This is plaintiff's revision petition directed against the judgment and decree dated 7-4-1983 passed by the learned District Judge, Sargodha by which the appeal of the petitioner filed against judgment and decree of the learned trial Court dated 8-3-1980 dismissing his suit for declaration has been dismissed.
2. The petitioner filed a suit for declaration that he was owner with possession jointly with respondents Nos.3 and 4 of the land in dispute and that order and decree passed on 4-9-1974 in Arbitration Case No.323/1974 by Malik Dost Muhammad, Civil Judge, Sargodha and Mulation No.52, dated 14-10-1974 sanctioned against the petitioner and in favour of respondent No.: of land measuring 141 Kanals 3 Marlas comprising Khewat No.14, Square No.15, Killa Nos.13/2, 14 to 19, 22 to 25, Square No.16 kila No.20, 21, Square No.21, kiln Nos.1, l0/l, Square Nos.22 kilajat No.2 to R and 13 situated in Chak Musa Tehsil Shahpur District Sargodha were against law, illegal; without consideration based on fabricated arbitration proceedings and award and collusion between defendants No. 1 and 2 and fraud, therefore, were ineffective against the rights of the petitioner in the land as joint owner and that respondent No.: had no right and connection with the land. As a consequential relief decree for permanent injunction was also prayed for restraining tire respondents permanently from interfering in the rights of the petitioner in the land in dispute. The suit was contested by respondents Nos.1 and 2/defendants Nos.1 and 2 who separately filed written statements. On the pleadings of the parties ties learned trial Court framed the following issues:-
(1) Whether the suit is not maintainable in its present form ? OPD
(2) Whether the valuation of the suit for the purposes of court-fee and jurisdiction is incorrect, if so, what is the correct valuation ? OPD
(3) Whether the suit is bad for non-joinder of parties ? OPD. 2.
(4) Whether the decree of the Civil Court dated 4-9-1974 is illegal, invalid, without consideration, ultra vires, and is to be set aside ? O.P.P.
(5) Whether defendant No.2 is entitled to special costs under Section 35-A, C.P.C., if so, to what extent ? OPD (5-A)Whether the present suit is barred by virtue of Sections 30 to 33 of the Arbitration Act ? OPD (5-B)Whether the award dated 19-4-1974 was not compulsorily registrable, if not so, its effect ?
OPD.
(6) Relief.
The parties produced evidence. The learned trial Court after considering the evidence recorded in the case through judgment dated 8-3-1980 dismissed the suit. This judgment and decree was challenged in appeal by the petitioner before the learned Addl. District Judge, Sargodha which too has been dismissed through judgment and decree dated 7-4-1983 both of which have been brought under challenge in this revision petition.
3. Learned counsel for the petitioner argued that the award in dispute dated 9-4-1974 Ex.D.6 which was challenged in the suit was such a document which purported to create rights in favour of respondent No.1 by way of sale in the land and was compulsorily registrable under Section 17 of the Registration Act which was not got registered, therefore, by operation of Section 49 of the Registration Act, it did not operate to create rights of ownership by way of sale in favour of respondent No.1 in the land and did not extinguish rights of ownership of petitioner therein. In support of this argument reliance has been placed or, judgment reported as Haji Nawab Din v. Sh.
Ghulam Haider and another 1988 SCM R 1623.
4. The fallacy of this argument consists in assuming that it was the said award itself on the basis of which respondent No.1 claimed to have acquired rights of ownership in the land by way of sale. In this case the said award was made rule of the Court and decree of the Court followed. It was in pursuance to the said decree that Mutation No.52 impugned in the suit was sanctioned in favour of respondent No.1 in the revenue papers. The rule laid down in the reported judgment is that if an award was such a document which required registration under section 17 of the Registration Act, by itself it would not operate to create or extinguish etc. Etc. Rights in the property. It was not a case where the award was made rule of the Court and decree was passed
5. Learned counsel for the respondents on the other hand argued on the strength of judgment reported in Haji Muhammad Khan v. Shobra Hotel Ltd. PLD 1980 SC 62 that even if award was not registered, the decree of the Court based on the said award after making it rule of the Court would not be affected by any such consideration. They laid down in this judgment is directly applicable to the present case. Learned counsel for the petitioner in view of this judgment did no pursue this argument any further.
