ATIR MAHMOOD, J.---- Brief facts of the case are that predecessor of the petitioners namely Barkhurdar alias Barkha instituted a suit for declaration as to his ownership and possession of 7 kanals 16 marlas agricultural land fully described in the plaint with the assertions that he is the absolute owner of the suit property and the defendant had no concern therewith; that the alleged sale deed No.74-1 dated 29.02.2000 (Exh.Dl) and mutation No.463 allegedly attested on 26.04.2000 in pursuance of Exh.D1 are illegal, result of fraud and misrepresentation as well as without consideration; that the land of the defendant was at low level so he got 4 kanal 9 marlas land from the plaintif f in order to install tube well for irrigation purpose on lease for a period of three years; that the defendant did not install the tubewell, but continued to pay rent of Rs.500/-; that after expiry of the said period, the defendant asked for extension of the lease and on this pretext, thumb impression of illiterate plaintif f were obtained by the defendant; that when the plaintif f refused to extend the lease further , the defendant asked the plaintif f that he did not get the land on lease but purchased from him; that on scrutiny of revenue record, the above-referred sale deed and mutation came into notice of the plaintif f which were impugned on the grounds that these were illegal, result of fraud, misrepresentation and connivance with the revenue of ficials.
2. The defendant contested the suit by filing written statement. Out of divergent pleadings of the parties, issues were framed and evidence led by the parties was recorded. The plaintif f died during the pendency of the suit, therefore, the petitioners being his legal heirs were impleaded in the suit as plaintiffs. Learned trial court after hearing both sides decreed the suit of the plaintif f vide judgment and decree dated 12.01.2009. The defendant feeling aggrieved preferred appeal which was allowed by learned Additional District Judge, Sargodha vide judgment and decree dated 10.12.2009. Hence this civil revision has been filed.
3. Arguments heard. Record perused.
4. The moot point in this case is as to whether the sale deed Exh.D1 was lawfully executed for consideration without any fraud with the vendor .
5. The plaintif fs took the plea in the plaint that the suit land was given to the defendant on lease initially for a period of three years extended for another two years from their predecessor Barkha who was an illiterate person and on the pretext of the lease/extension of the lease, some documents were got thumb marked from him and when Barkha asked for return of his land, the defendant stated that he did not get the land on lease but purchased it. On scrutiny of record, Barkha came to know that the defendant had, under the garb of lease/extension of the lease, got prepared fictitious sale deed dated 29.02 .2000 through fraud, misrepresentation and connivance of the revenue staff fraudulently . The plaintif fs stated that Barkha never entered into any sale deed with the defendant nor got executed the questioned sale deed nor thumb marked such document nor appeared before any competent officer nor made any statement before such officer nor received alleged consideration of Rs.45,000/- from the defendant and the proceedings held in this regard are fake, fictitious, result of fraud and conn ivance of the defendant with the revenue staff aimed at to deprive the illiterate predecessor of the plaintif fs Barkha for his precious land, therefore, Exh.Dl is ineffective upon him. Amjad Ali son of Barkha, one of the plaintif fs, appeared before the court as PW.2 in the capacity of general attorney of Barkha (the original plaintif f) and reiterated the contents of the plaint. The statement of PW.1 was supported by PWs 3 and 4 namely Mohammad Sher son of Mathela and Muhammad Ameer son of Shan Mohammad respectively . Thereafter , the onus to prove the lawful execution of the challenged sale deed shifted upon the defendant being beneficiary thereof.
6. The defendant while filing written statement rebutted. the contentions of the plaintif fs while asserting that the sale deed was legal and lawful which was executed in presence of literate son of Barkha namely Amjad Ali and after payment of consideration amount before the Sub-Registrar . The whole case of the defendant/DW . 10 is that he purchased the property from Barkha and DW.2 Riaz Ahmed and DW.5 Mubarak Ahmed were marginal witnesses of the sale deed Exh.D1 whereas son of Barkha namely Amjad Ali appeared as his representative. Besides appearing himself as DW .10, the defendant produced DW .1 to DW .9.
7. DW.1 is Ghulam Shabbir , Registry Moharrar Rural Area Sargodha to state that Exh.Dl is, as per record, correct but he was not posted there at relevant time.
8. DW.2 Riaz Ahmed (marginal witness of Exh.D1) deposed that the suit land was sold by Barkha to the defendant for Rs.45,000/-. He stated that Barkha thumb marked Exh.D1 in his presence and he (DW.2) and Mubarak Ahmed signed the document as witnesses. He deposed that Exh.D1 was produced before the Registrar on 29.02.2000 where consideration amount of Rs.45,000/- was paid to Barkha. He asserted that no fraud was committed. In cross-examination, he deposed that: {{URDU TEXT}} (Emphasis provided)
He further deposed that: {{URDU TEXT}} (Emphasis provided)
9. Nadia Shafiq, the then Sub-Registrar , appeared before the court as DW.3. In examination-in-chief, she stated that the vendor was identified by Malik Rab Nawaz Awan, Advocate. She deposed that: {{URDU TEXT}} (Emphasis provided)
In cross-examination, she admitted that: {{URDU TEXT}}
10. DW.4 Muhammad Sibtain Registry Moharrar deposed that he produced registry Exh.D1 before the Sub- Registrar who after verification approved the same and signed it.
