ORDERGUL ZARIN KIANI, J.-Revision petition arose from a civil suit instituted by plaintiff-respondent claiming declaration of her title to the land in dispute, after annulment of registered sale deed dated 13.11.1976 described as fraudulent by her. The trial Court agreed with her, and, decreed the suit on 18.4.1989. On appeal, this decree was affirmed on 8.1.1990, by Additional District Judj c, Rawalpindi.
2. MateriAl questions for consideration are whether the price mentioned in the sale deed was paid to the vendor, and good title to the land passed to the vendee. Courts below are agreed that though the deed recites payment of the price and contains acknowledgement about it, but actual payment of sale price was not established. It is an agreed finding of fact. It is well established that in revision, finding of fact cannot be canvassed or upset, unless it is proved to be perverse, based on no evidence or suffers from gross misreading of record. That is not the case here. But since the learned counsel strenuously contended that the finding on receipt of price was incorrect and presumption attaching to endorsement on the sale deed was ignored and was not sufficiently rebutted in the evidence adduced by the plaintiff, the finding is not sacrosanct, I looked into the record to discover whether any fault could be found with the concurrent findings of the Courts below.
3. Facts leading to the litigation briefly summarised are:- Mst. Channo Bi owned 33 kanals, IS marlas of land, at mauza Kahna Bajar, Tehsil and District Rawalpindi. Mohammad Anwar since deceased was her first paternal cousin. She sold above land to him for an agreed sale price of Rs.9000/- vide sale deed executed and registered in the office of Sub-Registrar, Rawalpindi, on 13.11.1976. It is her case that though she acknowledged, and, admitted the payment of sale price in the sale deed, yet the vendee did not pay her a single penny but had assured to pay the same subsequently which assurance never materialised. It was further her case that mutation No.478 entered to give effect to the registered sale deed in revenue records was rejected by the Revenue Officer, on 143.1985 on the ground that sale price was not paid to her. Proceedings on the rejected mutation indicated that vendee Mohammad Anwar had admitted before the Revenue Officer that he had not paid the sale price but agreed to pay it till the next tour of the Revenue Officer but then disappeared. In the first instance, suit was instituted against Mohammad Anwar vendee. He died, in course of the trial, and, his legal representatives were substituted for him on record. In the defence submitted, material averments in the plaint were controverted. It was submitted that the sale price was paid to the vendor and that the recitals in the sale deed and endorsement of the Sub-Registrar are correct and the sale deed was a valid transaction by which good title passed to the vendee. Objections to the form of the suit, time bar, and, estoppel were also taken. Three P.Ws appeared for the plaintiff.
She also got her statement recorded as PW.
1. On behalf of the defendants, Khushal Khan DW.1 entered the witness box. He stated that sale price was paid to the vendor. Surprisingly, none from the defendants came forward to affirm their defence and refute the allegations of nonpayment of sale . Price. In addition to the oral testimony of DW.1, defendants relied upon certified copy of registered sale deed Ext.Dl. As far plaintiff, she relied on certified copy of rejected sale mutation No.478, Ext.Pl. This was the entire evidence led by the parties in the suit. I shall first take up the point relating to payment of sale price, and, thereafter, shall advert to its effect upon passing of the title in the land to the vendee. As said above, parties to the sale deed are close relation. Vendor is an illiterate village lady. None from her close relations accompanied her to the place where the sale deed was executed and registered. Sale deed recites that sale price was already received by her and she acknowledged its payment in it. Thereafter, she is shown to have affirmed the acknowlegement before the Sub-Registrar who noted it in the endorsement on the sale deed, at the time of its registration. In the plaint, and, at the trial, she retreated from the admission about receipt of price, and, repudiated the correctness of the recital in the sale deed and stated that she had said so merely upon the assurance of the vendee who promised to pay the price subsequenlty.There is no effective rebuttal of her this statement and evidence led by her at the trial. Independent of the recital relating to receipt of price and its repetition in the endorsement on the sale deed, payment and receipt of price was not supported by anything in black and white. To the contrary, there was a clear statement by the vendee before the Revenue Officer recorded on Ext.Pl wherein he admitted that price was not paid by him and agreed to pay the same till the next tour of the Revenue Officer. This statement was signed by him and a Lambardar of the village also appended his signatures. There is no material to dislodge the correctness of the proceedings taken on Ext.Pl. There is a clear presumption that official acts are to be taken to have been duly and properly performed. This presumption, in regard to them, is raised by Sections 35 and 114 in the Evidence Act, 1872, replaced by Articles 49 and 129 of Qanun-e-Shahadat, 1984. There are strong indications on record to establish that what was being stated by the plaintiff and recorded by the Revenue Officer on Ext.Pl, was all true. It is more so because the defendants did not assert in the witness box to the contrary. It was argued that endorsement on the sale deed containing acknowledgment of receipt of price attracted presumption of truth and parol evidence was precluded to refute its correctness. Pilar etc. Versus Noora etc.~ P.L.D 1976 Lahore 6 was relied upon and Section 92 of the Evidence Act was pressed in aid. As far precedent which arose from a pre- emption matter, it is sufficient to observe that it did not attract itself to the facts of the case, and, in regard to Section 92 of the Evidence Act, it does not bar a party to let in oral evidence to prove that consideration had not actually passed because passing of consideration is not a matter of contract but is only a recital of fact in a document. In Sah Lai Chand versus Indrajit~I.L.R. XXII Allahabad 370, agreeing with the High Court, their Lordships of the Privy Council regarded it as settled law that "notwithstanding an admission in a sale-deed that the consideration has been received, it is'open to the vendor to prove that no consideration has been actually paid. If it was nr* so facilities would be afforded for the grossest frauds. The Evidence Act does not say that no statement of fact in a written instrument may be contradicted by oral evidence, but that the terms of the contract may not be varied, &c. The contract was to sell for Rs.30,000 which was erroneously stated to have been paid, and it was competent for the respondent without infringing any provision of the Act to prove a collateral agreement that the purchase-money should remain in the appellant's hands for the purposes and subject to the conditions stated by the respondent".