6. Ch. Mushtaq Ahmad Khan, learned counsel for the petitioner then argued that the dispute was referred to respondent No.2 as arbitrator regarding sale of land comprising khewat No.13 whereas the award delivered by respondent No 2.Was with respect to land comprising khewat No.14, therefore, the same was illegal.
7. The argument is devoid of any force. I have examined the arbitration agreement dated 17-4-1074 which was produced in evidence as Ex.D.4 and P.2. The petitioner made statement before the arbitrator, a copy of which was brought on the record as Ex.D.7 in evidence. In this statement the petitioner categorically mace clear that in the arbitration agreement Khewat No.13, Jamabandi for the vicar 1971-72 was written by mistake whereas the correct number of khewat was 14 of Jamabandi 1972-73. In the presence of this statement of the petitioner P himself the mistake regarding khewat number in the arbitration agreement stood rectified, therefore, the award was rightly given in respect land comprising khewat No.14.
Learned counsel then maintained that since fraud and impersonation was alleged in the suit the two Courts below failed to take into consideration the circumstantial evidence which in such a case is always considered to be very material for determination of such an allegation. According to him the following circumstantial evidence and probabilities have not received consideration:-
(a) The land has been shown to have been purchased by respondent No.1 against consideration of Rs.85,(XH) but the status of respondent No.1 was not such that he could manage that much amount for purchasing the land;
(b) The petitioner was not in any way in the necessity of selling the,
(c) The amount of consideration is much below the prevailing market price of the land;
(d) The undue haste in which the arbitration proceedings were completed firstly by the arbitrator and then the same were got completed before the Court for making it rule of the Court which made their genuineness doubtful. He stressed with reference to various reported judgments that there being evidence of handwriting experts from both the sides against each other and evidence of two advocates regarding identification of the petitioner before the Court which passed the impugned decree on the basis of award, as such, in these circumstances the direct evidence of both the parties being at par, the above mentioned circumstantial evidence was in fact the material evidence on the basis of which the findings of the two Courts below must have rested.
According to him this is a case of non-consideration of the circumstantial evidence.
9. The argument on face looks to be attractive but on proper analysis I find that it is likely to fail because it could not stand the test of scrutiny. It was not disputed by the learned counsel for the petitioner when questioned as a proposition of law that circumstantial evidence is always relevant if there is no direct evidence on the record. Merely because one handwriting expert has appeared as witness against another handwriting expert would not necessarily lead to the conclusion that the evidence of both the parties in that respect became at par and that evidence of both the expert witnesses stood negatived by each other and as such none of them was to be treated as evidence in the case. I have undertaken close scrutiny of the evidence of expert witnesses and the findings of the learned two Courts below. The learned lower appellate Court after discussing the merits of evidence of both the expert witnesses recorded a finding that the evidence of the handwriting expert produced by the petitioner was not reliable for reasons given in the judgment which arc in my view, very sound reasons. The evidence of expert witness of the petitioner was, therefore, rightly rejected. On the other hand the evidence of expert witness produced by respondent No.1 was found to be worthy of credit and the same was accepted on equally sound reasons. In this view of the matter it is not a case where the expert evidence of both the parties could be said to be at par. The similar is the case of the evidence of the parties on the point of identification of petitioner in arbitration case before the Court in the proceedings relating to making the award rule of the Court. The petitioner examined Malik Umar Hayat Khokhar, Advocate, as P.W.4 who was counsel for the petitioner in arbitration case who identified the plaintiff in that arbitration case but before the trial Court deposed that Sher Muhammad plaintiff present in Court was not the same person and that he identified some other person as Sher Muhammad on the information of a person who engaged him for the case. Both the Courts below after scrutinizing the evidence of this witness found on cogent reasons that he was not truthful witness, therefore, his evidence was discarded. There is no explanation on the whole of the record and the learned counsel for the petitioner also could not give satisfactory answer as to why that person who allegedly, engaged PWA in the said case of arbitration at whose information he identified Sher Muhammad and was engaged to conduct his case was not produced in evidence. This PWA was rightly found to be a person who was not telling the truth and rightly held to have given a lie. As against this respondent No.1 examined Syed Ghulam Abbas Shah Advocate, as DWX This witness was resident of Kot Bhai Khan village which was at a distance of only two miles away from Chak Musa to which place both the petitioner and