' This is plaintiffs revision petition in which a concurrent finding of fact recorded by both the Courts below under issue No,1 that the sale-deed in dispute was not procured through fraud and misrepresentation as alleged by the petitioner and that the suit was barred by time have been challenged.
2. The petitioner was holding verified claim in respect of land left by him in India. He executed a power of attorney in favour of respondent No,1 on 25-7-1964 which was produced in evidence as Exh.P.1 conferring upon him all the powers to enable him to get evacuee land allotted in lieu of his said claim authorising him also to receive and making payment, sell the property and execute the transfer deeds. In the concluding part of this power of attorney admittedly executed by the petitioner the same was described as sale-deed. The land in dispute was allotted to the petitioner at Khata No, 22 of RL-II (Exh.P.2). This document shows that the land was proposed on 26-3-1968 and confirmed on 31-3-1969. The petitioner was present as per entries in this document. This allotment was obtained with the efforts of respondent No,1 in pursuance of the said power of attorney.
3. The petitioner, according to respondent No,1 sold this land through registered sale-deed dated 13-8-1970 for an amount of Rs,14,000 to respondents Nos,1 and 2 who are father and son respectively and Muhammad Rashid deceased predecessor-in-interest jointly. The petitioner kept silent for a period of about 13 years and filed a suit on 3-1-1983 out of which this revision petition has arisen alleging that the said sale-deed was procured through fraud and misrepresentation by respondent No,1. It was pleaded that he was given understanding that another power of attorney was necessary to be executed by the petitioner in furtherance of the previous power of attorney to get the land allotted in his favour as claimed. According to him as averred in the plaint he came to know about this fraud about 2/3 months before the institution of the suit through Patwari to whom he approached for getting certified copies of Revenue Record to file judicial proceedings against Wali Muhammad etc. The tenants for their ejectment on their having become defaulters in the payment of Batai. The suit was contested by the respondents. Various issues were framed but ultimately the respondent did not press any other issue except issues Nos,1 and 6 i,e, with regard to limitation and the case was tried as regards issues Nos,1 and 6, issue No,1 being whether the sale- deed was procured through fraud.
4. The two Courts below after careful and elaborate appraisal of evidence produced by the parties came to the conclusion that the petitioner failed to establish that the sale-deed in dispute was procured through fraud. It was also held that the suit was barred by time. The trial Court dismissed the suit through judgment dated 31-7-1986 which was maintained in appeal by the lower appellate Court filed by the petitioner through judgment dated 19-11-1987.
5. Learned counsel for the petitioner submitted that the original sale-deed in dispute dated 13-8- 1970 was not produced whereas a copy of the same was produced in evidence as Exh.P.3 and the oral evidence produced by the respondents to prove the execution of the said document was not admissible as no permission was obtained from the trial Court to produce secondary evidence after establishing good grounds as to why the original document was not forthcoming, as such, the execution of the sale-deed shall be deemed to have not been proved as required by law.
6. I am afraid the fallacy of this argument lies in erroneous assumption as if the presence of thumb-impressions of the executant/petitioner on the document had also been denied and it was necessary to prove that in fact the executant put his thumb-impressions on the document. In this case the petitioner admitted the presence of his thumb-impression not only on the document itself but his approaching the scribe who write the document and his appearance before the Sub- Registrar. The case as pleaded by the petitioner was that his thumb-impressions were obtained giving him understanding that the document Was a power of attorney, as such, non-production of the original document was not fatal either to the case of the respondents or to the admissibility of whatever evidence had been produced by the respondents as the evidence of the petitioner on these allegations was to be rebutted by producing evidence that the story as made out by the petitioner was not correct which could be produced without producing the original document. Even otherwise an objection regarding admissibility of certified copy of sale-deed in dispute Exh.P.3 in evidence and the oral evidence produced by the respondents should have been raised at the relevant time when the said evidence was produced so that the respondents could be made aware so that they could take steps for making application for permission to lead secondary evidence. This is apart from the fact that the certified copy of the sale-deed in dispute was produced in evidence by the petitioner himself, therefore, admissibility of the same could not be questioned by him.
7. Since the validity of document had been challenged on the ground of fraud, therefore, initially the onus to prove was on the petitioner to prove that the document was not in fact the sale-deed but he put his signatures on the understanding given to him that the same was a power of attorney and evidence should also have been led as to on which date he came to know about this fraud to ascertain whether the suit was within limitation as under the law period of limitation for such a suit based on fraud was to start from the date when the fraud came to the knowledge of the plaintiff. The averment in the plaint that the petitioner came to know regarding fraud about 2/3 months prior to the institution of the suit was not evidence of the said fact unless the same was so stated in his own statement or other evidence led. The petitioner appeared as his own witness in the case and did not examine any other witness. In his statement there is nothing about the exact date on which the alleged fraud came to his knowledge, therefore, he has to fail on this account as the suit filed after a lapse of about 13 years was rightly held to be barred by time.
