' This civil revision assails judgment and decree dated 22-5-1997 passed by the learned Additional District Judge, Faisalabad, whereby appeal of the respondent was accepted and judgment and decree dated 8-2-1996 passed by the learned trial Judge was set aside.
2. A short factual background of the case is that Ghulam Muhammad deceased respondent filed a suit for declaration challenging sale evidenced in a registered sale-deed dated 9-8-1982 registered on 15-9-1982 being illegal, void, forged, fictitious, fraudulent and without consideration with the averments that he is a lawful allottee of the land subject of suit and is, in this capacity, an owner in possession of the same. Respondent further claimed , that he never entered into any transaction of sale with the petitioner, no consideration of any kind was paid to him and he did not deliver possession of the land under the alleged sale. A prayer with regard to protection of his possession by way of permanent injunction, as consequential relief, was also made. Ghulam Muhammad deceased pleaded in his plaint that he was an old man of 80 years and he mortgaged his land with the Agricultural Development Bank and obtained some agricultural loan.
According to him, he had been paying instalments of the loan. Petitioner, who is running a brick kiln in the Chak in question, had strained relations with the respondent who, in terms of allegations in the plaint, defrauded respondent and on the pretext of writing an agreement for removal of earth from his land and its redemption from the Bank, got his thumb impressions but subsequently, fabricated the sale-deed, above referred. Respondent also asserted in the plaint that about 1-1/4 months before the institution of the suit, he came to know through some employee of the Bank, regarding attempt of petitioner to pay all the mortgage money, on which he became suspicious and on inquiry came to know of the entire fake activity of the petitioner.
3. Petitioner, being a defendant in the suit, filed a written statement, controverting the allegations in the plaint which necessitated framing of eight issues by the trial Court, who after recording respective evidence of the parties, on 8-2-1996 dismissed the suit of the respondent.
4. Respondent aggrieved of the judgment and decree dated 8-2-1996 dismissing suit, filed an appeal before the learned Additional District Judge, Faisalabad, where he succeeded, as his appeal was accepted and the suit was decreed vide judgment and decree dated 22-5-1997.
Petitioner has now come up in revision before this Court challenging the judgment and decree of the Appellate Court, decreeing respondent's suit.
5. Learned counsel for the petitioner submits that petitioner had proved through cogent evidence that sale, as a matter of fact, had taken place, but the Appellate Court has not adverted to this evidence. He further submits that the predecessor-ininterest of the respondent had not produced any evidence proving his infirmity, allegedly sustained by him in the year 1982 when the sale-deed in question was executed. He further detailing his arguments, submits that evidence, if any, regarding infirmity of Ghulam Muhammad deceased relates to the year 1995 when evidence was recorded. Learned counsel for the petitioner further contends that price of the land was paid to the deceased vendor who did not deny its receipt during trial. He further submits that documents of sale were undeniably thumb-marked by Ghulam Muhammad deceased but were claimed to have been thumb-marked on the pretext of, it being a lease deed. In other words a fraud was claimed to have been played, but there is no evidence on the file to substantiate the averments regarding fraud. He further exclaims that the Appellate Court has incorrectly given findings regarding fraud in absence of any issue, besides ignoring that Ghulam Muhammad deceased had not appeared in the witness-box to substantiate his assertions in the plaint, itself and due to this nonappearance, it should have been presumed that he admitted the execution of the sale-deed. He also banks on lapse of the respondent for not cross-examining his witnesses, produced in support of the issues framed.
6. Learned counsel appearing on behalf of the respondent refuting contentions of the petitioner, submits that a document under law could have been proved by production of marginal witnesses of the documents in terms of Article 79 of the Qanun-e-Shahadat Order, 1984, but the petitioner felt satisfied by mere production of scribe, stamp vendor and a fake witness of bargain and did not produce the marginal witnesses of the sale in question. He further submits that after denial of execution of the document, onus shifted to the beneficiary to prove through positive evidence, not only the registered document, but also the transaction, evidenced therein. Learned counsel for the respondent also argues that the predecessor of the respondent had produced one of the marginal witnesses of the sale-deed subject of litigation as P.W.4, who denied its execution and asserted fraud by the petitioner, but his witness was not cross-examined on this point. He further adds to his submissions by saying that there are material contradictions regarding payment of sale price, which have rightly been noted by the Appellate Court, and in this manner, he supported the judgment impugned in this revision.