respondent No.1 belonged. He was counsel for respondent No.1 in the said arbitration case in which the award was made as rule of the Court. He unambiguously deposed that the petitioner had personally taken part in the proceedings in the said Court and that he was represented by Malik Umar Hayat Khokhar Advocate. It has been held by the learned lower appellate Court that this witness had a reputation of integrity as a counsel and was a Senior Advocate. It was not possible for the plaintiff to attribute motive to this gentleman for deposing falsely in favour of Muhammad Aslam. As against evidence of PW.4 the evidence of DW.8 was found to be reliable and accepted. The argument of the learned counsel for the petitioner that DW.8 was counsel for the respondents in the present case, is not borne out from the record. From these facts it is demonstrably clear that it was not a case where direct evidence was not available. There is nothing in the plaint regarding status of respondent No.1 and his poor financial position as also the amount of consideration being inadequate as compared to market price of the land. The grounds which were described as circumstantial evidence were never pleaded, therefore, it is not possible to hold that in not considering those grounds the two Courts below have committed any illegality or that their non-consideration could be held to constitute non-reading of material evidence. It goes without saying that all those grounds described as circumstantial evidence were certainly such on the basis of which a transaction of sale could be avoided but they were required to be specifically pleaded and proved through evidence and cannot be taken into consideration, by giving them colour of circumstantial evidence.
10. Faced with this difficulty learned counsel for the petitioner tried to overcome it by arguing that there was a big ink spot over a portion of disputed signatures of the petitioner on an impugned document which is manifest from its enlarged photo produced in evidence of the expert witnesses, therefore, the said document and the alleged signatures of the petitioner over it could not be possibly compared. It goes without saying that it was not the only document which bore the signatures of the petitioner as there were other documents also. I have seen the enlarged photo of the said document and find that in spite of the said in spot on the document a portion of the said signatures of the petitioner is visit on which there were no ink spot. The pct it loner when examined himself as PW.6 stated that he appended his signatures at 13 (thirteen) places in the petition-- writer's register. The case as made out in the plaint was that his signatures were obtained by giving him understanding that they were being taken in respect of some Ghee Agency from which it is clear that impliedly the presence of signatures on various documents such as agreement of arbitration, award and receipts etc. Were admitted by the petitioner being his signatures. In such circumstances the onus was on the petitioner to have produced through very strong evidence of unimpeachable character to establish that the said signatures were obtained through fraud committed upon him. The fact of thirteen documents having been signed by the petitioner was sufficient to belie him and this plea was rightly not believed by the learned two Courts below. Had it been a case of obtaining signatures from the petitioner in respect of preparation of a document for Ghee Agency a man of ordinary prudence would not have signed such a large number of documents on that account and would have become vigilant and conscious about the foul play.
The two Courts blow after elaborate and careful appraisal of evidence produced by the parties found that the case as made out by the petitioner was not established. The concurrent findings of fact thus recorded do not suffer from any misreading, misconstruction or non-reading of evidence and the material present on the record No material irregularity and illegality has been committed by the two Courts below in recording those findings.
11. Before closing this judgment it will not be out of place to mention here that admittedly the property in dispute is agricultural land and was not an urban property. This land is not situated within the limits of any Municipal Committee. That being so, according to law sale of such land could be made without any registered document and merely through getting the mutation sanctioned. The award EX.D.6 records an acknowledgement inside by the petitioner before the arbitrator to have received the amount of consideration through receipts as also the factum of sale of the land having been made. Keeping in view the contents of the award it can safely be concluded that it record what the parties stated, before the arbitrator to have already taken place i.e. The sale, as such, it is not the award itself which amounted to sale of land, therefore, it was not a document compulsorily registrable. In the reported judgment relied upon by the learned counsel for the petitioner the award related to an urban property. For this reason also the rule laid down in the said reported judgment is not applicable to the facts of this case. The mutation of sale in favour of respondent No.1. Therefore, was not affected by the reason that` the award was not registered
11. No case has been made out for interference under Section 115 C.P.C. This revision petition fails which is hereby dismissed without any order as to costs.
AA./S-502/L