This revision petition has been filed by Shah Zaman Ali defendant under section 115 of the Code of Civil Procedure in order to call in question the judgment and decree of affirmance dated 16-11-1993 whereby the learned Additional District Judge, Lahore dismissed the appeal filed by petitioner and maintained the judgment and decree passed by the learned Civil Judge, Lahore dated 25-4- 1992/decreeing the suit for cancellation of registered sale-deed dated 15-4-1977 filed by Mst.
Mussarrat Begum/respondent.
2. A few facts, relevant for the disposal of this petition, are: that the respondent instituted a suit under Section 39 of the Specific Relief Act against the petitioner for cancellation of registered sale- deed dated 15-4-1977. It was alleged therein that she was owner of the property in dispute bearing No.SE--28-S-23 situated in Ram Gali No.6, Lahore; that in July, 1977 she had gone to Karachi and handed over the key of her house to the petitioner who was her neighbour in order to look after the property in dispute; that when she came back from Karachi, she found petitioner occupying her house and claiming that he had purchased the property in dispute by means of registered sale- deed dated 15-4-1977. It was averred in the plaint that neither she had made the sale of the property in dispute to the petitioner nor she had received, the consideration nor she had appeared before the Sub-Registrar for the purpose of registration of the questioned registered sale-deed.
3. The suit was resisted. It was pleaded by the petitioner that the respondent had made the sale of the property in dispute in consideration of Rs.15,000, had received Rs.5,000 as earnest money and received the balance of price i.e. Rs.10,000 before the Registrar at the time of registration of the impugned sale-deed; that the respondent had no nexus whatsoever with the property in dispute.
On the pleas of the parties as many as five issues were framed. The learned trial Judge vide decision dated 3-3-1982 dismissed the suit. On appeal, the case was, however, remitted to the original Court for its trial afresh in accordance with law. Pursuant to this order of remand, the parties led their oral as well as documentary evidence in support of their respective pleas. Upon the consideration of the evidence adduced by the parties, the learned trial Judge found that the petitioner had failed to prove the execution of the registered sale-deed dated 15-4-1977 as required by section 66 of the Evidence Act/Article 78 of the Qanun-e-Shahadat; that the respondent had been defrauded by the petitioner. On these conclusions, the learned trial Judge, vide decision dated 25-4-.1992 decreed the suit. On appeal, the learned appellate Court agreed with the findings of the learned trial Court and dismissed the appeal. Feeling aggrieved from the above decisions, the petitioner has preferred instant revision petition.
4. Learned counsel for the petitioner contended that the two Courts below had not properly considered the evidence of the parties on record. According to the learned counsel, the petitioner had produced sufficient evidence to establish that the questioned document was executed by the respondent in his favour. He heavily relied upon the testimony of Mirza Mahmood Baig, D.W.1 to contend that the aforesaid witness had proved the execution of sale-deed and the receipt of Rs.10,000 by the respondent. It was further contended that the testimony of D.W.1 coupled with the testimony of Zaka Malik, handwriting expert P.W.5 was sufficient in quality and quantity to prove the execution of registered sale-deed. No other point was urged.
5. . After hearing the learned counsel for the petitioner and after having gone through the concurrent conclusions of facts on issue No.l, I am not persuaded to agree with the learned counsel for the petitioner. No doubt, the respondent unequivocally and un-ambiguously denied the execution of registered sale-deed dated 15-4-1977. The petitioner produced Mirza Mahmood Baig, D.W.1, Muhammad Rafique, - D.W.2, and Khawaja Muhammad Yousaf, D.W.4 to prove the questioned sale-deed. The respondent moved an application under Order XVIII, Rule 17 of the Code of Civil Procedure for the purpose of recalling Mirza Mahmood Baig for the purpose of re-cross- examination/alleging therein that the petitioner had produced fake person in the Court and got his statement recorded as D.W.1; that the respondent was a Parda-observing Lady and was not able, at the relevant time, to have a satisfactory identification of Mirza Mahmood Baig. This application, despite contest, was allowed and the petitioner was directed to produce the said witness before the Court. Despite the order of the Court, the petitioner failed to produce Mirza Mahmood Baig on two successive dates of hearing. His father appeared before the Court and stated that Mirza Mahmood Baig was living at his house. On these circumstances, the learned trial Judge was correct in not placing reliance upon the testimony of D.W.1 whose statement was recorded as Mirza Mahmood Baig. As far as the testimony of Khawaja Muhammad Yousaf is concerned, it is sufficient to note that he admitted in the cross-examination that he did not know the respondent. On this evidence, the learned trial Judge was eminently correct in coming to the conclusion that the petitioner had failed to prove the execution of questioned registered sale-deed. .
6. There is yet another feature of the registered sale-deed, which merits notice. The perusal of it shows that it was purchased on 6-11-1976 and was used for writing of sale-deed dated 14-4-1977 and presented before Sub- A Registrar for registration. The petitioner stated, in cross-examination, that it was purchased by his father. On this circumstance, it was correctly observed that execution of deed was not free from doubt. This concurrent conclusions of fact, in my humble view, neither suffers from misreading nor non-reading of evidence nor is contrary to any express provision of law. This conclusion is, therefore not exceptionable in revisional jurisdiction of this Court.
6.In the light of whatever has been stated above, this petition is found to be wholly devoid of merit and is accordingly dismissed in limine.