11. DW.5 Mubarak Ahmed is another marginal witness of alleged Exh.D1. He deposed that Barkha sold the suit land to the defendant for consideration of Rs.45000/-. He further deposed that: {{URDU TEXT}} In cross-examination, he deposed that: {{URDU TEXT}} (Emphasis provided)
12. Statements of DW.6 Pervaiz Aslam Registry Clerk, DW.7 Zafar Iqbal, Patwari, DW.8 Qasim Zeshan Ali son of Sharif Hussain who allegedly purchased the stamp papers on behalf of the plaintif f and DW.9 Nazir Ahmed Patwari, being nominal in nature, need not to be discussed here.
13. Defendant Aitezaz ur Rasheed Khan came in witness box as DW.10. In examination-in-chief, he deposed that he did not get the suit land on lease rathe r purchased it from Barkha for consideration of R.s.45,000/- through the impugned sale deed. He asserted that he did not commit fraud with Barkha. In cross-examination, he deposed that: {{URDU TEXT}} He denied the suggestions that son of the plaintif f (Barkha) was not present on the occasion. He also denied the suggestion that the plaintif f was not paid consideration money .
14. Amjad Ali son of plaintif f Barkha appeared in rebuttal as PW .5. He stated as under: {{URDU TEXT}}
15. Perusal of above evidence reveals that the sale deed Exh.D1 was allegedly executed in Chiniot, however , DW.2 Riaz Ahmed once states that it was written in Chiniot and then contradicts himself by saying that it was written in Sargodha. Malik Rab Nawaz Awan, Advocate allegedly identified the vendor Barkha before the Sub- Registrar , however , he did not appear in witness box to make statement in this regard. This seems to be of much significance when the Sub-Registrar as well as Registry Moharrar state that they did not know the parties personally . Meaning thereby whatever was shown by defendant side was believed by the Sub-Registrar . The alleged vendor was admittedly an illiterate person but there is nothing on record to establish that the document in question was read before him to make him understand what is written therein, therefore, the apprehension of fraud with him cannot be ruled out. From non-appearance of the identifier Malik Rab Nawaz Awan, Advocate, an inference can also be drawn that he does not support the version of the defendant.
16. Another aspect of the matter is that the alleged vendor Barkha was alive when the suit was filed and evidence was recorded as his son Amjad Ali appea red before the trial court as his attorney . Since Barkha denied appearing before the Sub-Registrar and thumb marking the document before the Sub-Registrar whereas his thumb marking before the Sub-Registrar is alleged by the defendant, the defendant could resort to comparison of his thumb impressions from the Finger Print Expert/Forensic Science Laboratory but no such effort was ever made by him from which an inference can be drawn that the defendant believes that if the comparison is done, the report of finger print expert will not favour him.
17. Furthermore, it is stance of the defendant that Amjad Ali son of Barkhurdar alias Barkha was his representative before the Sub-Registrar and he also thumb marked the document; that he gave the consideration money to Riaz Ahmed who handed over it to Amjad Ali and Amjad Ali paid it to Barkha. None other witness, including the marginal witnesses, states in such like manner and Riaz Ahmed DW.2 did not utter even a single word that he paid the consideration amount to Amjad Ali. Amjad Ali comes in witness box to rebut the said version of the defendant. He categorically states that neither he appeared before the Sub-Registrar nor singed the Exh.D 1 nor received nor paid the consideration money to Barkhurdar . No effort was made to get comparison of signature of Amjad Ali from the handwriting expert which again infers that such exercise may, if taken by the defendant, muster report from such expert unfavourable to the defendant which though may not be a gospel truth but may lend support to the court to reach a just and fair conclusion.
18. Undeniably , the suit property is situated in Sargodha and sale deed was executed in Chiniot whereas both the marginal witnesses of the sale deed, i.e. Riaz Ahmed and Mubarak Ahmed, are residents of District Jhang.
Furthermore, despite Mubarak Ahmed belongs to District Jhang but his address of District Sargodha is mentioned in. Exh.D1. Though marginal witness(es) of sale_ transaction of some property may belong to a district other than where the property situates and there is no illegality in this regard yet associating witnesses of some district other than where the property is situated and deal is being struck creates some doubts. These doubts further strengthen when the defendant side admits that the defendant-vendee was an influential person as he has been Deputy Commissioner of District Jhang to which both the marginal witnesses belong. In the circumstances, the defendant has failed to prove the lawful execution of Exh. D1.
19. Learned counsel for the respondents has argued that since fraud qua registered sale deed and mutation was alleged by the petitioners-plaintif fs, it was mandatory for the plaintif fs to implead the revenue officials as party to the suit which was not done, therefore, the suit from the very inception was not maintainable and liable to dismissal on this single score. In this regard, he has relied upon the law laid down by the Hon'ble Supreme Court of Pakistan in case Abdul Hameed v. Mst. Aisha Bibi and another (2007 SCMR 1808 ). However , there is another judgment of the apex court titled Ghulam Muhammad v. Zohran Bibi and others (2021 SCMR 19), which is later in time, wherein it has been held that it is not necessary to implead the revenue officials as party to the suit in each and every case. In this case, there is an overwhelming evidence to substantiate the claim of the petitioners-plaintif fs that fraud was committed with their predecessor Barukhurdar alias Barkha (the original plaintif f) being an illiterate person, therefore, it was not necessary to implead the revenue officials as party to the suit. The contention of learned counsel for the respondents is accordingly resisted.
20. Learned lower appellate court has ignored the above aspects of the matter and has incorrectly and illegally allowed the appeal of the respondent and dismissed the suit of the petitioners, therefore, the impugned judgment and decree cannot sustain.
21. For what has been discussed above, this civil revision is allowed , the impugned judgment and decree passed by learned lower appellate court is set aside and the judgment and decree of learne d trial court, whereby the suit of the petitioner was decreed, is restored.