Briefly stated the facts are that the plaintiff/respondent was owner of land measuring 52 Kanals, 14 Marlas described fully in headnote of the plaint. On 1-8-1972 he alienated 6 kanals of land alongwith an Khata for a sum of Rs.28,000 vide Mutation No.60 in favour of the defendants/petitioners. The defendants/petitioners were also co-sharers along with the plaintiff/respondent in the same Khata. The defendants/petitioners, it is alleged, asked the plaintiff/respondent to alienate 6 Kanals of land out of his Khata to which he agreed and executed a sale-deed in their favour on 30-4-1973. On the same day he had also executed another sale- deed in respect of his residential Khata. The defendants/petitioners, it is alleged, purchased stamp papers worth Rs.1,400 on 30-4-1973 and besides other stamp papers, obtained his (plaintiff/respondent) thumb-impression on the stamp papers. The defendants/petitioners got scribed a sale-deed on the said stamp papers worth Rs.1,400 in respect of his land measuring 52 Kanals, 14 Marlas disclosing the plaintiff that they were getting the sale-deed executed from him in respect of land measuring 6 kanals and residential Khata. The defendants/petitioners produced two sale-deeds in respect of land measuring 6 kanals and residential Khata on 30-4-1973 but did not produce the third sale-deed in respect of land measuring 52 Kanals, 14 Marlas and produced the said forged sale-deed in respect of land measuring 52 kanals 14 marlas on 31-5-1973 and got it attested by producing some fake person. The plaintiff/respondent filed the instant suit for declaration to the effect that the sale-deed dated 31-5-1973 being forged, collusive and fake is liable to cancellation on the grounds that he never sold the said land in favour of the defendants/petitioners, that he never received any consideration for the said land, that he never thumb-marked the said sale-deed and that the said land has been coming in his possession and its possession was never transferred to them. The plaintiff asked the defendants/petitioners to treat the said sale-deed dated 31-5-1973 to be cancelled but as they did not agree to his request hence he was constrained to file the suit whereby he prayed that sale-deed dated 31-5-1973 being forged, fabricated, ineffective on the rights of the plaintiff be declared as such. The suit was resisted by the defendants/petitioners wherein they raised one preliminary objection to the effect that the suit was not maintainable in its present form. They controverted the contentions of the plaintiff/res ndent and asserted that besides purchasing land measuring 6 kanals as residential Khata they had also purchased land measuring 52 Kanals, 14 Marlas for which the plaintiff/respondent had executed sale-deed in their favour on 31-5-1973. They further asserted that they could not get the sale-deed attested on 30-4-1973 as they could not make arrangement for the entire amount and could only make arrangement for Rs.10,600 which was paid to the plaintiff/respondent on that date. They prayed that the suit be dismissed.
2. From the divergent pleadings of the parties the learned trial Court framed the following Issues:-
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the plaintiff is owner with possession of the suit land? OPP.
(3) Whether the impugned registered sale-deed dated 31-5-1973 is the result of fraud and without consideration and hence ineffective upon the rights of the plaintiff? OPP.
(4) Relief.
3. In support of his stand the plaintiff examined Muhammad Zaman (P.W.1), Barkat A.I (P.W.2), Khalil Ahmad (P.W.3) registration clerk, Muhammad Yaqoob D.S.P. Finger Print Expert (P.W.4), Akbar (P.W.5), Muhammad Din (P.W.6) and produced documents Exhs.P.4 to P.9. He examined himself as P.W.7 and after producing documents Exhs.P.10 and P.11 closed his evidence on 20-1-1977. In rebuttal the defendants petitioners examined Atta Muhammad (D.W.1), Nisar Ahmad (D.W.2), Yousaf (D.W.3), Muhammad Anwar (D.W.4), Muhammad Khan Mohal (D.W.5), Arif A.I (one of the defendants)/petitioner examined himself as D.W.6. Their learned counsel produced documents Exhs.D.1 to D.6 and then closed their evidence.
4. After going through the evidence produced by the parties the learned trial Court decreed the suit of the plaintiff/respondent vide judgment and decree dated 26-3-1977. The defendants/petitioners felt aggrieved of the same and filed an appeal which was dismissed by the learned District Judge, Bahawalpur vide his judgment and decree dated 10-9-1978. Hence the instant civil revision.
