CH. IJAZ AHMAD, J.--- The brief facts out of which the present regular second appeal arises are that the respondent/plaintiff filed a suit for possession against the appellants on 2.10.1991 in the Court of Civil Judge 1st Class, Easa Khel. The contents of the plaint reveal that the property in question measuring 12-marlas, 13- sarsahi was owned by Malik Sher Muhammad, who died in the year 1986.
After his death the land devolved to the legal heirs of late Malik Sher Muhammad namely Muhammad Ansar Ullah, etc. Muhammad Ansar Ullah, etc. Legal heirs of the original owner executed agreement to sell with respondent-plaintiff on 9.1.1991 who had paid Rs.2,00,000/- to Muhammad Anwar Ullah as whole of the sale price of the property in-question later on transaction was matured through registered sale-deed No. 9, dated 14.1.1991. The possession of the said plot was also handed over by the said owners to the respondent/plaintiff. The contents of the plaint further reveal that the appellants-defendants took the possession of the said plot illegally and fraudulently about one month back of the institution of the suit of the respondent-plaintiff or 1.10.1991. The contents of the plaint further reveal that the appellants did not relinquish the possession over the plot in question despite repeated demands on the part of the respondent- plaintiff. The appellants filed written statement, controverted the allegations levelled in the plaint and took the following stand in the contents of the written statement. The contents of the written statement reveal that neither the possession of the land in question was handed over to the respondent-plaintiff at the time of registered sale-deed nor the fact of delivery of possession finds mention in the registered sale-deed. The contents of the written statement further reveal that Muhammad Ansar Ullah, etc. Legal heir of the original owner Malik her Muhammad were not the owners of the property in-question had already sold the property in-question to Amir Ullah Khan appellant No. 1-defendant No. 1 on 11.4.1985 for consideration of Rs.3,45,000/-. The original owner had handed over the possession of the same to appellant No. 1-defendant No. 1. Appellant No. 1 is in possession of the property in-question as owner since then. Out of the pleadings of the parties, following issues were framed by the learned Trial Court:-
(1) Whether the correct description of the suit property has not been mentioned in the plaint and that the suit is ambiguous? If so, its effect? OPD
(2) Whether the plaintiff has got no cause of action against the defendants? OPD
(3) Whether the plaintiff is owner of suit property? OPP
(4) in case issue No. 3 is proved, then whether the plaintiff will be entitled for the possession of suit land? OPP
(5) Relief.
The learned Trial Court decreed the suit vide judgment and decree dated 27.6.1997. The appellants being aggrieved preferred an appeal before the Addl. District Judge, Mianwali, who dismissed the same vide judgment and decree dated 14.10.1999, hence, the present second appeal.
2. The learned counsel of the appellants submits that judgments of both the Courts below are result of misreading or non-reading of the record. He further submits that respondent did not mention the proper description of the property in-question in the contents of the plaint. He further submits that it is the duty and obligation of the Court to frame proper issue but in the present case, the Trial Court failed to frame the proper issues on account of the divergent pleas raised by the parties in the contents of the plaint and the written statement, therefore, both the Courts below have decided the case in violation of the mandatory provisions of the Civil Procedure Code and the law laid down by the superior Courts. In support of his contention, he relied upon Mst. Sughran Bibi and others v. Mst. Jameela Begum and others (2001 SCM R 772). He also submits that following issues may be framed by the Trial Court out of the pleadings of the parties:-.
(i) What is the status of defendant No. 1?
(ii) Whether plaintiff was put in possession of the suit property, if so, by whom, its effect?
(iii) Whether any Consideration was paid by defendant No. 1 to the real owner of the suit property, if so, its effect?
(iv) Whether plaintiff was ever dispossessed if so, by whom?
(v) Whether any building except whom in question existed at the spot?
(vi) Whether defendant No. 1 was the bona fide purchaser of the property in question for value?
(vii) Whether the doctrine of part performance has any applicability in the circumstances of the case?
He further submits that the first Appellate Court admitted the appeal by noting the contention of the learned counsel of the appellants in the following terms:-- "Contends; that the defendant-appellant was a bona fide purchaser for the value. Prior to the purchase by the plaintiff-respondent herein. It is further submitted that the Trial Court had not framed proper issues no evidence led by the parties was properly appreciated and thus the lower Court fell in error in decreeing the suit of the respondent thus causing discouraging the justice.