7. I have considered the arguments of the learned counsel for the parties and have also examined the record. It is settled law now that after denial of execution of even a registered sale-deed, onus to prove it shifts to the person claiming title therefrom and thus it was for the petitioner to prove besides sale-deed, the transaction under which bargain between the parties was settled. If any authority is needed, reliance can be placed on the cases of Hakim Khan v. Nazeer Ahmad Lughmani 1992 SCMR 1832; Mst. Bakht Bano v. Mst. Zainab Khatoon 1991 MLD 2389; Niaz Ali and 16 others v. Muhammad Din through Legal Heirs and 13 others PLD 1993 Lahore 33 and Mst. Rasul Bibi v.
Nasrullah Khan 1994 CLC 1774. A document in terms of Article 79 of the Qanun-e-Shahadat Order, 1984, can be proved by producing two marginal witnesses, but none of them was produced by the petitioner. One of the marginal witnesses appeared on behalf of the respondent as P.W.1 and he denied his knowledge of execution of sale-deed Exh.D.1. This witness was not cross-examined by the petitioner, his statement touching non-execution of sale-deed by the predecessor-in-interest of the respondent. The other marginal witness was, deliberately, withheld by the petitioner and was not produced which creates a presumption that had he been produced, must have deposed against the execution of the sale-deed, as it has been deposed by P.W.4. Petitioner felt satisfied by producing three witnesses. D.W.1 is scribe of Exh.D.1 (sale-deed in dispute). This witness has not been shown as a marginal witness of the document and thus cannot be said to have proved the document especially in view of statement of P.W.4. Likewise, D.W.2, is a stamp vendor who, under law, cannot prove the execution and the third witness is D.W.3 who has not signed Exh.D.1 and narrated only a story of bargain in his presence. As a matter of fact, Exh.D.1 has not been proved according to law. Solitary statement of D.W.1, which has contradictions in it, as against statement of D.W.2 and D.W.3, cannot be relied upon in isolation and without some positive corroboration by other independent evidence. A much emphasis has been placed on statement of P.W.3 Bahadur Ali, who is son-in-law of the respondent, to assert that he admitted thumb-marking by Ghulam Muhammad deceased over these documents, but his part of statement whereunder he said that he. Signed these documents without reading, is being ignored. I feel no hesitation in accepting his statement regarding non-reading of the document because his father-in-law had required him to sign those documents by saying that these are lease documents. Similarly, learned counsel for the petitioner heavily asserted that P.W.4 Sardar Muhammad is a relation of the respondent and that is why he came to the Court against the registered document. Though mere relationship with any of the parties is not enough to negate the effect of statement of that witness, yet I have already concluded that it was for the petitioner to prove through positive evidence that sale, as a matter of fact, took place and was rightly evidenced through the sale-deed dated 5-8-1989. Each party has to stand and to succeed on the basis of its own evidence and no relief can be granted on the basis of any weakness or lapse in the evidence of his adversary. Respondent's predecessor, after denial of execution of the document in question was under no legal obligation to prove through negative evidence that he did not execute this sale-deed. Since petitioner failed to prove the transaction and due execution of the sale-deed, I am of the confirmed view that the sale in question was not proved. Respondent produced P.W.3 to prove that there were negotiations of lease of land for digging out the earth and no sale transaction was struck between the parties. One Muhammad Sharif had identified Ghulam Muhammad deceased at the time of attestation of the sale-deed but has not been produced as a witness by the petitioner. D.W.1, petitioner's own witness deposed in his cross-examination that Ghulam Muhammad deceased acknowledged receipt of sale price, whereas it has been shown in Exh.D.1 to have already been paid but there is no evidence to prove actual payment by the petitioner of the sale price. These factors further strengthen my above findings that sale-deed in question was not proved, price was not paid and possession was not delivered thereunder with the added circumstance that the sale-deed in dispute was not incorporated in the Revenue Record for an unexplained long period of time.
8. From what has been discussed above, I am of the considered view that the Appellate Court has rightly decided the lis before it. No illegality or. Irregularity has been committed by the Appellate Court and its findings are in consonance with the evidence, thus I affirming the judgment and decree of the Appellate Court, dismiss this revision petition being devoid of force and substance.
Parties are left to bear their own 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.