' CH. MUHAMMAD MASOOD JAHANGIR, J.--- This is a civil revision against the judgment and decree dated 30-10-1995 passed by the learned Senior Civil Judge, Jhang and the judgment and decree dated 16-10-2000 passed by the learned District and Sessions Judge, Jhang, whereby, the suit filed by the respondent No.1/plaintiff was decreed and the appeal filed by the present petitioners/defendants was dismissed respectively.
2. The facts germane for the disposal of the instant civil revision are that the respondent No. 1/plaintiffs filed a suit for possession regarding the disputed property fully mentioned in the body of the plaint with the assertions that defendants Nos.1 to 3 in connivance with the other defendants got attested a sale-deed dated 2-2-1977 followed by mutation No.284 dated 14-3-1977 in their favour which was illegal, void and ineffective against his rights. The said suit was contested by the petitioners/defendants and ultimately after conducting the full fledged trial it was decreed by the learned Senior Civil Judge and appeal filed by the present petitioners/defendants was dismissed by the learned District Judge, Jhang as reflected in Para-1 of the judgment.
3. Arguments heard and record perused.
4. The main contention of learned counsel for the petitioners/defendants is that respondent No. 1/plaintiff while appearing as PW.1 admitted the transaction reflected in the disputed sale deed (Exh.P3), who was estopped by his words and conduct to file the instant suit, which is without any substance. It is settled principle of law that statement of a witness cannot be considered in isolation rather accumulative effect of the whole statement is to be considered by the court of law.
Even otherwise a party cannot be penalized for slip of tongue imprudent/utterance and a Judge should visualize and evaluate the veracity, capacity and mental level of witnesses, but should not test and A expect from a layman to improvise, compose extempore answers, who as a matter of fact is not used to face lawyer's tricky abrupt and intricate questions. The courts are supposed to concentrate on theme, pith and substance of a statement and not to chalk out a selective piece of evidence. Both the courts below after considering the gist of the statement of PW-1 have rightly concluded that disputed sale-deed (Exh.P3) was got attested by practicing fraud. Reliance is placed upon the judgments reported as Ali Bahadur v. Muhammad Ishaq (2013 YLR 2555) and Haji Din Muhammad through Legal Heirs v. Mt. Hajra Bibi and others (PLD 2002 Peshawar 21). As regards the other contention of learned counsel for the petitioners that the suit filed by the respondents was badly time-barred, suffice it to say that respondent No.1-plaintiff filed a suit for possession, which was well in time as provided under the law. Even otherwise a document alleged to have been procured by playing fraud and foul-play can be agitated at any time as any fresh entry in the revenue record on the basis of said document gives a fresh cause of action to the affected party.
Reliance in this respect is placed on the judgments reported as "Saleem Akhtar v. Nisar Ahmad"
(PLD 2000 Lahore 385) and "Wali and 10 others v. Akbar and 5 others" (1995 SCMR 284).
5. The last contention of the learned counsel for the petitioners that the petitioners/defendants while producing marginal witnesses fully proved the valid execution of the disputed sale-deed (Exh.P3) and also independently proved the sale transaction by producing the witnesses thereof is also of no value as it is borne out from the record that neither the original sale deed was produced by the beneficiaries nor they produced any attested or photocopy of the said document in secondary evidence. The oral assertions of the alleged witnesses of the said document produced by the petitioners cannot be taken into consideration as the said document was not put to them during the trial. The petitioners/beneficiaries also failed to produce the deed-writer, who scribed the disputed sale-deed as well as the Revenue Officer, who endorsed the registration of the disputed sale-deed. Both the courts below rightly drew the inference against the petitioners/defendants for withholding the best available evidence. Both the courts below also took notice of the fact that when the disputed property was situated in Tehsil Chiniot, why the sale deed which in routine was to be attested before the Sub-registrar, Chiniot, was got registered at District Headquarter, Jhang and the same casts serious doubt about the veracity thereof.
