SYED MUDASSER AMEER, J. Through this civil revision petition filed under section 115 of The Civil Procedure Code, 1908, petitioner has impugned the judgment and decree dated: 30.07.2013 passed by the learned Additional District Judge-II, Haripur, whereby appeal filed by the petitioner was dismissed and judgment and decree dated: 29.03.2011 passed by the learned trial Court/ Civil Judge-IV, Haripur was upheld/maintained, who vide the same had dismissed the suit of petitioner.
2. Precisely, facts of the case are that petitioner/plaintiff filed a suit for declaration as well as possession against the respondents to the effect that the suit shop (duly mentioned in the heading of plaint) is the joint ownership and in his possession and his father namely Muhammad Nawaz Khan during his life time mortgaged it out to one Hafiz Abdur Razzaq son of Hafiz Ghulam Din. That after the death of his father the respondents No. 1 and 2 (petitioner's step brothers) prepared a forged sale deed dated: 20.05.1991 purporting transfer of the suit shop in their favour.
Respondents/defendants were summoned who submitted written statement. From divergent pleadings of the parties, learned trial Court framed issues, parties led their respective evidence and after hearing arguments of learned counsel for parties, trial Court/Senior Civil Judge-IV, Haripur vide judgment dated: 29.03.2011 dismissed the suit of petitioner/plaintiff. Petitioner aggrieved of the findings of learned trial Court preferred an appeal before the learned Additional District Judge-II, Haripur, who vide judgment and decree dated: 30.07.2014 also dismissed the same. Hence, the petitioner had approached this Court by filing revision petition, which too was dismissed by this Court vide order/judgment dated: 16.12.013. Still dis-satisfied with the concurrent findings of all three Courts, petitioner approached the august Supreme Court of Pakistan and the august Supreme Court of Pakistan vide order dated: 24.11.2020 set-aside the order/judgment of this Court dated: 16.12.2013 and remanded the matter back to this Court for decision afresh.
3. Arguments of learned counsel for parties were heard in considerable detail and record perused with their able assistance.
4. The principal contention raised by the petitioner/plaintiff, as also setup in the plaint, is that defendants No. 1 and 2 have procured a sale deed (unregistered) in their favor through fraudulent means. It is alleged that the document purporting to transfer the suit property to above defendants was fake, forged and prepared fraudulently, which was therefore, void and ineffective upon the rights of petitioner/plaintiff. In opposition to these claims, the learned counsel representing the respondents/defendants has submitted that the sale deed was executed in strict compliance with the legal requirements prescribed under the relevant statutory provisions. It is asserted that all essential elements of a valid sale have been duly proved/established by cogent evidence on record. The respondents contend that the sale deed was executed voluntarily, without any element of coercion or deceit, and in the presence of competent witnesses, thereby fulfilling the formalities mandated under the Transfer of Property Act, 1882 and other applicable laws and that both the trial court and the first appellate court, after due appreciation of evidence and application of settled legal principles, have concurrently recorded findings in their favor. These findings include the authenticity of the sale transaction and the absence of any fraudulent inducement. As such, the concurrent conclusions of the subordinate courts, having been arrived at upon sound reasoning and in accordance with law, do not warrant interference by this Court in the absence of any substantial question of law or manifest perversity in the appreciation of facts.
5. Perusal of record reveals that admittedly, the plaintiff and defendants are the legal heirs of Muhammad Nawaz Khan, who passed away on August 14, 1993. The plaintiff and defendants No. 5 to 7 are the deceased's sons from one wife, while defendants No. 1 and 2 are deceased's sons from another wife and petitioner's step brothers. The shop in question had previously been mortgaged by Muhammad Nawaz Khan (late) to Hafiz Abdul Razaq in 1988. The plaintiff, Ahmad Nawaz Khan claimed receiving income from the entirety of his father's estate, thereby placing the burden of proof on defendants No. 1 and 2 to demonstrate the lawful transfer of the shop to them. To substantiate their claim, defendants presented their evidence, including the testimony of Advocate Abdul Hakeem, the son of the petition writer who had prepared/drafted the sale deed (Ex DW-4/7).
Abdul Hakeem recognized the relevant register and narrated that the sale deed at S.No. 1045 dated: 25.05.1991 and mortgage deed dated: 25.08.1988 were duly scribed by his father (Muhammad Latif/petition writer) and thus confirmed their authenticity. Similarly, marginal witness namely Jehangir Ahmed was also produced by the defendants as DW-7, who identified his signature on the deed dated: 25.05.1991 (Ex DW-4/7). Moreover, one Rasheed Ahmed, other son of Gulzar Ahmed, the other marginal witness to the deed, also verified his signature on the document, though his statement was a little weak due to old age, feeble health and efflux of time.