8. Learned counsel for the petitioner submitted that the sale was without consideration. In support of this argument he maintained that there is no evidence regarding payment of consideration mentioned in the sale-deed excepting the statement of respondent No,1.
9. I am afraid if a sale is effected through registered sale-deed in which amount of consideration was mentioned could be construed to be a sale without consideration though it may altogether be a different matter whether the payment of this consideration was made or not. Petitioner and respondent No,1 are not admittedly related to each other. Execution of power of attorney in favour of respondent No,1 in the year 1964 authorising him to get the land allotted against verified claim of the petitioner and to sell the same must have been for some consideration which though not mentioned in the said power of attorney but the same can be inferred that in lieu of the efforts to be made by respondent No,1 for doing the needful and for the expenditure which be had to incur there must have been understanding that the land would be sold to him and it was in pursuance of this understanding that the sale-deed was executed and registered after the land was allotted to the petitioner after the receipt of consideration, for, otherwise there was no reason that without any compensation to be paid to the respondents he would take upon himself for the petitioner to get the land allotted against his verified claim which involved lot of time, money and inconvenience.
10. Learned counsel for the petitioner then submitted that there was no cogent evidence to prove payment of consideration mentioned in the sale-deed. In the facts and circumstances of this case in my view the statement of respondent No,1 that the petitioner was paid the said amount at his house prior to the execution of sale-deed inspires confidence and was sufficient if considered in the background and context of the said factual background. Had respondent No,1 intended to play fraud upon the petitioner he could very conveniently have arranged witnesses who could depose that the amount of consideration was paid in their presence, if he could get the sale deed executed as alleged by giving understanding to the petitioner that it was a power of attorney.
11. Syed Karar Hussain D.W.1 is the scribe of the disputed sale-deed who categorically stated that the petitioner put thumb-impression on the sale-deed which was written by him and was read over to him. He also stated that the petitioner put his thumb-impression against the relevant entry of this document in his register. Rchmat P.W. 2 is one of the marginal witnesses of the document who also proved execution of the same by the petitioner. Ch. Iqbal Ahmad the other marginal witness was produced as D.W.3 who also identified the petitioner before the Sub-Registrar.
12. Learned counsel for the petitioner submitted that D.W. 2 Rehmat was the servant of D.W.1 Syed Karar Hussain whereas Ch. Iqbal Ahmad D.W.3 admittedly used to sit in the same room where the son-in-law of respondent No,1 who was an Advocate used to sit, therefore, evidence of all the three witnesses should not have been given any credence as it was a gang and they played fraud with the petitioner. He maintained that since the petitioner was an illiterate person, therefore, the law required that the execution of document by him as alleged should have been proved by the respondents as the onus of the same was shifted to them.
13. I have gone through the evidence of these D.Ws. Which in my opinion inspires confidence and there is no reason to accept the argument of the learned counsel for the petitioner that they conspired to play fraud upon the petitioner. If D.W.3 had friendly relations with the relative of respondent No,1 it was no reason to disbelieve D.W.1 and D.W.2. Wall Muhammad D.W.5 was one of the tenants over the land in dispute who according to his evidence made an application before the Collector for correction of Khasra Girdawari. According to Jamabandi for the year 1979-80 (Exh. D.1) in the column of ownership the name of Fazal Elahi as owner was substituted. According to Khasra Girdawari Exh. DW.5/1 Wali Muhammad, Muhammad Hussain and Siddique respondents Nos, 13, 14 and 15 were recorded as tenants of the land. This Khasra Girdawari is from 1977 to 1980. It was rightly held by the two Courts below that the name of Fazal Elahi had continuously been appearing in the relevant record since 1972 and the land was Banjar Qadeem according to the entries of the said Jamabandi. Exh.D.1 Copy of Jamabandi also shows that there are entries regarding mutations of sales of land to different persons by Fazal Elahi. This oral and documentary evidence is sufficient to hold that the onus to prove which according to the petitioner was shifted to the respondents to prove execution of sale-deed due to illiteracy of the petitioner stood convincingly discharged against which mere bald statement of the petitioner which too does not inspire confidence coupled with the silence of the petitioner for the long period of 13 years is not sufficient to rebut the said evidence of the respondents.
14. The story made out by the petitioner that he came to know about the fraud when he approached Patwari to get copies of Revenue Record does not seem to be correct as Wali Muhammad when appeared stated that he never committed any default in payment of Batai.
15. The concurrent findings of fact recorded by the two Courts below did not suffer from any material irregularity and illegality such as misreading, C -4 misconstruction or non-reading of evidence, therefore, this revision petition has no force which is accordingly dismissed with no order as to costs.