1. Land measuring 9 Kanals comprised in Khasra No. 35/2, situated in revenue estate Panjorian in Tehsil Kharian of District Gujrat belonged to one Farzand Ali. In the first instance, he was alleged to have sold it out to Ahmad Din, Allah Ditta and Adalat Khan sons of Wali Dad, residents of Sandharian in Tehsil Kharian for the sale price of Rs.4,000 vide a sale-deed executed on 17-12-1964 and registered on 25-1-1965. This sale was completely disowned by Farzand Ali and he re-sold the same piece of land to Abdul Ghani, Ghulam Nabi and Ahmad Khan sons of Sultan Ali of Village Sandharian for a sum of Rs.6,000 through the sale-deed executed on 21-12-1964 and registered on 22-2-1965. Possession of the land was transferred under the sale to these vendees, who shall hereinafter be referred to as respondents in the case.
2. On 17-11-1965, the respondents as plaintiffs instituted a civil suit for declaration of their ownership rights in the above piece of land on the basis of sale-deed in their favour and for the consequential relief of perpetual injunction for prohibiting the appellants, who were defendants Nos. 2 to 4 in the suit, from denying their rights in the land and also causing interference thereto. It was principally averred that proposed sale in favour of appellants had fallen through and was rescinded because of a dispute about the sale-price arising between the parties to it. Farzand Ali was defendant No. 1, in the aforementioned civil suit. He submitted his separate written statement. He affirmed the sake of land in favour of the respondents and denied the sale of his land to the appellants and receipt of sale-price for it from them. He stated that he had not finalized the, sale of the land in their favour.
3. He did not thumb--mark the deed; he did not appear before the Sub-Registrar to admit the execution of the sale-deed; neither did he thumb-mark it before him. Defendants Nos. 2 to 4 submitted a joint written statement and averred a valid sale of the land in dispute in their favour by Farzand Ali. It was stated that in presence of a completed sale of the land in their favour, second sale of the land to the respondents was hioperative on their rights.
(1) Whether registered sale-deed in favour of defendants Nos. 2 to 4 was not obtained through fraud and wrongful impersonation? OD. 2 to 4.
(2) Relief.
4. On the same day, the trial Court recorded the statement of defendant No. 4 (Adalat Khan) who deposed that the original sale-deed was in possession of Farzand Ali and that he was not present at the time of registration of the sale-deed. Since the onus of proof 'was placed upon the defendants, they led their evidence first. Allah Ditta Moharrir Registration D.W.l depos'td that the deed at Serial.No. 72 was entered in the Registration Book and its certified copy was Exh. D.1. Malik Abdullah Khan, Naib-Tehsfdar D.W.2 deposed that deed at Serial No. 72 in Bahi NO. 1 was signed by him and it was a correct certified copy of the original deed. Ch. Manzoor Elahi, Advocate practising at Kharian as D.W.3 stated that he had witnessed the registration of the deed at the instance of Farzand Ali. A question regarding his identification of Farzand Ali was disallowed by the Court. So also a question about payment of sale --price was disallowed by the trial Court because original sale-deed was not produced in Court. In cross-examination, the witness deposed that he had seen Farzand Ali once in tehsil. Ahmad Din, one of the defendants as D.W.4 deposed that he had purchased the land from Farzand Ali through a registered sale-deed and Ch. Manzoor Elahi and Muhammad Ishaq had attended the proceedings for registration of , the sale-deed. A question about payment of sale-price was turned down by the trial Court by the order which reads as:-- "The defendant has failed to produce the original document and has also not shown it to be lost. As such no reference to the original sale--deed or its contents is allowed. (Sd.) 9-9-1967."