6. The plaintiff has challenged the authenticity of Muhammad Nawaz Khan's signature on the sale deed, contending that it was forged by claiming that the deceased used to sign in English rather than in Urdu. To substantiate this claim, the plaintiff produced PW-1 namely Muhammad Zareen (clerk passport office), SOK as PW-2, Cashier National Bank of Pakistan Serai Saleh Branch, Haripur as PW-3, registration clerk NADRA office as PW-4, Patwari Halqa as PW-5, clerk DOR office as PW-6, who all submitted documentary evidence in respect of passport, CNIC etc., which all bore his signature in English. However, it is on record that the plaintiff had admitted/acknowledged the mortgage deed dated October 25, 1988 (Ex.DW1/3), executed by Muhammad Nawaz Khan (deceased) in favor of Hafiz Abdul Razaq, which also contained a signature in Urdu. This inconsistency undermined the plaintiff's argument, as it demonstrated that the deceased had routinely signed documents in both languages, coupled with the fact that the petitioner during the course of trial never filed an application for verification of signature of his father/Muhammad Nawaz Khan, which fact also goes in favor of respondents/defendants and against the present petitioner/plaintiff.
7. Qari Shujah-ud-Din (petition writer) appeared before the Court and recorded his statement as DW-2 regarding redemption deed (Ex DW-2/2). As per said deed, the property/shop in question was redeemed by defendants No. 1 and 2 and rented out the same, therefore, it has been rightly held by both Courts below that they/defendants were in possession of the shop in question.
8. As far as the question of fraud on behalf of respondents, is concerned, it is also on record that at the time of alleged sale deed dated: 25.05.1991 defendants No. 1 and 2 were minors. Date of birth of defendant Qadir Nawaz Khan is 1977 while date of birth of defendant Saifullah Nawaz Khan is 1978, therefore, playing fraud with a matured person, that too their father (then alive) by such teenagers would not be possible coupled with the fact that it is not the case of petitioner/plaintiff that at the relevant time, his father (deceased) was ill, or on death bed or under the influence of defendants, which shows that the seller at the time of alleged sale was of sound mind and in good health.
9. In the plaint general allegations of fraud have been levelled without providing any specific detail of said fraud or any date of knowledge of alleged fraud, so, in this context the petitioner/plaintiff has badly failed to discharge his burden. Where a party alleges that fraud has been committed by the other party, it is a well-established legal principle that detail of such allegations must be pleaded with specificity and particularity in the plaint. The plaint must clearly disclose the precise nature of the fraud, the facts constituting the fraudulent conduct, the manner in which it was carried out, the individuals involved, and the resultant injury or damage suffered by the plaintiff.
General, vague, or indefinite allegations of fraud are not sufficient in law. Reliance is placed on the case of Aamir Afza-Vs-S. Akmal (deceased) reported as 2024 SCMR 1649 wherein, it is held as follows: "Plain reading of the plaint showed that the assertion of fraud was of a general nature and the particulars thereof had not been stated. Initial burden to prove that the memorandum of gift was forged and fabricated was on the respondents. During the trial, the initial burden of proving the factum of fraud or fabrication could not be discharged by the respondents..."
Further reliance is placed on case law reported as, 2025 MLD 87, 2024 CLC, 333 and 2017 YLR 957.
10. It is also important to note that petitioner has challenged the sale deed executed in favor of respondents (step brothers), however, astonishingly, he did not challenge the property, which was transferred by their father to the petitioners' real brother(s), which apparently shows mala fide on the part of petitioner. Moreover, since Muhammad Nawaz Khan had also transferred properties to petitioner and his real brothers, it was most natural that he did the same for petitioner's step- brothers. Thus, the sale deed executed in favor of respondents seems to be reasonable and natural. Reliance is placed on the case of Mst. Rabia GulaVs-Muhammad Janan reported as 2022 SCMR 1009, wherein it was observed as follows: "Although we need not look into the merits of the gift transaction and gift mutation that followed, as the very suit to their extent has been held to be barred by law of limitation, yet we, in the peculiar circumstances of the case, are constrained to note that the gift transaction recorded in the impugned gift mutation, as appropriately held by the appellate court, appears to be reasonable and natural in the facts and circumstances of the case; where a father, whose son had contracted a second marriage, transferred some of his property to his first daughter-in-law, who also happened to be his niece, and to his granddaughters to ensure their financial security, out of his love and affection for them".