5. Arguments have been heard and record perused.
6. Learned counsel for the defendants/petitioners has mainly contended that the suit in its present form was not maintainable, that the suit has simply been filed for declaration whereas it should have been filed for cancellation of sale-deed. He further contended that as the sale-deed dated 31-5-1973 is stated to be result of fraud so its cancellation must have been sought and placed reliance upon Mst. Hamidan Begum v. Mst. Murk Begum and others (PILD 19'75 S.C. 624), Muhammad Bashir v. Mst. Sattar Bibi and another (PLD 1995 Lah. 321) and Mst. Sahib Noor v. Haji Ahmad (1988 SCMR 1703). He further contended that the suit was also not maintainable in its present form as the plaintiff/respondent was not in possession whereas the defendants/petitioners had been shown in possession of the same as per copy of Jamabandi for the year 1969-70 Exh.P.5.
As such the suit should have been for possession and consequently ad valorem court-fee would have been affixed on the plaint. He further submitted that the learned trial Court has also relied upon the evidence of Handwriting Expert which he could not as opinion of Handwriting Expert is to be received with cautions as expert is likely to be unconsciously prejudiced in favour of a party calling him and placed reliance upon Mushtaq Ahmad Gormani v. Z.A. Sulehri and another (PLD 1958 (W.P.) Lahore 747) and Ch. Abdul Hameed v. Deputy Commissioner and another (1985 SCMR 359). He next argued that the plaintiff/respondent has executed a sale-deed dated 31-5-1973 which was duly attested by the Sub-Registrar as such presumption of correctness is attached to the said document and in this respect placed reliance upon Pirla and others v. Noora and others (PLD 1976 Lahore 6). He thus submitted that all these facts clearly prove that both the Courts below have not appreciated the evidence in its true perspective and have not exercised the jurisdiction vested in them properly. Consequently he prayed that the civil revision be accepted and judgments of the Courts below be set aside.
7. Conversely impugned judgments have been supported by the learned counsel for the plaintiff/respondent. While supplementing his submissions he referred to the statements of the defendants/petitioners witnesses and stated that it is proved from their statements that alleged sale-deed dated 31-5-1973 is a forged document. While elaborating his contention he submitted that it has been admitted by D. W.1 Atta Muhammad that he did not know if the, plaintiff/respondent appeared before the Sub-Registrar at the time of registration of sale-deed.
However, he admitted that payment of Rs.12,000 was made in the presence of Nisar Ahmad. D.W.1 stands contradicted by D.W.2 Nisar Ahmad who admits that no payment was made in his presence. Similarly D.W.3 Yousaf has admitted that the, parties did not appear in his presence before the Sub-Registrar and that possession of land was also not handed over to the defendants/petitioners, that D.W.4 Muhammad Anwar who is also another witness of sale-deed Exh.P.3 admits that neither he knew the plaintiff Boota nor defendants Arif and others. D.W.5 Muhammad Khan Mohal MIC has admitted that thumb-impression on the sale-deed- had already been obtained before presenting the same for his attestation. He has also referred to the statement of Arif A.I D.W.6 who has admitted that all the three sale-deeds were got scribed from the petition writer .On one and the same date i.e. 30-4-1973 and he has further stated that he did not get sale--deed Exh.P.3 executed on 30-5-1973. However, D.W.6 stands falsified as sale-deed Exh.P.3 has been executed on 31-5-1973 and not on 30-4-1973. He thus, submitted that the defendants/petitioner's evidence has supported the plaintiff/respondent's contentions and as such both the Courts below have rightly passed the impugned judgments.
8. So far as the question of form of suit is concerned he submitted that the suit for declaration is Competent and there was no need for seeking cancellation-of document as the plaintiff/respondent was in possession of-the suit land as per copy of Khasra Girdawari pertaining to Kharif, 1970 to Rabi 1974 Exh.D.1.. In support of his contention he placed reliance on Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 Supreme Court 624). He further submitted that the plaintiff/respondent has asserted fraud and misrepresentation on the part of defendants/petitioners which .Are questions of facts arid findings on such facts having become final in appeal cannot be questioned in revisional jurisdiction and placed reliance upon Taj Din v.
