CH. MUHAMMAD MASOOD JAHANGIR, J.---By filing the instant Revision Petition the petitioners have challenged judgment and decree dated 08.4.2005 whereby appeal tiled by respondent was accepted and suit for declaration instituted by the predecessor-ininterest of the petitioners was dismissed.
2. The synopsis of the case are that admittedly the disputed proprty measuring 37-Kanal, 11-Marla fully mentioned in para 1 of the plaint was owned by Farzand Ali, the predecessor-in-interest of the petitioners, who filed a suit for declaration regarding the said property against Bashir Ahmad respondent (now deceased) before the learned trial court on 08.12.1997 with the assertion that he was owner in possession of the suit land as co-sharer and that the impugned sale deed dated 01.06.1988 Ex.P 1 in favour of the respondent/defendant was illegal and void being result of fraud and misrepresentation.
'The case as set up in the plaint was that the plaintiff was illiterate and the land was given to the respondent/defendant on lease through lease deed (Patta nama), which was duly executed but the respondent/defendant while practicing fraud got executed sale deed, which was also without consideration. The said suit was contested by the respondent/defendant by filing written statement with the assertion that Farzand Ali predecessor-in-interest of the petitioners had sold away the suit land in favour of the respondent through the registered sale deed after receiving the sale price amounting to Rs,2,00,000/- and he had never paid any share of produce to Farzand Ali or to his successors,
3. The learned trial court captured the disputed area of facts by framing the following issues:-
1. Whether the suit is not maintainable ig its present form ?OPD
2. Whether the plaintiffs have no cause of action and locus standi to file this suit?0PD
3. Whether the plaintiff has not come to the Court with clean hands?0PD '
4. Whether the suit is barred by limitation ?OPD
5. Whether the suit is bad for misjoinder and non-joinder of necessary parties? OPD
6. Whether the suit is Benami, if so, its effect? OPD
7. Whether the suit had incorrectly been valued for the purpose of Court fee, if so, its effect? OPD .
8. Whether the suit is false, frivolous and vexatious, if so, its effect? OPD
9. Whether the plaintiff is entitled to a decree for declaration along with permanent injunction, as prayed for? OPP
10. Relief
4. Both the parties produced evidence in pros and cons and after appreciating the same, the learned trial court decreed the suit vide judgment and decree dated 06.05.2004. Being aggrieved, respondent filed an appeal before the learned lower appellate court, which came up for hearing before the learned Additional District Judge, Daska, who vide impugned judgment and decree accepted the same, set-a-side the judgment and decree passed by learned trial court and dismissed the suit filed by the petitioner, while, observing as under:-- "For what has been discussed above, there is mis-reading and non-reading of evidence while deciding the impugned judgment and decree and I, therefore, accept the instant appeal and I set aside the impugned judgment and decree. Resultantly, the suit under appeal filed by the respondents is hereby dismissed with no order as to costs.
'Before parting with this judgment it is important to mention here that as I have already observed under issue No,7 that the suit under appeal has incorrectly been valued for the purpose of Court fee and the respondents are now directed to make up the deficiency of court fee amounting to Rs, 15,600. So the appellant who has also not affixed the requisite Court fee on the memorandum of appeal is also directed to make up the said deficiency of court fee. The appellant is directed to pay the court fee amounting to Rs, 15,000/- within a period of IS-days from this judgment, failing which the instant appeal would be deemed to have been dismissed.
File be consigned after due completion whereas the record of lower court be sent back forthwith.
"
5. Being dissatisfied the instant Civil Revision has been filed by the petitioneRs,
6. Arguments heard, record perused.
7. The perusal of instant file reveals that the respondent/defendant has also filed a Civil Miscellaneous No, 1/12 on 21.03.2012 before this court with the following prayer:- "It is, therefore, most respectfully prayed that this application may kindly be accepted and the direction may graciously be issued to the petitioner to submit court fee of Rs, 15,000/- along with the above said civil revision and the petitioner be directed to place on record that whether the court fee of Rs,15,000/- has been paid for the civil suit as directed by the additional district judge, while deciding the appeal, in the interest of justice and fair play. "
8. Before touching upon the merits of civil revision, I would like to decide the above said civil miscellaneous. It is argued by learned counsel for Bashir Ahmad respondent that the petitioners for all intents and purposes filed a suit for cancellation of sale deed and court fee was required to be affixed on the plaint under residuary Article, Schedule 1, Article 1, Court Fees Act. Conversely, the learned counsel for the present petitioners has argued that where specific relief claimed in a declaratory suit is either surplusage or consequential relief and same being flowed from the origin of declaration claimed in the plaint then the suit does not require affixation of advalorum court fee.
