' CH. MUHAMMAD MASOOD JAHANGIR, J.--- The present litigation has its genesis in a house measuring six marlas situated in Mauza Davi Pura, Shalimar Town, Lahore and the facts germane for disposal of the instant revision petition are that the respondents filed a suit for declaration, cancellation of documents and permanent injunction on the basis of registered sale deed bearing No,6793 dated 20-5-1991 with the assertion that Mst. Akbar Jan had transferred the said house in the name of Ijaz Mehmood, the predecessor of the respondents-plaintiffs and sought a declaration that gift deed dated 18-8-2003 executed by Mst. Akbar Jan petitioner No,1 in favour of petitioners Nos.2 to 6 regarding the disputed house was absolutely void, illegal and against the rights of the plaintiffs-respondents.
2. The suit was contested by the present petitioners and during the pendency of the said suit filed by the respondents, petitioners Nos.l to 6 also filed a suit for cancellation of sale-deed No,6793 dated 20-5-1991 allegedly executed by Mst. Akbar Jan petitioner No,1 in favour of Ijaz Mehmood, the predecessor of the respondents. The respondents-plaintiffs contested the said suit by thing their written statement before the learned trial court. Both the suits were consolidated and the learned trial court framed the following issues:- I. Whether the registered sale-deed No,28905 dated 20-5-1991 in favour of the plaintiff's predecessor namely Ijaz Mehmood was legally executed by the defendant No,1? OPP
2. Whether the alleged registered sale-deed being a repercussion of fraud and misrepresentation is liable to be cancelled? OPD
3. Whether the gift deed dated 18-8-2003 is liable to be cancelled being void ab initio qua the plaintiffs' rights? OPD.
4. Whether the plaintiffs have got no cause of action against the defendants? OPD.
5. Whether the suit is not maintainable in its present form? OPD. Relief.
3. The learned trial court after recording the evidence of the parties and hearing the arguments advanced by their learned counsel ultimately decreed the suit filed by the respondents and dismissed the suit filed by the petitioners vide his consolidated judgment and decrees dated 22-11- 2011. Feeling aggrieved therewith, the petitioners filed a single appeal before the learned lower appellate court which came up for hearing before the learned District Judge, Lahore, who dismissed the same vide judgment and decree date 6-4-2013. The petitioners have assailed both the said judgments and decrees by filing this Civil Revision.
4. Learned counsel for the petitioners contends that both the courts below have failed to evaluate the facts and law on the subject and committed grave irregularity and illegality while passing the impugned judgments and decrees, which are reflective of misreading and non-reading of evidence; that the disputed sale deed has not been proved by producing its marginal witnesses, scribe and stamp vendor; and that the onus to prove the valid execution and contents of the disputed document was shifted to the beneficiary/respondents, who have failed to discharge the said onus.
5. On the other hand the learned counsel for the respondents has refuted the arguments advanced by learned counsel for the petitioners and submitted that the disputed sale deed is a registered document, which attaches strong presumption of truth and at the time of production of the said document on the record during the evidence, the adversary having failed to raise any objection, the document deemed to be admitted by them; both the courts below have given valid reasons to arrive at concurrent findings on facts which are not open to any exception by this court in the exercise of revisional jurisdiction and this petition is liable to dismissal.
6. Arguments heard and the documents appended with this petition perused.
7. Mst. Kalsoom Bibi respondent/plaintiff No,1 appeared as PW3 and produced Allah Ditta (PW-1), Muhammad Siddique (PW2) and Mushtaq Ahmed, Record Keeper (PW-4). On the other hand the petitioner-defendant No,1 appeared as DW1 and also produced Ilyas Ahmad (DW2) and Aleem-ud- Din (DW3). Both the parties also brought certain documents on the record. The plaintiffs- respondents have based their claim on a sale which was executed through the disputed sale- deed (Exh.P1). Before analyzing the said document, it will be proper to gather the essentials of sale, which are reproduced in section 54 of the Transfer of Property Act, 1882 and the ingredients of sale are the parties, the subject matter, the transfer of conveyance and the price of consideration. It is a well settled law that whenever a party alleges his claim on the basis of sale, then the onus to prove validity thereof shifts on the person in whose favour the sale took effect. If the execution of the registered sale-deed is denied by the executant/vendor or his legal heirs, then the onus to prove the registered sale-deed shifted to the vendee/beneficiary, who is under obligation to prove the bargain and payment of money regarding the property by producing sufficient evidence. Although the alleged sale-deed in favour of the respondents-plaintiffs is a registered document and attained presumption of truth, but such presumption is always rebuttable when the execution thereof is denied, then the vendee must have proved the payment of consideration to the vendor.