Muhammad Zafar and 4 others (1982 CLC 970 Lahore). He further submitted that both the Courts below have applied their minds to factual and legal aspect of the matter and have given cogent reasons in support of their decisions after properly reading evidence hence it is not a fit case for the interference by this Court by invoking section 115, C.P.C. And placed reliance upon Allah Ditta and others v. Syed Mehdi and others (1982 CLC 1445). He further submitted that findings on facts cannot be challenged in revision and placed reliance upon Pir Abdullah Shah and others v.
Humayun and 5 others (PLD 1957 (W.P.) Lahore 1054). He further contended that the defendants/petitioners have claimed their entitlement over the suit land on the basis of registered sale-deed but in absence of proof of passing of consideration and possession of property mere registration of sale--deed does not operate to pass title to the vendee and placed reliance upon Jewan v. Hafiz Faiz Muhammad (PLD 1957 Baghdad-ul-Jadeed 31). He next argued that in a suit, for declaration with consequential relief amount of court-fee would be computed according to the amount on which relief sought is valued by the plaintiff and placed reliance upon Muhammad Suleman and another v. Javed Iqbal and others (PLD 1985 SC (AJ&K) 1). While summing up his arguments he submitted that the evidence produced by the parties has been appraised, scanned and analysed by the Courts below properly and the findings returned by the Courts below are unexceptionable. He thus, prayed that the civil revision be dismissed.
9. The plaintiff/respondent filed the instant suit for declaration claiming that he had only alienated land measuring 6 Kanals as well as one residential Khata to the defendants/petitioners vide two sale-deeds Exhs. P.I and P.2 but had not alienated land measuring 52 Kanals, 14 Marlas to the defendants/petitioners. He further asserted that sale-deed Exh.P.3 is a forged and fabricated document and he never executed the same in favour of defendants/petitioners. His said stand was controverted and repudiated by the defendants/petitioners. Both the parties have adduced evidence in support of their respective stand which has been discussed above.
10. The learned counsel for the defendants/petitioners have assailed the judgments on the grounds enumerated above which have been repelled by the counsel for the plaintiff/respondent. It is evident from the facts narrated above that the onus was on the defendants/petitioners to prove the execution of sale-deed as they were the beneficiary of the said document. The defendants/petitioners have tried to discharge the said onus by expanding the witnesses regarding the scribing of said document as well as its marginal witnesses and so also the attesting witnesses. A perusal of evidence of said witnesses clearly reveals that they have contradicted each other on material points. Both the marginal witnesses of sale-deed Exh.P.3 do not see eye to eye with each other regarding the payment of amount to the plaintiff/respondent. Even the defendants/petitioners have controverted their own stand which they have taken in the written statement. It is evident from the written statement that they had paid a sum of Rs.10,600 on 30-4- 1973 to the plaintiff and as they could not make the arrangement of the remaining amount so the sale-deed could not be got attested on 30-4-1973. This contention stands repelled by their own witnesses who have stated that the amount paid on 30-5-1973 was Rs.12,000. Again the defendants/petitioners' contention is that all the three sale-deeds were executed on one and the same date i.e. 30-4-1973. However, they stand contradicted by their own document i.e. Sale-deed Exh.P.3 which shows that it was executed on 30-5-1973. Thus, the defendants/petitioners have contradicted their own stand which further gives support to the contention of the plaintiff/respondent that the alleged sale-deed Exh.P.3 is the result of fraud and misrepresentation.
11. Be that as it may, section 115 of the Code of Civil Procedure applies to cases, involving illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which do not, in any way, effect the jurisdiction of this Court, no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. An erroneous conclusion of law or fact is liable to be corrected in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion, an error of law is manifestly shown to have been committed.
12. Neither arty such aspect has been rut forth or highlighted, nor is seemingly available, so as to attract or entail provisions of section 115 of the Code of Civil Procedure, which thus, can neither come into play nor press into service. Judgment and decree now sought to be impeached and set at naught is accordingly unexceptionable as the same neither appears to suffer from any infirmity or any irregularity, what to speak of material irregularity, nor perversity or arbitrariness.
13. Hence viewed from any angle, revision petition merits dismissal and is hereby dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.