CH. MUHAMMAD MASOOD JAHANGIR , J.---- Shorn of unnecessary detail, Shahadat plaintif f/respondent No.1 on 10.09.1996 approached the learned Civil Court through declaratory suit aiming cancellation of registered sale deed dated 18.12.1972 (Exh.P5) as well as its implementing mutation No.439 dated 18.02.1973 asserting that suit area was mortgaged to Walayat and Noor Akbar , the predecessors-in-interest of the petitioners vide mutation N.434 dated 08.12.1972 (Exh.P1) for a term of five years since khareef 1973 till rabi 1978 and after its expiry , the possession was returned, but subsequently apprised that Walayat and Noor . Akba r, ascendants of the petitioners managed execution/attestation of sale deed No.698 dated 18.12.1972 within just ten days of the attestation of mortgage mutation dated 08.12.1972; that plaintif f was an illiterate and advance d age seriously ill person, who neither settled any sale nor consideration was paid and even he did not appear before the Registering Officer for its registration, thus being forged and fictitious, the sale deed as well as its incorpo rating mutation was liable to be cancelled. The defendants/ beneficiaries along with co-defendants although contested the suit by filing joint written statement, yet it was admitted on their part that Shahadat, plaintif f was an illiterate person and that the property was initially mortgaged to them, however , asserted that the sale deed as well as subsequent Mutation No.853 dated 07.06.1991 was perfectly attested/sanctioned. It was matter of record that in the written statement, it was not demonstrated that against what value the property was purchased. The written defence was lacking as well to explore when, where and before whom the transaction settled and consideration paid. The serious allegations of the plaintif f qua execution/ registration of instrument (narrated hereinabove) were again not specifically denied in the written statement. The learned Civil Court having faced conflicting pleadings made by respective parties materialized the following issues:-
1. Whether the plaintiff is owner in possession of the suit land fully described in the plaint and such impugned sale deed dated 18.12.1972 and mutation No.439 dated 18.2.1973 and Mutation No.853 dated 7.6.1991 were void, illegal upon the right of the plaintiff which is liable to be dismissed? OPP
2. Relief and invited them to lead evidence in pros & cons. As a result thereof, the moment plaintif f (PW1) as well as supporting witness (PW2), deposed in line with the contents of plaint that the suit property was only mortgaged for a specified term, whereas neither sale was effected nor the plaintif f recorded statement, for the attestation of sale deed and he was deprived of his property due to his illiteracy , onus shifted to the petitioners/beneficiaries. On the part of the latters to discharge it, the Patwari (DW1), Deed Writer (DW2), one of the beneficiaries (DW3), the marginal witnesses of the impugned sale deed (DW4 & 5) were produced. As a result of evaluation of 'evidence of the parties, the learned Civil Court dismissed the suit vide judgment dated 18.10.2001, but it did not sustain, when learned Appellate Court on 05.01.2005 accepted the appeal of the respondent/plai ntiff and decreed his suit, hence civil revision in hand on behalf of the descendant of the beneficiaries.
3(sic). Mr. Irfan Alam, Advocate on behalf of the petitioners inaugurally nnphasized with great vehemence that basic onus to prove that the sale deed was collusive, forged and fictitious rested upon the plaintif f, .but he failed to lead trustworthy evidence. He further submitted that quantitative and qualitative evidence was produced on behalf of the petitioners/beneficiaries to establish that there was a fair deal, consideration paid and the vendor with his free consent appeared before the Scribe/ Registering Officer for the construction as well as attestation of impugned document, but it was not scrutinized in its true perspective by the Appellate Court . The main emphasis of learned counsel for the petitioners while relying upon cases reported as Shahid Nasim and 2 others v. Syeda Imtiaz Khatoon (PLD 1997 Lahore 243) and Hakim Ali v. Sakhi Muhammad and 16 others (1996 SCMR 354) was that the disputed sale instrument was duly registered and under section 60 of the Registration Act, 1908, presumption of correctness and due sanctity was attached thereto, whereas the strongest evidence was required to cast aspersion on its genuineness, but in absence thereof, Court below erred in law to cancel the sale deed. The learned counsel for the petitioners in the fag end of his arguments contended that sale deed was attested prior to promulgation of Qanun-e-Shahadat Order , 1984, which being registered document needed not to be proved as per yardstick/scheme introduced through the Order ibid, and that intention of the vendor for the execution of instrument was more important than the passing of sale price, but this aspect was ignored while passing the impugned decree, as such is not sustainable.
