This revision was directed against the judgment dated 8-2-1981 of the learned Additional District Judge, Faisalabad whereby appeal of the petitioners was dismissed and the judgment and decree of the learned trial Court dated 13-12-1976 decreeing the suit of Muhammad Yar, respondent, was maintained.
2. Brief facts of the case are that Muhammad Yar filed a suit for confirmation of possession and declaration over Plot No. 149/A, Peoples Colony, Faisalabad with the averments that while he was in possession of the house under the sale agreement, Niaz Mohy-ud-Din transferred the rights in the plot to Mst. Hurmat Bibi without any justification. Later on, an amended plaint was filed challenging the order of Deputy Commissioner dated 31-7-1973 whereby the house was transferred to Hutmat Bibi. The order dated 3-12-1973 dismissing the review petition was .also challenged. Niaz Mohy-ud- Din and Hurmat Bibi contested the suit by filing a joint written statement with the pleas that the suit was not maintainable in its present form and that the plaintif was estopped to file the same. On merits, it was asserted that the house was never sold to the plaintiff and the receipt and other documents were forged one. The learned trial Court framed as many as 6 issues arising out of the pleadings of the parties. The main issue contested between the parties was whether the suit was not maintainable in the present form. OPD.
3. The trial Court after recording evidence of the parties found all the issues in favour of the plaintiff and decreed the suit. The appeal filed by the petitioner also failed. There is, thus, concurrent finding of fact in this case. Both the Courts below have accepted the receipt Exh. P.W.2/1 as genuine from which the sale arrangement is clearly spelled out.
4. Learned counsel for Niaz Mohy-ud-Din in support of the revision petition argued that the learned Courts below have erred in law in holding that the receipt Exh. P.W.2/1 had been executed by the petitioner; that the application for summoning the handwriting expert submitted by the petitioner during the pendency of the suit was illegally rejected and in the circumstances plaintiff could not be said to have discharged the onus of issue, that in any case the suit is not maintainable in the present form and that the suit for spec performance should have been filed. Learned counsel for Muhammad Yar, on the other hand, argued that concurrent finding of fact recorded by the learned.
Courts below cannot be substituted in revisional jurisdiction; that the suit as filed in the circumstances was competent and maintainable. In support of this, reference was made to the case of Ewaz Ali v. Mst. Firdous Jehan and others (AIR (31) 1944 Oudh 212), S.N. Banerji and another v.
Kuchwar Lime and Stone Co. Ltd. and another (AIR 1941 Privy Council 128) and Mst. Akhtar Begum v.
Mian Aziz and others (1985 SCM R 1617). The other case cited have been noticed in the Supreme Court judgment and as such need not be noted separately.
5. I have considered the submissions of learned counsel for the parties and have gone through the judgments of both the Courts below as well as evidence on record with the assistance of learned counsel. 'The receipt, Exh. P.W.2/1 was proved by producing two attesting witnesses, their statements are consistent. The only discrepancy pointed out was as to the person who had scribed the said receipt. Such a discrepancy on a minor point is not material. Muhammad Yar, however, was not asked as to who had scribed the receipt. Nazu' Ahmed, P.W.1 had categorically stated that the receipt is in his writing.
The plea that there has been a miscarriage of justice on account of failure to allow the petitioner to produce handwriting expert in evidence has also no merit. The receipt was proved by production of two witnesses. Muhammad Yar, plaintiff, had also sought permission to produce handwriting expert but then on account of his failure to deposit expenses as also to produce the handwriting expert himself, request to allow further time was not allowed. After the plaintiff concluded his affirmative evidence, the petitioner-defendant appeared as his solitary witness and closed his evidence.
Thereafter, some evidence in rebuttal was produced by the plaintiff and then the petitioner--- defendant submitted an application for production of handwriting expert in order to substantiate his plea that the signatures appearing on the documents produced by the plaintiff in affirmative evidence were not his signatures. This application was rejected as belated one. The order rejecting the application was assailed in revisional jurisdiction before the revisional Court but revision was dismissed. Obviously at that stage petitioner could not have claimed right A to produce evidence after having closed his evidence earlier. It is pertinent to note that these documents were not produced in rebuttal evidence but the petitioner was seeking another chance to produce the evidence.
6. This being the position the question is whether his own statement denying his signature was sufficient to discharge the onus in the presence of statements of attesting witnesses, whose statements except for aforesaid minor discrepancy were not challenged on any score. Both the learned Courts below have accepted the evidence of the attesting witnesses as reliable and trustworthy. The mere denial of execution of documents by petitioner- defendant cannot be made basis for discarding the testimony of two independent witnesses. In these circumstances, this Court in exercise of revisional jurisdiction cannot substitute the concurrent finding of fact recorded by the learned Courts below. It will be seen that question of confronting the petitioner with the documents also does not arise as in his examination-in--chief, he had stated that he had not signed the documents produced by the plaintiff in his evidence.
7. On the question of maintainability of suit, learned counsel for respondents relied on the observation of the Division Bench in the case of Inayat Ullah and others v. Shah Muhammad and others (PLD 1961 (W.P.) Lahore 372). These observations have been quoted with approval in the case of Akhtar Begum v. Mian Aziz and others (1985 SCM R 1617). These observations read as under:-- "It would be rather anamolous if the position of a transferee in a suit, i.e. whether he has come to Court as a plaintiff or as a defendant should determine whether he should be accorded recognition of his rights and if he were a plaintiff he should fail but if he raised precisely the same plea if he were a defendant he should succeed. I am of the view that when a transferee by means of a document which has not been registered, though under the law that document was compulsorily registrable, comes to Court as a plaintiff and bases his claim on part performance, of the contract of transfer, he is using the part performance of the contract as a shield and not as a sword as his object is only to defend his own title and not to attack the title of anyone else. The decision of their Lordships of the Privy Council in Probodh Kumar Dass v. Dantamara Tea Co. was, therefore, of no avail to defendants Nos. 2 to 9."
In the instant case, it will be noted that Exh. P.W.2/1 itself stated that the possession had been delivered. The requirements of section 53-A of the Transfer of Property Act are, thus, present and as such the suit seeking confirmation of the possession in pursuance of agreement to sell was maintainable. It may be noted that on one of the dates, representatives of the Housing and Physical Planning Department stated that policy of the Department is to abide by the declaration made by the competent Court in respect of the rights claimed by the parties.
8. For the reasons given above, no justification is made out for interference in exercise of revisional jurisdiction. The revision fails and is hereby dismissed leaving the parties to bear their own cost.