGMR 958).
9. In the peculiar circumstances of this case, non-production of Muhammad Hussain as PW has no adverse effect upon merits of the case of Muhammad Shafi respondent. The transaction of the impugned sale by Gama Masih in favour of Muhammad Shafi as well as execution of the impugned agreement to sell (Exh.P.1) by Gama Masih ih favour of Muhammad Shafi stands fully established in view of testimonies of Riaz-ul-Hassan deed-writer (PW-1) scribe of. Exh.P.1, Muhammad Anwar stamp-vendor (PW-2) and Muhammad Sadiq attesting witness (PW-3).
10. Besides it is pertinent to mention that respondents No, 2(a) to (j) legal heirs of Gama Masih vendor/respondent No, 2 have not denied the impugned transaction of sale and execution of the agreement to sell dated 26.1.1999 (Exh.P.1) in favour of Muhammad Shafi deceased (respondent No, 1), rather they have filed their consenting written statement and categorically denied the transaction of any sale or execution of sale mutation No, 13925, dated 4.7.2005 in favour of the petitioner. The petitioner alleging himself a bona fide purchaser with value without notice on the basis of sale mutation No, 13925 being beneficiary thereof was under obligation to prove the alleged transaction, in, his favour. He has failed to produce Patwari Halqa, the revenue officer concerned or the witnesses of the alleged transaction of sale or payment of the consideration amount to the vendors. Needless to say that a mutation is not a conclusive proof of a title. Object of a mutation is to maintain revenue record for fiscal purpose. Petitioner's evidence on the record therefore miserably fails to substantiate his contentions.
11. It is also important to mention that admittedly the petitioner is not in possession of the suit plot.
Statement of the petitioner and his witnesses namely Muhammad Hussain (DW-2) and Siddique Masih (DW-3) in this regard are altogether inconsistent. The pettier himself stated that he had given possession of the suit property to Muhammad Shafi and his legal representatives/respondents No, 1(a) to 1(k) as licensee. Conversely witnesses namely Muhammad Hussain (DW-2) and Siddique Masih (DW-3) stated that Muhammad Shafi was in possession of the suit property as tenant under the petitioner. None of the petitioner's witnessses spoke about the details of the tenancy. Material inconsistency in the statements of the petitioner and his witnesses in this regard is fatal to petitioner's contention. In the absence of any reliable material evidence petitioner has not been able to substantiate his contention of a valid or lawful transaction of sale of the suit plot in his favour.
12. Crux of the above discussion is that the concurrent findings of facts and law recorded by the learned courts below in the impugned judgments and decrees dated 19.2.2011 passed by the learned Civil Judge and the judgment and decree dated 5.10.2013 passed by the learned Additional District Judge, do not suffer from any misreading or non-reading of evidence, factual or legal infirmity or jurisdictional error.
13. For the above reasons, the petitioner has no case to invoke the revisional jurisdiction of this Court. This civil revision having no merit is dismissed in limine. Civil revision .