9. The contentions of learned counsel for the parties as well as the case law referred to by them have been considered. In order to determine the proper court-fee payable on the plaint in a particular suit, the correct principle is that the plaint as a whole should be looked at and that it is the substance of the plaint and not its ostensible form which really matteRs, The veil could be pierced through by a searching eye for judging the true substance of the plaint to determine the taxability of court-fee on the plaint. There is a difference between a suit for cancellation of a document under section 39 of the Specific Relief Act and a suit for declaration of title filed under section 42 of the Specific Relief Act. When a party had sought to establish a title to the property in himself and could not establish that title without removing an obstacle such as a deed by which he was otherwise bound, then quite clearly he must get that deed avoided and his suit, though camouflaged in a declaratory form must in reality be a suit for cancellation of the document. The plaintiff was alleged to have sold out properties in favour of the defendant-respondent and unless sale deed was avoided in toto, the plaintiff could not succeed in his suit for cancellation of document. Registered sale deed was an insuperable obstacle in the way of the plaintiff for getting the appropriate relief claimed by him. Therefore, though the suit was put in the form of declaratory relief for avoidance of registered sale deed yet the suit was visibly intended for cancellation of the sale deed alleged to be executed by the deceased plaintiff in his lifetime. Therefore, the plaintiff was liable to payment of ad valorem court- fee on the value of the subject matter in dispute under Article 1, Schedule 1 of the Court Fees Act and that valuation was already given in the registered sale deed sought to be avoided in the suit by the plaintiff.
10. On the touch stone of above observation, the above referred C.M. Is accepted and the present petitioners are directed to affix Court fee of Rs,15,000/- on the instant civil revision and another Court fee of Rs,15,000/- should also be affixed by the petitioners on their plaint filed by them before the learned trial court on or before 28.02.2015.
11. Now, I advert towards merits of the main case. The copy of disputed original sale deed Ex.D.5 is available at page 72 of the instant file, which reveals that at the time of its execution the same was attested by Muhammad Rafique Lamberdar and Ahmad Ali son of Allah Rakha being marginal witnesses. It is noticed that the defendant/respondent being beneficiary of the said instrument failed to produce the scribe, identifier, Sub-registrar and Muhammad Rafique Lamberdar (one of the marginal witnesses) before the learned trial court to prove the valid execution of the disputed sale deed. In absence of such best evidence it cannot be assumed that the beneficiary had succeeded to prove his case as pleaded in the written statement. The contention of the learned counsel for the respondent that presumption of truth was attached to the registered disputed documents is without any force as where the execution of a registered document is disputed, no such presumption attaches to it and its valid execution has to be proved by the production of relevant evidence. In arriving at this view I am fortified by the dictum laid down in the judgments reported asAbdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245) and Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others (2006 SCMR 1144).The respondent being beneficiary was to prove that executant had validly sold out the suit property in terms of disputed sale deed after receiving the entire sale consideration and the possession of the suit land was delivered to him in pursuance thereof.
12. The defendant/respondent only produced Ahmad Ali DW.3 one of the marginal witness of the disputed sale instrument but surprisingly he slated that no sale consideration was paid in his presence. For ready reference, the relevant extract from his deposition in verbatim is reproduced as under:-
13. It is also significant to observe that no other documentary or oral evidence was produced by the respondent/defendant to prove that any sale consideration was passed to the vendee. The defendant/ respondent appeared before the learned trialcourt as DW.2 and deposed as under in his cross-examination:-- {{URDU TEXT}}
14. It was incumbent upon the E defendant/respondent being beneficiary that he should have produced the witnesses in whose presence the bargain of sale was struck and the price was paid to the alleged vendor. Before dealing with the above referred evidence and arguments of learned counsel for the parties addressed at the bar, it is pertinent to mention the definition of sale provided in section 54 of Transfer of Property Act 1882 as under:- "Sale is transfer of ownership in exchange for a price paid or promised or part paid and part promised. "
'The essential ingredients of the sale are:--
1. the parties;