11. Record also reveals that no specific questions or suggestions were given to the plaintiffs' witnesses about the material aspects of the sale deed, consideration or delivery of possession.
Thus the petitioner is deemed to have admitted all these material aspects of the said sale transaction and the Deed in question. In the case titled: Muhammad Rafiq and another-Vs-Abdul Aziz reported as 2021 SCMR 1805, this settled principle has been reiterated as follows: "It is settled that a material point of statement of a witness which is not cross-examined is deemed to have been admitted by the other side."
Similarly, in case titled: Sikandar Hayat and another-Vs-Sughran Bibi and 6 others, reported as 2020 SCMR 214, it was also held as follows: "..Needless to observe that on material portion of a statement of a witness if not cross-examined, it is presumed that the other party has accepted that part/ portion of statement.."
12. As far as the question that the sale deed is not registered and thus does not create any right in favor of defendants, is concerned, sale consideration as mentioned in the sale deed is Rs. 99/- and suffice it to say that as per section 17 of The Registration Act, 1908 the document below the value of 100 rupees is not required to be registered rather delivery of possession is sufficient for creating a right/title in the property. Section 54 of the Transfer of Property Act, 1882 also provides the same and is reproduced for ready reference:-
54. "Sale defined. 'Sale' is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property." (underlying supplied).
The law is clear. Whereas, the sale of immoveable property of the value of one hundred rupees and upwards must be made through a registered document, no such requirement is mandatory for sale of immoveable property valued less than one hundred rupees. Such sale/transfer may be made either through a registered instrument or through delivery of possession. It was for the reason that the sale deed in question specifically states that possession has been delivered to the defendants/respondents No.1&2. In the case titled: Sheikh Akhtar Aziz-Vs-Mst. Shabnam Begum and others reported as 2019 SCMR 524 definition of Sale and essential elements of sale are elaborated as follows: "..The essential elements for sale of immovable property are (a) payment of sale price of the property or promise to pay the same by the buyer to the seller, and (b) delivery of possession of the property.."
In case titled: Muhammad Yaqoob-Vs-Mst. Sardaran Bibi and others reported as PLD 2020 Supreme Court, 338, it has also held as follows: "..In order to enforce a sale of immovable property, it is imperative for the vendee to establish that the transaction was undertaken with a title holder, there was an offer made which was accepted, the parties had no incapability, there was consensus ad idem and that it was settled against valid consideration and that it was accompanied by delivery of possession..".
Similarly, in case titled: Zahid Khan and others-Vs-Muhammad Ahsan and others reported as 2024 MLD 396 sale is defined as follows: "..a "sale" is transfer of ownership of immovable property in exchange for a price paid or promised or partly paid or partly promised and for such transaction, payment of price must be contemplated; same must be followed by the delivery of possession."
13. Upon evaluating the evidence, the courts below have concurrently concluded that the shop had been lawfully transferred to defendants No. 1 and 2 via the sale deed dated May 25, 1991 (Ex DW- 4/7). The plaintiff's objections were deemed unsubstantiated, particularly given his admission regarding the mortgage deed and his failure to prove the signature wrong. Moreover, the plaintiff's suit appeared to be motivated by familial discord, as he had not contested similar transactions involving his real brothers (defendants No. 5 to 7) but had targeted his step-siblings (defendants No. 1 and 2). This selective litigation further weakened his credibility.
14. The timeline of the case is also important.
The sale deed was executed on 20.05.1991, about two years before the death of the father in 1993.
Inheritance mutation was made on 26.01.1994, which makes no mention of this property. The shop was redeemed from mortgage by respondents No. 1 and 2 vide redemption deed dated: 07.05.2003 and the present suit was filed by the petitioner/plaintiff on 29.07.2003. Thus, the father never challenged the sale deed in his lifetime and the petitioner also kept silent for about 12 long years and as soon as the respondents redeemed this property from mortgagee he filed the present suit.
If petitioner had any genuine claim to the property, he would have resorted to some kind of remedy back in 1994, when the matters of inheritance were finalized. In the case titled: Mst. Faheeman Begum (deceased) through LRs and others-Vs-Islam-ud-Din (deceased) through LRs and others reported as 2023 SCMR 1402, the apex Court observed that: "..the instant appellant had no locus standi to challenge the legality of the mutation on a vague allegation of fraud when Mst. Ghausan had never challenged the same in her life time and the mutation had been given effect in the revenue record."
