Mst. Halim Khatoon-respondent on 11-2-1980 filed a civil suit before the Civil Court at Jauharabad seeking cancellation of registered deed No,618 dated 27-9-1978 and Mutation dated 25-11-1978 based upon the said registered sale-deed. The allegation being that the sale-deed was a result of fraud and impersonation and therefore ineffective against the fights of the plaintiff. Similar declaration was sought in respect of the said mutation.
2. In the plaint it was inter alia alleged that she is owner of 5-1/4 Marlas of land comprising in Khasra No,8731/2892 situated in village Naushera, District Khusab and that defendant had got it transferred in his name by producing another woman and that neither she ever received any consideration for the said land nor she appeared before the Sub-Registrar. It is further stated that corrected/amended mutation made in Khasra number changed from 8730/2892 to 8731/2892 was also the result of fraud and collusion. The defendant in reply pleaded that Khasra No, 8731/2892 which was inadvertently mentioned as 8730/2892 in the registered deed was owned by the plaintiff along with her sister Mst. Alam Khatoon and brother Amir. That all the three co-owners duly transferred their shares in the said Khasra numbers for a consideration of Rs,12,000 and got the sale-deed executed by appearing before the Sub-Registrar. It was also explained that Khasra No,8730/2892 was that of Eid Gul and the only Khasra number owned by the three co-owners being 8731/2892, the mutation was accordingly got attested to give effect to the actual transaction between the parties. After framing issues the learned Civil Court proceeded to decide Issues No,1 and No,7 against the defendant. Issue No,1 pertained to cause of action while Issue No,7 related to allegation of fraud and impersonation played upon while registering the Sale-Deed No,618 dated 23-9-1978 and the Mutation No,13824 dated 25-11-1978.
3. It was inter alia noted that Abdul Manan (P.W.1) and her other witnesses were not cross- examined on their denial of the sale transaction in issue. The trial Court however, after going through the copies of sale-deed produced by the plaintiff concluded that it pertained to Khasra No,8730/2892 and that subject-matter of the suit being Khasra No,8731/2892 the suit land was never purchased by the defendant. It was further held that since the plaintiff was owner of Khasra No,8731/2892 and not the owner of Khasra No,8730/2892 which was sold away by the impugned sale-deed she had no locus standi to challenge the same as it did not relate to her property. As a result of its finding, the Court held that the plaintiff before it was still owner in possession of suit land and Mutation No,13824 dated 25-11-1978 was illegal and void qua her rights. Accordingly the suit of the plaintiff was decreed to the effect that the plaintiff was owner of- the suit land and that defendant had got no concern with the same. Also that the aforesaid mutation sanctioned on the basis of the said sale-deed was illegal, fraudulent and therefore void.
4. The learned Appellate Court--Additonal District Judge, Khushab maintained the judgment and decree though for slightly different reasons. In the order recorded on 5-3-1989 he believed the statement of the plaintiff now respondent that she had not sold the property in question. Also it was noted that the petitioner/defendant in the suit failed to produce the original sale-deed. Further that had the sale-deed been produced on the file it would have gone against the defendant. It was also noted that Mian Muhammad D.W. a witness of the sale-deed did not know as to whether instead of Mst. Haleema Khatoon the thumb-impression of daughter of Munsab Khan was affixed on the sale- deed. Also the learned First Appellate Court on looking at the evidence of the parties concluded that the petitioner-defendant had failed to establish on record that Mst. Haleema Khatoon had executed the disputed sale-deed in his favour. The mutation not being exactly in terms of the sale- deed was also found to be illegal and unenforceable. In concluding part of the order the learned First Appellate Authority rejected an application under Order 41, rule 27, C.P.C. For permission to introduce additional evidence. The petitioner/defendant had sought to produce the Clerk of the Sub-Registrar alongwith the sale documents executed before him including the Register Haqdaran Zamin. The application was found to be belated and an attempt to prolong the proceedings. After rejecting the same the learned Appellate Authority proceeded to reject the appeal.
