1. ' This matter has come up in revision under section 115, Civil Procedure Code, against a judgment and decree of learned Addl: District Judge of Gujrat dated 18-11-1982 by which appeal was allowed and judgment and decree of learned trial Judge passed on 19-7-1978 were reversed.
2. ' Facts giving rise to the present litigation briefly put, are:- 24 Kanals, 18 Marlas of land, a residential house and a cattle-shed situate at Mauza Dhola Khurd in Tehsil Phalia of District Gujrat belonged to Mst. Rasoolan widow of Sultan, a Jat Tarar, resident of village Dhola Khurd. On 11-3-1970, Bahawal son of Mahan, also of the same tribe and resident of Dhola Khurd, instituted a civil suit against Mst.
3. Rasoolan for declaration of ownership rights in the aforestated property and for a relief of perpetual injunction for preventing her from causing any interference with his possession. It was stated that about six months earlier, she had orally sold the land and the houses to him for a sum of Rs,15,000 already paid to and received by her. It was further stated that the possession of the land and the houses was also transferred to him under the sale, but now the defendant intended to disturb his possession. Therefore, a cause for filing of the suit had emerged. Plaint was drafted on 10-3-1970 by Sheikh Munawar Hussain, Advocate. It was signed by him and thumb-marked by Bahawal. It was presented to the Court on 11-3-1970. On 16-3-1970, Mst. Rasoolan submitted a consenting written statement and agreed to decreeing of the suit against her. Written statement was filed through Mirza Muhammad Saleem, Advocate. It was signed by him and thumb-marked by Mst. Rasoolan. On the basis of the consenting written statement, the trial Court decreed the suit on 16-3-1970. Plaint, written statement, and consent decree are Exts.D5, D.4 and D.6 respectively.
4. Certified copies of the plans annexed to the plaint in the suit are Exts.D2 and D.3. Later, Mst.
5. Rasoolan died. Her exact date of death is not available on present record. Nor are the parties or their counsel in a position to assist on it. She was survived by two daughters Mst. Aisha and Mst.
6. Raju and Dost Muhammad son of her deceased brother Rahim Bakhsh. On 22-9-1971, these three persons jointly commenced a civil action in the form of a civil suit for avoiding the consent decree passed in the suit brought by Bahawal against Mst. Rasoolan, on the grounds of its being tainted with fraud and impersonation. It was averred that the land measuring 28 Kanals, 18 Marlas, residential house and the cattle-shed belonged to Mst. Rasoolan. She had neither sold the land and the houses to Bahawal nor received consideration from him nor had she appeared in the Court to give her consent for decreeing of the suit against her. It was further averred that the property in suit was still in their possession as its owners. In para. 3 of the plaint, it was averred that 6/7 days after the demise of Mst. Rasoolan, they went to the Patwari for the purposes of an entry and attestation of inheritance mutation in respect of the property left by Mst. Rasoolan, but the Patwari informed them that on the basis of a consent decree, the property had already been mutated/transferred to Bahawal. Upon gaining this information, they filed the suit.
7. ' Defedant submitted written statement and traversed the averments in the plaint. He raised preliminary objections that in absence of FardJamabandi for the land-in-dispute, written statement could not be filed; that Mst. Aisha and Mst. Raju were not daughters of Mst. Rasoolan. On merits, it was averred that the property-in-dispute had been sold by Mst. Rasoolan in favour of the defendant and transferred its possession to him. Valuation of the suit for the purposes of court-fee and jurisdiction was also taken an exception to.
8. ' On 15-2-1972, trial Court framed the following preliminary issue on the objection to the valuation of the suit:-
(1) Whether the suit has been properly valued for the purposes of court-fee and jurisdiction? OPP Upon the above preliminary issue, trial Court recorded the statement of Attaullah Patwari P.W.1 and in the statement of plaintiffs' counsel took some documents in evidence. However, no separate decision was given on the valuation issue and the trial Court, vide its order dated 24-1-1975 settled issues on merits for decision alongwith the valuation issue. Issues raised on merits are as follows:-
(2) Whether the suit is maintainable as such? OPP
(3) Whether the plaintiffs have got no locus standi ? OPP
(4) Whether the impugned decree dated 16-3-1970 was obtained by fraud? OPP
(5) Relief.
9. ' In support of the points at issue, plaintiffs produced Munshi Muhammad Petition-Writer (P.W.1), Sardara son of Waryam (P.W.3), Jan Muhammad (P.W.4) and one of them namely Mst. Aisha stepped in the witness-box and recorded her own statement as P.W.S. Iltaf Hussain, SubInspector- Finger Prints Expert, from Finger Prints Bureau, Lahore, was produced as P.W.2 to prove his opinion about dissimilarity between the prints on Jawab-Dawa submitted by Mst. Raoolan and the application Exh.P.1 meant to be filed by her before a Police Offier before the filing of the civil suit by Bahawal against her. P.W.1 Munshi Muhammad Petition-Writer deposed that at the instance of Mst.