4. In defence, M/s. Khalid Ikram Khatana and Sohail Zafar Sipra, Advocates for respondent No. 1/plaintif f submitted that disputed documents were challenged while raising serious allegations and in such situation, the onus shifted towards the beneficiary to prove its due execution as well as transaction detailed therein, who badly failed to adduce sufficient evidence in this behalf. It was also argued that neither in their pleadings, the petitioners provided essential detail with regard to original transaction nor through the evidence examined on their behalf they succeeded to establish the alleged sale. Next emphasis of respondent No. 1's learned counsel was that Stamp Vendor and Sub-Registrar being the independent persons, at the most, could belie the allegations raised by the plaintif f, but despite availability , they were deliberately withheld, as such Appell ate Court below rightly inferred adverse presumption against the petitioners/beneficiaries.
5. Attended the submissions and file also gone through with the able assistance of learned counsel for the parties.
6. As regards the last two grounds of arguments sounded by Mr. Irfan. Alam, Advocate for petitioners, there was much substance that impugned instrument was attested prior to enforcement of Order ibid, which needed not to be proved as per scheme provided therein, but when they of their own produced the evidence, then it has to be analyzed on the standard set by the superior Courts. There is no second thought that ordinarily a document is not proved itself unless admitted by its executant, otherwise, when there is specific denial and controverted while raising serious allegations, it becomes sine qua non for the beneficiary to prove the same as per section 102 of the Evidence Act, 1872. Thus, the burden to prove the contents of the document, in addition to proof of execution and ingredients of the transaction couched therein, was on the beneficiaries, who should have led primary/secondary circumstantial internal evidence to dig out the truth/genuineness thereof. In the case in hand, illiteracy , advanced age and serious illness of the plaintif f were not disputed elements among the parties. Moreover , there was also a consensus between them that on 08.12.1972 through mutation (Exh.P1) the suit property had been mortgaged for five years, then the settlement of its sale through attestation of instrument in this regard within next ten days definitely created some suspicion, which could only be defused through production of trustworthy evidence. There is no cavil. that such like document attaches presumption of truth, however , it is not rule of thumb, but each case is to be dealt with as per its peculiar facts and its veracity depends upon quantum /quality of evidence to be made available by the respective parties. Relian ce to this extent can be placed upon cases reproduced as Gopal Das v.
Siri Thakir Gee and others (AIR 1943 P.C. 83), Muhammad Sher and 2 others v. Muhammad Azim and another (PLD 1977 Lahore 729), Siraj Din v. Jamila and another (PLD 1997 Lahore 633), Fakhar-ud-Din through L.Rs. v. Muhammad lqbal and others (2015 CLC 994), Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others (2006 SCMR 1144), Khan Muhammad v. Muhammad Din through L.Rs. (2010 SCMR 1351 ) and Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1), In Muhammad Sher's case (supra), wherein registered sale deed of 1957 was disputed, in para No.8 it was concluded as under:- "There is no doubt that the certificate of registration shows the execution of the document but no such presumption can be drawn therefrom that such and such person has really executed the same. In the given circumstances of the case it will be open to the parties to prove that the document in question was not really executed by the person shown to have executed the same according to the certificate of registration.
It is exactly what the learned Judges in AIR 1929 Lahore have held. The certificate of registration is only to show the execution of the document, and presumption beyond that cannot be drawn therefrom. This view gains strength from Gopal Das and others v. Sri Thakurji and others AIR 1943 PC 83 holding that where the Registrar's endorsements made under section 60 of the Registration Act showed that in 1881 a person claiming to be parahotam Das and to have become son of Harish Chandra by adoption made by his widow presented the receipt for registration and admitted its execution and was identified by two persons one of them was scribe of the document and was known to the Registrar , what remained to be shown was that the person admitting execution before the Registrar was Parshotam Das and no imposter . According to their Lordship of the Privy Council the question as to whether executant was Parshotam Das or any imposter was one of fact. However , the only presumption which could be drawn from the certificate of endorsement was that registration proceedings were regular and honestly carried out. It is clear that if in the given circumstances of a case genuineness or bona fide with regard to the execution of a document are in doubt then inquiry can be held in this behalf and no presumption to the effect that such and such document has actually been executed by a genuine person in all circumstances, can be drawn."
