' The revision petition is directed against the judgment and decree dated 12-3-1997, passed by the learned Additional District Judge Ferozewala, District Sheikhupura, whereby, respondent's suit for declaration by accepting his appeal, was decreed, setting aside the judgment and decree of the learned trial Court dated 8-2-1996.
2. A short factual background of the case is that the respondent filed a suit for declaration with permanent injunction, as consequential relief in the Court of the learned Civil Judge Ferozewala, with the averment that he had orally purchased land measuring 10 Marlas situated at Momanpura, Tehsil Ferozewala District Sheikhupura from the petitioner and constructed a house thereon. He claims to be in possession of the house, and mainly relied on an affidavit of the petitioner, whereby, he got electricity connection sanctioned. He claims that the sale in his favour was oral which was acknowledged by the petitioner through an affidavit which was obtained at the time of getting an electricity connection.
3. The petitioner who was defendant in the suit controverted the allegations in the plaint and pleaded, that as a matter of fact, the house in question was constructed by him and was let out to the respondent at a monthly rent of Rs,200 and pleaded that the respondent is not owner but was a tenant under him. He further explained in his written statement that there was no electricity in the house in dispute and the respondent represented him for giving an affidavit needed for getting the electricity connection and that for this purpose he himself purchased the stamp papers and got scribed affidavit which was signed by the petitioner without reading it, as he is an illiterate person. He denied sale of land and construction of house by the respondent, thereon.
4. The learned trial Court framed as many as four issues arising out of controversial pleadings of the parties and put those to trial and after recording evidence of the parties on 8-2-1996 dismissed the suit of the respondent vide his judgment and decree of even date.
5. The respondent aggrieved of the judgment and decree of the learned trial Court, filed an appeal which, ultimately, succeeded on 12-3-1997, before the learned Additional District Judge Ferozewala, who accepted it, granted the respondent a decree for declaration that he is owner in possession of the house in dispute.
' The learned counsel for the petitioner submits that the alleged oral sale is not proved on the file and the affidavit, which is said to be an acknowledgement of sale, by the petitioner, was not proved and was not put to him, as he was not confronted with this document, while he appeared in the witness-box. He further submits that there is sufficient material on the file showing that the affidavit was signed by the petitioner for getting an electricity connection and it was not intended to acknowledge the non-existent sale. Learned counsel for the respondents while refuting arguments of his adversary, submitted that sale on the file has been proved which was subsequently acknowledged by the petitioner in his affidavit.
7. I have considered the arguments of the learned counsel for the parties and examined the record appended with this petition.
8. Undeniably the sale of 10 Marlas by the petitioner in favour of the respondent is claimed to be through an oral transaction which though is permissible in view of provisions of section 54 of the Transfer of Property Act but has to be proved through cogent and independent evidence. In order to prove this sale he has produced three witnesses, including himself. All these three witnesses have no doubt deposed that the petitioner sold 10 Marlas of his land to respondent No,1 but none of them has given the details of the bargain of the transaction by mentioning that as to when, where and why this transaction occasioned and was completed. Respondent in his plaint, has also not detailed, time, place and price of the land sold and has also not mentioned the names of the persons in whose presence it was completed. In order to prove a complete sale of land and departing of it by the owner, the purchaser, under the law, is required to prove not only the transaction but also passing on the consideration to the seller and delivery of possession under the sale. I have examined the statements of all the P.Ws., none of them has stated that the amount was paid in his presence or the possession was given by the petitioner under the so settled transaction of sale.
9. As regard the acknowledgment of sale through an affidavit, it is the case of the petitioner in his written statement that the house in question was let out to the respondent on a monthly rent of Rs,200 and on asking of the respondent he signed an affidavit for getting an electricity connection.
This assertion gets supports from the statement of the respondent when he appeared as his own witness as P.W.3 whereby, he towards the end of cross-examination admitted that the stamp paper was scribed and signed in the Electricity Office. From this admission of the respondent himself, one can understand that affidavit scribed and signed in the office of the electricity department cannot be a document of title, as this place is not meant for execution of title documents. Be that as it may, the respondent had allegedly purchased 10 Marlas of plot then allegedly by expending a huge amount, raised a house thereon but there is no explanation, worth the name, as to why an agreement to sell, any receipt or some sale-deed, was not got executed from the petitioner and to the worse why this transaction was not reported to the Revenue Authorities.
10. The learned Additional District Judge while reversing the judgment of the learned trial Court was simply impressed by statement of P.W.3 whereby, according to him, assertion of the respondent of sale of 10 Marlas of land, in his examination-inchief, was not subjected to cross-examination. I have also examined cross-examination of P.W.3, although the basis of the learned Additional District Judge is misplaced yet it was not enough to hold a person owner of the land, in the absence of any solid proof with regard to sale, as discussed above. The entire foundation of the judgment of the learned Additional District Judge being statement of P.W.3 and the affidavit which according to him was an acknowledgement, loses foundation when one evaluates evidence on the file with an open mind to ascertain whether the same by itself has been proved or not. I am of the considered view that there is not an iota of evidence on the file to prove the sale transaction which required to be proved by the respondent by producing positive proof. Affidavit of petitioner though was admitted to have been signed by him but the alleged acknowledgment of sale, therein, was denied and could not be proved at the trial whereas petitioner appearing in the witness-box, has sufficiently explained his signature thereon.
11. There is another aspect of the case which escaped notice of the learned Appellate Court that if at all the affidavit is to be treated as an acknowledgment of sale that cannot be relied, being unregistered document and without its registration under the provisions of section 17 of the Registration Act as the property was alleged to have been sold for an amount more than Rs,100 it was waste paper and thus by all standards, this document has wrongly been relied by the learned Appellate Court for declaring the respondent as owner of the immovable property. It goes without transferring any title to the respondent and does not bring him in the definition of an owner of the property, in dispute.
12. From what has been said above, I am of the considered view that respondent could not prove the sale of land in dispute, in his favour and the learned Appellate Court committed material irregularity and illegality in relying on assumptions while G declaring the respondent as an owner of immovable property. Resultantly I set aside the judgment and decree of the learned First Appellate Court dated 12-3-1997, having passed against the evidence on the file, with the result that the judgment and decree dated 8-2-1996 passed by the learned trial Court stands revived whereby the suit of the respondent was rightly ordered to be dismissed, accordingly this revision petition succeeds, with no order as to costs.