S M ATTIQUE SHAH, J. Through instant revision petition, petitioner has challenged the impugned judgment & decree dated 15.04.2015, rendered by learned Additional District Judge-II, Peshawar; whereby appeal of petitioner against the judgment and decree dated 23.1 1.2013 of learned Civil Judge-XXIX, Peshawar , was dismissed.
2. Facts in brief are that respondent No.1 filed Suit No.70/1 of 2010, against the petitioner for declaration etc, in respect of the house in question fully detailed in the heading of the plaint; being its lawful owner in possession. He also prayed for cancellation of the registered deed bearing No.265/1 dated 04.02.2009; as well as permanent injunction coupled with possession. The same was contested by petitioner through filing his written statement denying therein the claim of respondent No.1 by raising various legal and factual objections.
3. Likewise, petitioner also filed Suit No.35/1 in the year 2012, against respondents No 1, seeking declaration and permanent injunction etc qua suit house; fully detailed in the heading of the plaint; being its lawful owner. He also prayed for cancellation of compromise deed No.74 dated 9.7.2010, which was contested by respondent No.1 through filing written statement denying therein the stance so taken by the petitioner.
4. The learned trial Court consolidated both the suits and framed the required issues from pleadings of the parties. After recording pro & contra evidence as well as hearing learned counsel for the parties, the suit of petitioner (Suit No.35/1 of 2012) was dismissed; while Suit No.70/1 of 2010 filed by respondent No.1, was decreed against petitioner. Aggrieved from the same, petitioner filed Appeal No.118/13 of 2013; which was dismissed by learned Appellate Court vide impugned judgment dated 15.04.2015, hence instant petition.
5. Heard. Record gone through.
6. Perusal of record reveals that suit house measuring 8 marlas, was purchased by petitioner from respondent No.1 vide registered deed No.265 dated 04.02.2009. However, Respondent No. 1 challenged the validity of the3/4 said deed in suit No. 70/1; which was contested by the petitioner and; during the pendency of the said suit, the ibid deed was cancelled on the strength of compromise deed No.74 dated 9.7.2010, so entered between the parties. Nevertheless, subsequently, validity of the same was challenged by the petitioner in suit No. 35/1 instituted on 24.02.2012; both the suits were consolidated by the learned trial court; followed by consolidated issues and; recording of pro & contra evidence of the parties.
7. The entire case revolves around issues No 5 & 6; for the sake of convenience the same are reproduced below respectively:-
(5) Whether the plaintiff in suit No. 70/1 has sold out the disputed property to the defendant thereof through registered deed No. 265 dated 9.2.2009 Bhai No. 1 volume No. 2017.
(6) Whether the plaintif f in suit No. 35/1 has executed the compromise deed No. 74 dated 9.7.2010 on the strength of which the registered deed No. 265 has been rightly cancelled according to law .
8. The learned trial Court decided issue No. 5 in negative; whereas, issue No. 6 in positive. Keeping in view the ibid background, this Court intends to first discuss the Registered Deed No.265 dated 4.2.2009, allegedly executed in favour of the petitioner through which the house in question was transferred in his favour. Admittedly, respondent No. 1 denied the execution of any such deed in favour of the petitioner, as well as, his appearance before the Sub-Registrar; rather he claimed the same to be a forged and factious one and; challenged its validity in suit No. 70/1. Later on, the said Registered Deed was cancelled through a compromise deed No.74 dated 9.7.2010, so entered between the parties during the pendency of the suit. Petitioner in support of his case examined DW.1 Hazrat Ali Registry Muharrir, who brought on record Registered Deed No.265 (Ex.DW.1/1); he affirmed cancellation of the same by referring to first page of the said Deed. Likewise, DW.2 Aurangzeb and DW.3 Bakht Shad, marginal witnesses of ibid Deed were examined by the petitioner in support of his claim; but they failed to substantiate the version of petitioner.
According to these witnesses, the sale transaction was effected between the parties in the year 2005 against payment of Rs.7,90,000/-; being so paid in their presence. In their cross examination, they stated that further payment of Rs.1,50,000/- was also made on 04.02.2009, on demand of respondent No 1. It is astonishing to note that the sale transaction allegedly been finalized in the year 2005 and; sale consideration had also been paid to the respondent No. 1 there and then; while Registered Deed was executed in the year 2009 after a delay of four years, which had not been plausibly explained by the petitioner. Both the witnesses stated that respondent No.1 is a blind man and has no male issue. Moreover, DW-2 had stated that sale consideration was paid at 10-11 AM. Whereas, petitioner when appeared as DW-4, stated that the same had been paid to the respondent No. 1 at 2-3 PM in his clinic. While DW-3 had stated that he cannot recall the date and day of the said payment. Had the payment so been made in their presence, they would have recalled its actual time and date; but their failure qua the same creates serious doubt regarding the sale transaction and payment of sale consideration as well. Besides, as per DW.2, there were four persons at the time of payment of sale consideration; while as per DW.3, there were five persons; thereby rebutting the stance so taken by DW.2.