5. Parties have been heard.
6. The learned counsel for the petitioner has taken quite some time to explain that the plaintiff/respondent only owns the aforesaid Khasra Number 8731/2892 which was inadvertently recorded in the sale-deed as 8730/2892. According to him last-mentioned Khasra number was not the property of the plaintiff and was rather a public place namely Eid Gah. Also contends that mere wrong mentioning of the Khasra number prompted the plaintiff/respondent to file a suit and to blackmail the present petitioner in order to extract more money. It is vehemently contended that the sale-deed was not only properly executed between the parties but also the present petitioner succeeded in proving the same by producing the persons who had identified the plaintiff/respondent before the Sub-Registrar. It is stated that the First Appellate Court wrongly thought that it was for the defendant to prove the sale-deed whereas being a registered sale- deed it was for the plaintiff to prove the same have been forged. In the view of the learned counsel, plaintiff alongwith her sister and her brother transferred their rights by way of the sale-deed in question and it was not imaginable that a brother and sister will join hands to defraud their sister.
He states that the alleged fraud was in vague terms so that the plaintiff could avoid the answer as to why she remained silent for almost one and a half years. Also claims that she has wrongly claimed herself to be an owner of 5-1/2 Marlas of land in the said Khasra number while actually she owned and transferred 10 Marlas. It is stated that by producing Lumberdar who identified the petitioner/respondent and also her brother-in-law no doubt was left as to the execution of the sale-deed. The contradiction in the findings and reasons recorded by the Court is also assailed as an evidence of non-application of mind. Also contends that, even before this Court he has moved an application for introduction of , additional evidence. In support of such application he relies upon re: PLD 1989 SC 112 re: Mohabbat v. Asadullah Khan and others. PLD 1993 SC 336 re: Ghulam Muhammad and others v. Muhammad Aslam and others.
1992 SCM R 1778 re: Zar Wali Shah v. Yousaf Ali Shah and 9 others. PLD 1986 SC 519 re: Muhammad Shafi and others v. Allah Dad Khan.
7. Learned counsel for the respondent however, claims that the present petitioner had played a fraud upon the respondent and that the entries in the revenue record through the aforesaid mutation against the contents of the alleged sale-deed was done at the back of the plaintiff- respondent. Also opposes the prayer for introduction of additional evidence and in that context he relies upon re: Mst. Babra etc. v. Abdul Akbar and others 197,3 SCMR 335. Lastly states that concurrent finding of fact cannot be disturbed unless misreading or non-reading of evidence is established on record. To support the proposition he relies on re: Nazim Ali and another v. Fazal Hussain and 5 others 1981 CLC 985.
8. After hearing the parties I am not persuaded to agree with the submissions made at the bar for the respondent.
9. The case-law relied upon by the learned counsel is not attracted to the facts as the Courts below gave different reasons to allow the relief to the plaintiff. The trial Court found the difference between Khasra numbers stated in the sale-deed and the mutation recorded on the basis of that sale to be of vital significance. In the first instance it was held that the plaintiff had no locus standi to challenge the sale-deed which did not relate to the property owned by her. In the same breath she was declared to be the owner of the suit land and the mutation recorded on the basis of the registered sale-deed was declared to be void. The learned trial Court instead of recording bold finding attempted to avoid the same by finding a middle way as apparently it could not find the sale-deed to have been a result of fraud. The learned First Appellate Authority was all the more unjustified in basing its findings on certain things which either did not appear on the record or in fact were against the record. It based its finding inter alia on the fact that the defendant had failed to place the original sale-deed on record. At the same time he rejected his application in which the prayer was made to summon the original documents and record maintained by the Sub-Registrar.
The learned trial Court as well as the First Appellate Court had also found it sufficient for the plaintiff to have simply denied the execution of sale-deed. While misreading the evidence he placed stress on the cross-examination of Mian Muhammad (D.W.3) and pointed out that the witnesses did not know if instead of plaintiff Mst. Haleema Khatoon the thumb-impression of the wife of Mansab Khan was affixed thereon. The learned First Appellate Court failed to read the very next sentence in which the witness Mian Muhammad (D.W.3) Lambardar repeated that the plaintiff Mst. Haleema Khatoon had actually appeared before the Sub-Registrar in his presence. He was also firm in saying that none else but the two sisters Mst. Haleema Khatoon and Alam Khatoon were present at the time of registration of the sale-deed. Also he denied to be a party to the alleged fabrication engineered by Munsab Khan brother-in-law of the plaintiff.
