The dispute between the parties, relates to 14 Kanals, 2 Marlas of land, situated in Chak No.21/GB, Tehsil Jaranwala, District Faisalabad. On 20-11-1988, the petitioner filed a suit for declaration claiming that the respondent has fraudulently got a sale-deed, dated 28-3-1987, executed in his favour qua the suit-land, though he did not appear before the Sub-Registrar etc. In the written statement, the respondent took up the plea that in fact, the land had been sold to him about 10/12 years ago and the entire consideration amount of Rs.12,000 was received by the petitioner; however, the sale-deed was not effected on the promise of the petitioner that when the other sale- deeds would be executed, this instrument shall also be effected in his favour.
2. Issues were framed, parties were put to trial. The petitioner examined himself as P.W.1. He deposed that he did not receive any consideration amount and that the. Respondent fraudulently, in the garb of getting execution of other sale-deeds, had procured his thumb-impressions on the sale---deed in dispute. It is his case that the respondent was a of were of the petitioner upon whom, he had full trust and he had also been dealing with his property matters and that on the date, when the other sale-deeds were executed, the respondent had obtained his thumb--- impressions on the disputed sale-deed as well. P.W.2 Muhammad Akram has also stated that the respondent had not paid any amount to the petitioner and the petitioner has not executed the sale-deed in favour of the respondent. As against the above, the respondent examined D.W.1 Ahmad Ali, Sub-Registrar, D.W.2 Muhammad Asghar is the deed writer, whereas D.W.3 Ch. Naseer Ahmad and D.W.4 Ghulam Nabi, are the marginal witnesses. The respondent himself appeared as D.W.5.
3. On the conclusion of the trial, the learned Civil Judge, allowed the suit, holding that the respondent had failed to establish, if the amount of consideration of Rs.12,000 was paid to the petitioner at the time of execution of the sale-deed. Aggrieved, the respondent preferred an appeal and the learned Appellate Court, while differing in reasons, accepted the claim of the respondent and dismissed the suit of the petitioner, hence this revision petition.
4. Learned counsel for the petitioner contends that according to the case of the respondent, the consideration of Rs.12,000 had been paid to the petitioner about 10/12 years before the execution of the sale-deed, however, there is no evidence led in this behalf; neither it has proved that possession of the disputed property was delivered to the respondent at the time, when he claims to have taken the possession i.e. 10/12 years before the execution of the sale-deed; all the four witnesses, have in clear terms stated that the amount of Rs.12,000 was not paid in their presence. It is also stated that the respondent has admitted in his cross-examination that he is of petitioner's were and has also been looking after the property matters of the petitioner, thus, it is in this scenario that he has played fraud and while getting the execution of sale-deeds Exh. D.2 to Exh.D.4, also obtained the execution of Exh. D.5 (disputed sale-deed).
5. Replying to the above, learned counsel for the respondent has drawn the attention of this Court to paragraph No.6 of the plaint, in which, it is the case of the petitioner that he never appeared before the Sub-Registrar or executed the sale-deed. But, it is stated that while leading evidence, this has been contradicted and a new case has been set up; it is settled law that no case beyond the scope of pleadings can be set out. It is also stated that the respondent through witnesses, in unequivocal term, had proved on the record that the petitioner had affixed his thumb-impressions on the disputed sale deed Exh. D.5. Moreover, this has also been admitted by the petitioner while appearing as P.W.1. In these circumstances, it is proved beyond doubt that Exh. D.5 is a document, which was executed by the petitioner out of his free will, for the consideration, which he had earlier received about 10/12 years ago and had also delivered the possession to the respondent, where the respondent has raised constructions as well.
6. I have heard the learned counsel for the parties. As regards the objection of the learned counsel for the respondent that the evidence of the petitioner is against the pleadings, suffice it to say that according to paragraph No. 6 of the plaint, the petitioner in clear terms, has stated that the impugned sale-deed is based upon fraud; he has not received any amount and had not appeared before the Sub-Registrar. In his evidence, he has elaborated the element of fraud and has deposed the manner, the respondent has procured the execution of the sale deed in dispute while the petitioner was executing the sale-deeds of the other properties Exh. D.2 to Exh. D.4. The averments made in the plaint, though are bit concise, but it cannot be held that the evidence of the petitioner is beyond the scope of his pleadings or he has set up a new case. In fact, the main issue between the parties is, whether the impugned sale-deed is result of fraud and forgery. The petitioner, while appearing as a witness, has given the particulars of fraud, whereas the case of the respondent is that he had purchased the property about 10/12 years ago and made the full payment of consideration of Rs.12,000 and also obtained the possession, where he has also raised the constructions. The petitioner postponed the execution of the sale---deed on the pretext that the same would be executed alongwith other sales as and when made by the petitioner. In order to prove a valid sale, the initial burden whereof was on the shoulders of the petitioner and shifted to the respondent, the respondent examined P.W.2 Muhammad Asghar, scribe of the impugned sale- deed. This witness has only mentioned that the petitioner affixed his thumb-impressions on Exh. D.5 the impugned sale-deed. However, he has conceded that no payment of Rs.12,000 was made in his presence. This is also not the statement of this witness that contents of the sale-deed Exh. D.5 were read over to the petitioner and he had thumb-marked the document after understanding the contents and the nature of the transaction. D.W.3 Ch. Naseer Ahmad has only deposed that he identified the petitioner at the time of execution of the sale-deed and has conceded that no payment was made in his presence and it is not his deposition that the document was read over to the petitioner. D.W.4 Ghulam Nabi, the other marginal witness has also admitted that no payment was made in his presence. He too has not stated, if the document was executed by the petitioner after it was read over to him. Though, an effort has been made by the learned counsel for the respondent to argue that the petitioner is a literate person, because he has admitted in his statement that he is a Lambardar, yet there is no proof on the record, rather the fact that the petitioner is not able to sign, is sufficient proof that he is an illiterate person. None of the witnesses, as mentioned above, has stated that the document was read over to the petitioner and he was made to understand as to what nature of transaction, he is entering into. It is settled law that mere appendage of thumb-impression on --document, would not tantamount to a valid execution of a document, particularly in the case of an illiterate person, until and unless, the document is read over to the person in the language he understands and is made to understand as to the nature of the transaction. This aspect of the matter, is conspicuously, missing in the present case. Moreover, the respondent claims that the consideration amount of Rs.12,000 was paid to the petitioner about 10/12 years before the execution of the sale-deed, but he has led no evidence in that behalf. All the witnesses produced by the respondent, in their examination-in-chief, have admitted that the consideration was not paid in their presence. This is also not established on the record, it the respondent had taken over the possession of the suit property as allegedly claimed by him at the time when the consideration was paid. In the cross-examination, the respondent stated that amount of Rs.12,000 was paid in the "Baithak" of Muhammad Bakhsh, but Muhammad Bakhsh has not been examined to corroborate the above fact.