Neither they could bring on record any documentary proof qua alleged sale transaction; nor, the sale consideration so paid to the respondent No. 1. DW-2 further stated that the amount of sale consideration was paid in his presence; which was counted by him; however, he failed to give denomination of the currency notes. He further stated that he does not remember the date of the payment of Rs.7,90,000/- however, Rs 1,50,000/- was paid to him on 04.02.2009. He also stated that at the time of payment none was present with the Respondent No. 1. He also admitted that there is no written proof of the ibid payments. DW-3 stated that sale transaction was struck between the parties by themselves and; they had no role in it. He stated that sale consideration was paid by the petitioner himself; thereby contradicted DW-2, who stated that the same was paid by him after counting the same. He also stated that Sub-Registrar had not asked anything from the respondent No. 1 at the time of Registration of the Deed in question. He stated that sale consideration was also counted by another person, who was present with respondent No. 1; thus, contradicted DW-2; who stated that no one was present with him at the time of payment. Petitioner appeared as DW-4, he stated that sale transaction between the parties was struck through one Ali Sher in the Mosque at Khazana. However, he failed to produce the said Ali Sher in support of the alleged Sale Transaction. He also admitted that there is no written proof qua the sale transaction and payments of sale consideration; which is not appealable to a prudent mind; particularly, when a huge amount of Rs 9,40,000/- was paid to the respondent No 1.
Moreso, DW-2 & 3 are not only co-villagers of the petitioner; but, also his close friends. Besides, neither, the petitioner could produce the scribe of the deed in question; nor, the sub-registrar; who registered the same. The above discussion led this Court to the irresistible conclusion that neither, the petitioner could establish the sale transaction; nor, could he prove the payment of sale consideration; which was required to be proved through cogent, independent and confidence inspiring evidence. As of now, it is well settled that mere Registration of a Deed is not sufficient to prove its execution, authenticity and genuineness; rather, the same needs to be proved through strong and convincing evidence; which lacks in the case in hand. 1990 SCMR 1259. titled. "Syed Mansoor Ahmad Versus Mst. Maqbool Begum and others".
PLD 1954 Dacca 134. titled. "Muhammad Cherag Vs Dullay Khan". AIR 1934 Lah. 282 titled. "Kartar Singh Versus Didar Singh and others", Apart from above, the petitioner also could not bring on record the original Registered Deed at the time of recording of his evidence in support of his stance; which is fatal for his case. 1992 SCMR 1741 titled, "Abdur Rahim Versus Sirajud Din and 4 others".
8. So far as, contention of the learned counsel of petitioner that Registered Deed could only be cancelled through a Registered Deed. True, there is no cavil to the ibid preposition. Registered deed could only be cancelled through a Registered Deed or through a decree passed by a Court of Competent Jurisdiction. Nevertheless, as this Court has already held that petitioner could not establish the sale transaction and payment of sale consideration as well; therefore, the question of cancellation or non-cancellation of the Registered Deed in the case in hand is having no legal effect. As, burden of proof always lies upon the beneficiary of a transaction or a document to establish the same through trustworthy evidence and; in the instant case; surely, the petitioner was under bounden duty to discharge the said burden; however, as earlier discussed, the petitioner miserably failed to discharge the same; therefore, he cannot get any benefit/advantage, arising out of the alleged loopholes in the case of the Respondent No 1. Hence, issue No. 5 is decided in Negative; albeit, upon the discussion so made thereupon.
9. Now coming towards issue No. 6 pertaining to compromise deed 74 dated 09.07.2010. It is worth noting that neither, the respondent No. 1 could prove the same through cogent, reliable and confidence inspiring evidence; nor, could he produce the original deed at the time of leading his evidence; therefore, the photocopy so placed on record of the case in absence of the original deed was of no legal effect; hence, both the Courts below had fallen into grave error; while relying upon the same. Therefore, findings against issue No. 6 are reversed and; the same is decided in negative. As this Court has already declared the registered deed; being illegal; therefore, the finding against issue No. 6 would be having no bearing upon the suit of the respondent No 1.
9. As sequel to above discussion; instant revision petition is dismissed; howbeit, in the manner so discussed above.