5. At this stage of the trial of the suit, learned counsel for defendants-appellants Ch. Maqsood Hussain, Advocate sought permission from the trial Court to withdraw from the suit. The trial Court gave him the permission to withdraw. In consequence, appellants appointed another Advocate to conduct defence in the suit on their behalf. Thereafter, do application for amending the written statement for adding an objection to the, jurisdiction of the trial Court was filed. It was allowed on 18-1-1968 and after the amended pleadings were filed, an additional issue given below numbered 1-A was added. It reads:-- Thereafter, the suit was adjourned for theremaining evidence of the defendants. Ahmad Din, one of the defendants as D.W.4, gave evidence to the effect that he purchased the land from Farzand Ali by a registered sale-deed and paid him sale price of Rs.4,000. He further deposed that after registration the sale-deed, it was handed over to Farzand Ali for attestation of the mutation on it, but he neither returned the deed nor got the mutation attested in their favour Instead, he sold the land to other persons. He deposed that Ch. Manzoor Elahi had identified Farzand Ali before the Sub- Registrar. In cross--examination, he refuted the suggestion that execution of sale-deed and its registration were falsely manoeuvred and, therefore, registered deed was torn by ('h. Maninor Elahi, Advocate to efface the traces of fraud and forgery. Certified copy of the registered deed Exh. D.1, Mutation No. 1635-Exh.D.2 and Fard Jamabandi for the year 1960-61 Exh.D.3 were produced in evidence and it was closed on 18-4-1968. Thereafter, suit was adjourned for the plaintiffs' evidence to be taken on 23-7-1968. Meanwhile, on 19-4-1968, the defendants filed a petition for resummoning of Ch. Manzoor Elahi and Malik Abdullah Khan, Naib-Tehsildar under Order XVIII, rule 17 of Civil P.C. On 28-6-1968, trial Court gave the permission to produce secondary evidence for proof of the sale-deed as prayed for. Once again, the defendants commenced leading their evidence and produced Allah Ditta D.W.1, Malik Abdullah Khan, Naib-Tehsildar D.W.2 and Ch. Manzoor Elahi, Advocate D.W.3. In rebuttal, plaintiffs gave evidence of Muhammad Iqbal, Moharrir Registration, Kharian P.W.1, Ch. Muhammad Hussain, Head Registration Clerk, D.C.'s Office P.W.2, Farzand Ali (defendant No. 1) P.W.3, Allah Ditta, Deed Writer P.W.4 and recorded the statement of Abdul Ghani one of the plaintiffs as P.W.5. Upon review of the evidence adduced at the trial of the suit, the trial Court decreed the suit in favour of the plaintiffs on 25-1-1971. It found that execution of sale-deed by Farzand Ali in favour of defendants Nos.. 2 to 4 and its registration at his instance were not established. Issue No. 1-A was not pressed. In appeal preferred by defendants Nos. 2 to 4, the decree passed by the trial Court was maintained by learned Additional District Judge, Gujrat.
6. Thus, the two Courts below were agreed on a decision in favour of the respondents.
7. Decision of the second appeal hinged on the sole point relating to voluntary execution of and registration of the sale-deed by Farzand Ali in favour of defendants/appellants. In face of a clear denial by Farzand Ali, onus to prove execution of the sale-deed and the contents of endorsements on it was upon defendants Nos. 2 to 4. Original sale-deed was not produced in evidence. Ordinarily, its custody must be held by the contesting defendants Nos. 2 to 4. Transfer of its custody to Farzand Ali for the purpose of attestation of mutation on it was not a plausible explanation. Its custody in the first instance by defendants Nos. 2 to 4 and later transfer of its custody to Farzand Ali was not divulged in the written statement. In the event of loss of original sale-deed, the defendants were bound to prove its execution by production of satisfactory secondary evidence. Neither the stamp-vandor, who sold the stamp-papers on which the sale-deed was scribed, nor the deed- writer, who had scribed the sale--deed, were produced in evidence. Similarly, Muhammad Ishaq, the second marginal witness, was also withheld from the Court. There was no explanation A .for his non-appearance in the witness-box to give evidence. Ch. Manzoor Elahi, Advocate was examined twice. His testimony was conflicting. On the first occasion, he deposed that he saw Farzand Ali only once in Tehsil. On the second occasion, he deposed that he was personally, known to him. This was a significant improvement upon. his earlier statement. Sub-Registrar was not acquainted with Farzand Ali. Therefore; his statement on his identity was not helpful. Ch. Manzoor Elahi was once Chairman of Union Council. He was also a practising Advocate of the area. Since he was involved in local bodies politics, he was interested in his vote bank. Therefore, his solitary statement was not much assisting. No person from the village came forward to give evidence or was associated with execution of the sale of the land. Possession of the land was also held by the plaintiffs. The land was adjacent to their houses and lay in A front of them. There was no suggestion that possession of the appellants was ever disturbed by force or otherwise and no complaint on this score was made either. Evidence repeated after permission for leading secondary evidence was given by the trial Court was similar to the evidence already produced by the appellants, except the testimony of Ch. Manzoor Elahi, Advocate who went in details of the case. However, his testimony by itself did not much improve the case set up in defence by the appellants. In Mst. Akhtari Begum v. Muhammad Qasim 1993 CLC 2250 (Karachi) dealing with the credibility of the witnesses, the Court observed that: "In order to judge the credibility of the witnesses, the Court is not confined only to the way in which witnesses have deposed or to the demeanour of the witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities so that it may be able to form a correct idea of the trustworthiness the witnesses. This point cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence". In taking this view, two judgments of the Supreme Court of India reported in AIR 1969 SC 255 and AIR 1971 SC 2439 were referred to with approval. Having regard to an overall view of the record in the light of facts and circumstances of the case, the Courts below rightly found that the sale of the land in favour of the appellants by the registered sale-deed relied upon by them was not established with the consequence that the respondents were 8 rightly adjudged its owners in possession on the basis of registered sale-deed in their favour. Upon this view, concurrent findings on question of fact were immune from further scrutiny in second appeal. .
8. In view of the above, second appeal is bound to fail and is accordingly dismissed with no order as to its costs in this Court.