2. Point raised needs consideration. Admit".
3. The first Appellate Court at the time of deciding the main appeal did not adverted to the aforesaid admission order, therefore, judgment of the first Appellate Court is result of misreading and non-reading of the record. He further submits that weaknesses of the appellants-defendants' case could not be ground to decree the suit of the respondent-plaintiff. He further submits that respondent-plaintiff did not implead legal heirs of the original owner in his suit nor produced them in the witness-box, therefore, respondent-plaintiff had withheld the best evidence but this fact was not considered by both the Courts below in its true perspective. He further submits that both the Courts below decided the case against the appellants without adverting to Section 53-A of the Transfer of Property Act as the appellants had taken the possession of the property in question on the basis of the sale-deed executed by the original owner Malik Sher Muhammad in favour of appellant No. 1, therefore, judgments of both the Courts below are not sustainable in the eyes of law and are not in accordance with the law laid down by the superior Courts. In support of his contentions, he relied upon Fazal v. Mehr Din and 2 others (1997 SCM R 837). He also submits that both the Courts below decided that the case without adverting to Section 50 of the Registration Act and law laid down by the superior Courts. In support of his contention, he relied upon Muhammad Sadiq v. Muhammad Ramzan and 8 others (2002 PSCC 1024). He further submits that respondents had taken a different stand at different stages. The contents of the written statement as well as oral evidence are not in consonance with each other but this fact was not considered by both the Courts below in its true perspective.
4. The learned counsel of the respondent-plaintiff submits that both the Courts below have given concurrent findings of fact against the appellants and this Court normally did not interfere in the judgments of the Courts below qua the concurrent findings while deciding the regular second appeals. He further submits that the respondent is well within his right to take the benefits of Section 8 of the Specific Relief Act, therefore, respondent-plaintiff was justified to file the suit for possession. He further submits that the respondent had purchased the land by executing an agreement to sell with the legal heirs of the original owner on 9.1.1991. The respondent-plaintiff had paid the total consideration to Muhammad Ansar Ullah. Subsequently the registered sale-deed No. 9 was also executed by Muhammad Ansar Ullah legal heir of original owner in favour of respondent on 14.1.1991. The possession was also handed over by Muhammad Ansar Ullah to respondent. The appellants did not challenge the registered sale-deed before any forum 'till date, therefore, both the Courts below were justified to decree the suit in favour of the respondent-plaintiff and rejected the oral transaction allegedly in favour of the appellants by the original owner. He further submits that the appellants did not file any application before the Trial Court as well as before the first Appellate Court for framing of proper issues according to the pleadings of the parties as contention raised by the learned counsel of the appellants before this Court. He further submits that contention of the learned counsel of the appellants is not in accordance with the dictum laid down by the Honourable Supreme Court in Wali Muhammad's case (1998 SCM R 964). He further submits that the parties are well aware of their pleadings and produced their evidence before the Trial Court, therefore, non-framing of the issues properly is no ground to interfere in the concurrent findings of the Courts below. In support of his contention, he relied upon Muhammad and nine others v. Hasham All (2003 PSCC (Pak) 690). He further submits that the appellants failed to produce any document before the Trial Court that agreement to sell or sale-deed was executed between appellant No. 1 and original owner late Malik Sher Muhammad, therefore, appellants are not entitled to get benefit of Section 53-A of the Transfer of Property Act as well as Section 50 of the Registration Act. He further submits that it is duty and obligation of the appellants to prove that the appellants had paid the consideration of the property in-question to the original owner late Malik - Sher Muhammad amounting to Rs.3,45,000/-. The appellants had tendered Ex.D/1 to Ex.D/25 to show that the consideration had been paid to the original owner. The aforesaid documents were not proved in accordance with the provisions of the Qanun-e-Shahadat Order, .1984. Even otherwise Ex.D.1 to D/25 were not signed by late Malik Sher Muhammad except Ex.D/10, but the signatures of Malik Sher Muhammad deceased was not proved on the record even on Ex.D/10. In support of his contention, he relied upon Sana Ullah and another v. Muhammad Manzoor and another (NLR 1996 Civil 385). He further submits that both the Courts below were justified not to accept the oral version of the appellants-defendants with cogent reasons. In support of his contentions, he relied upon Fazal Muhammad v. Mst. Chohara and others (1992 SCM R 2182) and Amirzada Khan and others v. Ahmad Noor and others (2003 PSCC (Pak) 616).
5. The learned counsel of the appellants in rebuttal, submits that the sale-deed executed by the late Malik Sher Muhammad in favour of appellant No. 1 was placed on record which is available at page 333 of the record of the Trial Court, therefore, it was the duty of the Courts below to consider the effect of the sale-deed dated 11.4.1985 but both the Courts below erred in law not to consider this document and decided the case merely that legal heirs of the original owner later Malik Sher Muhammad had executed the registered sale-deed in favour of the respondent-plaintiff.
6. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.
