MUHAMMAD SHAN GUL J. Through this judgment the titled Civil Revision is sought to be decided.
2. Facts in brief are that respondents No.1 and 2 instituted a suit for specific performance of contract on the basis that respondent No.3 Rukhsanan Begum entered into a registered agreement to sell No.205/1 dated 03.02.2005 with respect to property comprising Khew at No.7, Khatooni No.51 to 71 measuring 47 Kanals 3 Marlas of Mauza Qadirabad. The suit was resisted by respondent No.3 as also by petitioners No.1 and 2. While Rukhsanan Begum denied the execution of the agreement to sell in favour of respondents No.1 and 2 she admitted transfer of property in favour of Nazeer Ahmad and others i.e. the petitioners before this Court and supported the stance of the petitioners that they were bonafide purchasers having bought the suit property from Rukhsanan Begum and who had paid consideration and were in possession. She supported their stance that mutation bearing No.2240 dated 15.02.2005 was correct and had been rightly sanctioned. Rukhsanan Begum also contended that the agreement to sell was a result of fraud. However , she chose not to appear in the witness box and stayed away!
3. On account of divergent pleadings the following issues were framed:
1. Whether the plaintiffs have got no cause of action and locus standi to file this suit? OPD
2. Whether the plaintiffs are estopped by their words and conduct to file this suit? OPP
3. Whether the suit is not maintainable in its present form? OPD
4. Whether the suit is pre-mature? OPD
5. Whether the plaintiffs are entitled to a decree for possession through specific performance as has been prayed for in the plaint? OPP
6. Relief?
4. The contesting parties led their respective evidence and the trial court decreed the suit filed by respondents No.1 and 2. This led petitioner Nazeer Ahmad to file an appeal before the District Court but this appeal too, was dismissed by the appellate court and hence this in turn led the petitioners to lay a challenge to concurrent judgments passed by the Courts below through the present Civil Revision.
5. The trial court noted that the agreement to sell had been proved in accordance with law inasmuch as presumption of truth is attached to a registered document which was to be preferred over a mere rapt mutation; that while one marginal witness of the agreement to sell had been produced and who deposed in favour of the respondents the other marginal witness had died and whose brother was produced so as to vouch for his signatures on the agreement to sell; that the scribe of the agreement to sell i.e. the stamp vendor had also been produced and who had remained consistent in his deposition; that proof of payment of consideration was forthcoming and Rukhsanan Begum the main character had not been produced as witness and which meant that the petitioners before this Court had withheld their best evidence; that the revenue officer who had attested mutation No.2240 had not been produce d; that there were massive contradiction s in the statement of witnesses produced by the petitioners with reference to the payment of consideration and hence decreed the suit filed by the respondents directing them to submit remaining amount of consideration.
6. The petitioners before this Court challenged this judgment and decree by way of filing an appeal. However , most interestingly Rukhsanan Begum did not file any appeal . The appellate court, in addition to approving the verdict of the trial court ruled that a rapt mutation did not transfer or confer any right and that the star argument raised by the petitioners before this Court about the trial court not framing an additional issue about cancellation of mutation No.2240 dated 15.02.2005 was misconceived because the petitioners had themselves moved an application before the trial court for framing an additional issue which was dismissed against which decision a revision was filed and even the revision was dismissed and the same was challenged by means of Writ Petition No.13304/201 1 which was also dismissed. The appellate court took great pains, which is evident from a perusal of paragraph No.10 of its judgment in addressing the issue of mutation and dismissed the appeal filed by the petitioners.
7. Learned counsel for the petitioners has attacked the concurrent judgments passed by the courts below by submitting that Mst. Rukhsana Begum i.e. respondent No.3 admitted mutation bearing No.2240 as valid and legal in her written statement and averred that the mutation had been effectuated two days before the date of the alleged agreement to sell. He was immediately confronted with the fact that this particular aspect of the matter could not allow him to make any headway because Mst. Rukhsana Begum had refused to appear in the witness box and hence there was no testimony on her part to back up her written statement. Learned counsel for the petitioners then contended that there was massive misreading of evidence by the courts below because PW-6 Zakir Hussain averred that consideration with respect to the registered agreement to sell was paid in front of the Registrar whereas PW-2 in his cross-examination clearly stated that no payment had been made in front of him. I am afraid that this reading on the part of the counsel for the petitione rs is indeed selective reading of evidence and cannot be granted any mileage in view of the fact that PW-2 deposed that payment of consideration was acknowledged in his presence (Page-61 of the civil revision) and hence the mountain sought to be erected out of this molehill does not grant any impetus to the case of the petitioners.