7. Having found support to the effect that in case of disputed registered document, it is also sine qua non for the beneficiary to prove the sale, it would be better to first approach to its definition, provided in Section 54 of the Transfer of Property Act, 1882, which says "sale" is transfer of ownership of immovable property in exchange for a price paid or promised or partly paid or partly promised, hence in order to prove that a transaction is sale, the passing of price or its promise might be contemplated. In absence thereof, mere registration of document to D that effect does not operate to pass title to the beneficiary against such transaction. The pivotal issue in this case was 'whether Shahadat sold out the property to petitioners and the latter though examined both of the marginal witnesses (DW4 and 5) to prove questioned sale deed, but out of them, the former in his statement-in-chief did not depose that either the original deal was settled in his presence or at the time of payment of consideration, he was available, whereas in his cross-examination he explicitly said that consideration was not paid before him. Although subsequently he tried to improve that it was made before him, but in next breath he again denied to recall that when it was paid. He further showed lack of knowledge that who was the other witness of the said fact. The position in statement-in-chief .of the next attesting witness (DW5) of the impugned sale deed was again the same, who in his cross-examination in all fairness admitted that consideration was not paid before him. It was again drastic that Walayat (DW3), one of the beneficiaries, admitted the position that both of the marginal witnesses were not of the revenue estate where parties resided or area in dispute situated. It was astonishing that said defendant though stated that consideration was paid before the Sub-Registrar , but while admitting in his cross-examination that he was not present at that occasion, there left only statement of Deed Writer (DW2), who also did not depose that either the consideration was paid before him or the vendor accepted its receipt in his presence at the time of execution of sale deed. It is matter of record that the other beneficiary Noor Akba r, who was an Advocate, Stamp Vendor and the Sub-Registrar were also not examined, as such meager , weak and shaky evidence was brought on record, out of whom no one is found to have stated that sale consideration was paid/made good in his presence or he witnessed the original transaction. Moreover , the defendant (DW3) in last lines of his cross-examination also denied to administer special oath on the Holy Quran in support of his stance. Thus, in absence of proof that sale consideration was received by the vendor , there was no sale in the eye of law. See Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 SC 519). Hence, learned lower Appellate Court was perfect in returning positive findings on Issues Nos.1 and 2.
8. Reverting to main emphasis and case-law cited by Mr. Irfan Alam, Advocate for the petitioners that more important was intention of the vendor to pass on title of his property than to establish that transaction couched in document was proved or not. Suffice it to say that each case has to be dealt with as per its own facts on the rule of preponderance of evidence. In the file in hand, no specific intention was either pleaded or even pressed, rather from the inception of this litigation, vivid stance of the plaintif f was that basically the property in dispute was mortgaged for five years and there was no intention for its sale, but forged as well as fictitious instrument introduced within next ten days, thus the petitioners were under obligation to prove it. The view formed by the apex Court in Hakim Ali's case (supra) went through, wherein the sale deed executed on behalf of one Jagga Khan was challenged after his death by the collaterals, which was perpetuated while observing that vendor/Jagga Khan in his life had already endorsed and acknowle dged the instrument during course of some earlier judicial proceedings initiated in this behalf. Likewise, in other referred case of Shahid Nasim (supra) , the payment of consideration through Bank was proved. Hence, the said case law runs on different footing, which being inapplicable cannot be given due weight.
9. When established that there was no sale and the sale deed was managed qua property of an illiterate/seriously ill person by practicing fraud, which vitiates even the most solemn transaction, as any deal based on fraud would be void and notwithstanding the bar of limitation, the matter can be considered on merit so as to discourage fraud besides to be perpetuated.
10. In view of what has been discussed above, the learned Appellate Court while giving findings of fact against the petitioners after proper appreciation of evidence and applying correct law on the subject committed nothing wrong, whereas the learned counsel for the petitioners took maximum time to find out that either any misreading/non- reading of evidence was made or the impugned judgment tainted with jurisdictional defect, but he failed, hence this civil revision being devoid of my merit and force is dismissed. No order as to costs.