Mere registration of the sale deed would not operate to pass the title to the A vendee. The registration of a deed was an event, which would take place after the parties had already settled the transaction at some prior point of time at a particular place in the presence of some witnesses and after having completed that transfer of sale, they would proceed to reduce the same into writing and in the shape of the registered deed thereafter. In the present case even the bargain between the vendor and the vendees has not been proved through evidence. The assertion of learned counsel for the respondents that the sale-deed under question is a registered document and there was no need to prove its execution is misconceived and found to be without force. A perusal of the alleged sale-deed (Exh.P1) reveals that the said document was executed without the attestation of any marginal witnesses and the said defect is itself sufficient to declare the disputed sale deed against the law. It is mandatory provision of law that any document/instrument, which creates right has to be reduced into writing in presence of at least two witnesses. The mandate of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984, which are reproduced here for ready reference:--- "17. Competence and number of witnesses.--- (1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah:"
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law:---
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept or act on the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."
"79. Proof of execution of document required by law to be attested: If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at-least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of given evidence: ' Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." ' and the ordained of Allah Almighty in verse No,282 of Sura Al-Baqra the translation whereof is given below:--- "0 ye who believe! ' when ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing.
' Let a scribe write down faithfully as between the parties: ' let not the scribe refuse to write, as Allah has taught him, so let him write.
' Let him who incurs the liability dictate, but let him fear his Lord Allah, and not diminish aught of what he owes.
' If the party liable is mentally deficient, or weak, or unable himself to dictate, ' Let his guardian dictate faithfully.
' And get two witnesses, out of your own men, and if there are not ' two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her.
' The witnesses should not refuse when they are called on (for evidence).
' Disdain not to reduce to writing (your contract) for a future period, whether it be small or big: ' it is juster in the sight of Allah, more suitable as evidence, and more convenient to prevent doubts among yourselves; ' but if it be a transaction which ye carry out on the spot among yourselves, there is no blame on you if ye reduce it not to writing.
' But take witnesses whenever ye make a commercial contract; and let neither scribe nor witness suffer harm.
' If ye do (such harm), it would be wickedness in you. So fear Allah; ' for it is Allah that teaches you. And Allah is well acquainted with all things."
Has been violated when the said disputed sale deed was drafted. Even the respondents-plaintiffs failed to produce the scribe, Sub-Registrar and the Stamp Vendor before the learned trial .Court to prove the contents and execution of the document. These were the witnesses, who were available to the respondents-plaintiffs, but they withheld the best evidence for the reasons best known to them. Inference under Article 129 Illustration (g) of Qanun-e-Shahadat Order, 1984, which reads as under:--- ' Illustrations.
' The Court may presume--*** "(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; ' is to be drawn against the respondents with the impression that if such witnesses were produced by them, then they would not support their version.
8. There is yet another aspect, which has seriously damaged the case of the respondents-plaintiffs that they did not produce the original sale deed before the learned trial court and had tendered the attested copy thereof without seeking permission for leading secondary evidence. The evidentiary value of the certified copy of the sale deed without seeking prior permission from the court loses its importance and such a copy would not suffice to prove the same. Both the courts below failed to realize that the document produced on the record was merely a certified copy and had been tendered in evidence without seeking prior permission from the court. No presumption of correctness could be attached to the certified copy of the sale-deed and the said copy produced on the record was not admissible in evidence because the condition precedent to the admission of the secondary evidence had not been fulfilled.
9. So far as the contention of learned counsel for the respondents-plaintiffs that Mst. Akbar Jan while appearing as DW1 has admitted her thumb impression on the registered sale deed is concerned, suffice it to say that from the perusal of her statement it has revealed that she is an illiterate lady, who took the specific plea that without being aware of the contents of the documents she put her thumb-impressions on it with the understanding that these documents were for proceeding on hajj. The onus shifted to the respondents-defendants to prove that a valid deed had been executed by the petitioner/defendant No,1 as even the admission of vendor of affixing the thumb-impressions on the documents is not a proof of its execution and contents because documents purporting to create a right must be proved to have been actually executed by the persons who allegedly executed the same through the production of the legal evidence, but the respondents-plaintiffs could not prove the same as discussed above.
10. The contention of learned counsel for the respondents that concurrent findings of fact cannot be questioned in civil revision is misconceived and without any merits. In this respect safe reliance can be placed on Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255) wherein it is held that it is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. This is the mandate of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 and we are not persuaded if there is any specific bar on the High Court that while exercising its authority in term of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, no interference can be made in the revisional orders. So, this court can decide in which cases the interference is warranted. From the discussion above, I have no hesitation in my mind to observe that both the courts below have failed to analyse the facts and law on the subject and committed grave irregularity and illegality while passing the impugned judgments and decrees, which are reflective of misreading and non-reading of evidence. The disputed sale-deed has not been proved by producing witnesses, scribe, stamp vendor and the Sub-Registrar. The onus to prove the valid execution and contents of the disputed document was upon the beneficiary/respondents, who have failed to discharge the said onus, but both the courts below have omitted to take into consideration the said aspect of the case, which has rendered the judgments and decrees passed by them without jurisdiction having failed to exercise the jurisdiction vested to them in a judicious manner.
11. In view of what has been discussed above, this Civil Revision is allowed, the impugned judgments and decrees passed by both the courts below are set aside and the suit filed by the respondents for declaration, cancellation of documents and permanent injunction on the basis of registered sale-deed bearing No,6793 dated 20-5-1991 is dismissed while the suit for cancellation of sale- deed No,6793 dated 20-5-1991 filed by the petitioners is decreed with costs.