10. Rasoolan, he had scribed application Exh. P.1, but the witness admitted that she was not personally known to him. P.W.2 Finger Prints Expert gave evidence that prints on Jawab-Dawa were dissimilar with the prints available at serial No,1630 dated 29-12-1958 of the Petition-writer's Register. Sardara son of Waryam P.W.3 testified that 18/19 years ago, the cattle-shed belonging to Mst. Rasoolan had collapsed and she wanted to reconstruct it, but the defendant obstructed. Thereupon, Mst.
11. Rasoolan wanted to approach the police and had got written an application and upon his intervention, the application was not filed and the matter was dropped. P.W.4 deposed similarly and further stated that Mst. Rasoolan had not sold her land and the houses to Bahawal. It was further stated that Mst. Aisha and Mst. Raju were daughters of Mst. Rasoolan and the property-in- dispute was in their physical possession. Mst. Aisha P.W.5 herself deposed that her mother Mst.
12. Rasoolan had not sold her land and the houses to Bahawal. She further deposed that her mother had suffered opacity and had turned total blind two years before her death. She also deposed about application Exh.P.1, and later settlement of the dispute about the cattle-shed with Bahawal.
13. Report of the Finger Prints Expert and photo enlargement of prints are Exh.P.2 to P.4 Exh.P.5 is copy of Jamabandi for the land-in-dispute.
14. ' In rebuttal, Bahawal gave evidence`of two D.Ws and himself appeared in the witness-box as D.W.3.
15. D.W.1 Saee son of Haji Ahmad deposed that Mst. Rasoolan had. Sold the land to Bahawal for Rs,15,000 and a receipt marked' Exh. D.1 was reduced to writing in his presence. It was thumb- marked by him and Mst. Rasoolan. Ghulam Rasool D.W.2 deposed that Mst. Rasoolan had sold the land to Bahawal for a sum of Rs,15,000 and a receipt for payment of the sale-price was written. It was thumb-marked by him, Saee and Mst. Rasoolan. The witness further deposed that the sale- price of Rs,15,000 was paid to Mst. Rasoolan in view of the Court and she gave a consenting written statement through an Advocate and made a separate statement also. The witness was resident of Bosal-Sukha situated at a distance of more than ten miles from Dhola Khurd. Bahawal himself entered the witness-box as D.W.3. He stated that 3 acres and 8 Marlas of land, a residential house, and a cattle-shed was sold to him by Mst. Rasoolan against payment of Rs,15,000 evidenced by a receipt which was thumb-marked by Saee, and, Ghulam Rasool. He further stated that Mst.
16. Rasoolan had appointed. Mirza Vakil, who had filed written statement; Mst. Rasoolan appeared in the Court and had also made statement. Rs,15,000 were paid in the Dhari of Advocates and receipt was also written there. The possession of the property-in-dispute was transferred to him. The witness further stated that Sultan, husband of Mst. Rasoolan was his collateral. In addition to oral evidence, Exhs.D.2 to D.6 were tendered in evidence. This was the entire evidence produced by the parties on either side.
17. ' It may be advantageous to observe that after the decision of the civil. Suit by the trial Court setting aside the consent decree, upon an application submitted by Mst. Aisha to the trial Court, a criminal case under section 419/420/193/196/198, P.P.C. Was registered against Bahawal and Mirza Muhammad Saleem, Advocate, who had represented Mst. Rasoolan in civil suit and filed consenting written statement. Police challaned Bahawal only and Mirza Muhammad Saleem, Advocate, appeared as P.W.3 to support the complainant. The trial Court convicted Bahawal under section 420, P.P.C. Andj sentenced him to a term of one year's R.I. Conviction and sentence were set aside in appeal and a revision filed against the acquittal by the complainant party (Criminal Revision No,174 of 1986) is pending in this Court and has been adjourned sine die to await the decision in the civil revision.
18. ' Seen from the above, it would be evident that the civil revision raised only two material points.
19. One, whether Mst. Rasoolan had sold her land and the houses to Bahawal for a sale price of Rs,15,000 received the sale consideration and transferred possession of the property sold to Bahawal and second, whether she had appeared in Court and admitted the claim filed against her. Both the above points are deeply inter-mixed. Apart from clear evidence there were visible indications and audible whispers on record to show that neither sale of the land and houses took place nor sale consideration received nor possession changed. Similarly, appointment of the Advocate by Mst. Rasoolan, filing of writen statement conceding to the plaint-claim or making of a separate statement and recording of it by the trial Court admitting the sale and receipt of consideration were not satisfactorily proved. There were doubts about genuineness of the receipt Exh.D.1 also. Apart from intrinsic evidence para. 2 of the plaint Exh.D.5 in the suit filed by Bahawal further added to the doubts. Para.2 of the plaint alleged about a previous oral sale and payment of Rs,15,000 and transfer of possession. As said elsewhere, plaint was written on 10-3-1970. Receipt Exh.D.1 was reduced to writing on 16-3-1970. It was thumb-marked by Mst. Rasoolan and D.Ws Saee and Ghulam Rasool. It did not bear either signatures or thumb-marks of Bahawal. From a writing appearing on Exh.D.1, it looked that it was scribed by a Petition-writer. Be that as it may, the author of the receipt did not come forward to establish its writing by him nor did the record assist as to who had written it. Bahawal deposed that payment of sale price was made under the Dhari of Advocates and receipt was also written there. D.W.2 Ghulam Rasool, deposed that sale price was paid in his presence before the Court. D.W.1 did not specify the place of payment of the sale price.