In case of Mst. Rabia Gula and others-Vs-Muhammad Janan and others reported as 2022 SCMR 1009 it has held as follows: "Therefore, it is the date of knowledge of the "person injuriously affected" of the fraud mentioned in section 18, and of his right to sue that is relevant for computing the limitation period, not of his legal heir(s), unless he asserts and prove that his predecessor (the person injuriously affected) never came to know of the fraud, whereby his right to institute the suit was concealed, in his lifetime; in the latter eventuality, it is, of course, the knowledge of the present plaintiff (his successor) that would be the starting point for the limitation to run.
In this regard, we note that the respondent (plaintiff) did not assert in the plaint that the appellants (defendants), by means of fraud, kept Mawaz Khan, his father (the person injuriously affected) from the knowledge of his right to institute the suit to challenge the gift mutation, during his life, nor did he give the particulars thereof; what to say of proving the same. Furthermore, we note that the respondent (plaintiff) did not assert any such fraud of the appellants even against himself, and give any date of his attaining knowledge of such fraud and his right to institute the suit. Therefore, the benefit of section 18 of the Limitation Act for computing the limitation period for instituting the suit to challenge the gift mutation cannot be extended to the respondent (plaintiff)."
Likewise, in case titled: Haji Akbar and others-Vs-Jehangir and others reported as 2024 CLC 890, it is also observed: "In the instant case, Mir Akbar, predecessor in interest of the petitioners, died way back in the year 1988, but he did not challenge the impugned sale mutation in his lifetime before any competent court of law, despite having full knowledge of the same, therefore, his legal heirs are precluded to challenge its validity after his death as it is settled that the legal heirs cannot challenge the validity of a mutation, which was not questioned by their predecessor in interest in his / her lifetime. PLD 2023 SC 362 Saadat Khan and others v. Shahid-ur-Rehman and others.
More-so, the inheritance mutation of Mir Akbar was attested in favour of his legal heirs (petitioners) way back in the year 1991, but even after the said date, the petitioners remained silent for long 18 years and filed the instant suit on 19.07.2010, challenging therein, the sale mutation No.105 of the year 1929, which is also hopelessly time barred on this count."
15. Though not of much significance in the facts and circumstances of the present case, respondents also argued that the sale deed in question was not proved in accordance with the requirements of Article 79 of Qanoon-e-Shahadat, 1984 as the second marginal witness did not fully support the same. This argument is also untenable as firstly the second marginal witness namely Rasheed Ahmed/DW-5 did admit his signature on sale deed, however, due to his old and feeble age his statement was not elaborate as it could have been and secondly strict compliance of Article 79 of Qanun-e-Shahadat Order, 1984 was applicable in cases where the execution of the document was denied by the maker of the document, which is not the case here. It is noted that father of the parties never disputed the deed in his lifetime. In the case of Sajjad Ahmed Khan-Vs- Muhammad Saleem Alvi and others reported 2021 SCMR 415, the apex Court observed as follows: "..The provisions of Article 79(Q.S.O., 1984), are applicable only in those cases where execution of a document is disputed between maker of document and the person in whose favour purportedly the same is executed.
The prime and foremost requirement of Article 79 (Q.S.O., 1984) is to prove execution of a document in case of a denial of execution by producing two marginal witnesses."
16. In this case two Courts below have concurrently recorded their findings as against the present petitioner/plaintiff and in favor of respondents/defendants by correctly appreciating the law on the subject, which this Court finds perfectly in accordance with law and thus, the same do not suffer from any illegality or material irregularity, so as to warrant interference of this Court in its revisional jurisdiction under section 115 CPC. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Hon'ble Apex Court in its various judgments titled: Nasir Ali vs. Muhammad Asghar reported as 2022 SCMR 1054, Salamat Ali and others vs. Muhammad Din and others reported as PLD 2022 Supreme Court 353, Muhammad Sarwar and others vs. Hashmal Khan and others reported as PLD 2022 Supreme Court 13, Mst. Zarsheda vs. Nobat Khan reported as PLD 2022 Supreme Court 21, Shahbaz Gul and others v. Muhammad Younas Khan and others reported as 2020 SCMR 867 and Khudadad vs. Syed Ghazanfar Ali Shah alias S. Inaam Hussain & others reported as 2022 SCMR 933, where it has been held that: "Section 115, C.P.C empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C".
17. In view of the above, no irregularity or illegality has been pointed out in the impugned judgments and decrees of both the Courts below, therefore, same are maintained and upheld and consequently, this petition being bereft of merit, is hereby dismissed.