8. On the other hand, learned counsel for the respondents submits that PW-5 in his statement appearing at Page- 50 of this civil revision identified parties, acknowledged his own signatures on Exh.P/1 i.e. registered agreement to sell and deposed that he had identified Mst. Rukhsana Begum on the pointation of her husband. Adds that PW-2 clearly deposed that the registered agreement to sell was signed in his presence. He has also stated that the registered agreement to sell was never challenged and the petitioners before this Court also withheld their best evidence i.e. Mst. Rukhsana Begum was never produced even when the petitioners before this Court and Mst.
Rukhsana Begum were represented through the same learned counsel before the trial court. Rounds of by submitting that PW-8 who is brother of the concerned Lambardar appeared and vouched on behalf of his brother .
He states that concurrent judgments of the courts below do not suf fer from any infirmity and should be upheld.
9. Heard. Record perused.
10. It is a fact that presumption of truth is attached to a registered deed. It is also true that the agreement to sell in question was proved inasmuch as one marginal witness of the agreement to sell was produced who deposed in favour of the registered agreement to sell while other marginal witness who had passed away was represented by his brother who vouched for his signatures on the registered agreement to sell. Likewise, the payment of consideration was also acknowledged, as has been noted above, and it is also equally true that the petitioners are guilty of withholding their best evidence. On the other hand, it is correct that the revenue officer who had attested mutation bearing No.2240 was never produced and there were massive contradictions in the statements of witnesses produced by the petitioners especially with reference to the payment of consideration with respect to the mutation in question. It is also true that even when Mst. Rukhsana Begum shared a counsel with the petitioners before the trial court during the course of trial she chose not to file any appeal against the judgment and decree passed by the trial court in favour of respondents No.1 and 2. It is equally correct that a Rapat mutation does not transfer or confer any right and is dwarfed when faced with a registered agreement to sell.
11. Since the petitioners before this Court withheld their best evidence i.e. Mst. Rukhsana Begum, naturally an adverse inference has to be drawn against them and which is that the person on whose written statement they relied would have deposed to the contrary had she been allowed to appear . The Hon'ble Supreme Court of Pakistan in "Jehangir v. Mst. Shams Sultana and others" (2022 SCMR 309) has held as follows at paragraph No.4:- "We are surprised that the plaintiff/respondent No.1 did not come forward to testify that she had not sold the property as reflected in the said sale mutation, particularly when her sister and mother had testified in support of the said sale. A direct challenge had also been thrown to her husband/ attorney that if the plaintiff came to testify she would acknowledge the sale. When the best evidence is intentionally withheld an adverse presumption ensues that if it was produced it would be against the person withholding it as per Article 129(g) of the Qanun-e-Shahadat, 1984."
12. Likewise, Hon'ble Supreme Court of Pakistan in "Mst. Zarsheda v. Nobat Khan" (PLD 2022 SC 21) has ruled as follows at paragraph No.9:- "9. At this juncture Article 129 of the Qanun-e-Shahadat Order 1984 is quite relevant under which court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. According to the illustrations highlighted for resonating the presumption, Illustration (g) is quite relevant which illuminates "that evidence which could be and is not produced would, if produced, be un-favourable to the person who withholds it". Adverse inference for non-production of evidence is one of the strongest presumptions known to law and the law allows it against the party who withholds the evidence. Regardless of the presence of important witnesses (the alleged donor) and the alleged witness of the mutation, the defendant failed to produce them despite framing of specific issue whether there was no transaction of sale but a gift."
13. In the same vein in "Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L.Rs. and another" ( PLD 2022 SC 99 ) the Hon'ble Supreme Court of Pakistan has held as follows:- "Where a party keeps hold of the witness es, the presumption would be that if such witnesses were produced, their testimony must have against him, therefore adverse inference of withholding evidence goes against the party who failed to call the concerned person engaged in the transaction who was in a better position to give firsthand and straight narrative of the matter in controversy . According to Article 129 of the Qanun-e-Shahadat Order 1984, the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Illustration (g) attached to this Article is quite relevant to the facts and circumstances of the case in hand in which the court may draw adverse inference or presumption that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. No misreading or non-reading of evidence or any other defect or error was pointed out in the impugned judgments which may warrant interference by this court."