20. As far the plaint, its para. 2 gave altogether a different version. Para. 2 of the plaint written in vernacular read:- {{URDU TEXT}} ' Paragraph of the plaint re-produced above clearly indicated that the sale and. Payment of sale price was oral about six months prior to the suit. Copy of the statement of Mst. Rasoolan, if any, recorded by the trial Court in the civil suit was not produced in evidence. There was no material to show that receipt Exh. D.1 was either produced in the Court or shown to it in the previous suit culminating in consent decree. Nor was there any proof that payment of sale price was made in view of the Court. Though the receipt was shown to have been written in the Dhari of the Advocates, yet no person from the Dhari of the Advocates came forward to support its execution there. Therefore, execution of receipt Exh.D.1 on 16-3-1970 to establish payment of Rs,15,000 as sale price to Mst. Rasoolan was open to serious doubts. Likewise, oral sale of the land and the houses by Mst. Rasoolan was equally susceptible to grave doubts. Upon the allegations contained in para. 2 of the plaint, sale and payment of price-were both oral about six months earlier to the filing of the suit, but surprisingly, there was no contemporaneous writing to support the sale and witness the payment of sale price. Similarly, there was no plausible explanation forthcoming for not reporting the matter to the Revenue Authorities for incorporation of oral sale in Revenue records. There appeared to be no convincing evidence to establish oral sale of the land and houses by Mst.
21. Rasoolan and payment of sale price to her. Possession of the land and the houses was also found with the plaintiffs. As far the second limb of the case, whether Mst. Rasoolan had submitted written statement in Court and consented to the decreeing of the suit, Mst. Aisha deposed that her mother had neither sold the property nor appeared in Court and had also not filed the consenting written statement. Mst. Rasoolan was already dead. Therefore, in view of the negative statement of Mst.
22. Aisha on oath, initial onus resting upon the plaintiffs shifted to the other side to prove the affirmative that Mst. Rasoolan had appointed the Advocate and filed the written statement conceding to the plaint in the suit filed by Bahawal. None from her close ones was shown to have accompanied her to the Court. Mirza Muhammad Salcem, Advocate, appeared in the criminal case and deposed that she was identified to him by Bahawal. On present record, therefore, identity of Mst. Rasoolan before the Court, which gave the consent decree was not adequately proved. As far the opinion of Finger Prints Expert given on comparison of prints on Jawab Dawa with those of Mst. Rasoolan in the Register of Petition-writer, in my opinion, it was unsafe to rely, on, because there was not sure guarantee that those were really of Mst. Rasoolan. Also, genuineness of application Exh. P. I was not free from suspicion. At the hearing of the matter, Mr. Q.M. Salim, Advocate, learned counsel for the petitioners made a serious grievance that the learned Judge below upon a superficial glaze of the record gave adverse findings and prayed that the matter be re-heard by him. I regret to note that the grievance did not appear to be wholly without substance.
23. In ordinary circumstances, the course suggested would have been appropriate course, but in the existing circumstances and state of record, I am not prone to remand the case for giving it another long lease of life, particularly, when even after excluding the opinion of the Finger Prints Expert, there was sufficient evidence available on record for final determination of the case on merits. As was clear from the reference to the evidence taken note of in the preceding paragraphs, neither sale of the property-in-dispute nor payment of sale price for it were adequately proved and established.
24. Similarly, it was not proved on record that Mst. Rasoolan had appointed the Advocate and filed the concessional written le statement admitting the sale of her property and receipt of sale consideration in respect of it Order-sheet maintained by the trial Court in the former suit had not been made part of the record. Within five days of the registration of the civil suit, Mst. Rasoolan was shown to have appeared and admitted the claim. Matter pertain :d to 1970. Neither the quantity of the property sold nor the price stated to have been paid for it was unsubstantial any yet everything was oral. For six long months everything went quiet and nothing was reduced to writing. Mst.
25. Rasoolan was not related to Bahawal. At least, there was nothing on record to suggest any relationship betweeen them. After the expiry of six months from the date of the alleged oral sale, a suit was filed in Court and within five days, presence of Mst. Rasoolan was procured for filing of a concessional written statement to be a prop for a consent decree. As the impugned judgment was that of reversal and the learned Judge below had not applied his full mind to the record, I had to look into it carefully so as to discover the soundness of conflicting judgments rendered in the Courts below.
26. My own examination of the record leads me to the only conclusion that the sale of the property-in- dispute and payment of price for it were not proved and the record in the previously instituted civil suit did not represent the correct version of the events. It is in this view that I find it difficult to agree with the assessm ent of record by the learned Judge below and am unable to endorse his conclusions.
27. ' In view of the foregoing discussion, civil revision is allowed. Impugned' judgment and decree dated 18-11-1982 of learned Addl. District`Judge, Gujrat are set aside and those of the learned trial Court restored with no order as to costs in this Court.
28. Records be returned.