7. It is admitted fact that the appellants claim property in-question on the basis of sale-deed executed by the original owner in favour of appellant No. 1 on 11.4.1985. The attesting witnesses of the aforesaid documents are as follows:- Ghulam Rasool son of Ghulam Sarwar, Nawab Khan son of Ghulam Hussain Khan, It is pertinent to mention here that this document was not produced by the appellants through their witnesses. It is also admitted fact that attesting witnesses mentioned above were also not produced before the Trial Court. The question of law has already been settled qua the document which was not placed on record in accordance with law laid down by the Honourable Supreme Court in Fazal Muhammad's case (supra) (1992 SCM R 2182). The relevant observation is as follows:- "There is an additional written statement dated 22.12.1980 available on the file allegedly signed by Ghulam Said defendant No. 1 wherein the gift deed on behalf of Ghulam Sarwar in favour of the petitioner through registered gift deed has been admitted correct, but it is not clear how this document found its way on the judicial record. There is no mention in the order sheet dated 22.12.1980 of this document. The petitioner could have produced the executant in Court to testify to its correctness or to make a statement in Court acknowledging the petitioner as owner of the suit land on the basis of the impugned will deed. The learned High Court fq.r valid reasons kept this document out of consideration and we have no reason to differ with it. The judgment of the High Court does not suffer from any legal infirmity or misreading or non-reading of evidence."
It is also admitted fact that receipts qua the consideration paid by the appellants to the original owner in the shape of Ex.D/1 to D/25 did not contain signatures of the original owner except Ex.D/10, therefore, both the Courts below were justified to ignore the receipts produced by the appellants, therefore, appellants could not take the benefits of the sale-deed dated 11.4.1985 in view of the law laid down by the Honourable Supreme Court in Muhammad Shafi and another v. Allah Daad Khan (PLD 1986 S.C. 519). It is also admitted fact as mentioned above, appellants failed to produce the attesting witnesses before the Trial Court to prove the contents of the execution of the sale deed in favour of appellant No. 1 by the original owner late Malik Sher Muhammad, therefore, both the Courts below were justified to ignore the document sin question in view of the law laid down by this Court in Qazi Muhammad Saqib Khan's case (2003 M LD 131). Even otherwise the aforesaid receipts were not proved by calling the attesting witnesses in terms 01 Articles 17 and 79 of the Qanun-e- Shahadat Order, 1984 in view of the law laid by the Hon'ble Supreme Court in Sana Ullah's case (supra) (NLR 1996 Civil 385). It is also settled proposition of law that respondent-plaintiff has to prove its case independently and cannot get the benefits of the shortcomings of the appellants as the law laid down by the Division Bench of this Court in Qazi Muhammad Saqib Khan's case (supra)
(2003 M LD 131). It is admitted fact that respondent-plaintiff has claimed the property in-question on the basis of the- registered sale-deed dated 14.1.1991. In case the evidence of both the parties are put in a juxta position then the appellants failed to bring on record any documentary evidence worth consideration as compared to the respondent-plaintiff who had tendered registered sale- deed. It is settled proposition of law that registered sale-deed has always precedence and preference over the prior unregistered document as the law laid down by the Honourable Supreme Court in Tahir Hussain Malik's case (1995 SCM R 1407). It is by now well-settled that registered document has. Sanctity attached to it and stronger evidence is required to case aspersion on its genuineness. There is no evidence worth to mention on .The file to show that the sale-deed was forged and fictitious, therefore, both the Courts below were justified to decree the suit in favour of the respondent-plaintiff, which is in accordance with the law laid down by the Honourable Supreme Court in M/rza Muhammad Sharif's case (NLR 199.3 Civil 148). It is well-settled law that interference in concurrent findings on facts can be made by the High Court only when the evidence is misread and evidence is based on surmises and conjectures or based on inadmissible evidence or there existed an error or defect in the procedure which may possibly have introduced an error or defect in the decision on merits as the principle laid down by the Honourable Supreme Court in Musarrat Sultana's case (1997 PSC 546). In the present case, both the Courts below have after proper appreciation of evidence on record ignored the sale-deed dated11.4.1985 in favour of appellant No. 1 by the original owner whereas both the Courts below were justified to decree the suit of the respondent -plaintiff as the respondent-plaintiff produced on record registered sale- deed in favour of respondent plaintiff by the legal heirs of the original owner. It is pertinent to mention here that the appellants-defendants failed to prove on record that the appellants- defendants had taken the possession of the property in-question on the basis of any document of title which was executed by the original owner in favour of appellant No. 1. In the absence of any document, appellants-defendants cannot take benefit of Section 53-A of the Transfer of Property Act and Section 50 of the Registration Act, therefore, judgments relied upon by the learned counsel of the appellants-defendants are not attracted in the present case in view of the aforesaid distinguished facts of this case. .