' This civil revision petition arises out of judgment, dated 3-12-1983 of the learned Additional District Judge, Sahiwal whereby he dismissed the appeal, filed by the petitioners and maintained the judgment of the learned Trial Court, dated 2-12-1981, passed in a suit, filed by the petitioners/plaintiffs for seeking declaration and perpetual injunction.
2. Land measuring 117 Kanals, 10 Marlas, owned by the petitioners/plaintiffs was agreed to be sold to the respondents vide agreement, dated 10-7-1974 and a final sale-deed was executed between the parties on 31-7-1974. The agreement to sell is marked as Exh.D.3 and the sale-deed is marked as Exh.D.1.
3. The petitioners/plaintiffs filed a suit for declaration and injunction that in the sale-deed besides the land. Ihata belonging to the plaintiffs was also included and described to have been sold by them. It was pleaded that, in fact, the petitioners had agreed for the sale of land measuring 117 Kanals, 10 Marlas only and not the Ihata and that mention of Ihata in the sale-deed was motivated by fraud and that some of the petitioners/plaintiffs were Pardanashin ladies and the contents of the sale-deed 'vere not read over and explained to them. The suit was contested by the respondents/defendants and it was asserted by them that the Ihata to the extent of share of the petitioners/plaintiffs was also sold and transferred and that the sale-deed reflected the correct position. Keeping in view the pleadings of the parties, the learned trial Court framed the issues and both the parties were allowed to lead evidence in support of their respective pleas. On perusal and appreciation of the evidence, the learned trial Court vide judgment, dated 2-12-1981 dismissed the suit which judgment was challenged by the petitioners/plaintiffs in appeal which appeal has also been dismissed by the learned Additional District Judge vide judgment, dated 3-12-1983. This revision has arisen in the aforesaid circumstances.
4. Learned counsel for the petitioners contends that Ihata situated in the land was not part of the sale transaction. It is further contended that in the agreement to sell a note had been added later on to which the petitioners/plaintiffs had never agreed and that no Ihata had ever been agreed to be sold in favour of the respondents/defendants. It is contended that the petitioners Nos.2 to 4 were Pardanashin ladies, who were not read over and explained the contents of sale-deed. It is thus contended that the judgment of the two Courts below suffer from misreading and non reading of the evidence on record and the findings recorded are liable to be set aside accordingly.
5. As against this, the learned counsel representing respondents Nos.1 and 2 has contended that both the documents i,e, agreement to sell Exh.D.3 and sale-deed Exh.D.1, are registered documents and presumption of correctness is attached to the same. It is contended that there is no evidence in support of the allegation of fraud except the statement of Muhammad Tufail; petitioner/plaintiff, whose testimony is not reliable. It is further contended that in view of section 92 of the Evidence Act, presently Art. 103 of Qamw-e-Shahadat Order, 1984 contents of a written document cannot be contradicted by extrinsic material and evidence. He relies on the testimony of the scribe of the document, D.W.2 Khawaja Muaddat Hussain and D.W.1 Zulfiqar Ali, Advocate, to contend that the findings recorded by both the Courts below are based on correct appreciation of the evidence and material on record and do not warrant interference in this petition. In support of his above contention, he has relied upon Martin Cashin and others v. Peter J. Cashin AIR 1938 PC 103, Sennimalai Goundan and another v. Sellappa Goundan and others AIR 1929 PC 81, Lakhamgowa Basavaprahhu Sar Desai v. Appeal and others AIR 1929 PC 30, Punjab National Bank, Ltd., Lahore v.
Dr. A.B. Arora and others AIR 1933 Lah. 1024, Punjab National Bank Ltd., and another v. S.B. Chaudhry AIR (30) 1943 Oudh 392, Nawabjada K. Atikulla and others v. Md. Mobarak Hossein and others AIR
(36) 1949 Cal. 174, Lords Atkin, Thankerton and Porter Hansraj Gupta and others v. Dehra Dun Mussoorie Electric Tramway Co. Ltd. AIR 1940 PC 98 and A.L.N. Narayanan Chettyar and another v.
Official Assignee, High Court Rangoon and another AIR 1941 PC 93.
6. Admittedly, the petitioners/plaintiffs owned agricultural land and residential Ihata as well. The agreement to sell, dated 10-7-1974 Exh.D.3 was executed for sale of the same. The agreement makes mention of Ihata also. Thereafter, sale-deed, dated 31-7-1974 Exh.D. I was executed which also clearly makes mention of Ihata. On the same date i,e, 31-7-1974 a power of attorney was given by the petitioners to Muhammad Shafi to get the mutation in the Revenue Record carried out on their behalf. This power of attorney is Exh.D.2. Exh.D.2 also records the factum of sale of Ihata to the respondents/defendants. It is not the case of the petitioner that all these documents were not executed or signed by them. The execution is admitted. The only objection is that inclusion of Ihata in the agreement to sell and sale-deed is a fraudulent act. However, there is no evidence brought on record to prove this assertion. It is settled law that fraud is not only to be alleged specifically in the pleadings but also to be proved by convincing evidence beyond any shadow of doubt. In A.L.N.
Narayanan Chettyar's case (supra) it was observed that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings must be established beyond reasonable doubt and findings cannot be based on suspicion and conjectures.
7. In the present case, despite the admission as to the execution of agreement to sell, the sale- deed and the power of attorney, it is sought to be alleged that Ihata was not part of the sale transaction and could not be claimed by the respondents to have been sold to them. This cannot be asserted by the petitioners in the presence of the recitals in the aforesaid documents. The mere allegation that the petitioners did not read the contents of the document before signing does not mean that fraud had been practised upon them. Exh.D.2 which is power of attorney, executed in favour of Muhammad Shafi by the petitioners, also mentions the sale of Ihata to the respondents.
This is a document to which the respondents/defendants are not party and is independently executed by the petitioners, therefore, the allegation of fraud is nothing but an after thought.
8. The ladies who are said to be Pardanashin, did appear before the Sub-Registrar at the time of execution of sale-deed, as also before the Notry Public at the time of execution of power of attorney. They, however, did not appear before the learned Trial Court for recording of their statements. Their brother Muhammad Tufail, who appeared before the learned trial Court, admitted that he was educated person (Graduate) and that his sisters had signed the sale-deed before the Sub-Registrar. It is not proved on record that they were illiterate and simpleton. The presumption is that they were aware of the contents of the sale-deed and put their signatures being well conversant with the same. In order to prove the allegation of fraud, the petitioners had to appear to make statement on oath and offer themselves for the cross examination. It was held in Punjab National Bank, Ltd.'s case (supra) that if a person charges another with the allegation of fraud, it is incumbent upon him to substantiate the allegation by making statement on oath and by giving the other party an opportunity of cross-examination. This was not done in the present case and the bare allegation of fraud was of no value.
9. When a transaction is reduced into writing and is signed by the parties, it becomes a binding contract (subject to the requirement of registration, when necessary under the law) and the parties cannot repudiate its terms or resile there from, later on. None of them can detract or lodge a claim over and above the terms of the document itself. It's sanctity is to be accepted and maintained. Article 103 of the Qanun-eShahadat Order, 1984 envisages the principle of conclusiveness of such evidence.
10. In view of the above, I do not find any justification to interfere with the concurrent findings recorded by the Courts below which are based on correct appreciation of the evidence and the law applicable thereto. This petition accordingly has no merit and is dismissed. The parties to bear their own costs.