2. The subject matter;
3. The transfer of conveyance; and 4. The price or consideration.
15.The perusal of same reveals that if payment of the consideration of alleged sale has not been proved on the record, then there can be no sale in the eye of law. The case of the petitioner/plaintiff is that the subject property had been leased out to defendant and no transaction of sale was effected or settled between the parties. To prove the same the petitioner/plaintiff produced Muhammad Rafique Lumberdar PW3 one of the marginal witness of sale deed, who in his examination-in-chief deposed as under:- {{URDU TEXT}}
16. When the evidence of the parties is put in a juxtaposition to the extent of version of the parties, it is borne out from the same that one of the attesting witness Ahmad All DW.3 categorically stated that no sale consideration was passed in his presence whereas the other marginal witness Muhammad Rafique PW3 categorically stated that transaction of lease was effected between the 'parties and no sale price was paid by the defendant to the plaintiff. As such the plaintiff fully discharged the onus of issue No, 9 whereas the respondent, who was the beneficiary, could not rebut the same and failed to produce the scribe, identifier and Sub-registrar, who had allegedly executed and attested the disputed sale deed wherein the alleged transaction of sale was incorporated. As the said best evidence was withheld by the respondent/defendant without showing any justification, the inference under Article129(g) of Qanun-e-Shahadat Order, 1984 has to be drawn against the respondent/ defendant. Only the statement of Ahmad Ali DW.3 was not sufficient to declare that respondent/defendant had succeeded to prove the valid execution/attestation of the disputed sale deed. Even otherwise, whenever any instrument/deed/document is challenged then burden heavily lies on the beneficiary of the said document to prove the same as well as original transaction embodied in the said document, which he is required to fall back upon. Reliance can be placed upon"Muhammad Akram v. Altaf Ahmad"
(PLD 2003 SC 688), "Fida Hussain v. Murad Sakina" (2004 SCMR 1043), "Fida Hussain v. Abdul Aziz"
(PLD 2005 SC 343), "Muhammad Afzal v. Matloob Hussain" (PLD 2006 SC 84).In the case in hand the beneficiary badly failed to prove the sale transaction alleged to have been effected between the parties.
17. The submission of learned counsel for the respondent/defendant that plaintiff admitted his thumb impression over the disputed sale deed and the respondent-defendant was not required to prove the contents of the same is also without substance as it has been borne out from the record that plaintiff was an illiterate person and there is no evidence on the record that he was aware of the contents of sale deed when he had put his thumb impression thereon whereas he took the specific stance that the thumb impression were put under the disguise that it was being executed for the transaction of lease. As such mere admission of putting thumb impression on the instrument would not amount to prove its execution in terms of Article 78 of Qanun-e-Shahadat Order, 1984.
18. The next contention of the learned counsel for the respondent that plaintiff did not appear in person before the learned trial court as his own witness rather he produced Arshad Mehmood PW.1 as his attorney and the inference has to be drawn against the plaintiff, who did not put him in the witness-box for subjecting cross-examination to test the veracity of his version. From the perusal of record it appears that the statement of PW1 was recorded on 26.09.2001 on the strength of special power of attorney Exh.P. I. Which was executed by the plaintiff in favour of PW.1 while assigning reason that on account of old age and sickness, he was unable to appear before the court for pursuing this case.It is also vivid from the record that during the pendency of such suit the plaintiff died and he was succeeded by his legal heiRs, The death of the plaintiff affirmed his sickness as well as old-age due to which he could not appear before thelearned trial court as his own witness.
It is also significant to note that when respondent-defendant being beneficiary failed to prove the valid execution of the disputed sale deed as well as the settlement of transaction by production of the relevant witnesses, then non-appearance of the plaintiff cannot be declared fatal. Reliance in this respect is placed upon the judgment reported as Mir Ajam Khan v. Mst. Quresha Sultana and others (2006 SCMR 1927) and Gul Daraz v. Gul Noor (2010 CLC 1331).
19. At the fag end of the arguments, learned counsel for the defendant-respondent has contended that the suit was filed beyond period of limitation, which is found to be without any force as it has already been observed that the disputed sale deed was a product of fraud and against fraud no limitation runs. It is settled principle of law that every new entry in the revenue record on the basis of a forged document creates a fresh cause of action. Reliance in this respect is placed on the judgments reported asSaleem Akhtar v. Nisar Ahmad (PLD 2000 Lahore 385), Ahmad Au v. Bashir Ahmed (2013 YLR 1870) and Abdul Rahim v. Jannatay Bibi (2000 SCMR 346). As such the findings of the learned lower appellate court on issue No,4 are also reversed, which is answered against the respondent-defendant.
20. For the forgoing discussion, this civil revision is allowed, the impugned judgment and decree passed by the learned lower appellate court is set aside and that of the learned trial court whereby the suit filed by Farzand Ali, plaintiff/predecessor-in interest of the petitioners was decreed is restored. However, the petitioners/plaintiffs will affix the court fee of Rs,15,000/- on their plaint and will also affix court fee of the same value on the instant Civil Revision on or before 28.02.2015 as observed in para No,10 of the instant judgment failing which the plaint will deem to be rejected and instant Civil Revision will also deem to be dismissed.