Therefore, though the sale deed may contain a recital that the consideration has been paid, yet there is nothing to prevent the parties from adducing evidence to show that the recital was untrue and that in fact the consideration was not paid and this will not be barred by Section 92 of the Evidence Act. See Baldeo Singh and others versus Dwarika Singh and others-- A.I.R 1978 Patna 97. In number of decided cases, it has been held that the acknowledgement of redept of the whole or part of the sale consideration in a deed of sale is not a term of the deed of sale and oral evidence may be given to show that the amount acknowledged or any part of it was not paid. Dedsions reported in Pradyaman Prasad Singh versus Mahadeo Singh and othersA.I.R. (37) 1950 patna 85, Official Receiver of Salem versus Chinna Goundan and another-A.I.R 1957 Madras 630 are in point.
When the record is examined from this perspective, it is clear that sufficient evidence was adduced by the plaintiff to prove that the acknowledgement of the sale price and consequent endorsement on the sale deed were incorrect and that the vendee had. Not paid the price to her. Therefore, finding on receipt of price is neither infirm nor faulty. Having decided that consideration was not paid, I shall now advert to the second limb of the point which relates to the effect of non-payment of price on passing of title to the vendee. In terms of Section 54 of the Transfer of Property Act, 1882, principles whereof are applicable to the territory in Punjab, price is an essential ingredient in all the sales. Ordinarily, payment of consideration is simultaneous with and at the time when the conveyance is executed but in a particular case, parties may deviate from the above Rule. If the parties intend that title shall be transferred upon the price settled between them on the execution and registration of the sale deed, non-payment of purchase money shall neither arrest nor prevent the transfer of ownership rights. All depends on what is intended by the parties in a particular case.
If the intention is that in absence of payment of consideration, ownership should not pass, title will not pass until the consideration is paid. Non-payment of consideration is a storng piece of evidence though not conclusive to show that parties did not intend the document to be operated upon. In the case in hand, though the conveyance was executed and registered on 13.11.1976 yet as admitted by the original vendee to the Revenue Officer and supported by evidence led at the trial, consideration was not paid. Furthermore, though the sale deed was registered on 13.11.1976, yet report to the Patwari for entry of mutation in accordance with it was made on 26.7.1984. Non- payment of consideration coupled with the delayed report for the incorporation of the sale deed in revenue records, seen in the light of evidence led in the suit is sufficient to convince that the plaintiff was tripped up and duped by her cousin who vainly attempted to deprive her of the land without paying cosnsideration for it. There was also evidence to show that plaintiff was still in possession of the land and that the possession was not transferred under the sale deed to the vendee. The plaintiff was clear victim of trickery at the hands of a close relation.She never intended to convey her land to him without pay. Lent of sale price to her. Every party to an agreement is expected to observe the terms of the agreement in form as well as in spirit. Vendee agreed to pay the sale price but did not abide by his agreement. Vendor was not expected to wait indefinitely to enable the vendee to perform his part of the contract. Even in 1984, vendee promised to pay the consideration and got a chance to fulfil his part of the agreement but for reasons of his own, again disappeared. At no stage, it was his case that he was prepared to pay the sale price. In fact, it was insisted that the consideration had already been paid which fact was found untrue by both the Courts. Therefore, both equity and law will not assist the petitioners to take the property without paying the price for it. In this view, I am satisfied that findings on questions of fact recorded by the Courts below are correct and no interference should be caused with them. Revision petition is dismissed in limine.