10. The picture potrayed by the plaintiff does not appear convincing. In simple words it is a case in which a lady alleges that she had been defrauded of her property in which her brother, sister and sister-in-law joined hands. The execution of the impugned sale-deed on 23-9-1978 by the other co-sharers, the brother and sister of the plaintiff is not denied. From the trend of the cross- examination it is attempted to be made out that Munsab Khan brother-in-law of the plaintiff was the main character, who had managed to produce another lady before the Sub-Registrar. The said Munsab Khan (D.W.1) is put a question in cross-examination confronting him that he along with his wife had usurped the sale consideration falling to the share of the plaintiff. The D.W.2 Sajawal has suggested that some other lady instead of the plaintiff was produced before the Sub-Registrar to effect the impugned sale. Likewise D.W.3 Mian Muhammad Lambardar, who identified the plaintiff was put a question suggesting that it was daughter-in-law of Munsab Khan, who had appeared and affixed her thumb-impression in the place of the plaintiff--Haleema Khatoon her real aunt. The plaintiff in her own statement remains very brief. She says that she had inherited the land and that she had never sold the same to the defendant nor had ever refused nor received any sale consideration. In cross-examination she accepts to have not seen the disputed land for the last 20/22 years. Also that in the land in dispute her brother Amir and sister Alam Khatoon were co- sharer.
10-A. It is an established proposition that any person alleging fraud is to prove the same. If the plaintiff had sought a simple declaration that she was owner in possession of the suit property and the defendant had defended his possession on the basis of a sale-deed to support his position then the situation could have been different. Here the plaintiff in her plaint has given all the details of the registered sale-deed as well as the mutation recorded on the basis of that sale-deed though with a difference in Khasra numbers. However in her evidence the exact date of knowledge and her immediate reaction to such alleged forgery is conspicuously absent. It is admitted that the sale-deed in question was executed by the alleged three co-owners including her. The allegation is that she was impersonated by someone. Of course, that impersonation did not happen without active connivance of her brother and sister. Although whole blame was placed on Mansab D.W. The brother-in-law of the plaintiff but the two being co-sharers could not be absolved lightly. However, she has not impleaded either her brother or sister as party. Even her brother-in-law Munsab Khan, who is stated to have misappropriated the share of sale money was not made a party. It also appears unimaginable that she remained unaware of the execution of the sale-deed which both her brother and sister executed in favour of the defendant.
In the cross-examination of her brother-in-law Mansab Khan D.W.1 the real dispute comes out when he is suggested that he along with his wife the sister of the plaintiff had misappropriated the amount of consideration received from the defendant. Munsab Khan, D.W. In either words was led to have struck the bargain. However after the sale-deed was duly executed, he failed to discharge his obligations qua the plaintiff by handing over her share of the consideration.
11. Be that as it may the plaintiff alleged fraud and in view of the ratio settled in re: Hassan Ali v.
District Judge PLD 1969 SC 167 it was for her to prove that she had been deprived of her property fraudulently. By simply denying the transaction the burden on her was not properly discharged as admittedly her brother and sister had executed the deed in favour of the defendant. The defendant in such situation introduced best possible evidence which included Mansab brother-in-law of the plaintiff, who remained associated with the bargain and was also present even at the time of execution of the sale-deed. He alongwith D.W.3 Mian Muhammad Lambardar who identified the plaintiff at the time of execution of the sale-deed, was sufficient to establish the participation of the plaintiff in the registration proceedings. Both the witnesses were not cross-examined on the vital point of identification of the plaintiff. Munsab Khan is brother-in-law of the plaintiff while D.W.3 Mian Muhammad Lambardar is 80 years old who claimed that he knew of the sellers personally and that all sellers got the deed registered in his presence. Also states that neither Mst. Haleema Khatton nor her sister Alam Khatoon were parda-observing ladies. On these vital assertions this witness was not cross-examined. It will also be noted that the delivery of possession was never disputed and therefore, the plaintiff had also made a prayer for recovery of the possession. The defendant being in possession of the suit property and also of a registered sale-deed was not supposed to lead any further evidence as wrongly thought by the Courts below. The aforesaid two witnesses, one being a close relation of the plaintiff and the other being Lambardar of the village who had identified the plaintiff at the time of registration of sale-deed, nothing more was required of the defendant to prove. Therefore, I will agree with the learned counsel for the petitioner that the impugned order as well as the judgment and decree of the trial Court are based upon misreading and non-reading of evidence adduced by the defendant/present petitioner. Since I am inclined to hold for the petitioner on the basis of the record available, application for introduction of additional evidence as moved by the present petitioner has become infructuous.
Accordingly this revision petition succeeds. The impugned order of the Additional District Judge, Khushab dated 5-3-1989 and the judgment and decree of the trial Court dated 9-2-1986 are reversed with the result that the suit filed by the plaintiff shall be dismissed.