14. Additionally , a mere Rapat of mutation does not confer any right and this is trite. If any authority is required then reliance with advantage can be placed on the law laid down by the Hon'ble Suprem e Court of Pakistan in "Zulfiqar and others v . Shahdat Khan" ( PLD 2007 SC 582 ) at paragraph No.19 as follows:- "19. In Sattar Muhammad and 2 others v. Hussain and 3 others PLD 1988 Pesh. 48 arose out of a suit for declaration based on title derived throug h a mutation. The plaintiff relied on the entry made by the Patwari in Roznamcha W aqiati which was repelled with the following observation:-- "It is undisputable that no presumption of correctness attaches to the entry made in Roznamcha Waqiati, as the same does not form part of the record of rights. Such an entry is, therefore, to be proved especially when the same is to be used against the subsequent purchaser , in the same manner as any other fact' is proved."
In the said case it was also observed that neither the vendor had appeared nor the Patwari who had recorded entry in Roznamcha W aqiati had appeared to prove the sale and, therefore, it was not proved."
15. The Apex Court in "Khalil Ahmad v. Abdul Jabbar Khan and others" (2005 SCMR 911) has held that, "We say with respect that entering a mutation or reporting the factum of acquisition of any right in an estate to the Patwari was a mere ministerial act, which did not confer or extinguish any right in any property and thus nothing really hinged on the same."
16. It has been held in "Mohamamd Hussain v. Allah Ditta" (2017 YLR 1249 ) that, "it is also well established that Rapat Roznamcha attains no presumption of truth unless and until its maker is produced to prove the same."
17. In the matter before this Court the revenue officer who attested the alleged mutation bearing No.2240 was never produced and hence no probative value can be attached to the Rapat incorporating mutation No.2240.
18. At the time of initial hearing of this petition a lot of emphasis was laid by the counsel for the petitioners on the ground that the mutation in question was never challenged and no issue was framed in this respect and hence it is a case of mis-trial.
19. While the learned appellate court has adequately dealt with this misconceived argument by pointing out that the petitioners before this Court filed an application for framing of an additional issue which was dismissed against which a revision was filed and dismissed and which concurrent findings were upheld by this Court in W.P.
No.13304/201 1, the fact remains that issues were framed in the presence of competing parties and the objection raised by the counsel for the petitioners was discarded till the level of this Court. Furthermore, the petitioners had placed documentary evidence with regard to establishing the mutation in question and which is clearly indicative of the fact that they were alive to the issue and had adduced evidence in support thereof.
The Hon'ble Supreme Court of Pakistan in "Eada Khan v. Mt. Ghanwar and others" (2004 SCMR 1524 ) has observed that once the parties are alive to the contentions raised and when once evidence is adduced in support of such contentions, the non-framing of such an issue loses significance.
20. In the same vein it has been held in "Muhammad Akram alias Raja v. Muha mmad Ishaque" (2004 SCMR 1130) at paragraph No.4 as follows:- "4. It is important to note that although no specific issue was framed but the parties being aware about the controversy have led evidence in this behalf on the basis of which finally the case was decided. In this behalf reference can be made to the judgment reported as The Province of East Pakistan v. Maj. Nawab Khawaja Hasan Askary and others PLD 1971 SC 82 wherein it has been held that if a speci fic issue is not framed but allegations are made in the plaint and the parties challenged in the written statement, it is open to the Court to allow the parties to lead evidence on such point and to give decision on it without framing any issue."
21. Similar observations have been recorded in "Muhammad Ibrahim (deceased) through LRs and another v.
Taza Gul and others" ( 2020 SCMR 2033 ).
22. In view of overwhelming features in support of registered agreement to sell in favour of respondents No.1 and 2 and which have been noted in the preceding narrative coupled with concurrent judgments of the courts below in support thereof put paid this civil revision which does not call for any interference.
23. In view of what has been noted above, this civil revision merits to be dismissed.