6. The learned counsel for the petitioners/defendants has remained unable to make any reply to the above said queries. Even Lal Khan, one of the marginal witnesses of the disputed sale deed, who is the real brother of the petitioners Nos.1 and 2/beneficiaries while appearing as DW.2 also conceded during the cross-examination that some cases of fraud had been registered against him. The respondent No. 1/plaintiff while appearing as PW.1 deposed in his examination-in-chief that he was at the age of 75 years when the disputed sale-deed was allegedly got attested, but in the sale deed his age was reflected as 35 years. The said portion of his examination-in-chief has not been subjected to cross-examination by the defendants/petitioners and it is a well-settled law that if a portion of examination-in-chief is not subjected to cross-examination, the same is deemed to be admitted by the said party. The learned lower appellate court has rightly dismissed the appeal filed by the petitioners/ defendants on the valid reasons, which are reproduced hereunder:---
(i) The plaintiff specifically asserted that the impugned registered sale deed was neither executed by him nor signed by him. It shifted the onus upon the appellants/defendants to prove the execution of the original sale deed. Unfortunately, they failed to produce the original sale deed in the court. They explained that it was given to the patwari Halqa for attestation of the impugned mutation which was not returned by him to them. The appellants/defendants did not prove this fact through cogent evidence. In this way, they withheld the best evidence easily available to them.
(ii) In the absence of primary evidence, the appellants/defendants could produce the Stamp Vendor along with his register, the Scribe of original sale deed along with his register the Registri Moharrar as well as the Joint Registrar in whose presence the respondent/plaintiff had made his signatures over the registered sale deed according to the version of the appellants/ defendants which they did not. Hence it could very safely be said that the appellants/defendants withheld the best evidence available to them and a clear cut presumption could be drawn against them that the primary as well as secondary evidence if produced by them, it would have favoured the respondent/ plaintiff.
(iii) The appellants/defendants were the residents of Tehsil Chiniot. The suit property was situated in Tehsil Chiniot but they selected the place to get the sale deed executed/registered at District Headquarter, Jhang by the Joint Registrar. This showed mala fide on the part of the appellants/defendants.
(iv) Lal Khan (P. W.2) identified the vendor before the Joint Registrar. He was the real brother of vendees/defendants Nos.1 and 2. He was an interested witness. Moreover, earlier to this, a case under sections 420/468/471, P.P.C. Had already been registered against Lal Din (P. W.2), the real brother of defendants Nos.1 and 2 at P.S. Kotwali. Jhang for wrongly identifying the person. FIR No.4 dated 21-8-1997 (Exh.P-5) registered at P.S. Kotwali shattered the integrity of Lal Din (P.
W.2). In view of this, the testimony of the witness could not be given due credit.
(v) The impugned registered sale-deed was effected on 2-2-1977. According to birth certificate, the date of birth of the plaintiff was 5-3-1917. On the alleged date of execution of the sale deed, he was about 60 years old but in the impugned registered sale deed, his age was shown as 35 years. There was a hell of difference between 35 and 60 years and one could very easily presume that a person aged 35 years might have been produced by the defendants before the Joint Registrar at the time of execution of the sale-deed.
(vi) The plaintiff was an old graduate. He was holding his identity card but its number was not mentioned in the impugned registered sale-deed at the time of its registration.
(vii) The impugned registered sale-deed revealed that nothing was paid before the Joint Registrar by the vendees to the vendor at the time of its execution. According to the impugned registered sale-deed, the plaintiff had received whole of the consideration of the suit land from the vendees. In order to prove this fact, the defendants/ vendees relied upon the oral testimony of Noor (D.W.3) and Inayat (D.W.4). In the year 1977, a sum of Rs.1,30,000 was a huge amount and in order to show a genuine transaction, the defendants/vendees should have brought this transaction into black and white but it was not done so by them which fact could very safely lead the court to draw a presumption that nothing was paid to the vendor by the vendees as a consideration of the suit land. Even no independent witness was produced by the defendants/vendees to prove the factum of consideration allegedly received by the vendor from the vendees."
7. The learned counsel for the petitioners is unable to point out any misreading or non-reading of the evidence on the part of the learned lower appellate court in arriving at the above findings or any jurisdictional defect in passing of the impugned judgment and decree to warrant interference by this Court in the exercise of the revisional jurisdiction the scope whereof being narrower is restricted to correct the errors of law, if found to have been committed by the courts below in the discharge of their judicial functions, which is not the case in hand. The case law reported as "Mrs. Shamim Akhtar and others v. Mrs. Sultana Mazhar Baqai and 5 others" (2003 CLC 1521 Karachi),"Wahid Bakhsh and another through Legal Heirs v. Ghulam Muhammad through Legal Heirs" (PLD 1990 Lahore 193), "Muhammad Aslam v. Mst. Ferozi and others" (PLD 2001 Supreme Court 213) relied upon by the learned counsel for the petitioners/defendants is not applicable to the facts and circumstances of the case as the same runs on different footing.
8. The sequel of the above discussion is that the instant civil IF revision has no force and the same is hereby dismissed.