SULTAN AHMAD (decd) through L.Rs, vs MUHAMMAD YOUSUF

' SYED SAKHI HUSSAIN BUKHARI, J.---Sultan Ahmad has filed this petition for leave to appeal against the judgment dated 3-12-2004 passed by learned Lahore High Court, Lahore whereby C.R. No,918 of 2002 brought by Muhammad Yousaf respondent was accepted.

2. The brief facts of the case have been given in Para No, 1 of the impugned judgment which reads as order:-- "The facts giving rise to this civil revision are that the mother of the petitioner filed a suit for declaration to the effect that sale deed No, 3293 dated 12-11-1988 is liable to be cancelled being the result of fraud and mis-representation. The respondent filed his written statement and pleaded that the sale deed and receipt of earnest money were lawfully executed. Out of the pleadings of the parties various issues were framed. After recording the evidence of both the parties the learned trial Court decreed the suit in favour of the petitioner. Feeling aggrieved the respondent filed an appeal, which was allowed and the judgment and decree passed by the learned trial court were set aside vide judgment dated 21-11-2001 which is being impugned through this civil revision.

Reasoning advanced by the appellate court was that vendee was also an illiterate person and presumption of truth is attached to sale deed. He relied on the statement made by the Tehsildar."

' As mentioned above the suit brought by respondent was decreed. The petitioner filed appeal thereagainst which was accepted. Then respondent challenged said order by filing revision petition which was accepted vide impugned judgment. Hence this petition for leave to appeal.

3. We have heard the arguments and perused the record. As mentioned above, the case of respondent is that Janat Bibi had not executed sale deed in question. On the other hand the case of petitioners is that she had executed sale deed with her own free well after receiving sale price (Rs,80,000). However we find that petitioners have failed to produce any worthwhile evidence in support of their case. They have not examined even marginal witnesses of sale-deed. Likewise they have not proved payment of consideration of Rs 80,000. So we find that learned High Court has rightly accepted the revisional petition brought by respondent. The impugned judgment shows that learned High Court has decided the revision petition brought respondent after appraisal of entire material available on record. Paras Nos. 5 to 7 of the impugned judgment read as under:-- "5. D.W.3 is the only marginal witnesses who appeared in Court. He was working as Munshi with Inayat Ali Shah petition writer. In cross-examination, he admitted that the sale deed Exh.D-1 does not contain his residential address. He concedes that Safdar Hussain, the other marginal witness has also not recorded his address. He also conceded that money was not exchanged/paid in his presence. He, however, stated that one Muhammad Sharif had accompanied the defendant. D.W.4 Sharif is the son of defendant who stated that plaintiff transferred the property to the defendant against a consideration of Rs, 80,000. At that time plaintiffs son Yousaf also accompanied her.

Defendant Muhammad Sultan appeared himself as D.W.S. He corroborated his version mentioned in the written statement. D.W.2 Tehsildar stated that he did not know vendor personally and sale consideration was not paid in his presence.

6. Exh.D-1 is the sale deed which was attested by Nazir Ahmad D.W.3 Safdar the only other marginal witness was not produced. Even the stamp vendor and scribe have not been produced. The executant, Mst. Janat Bibi was not related either to the respondent or the marginal witnesses. She was not in possession of any independent advice. No person of her confidence was associated with the alleged transaction.

7.

Under Articles 17 and 79 of Qanoon-e-Shahadat, 1984 at least two witnesses are required to prove a transaction. Only one marginal witness has been produced who, too, Is not aware of the details and has conceded that the petitioner Janat Bibi was not accompanied by any person at the time when Exh.D-1 was being authored by the petition writer. Admittedly, she is an illiterate parda Nasheen lady/ village woman. No person of her confidence accompanied her. Heavy onus lay on defendant to prove the transaction which they tailed to discharge.

' It is a well reasoned judgment. Learned counsel for the petitioner has not been able to point out any misreading or non-reading of evidence. Even otherwise there is no illegality or infirmity in the impugned judgment so as to warrant interference by this Court. As such this petition is devoid of merit and the same is accordingly dismissed and leave to appeal declined.