ZAHIDA RAMZAN Versus IMTIAZ HUSSAIN BOKHARI
This civil revision calls in question the judgments and decrees, dated 3‑7‑1983 and 9‑7‑1984 passed respectively by a learned Civil Judge, Lahore, and a learned Additional District Judge, Lahore.
2. A declaratory suit was instituted by Mst. Zahida Ramzan, the petitioner herein, against Imtiaz Hussain Bukhari, respondent No.1 seeking a declaration to the effect that she was the lawful transferee with possession of Plot No. 187‑D. Model Town, Lahore, from Model Town Co‑operative Society Ltd., Lahore, subject to the usual terms and conditions. As a consequential relief, she prayed for permanent injunction restraining the defendant from interfering in any way with the right, title and possession of the petitioner qua the plot in dispute.
3. It was alleged by the plaintiff in her suit that she .vas married to respondent No.1 at Lahore on 27‑4‑1962. He otherwise also happened to be her 'Khalazad', She lived with him as his lawfully wedded wife till 15‑4‑1970 when she was divorced in London. It was further pleaded that at present she was living in Canada with her present husband. She learnt from her father about three months before the institution of the suit that respondent No.1 claimed that he acquired the plot in dispute by purchase from the petitioner during the continuance of their marriage. It was alleged that this claim of the said respondent was utterly false, fraudulent and mala fide. The petitioner never executed and got registered any sale‑deed in favour of respondent No.1 nor received any consideration. She did not affix her signatures on any alleged sale‑deed. It was further alleged that the sale‑deed if any was false, fictitious and fraudulent and without consideration and thus wholly ineffective qua her rights. It was also pleaded that the suit plot vested in the Model Town Co‑operative Society Ltd., Lahore. It was sold to her in her capacity as shareholder. The respondent No.1 was not the shareholder and member of the Society and, therefore, the transfer being claimed by him was ultra vires and of no legal effect.
4. The suit was resisted by respondent No.1 who pleaded, inter alia, that the suit was not‑filed by the plaintiff herself. Dr. Ramzan Ali Syed was not her duly constituted attorney and had no lawful authority to file the suit. On merits, it was claimed by respondent No.1 that he duly purchased the plot in dispute from the petitioner for consideration amounting to Rs.17,000 on 13/14‑6‑1969 through a registered sale‑deed; certified copy whereof had been filed with the written statement; he obtained possession of the plot being a bona fide purchaser and subsequently sold the same to respondent No.2 for Rs.55,000; the said respondent further sold it in favour of respondents Nos. 3 and 4 for Rs.60,000. It was maintained on behalf of the respondent that he too had applied for membership of Model Town Co‑operative Society.
5. Originally, the following preliminary issues were framed:‑
(1) Whether the' suit is not maintainable in its present form? O.P.D.
(2) Whether the suit is not valued correctly for the purpose of jurisdiction and court‑fee, O.P.D.
(3) Relief.
Both these preliminary issues were decided in favour of the petitioner on 7th December, 1980 and the following issues on merits were framed:‑
(4) Whether the plaintiff is entitled to the declaration alongwith the permanent injunction prayed for on the grounds detailed in the plaint? O.P.P.
(5) If issue No.4 is proved, what is the effect of transfer of property in dispute in favour of defendant No.2 by defendant No.1 and subsequent transfer in favour of defendants Nos. 3 and 4 by defendant No.2?
(6) Relief.
Subsequently, the following issue was also framed as issue No.4‑A. (4‑A) Whether the sale‑deed, dated 14‑6‑1969 was duly executed by the plaintiff in favour of defendant No.1 with consideration.
6. After recording the parties' evidence and after hearing them, the learned Civil Judge dismissed the petitioner's suit on 30‑7‑1983.
7. Feeling aggrieved, the petitioner preferred an appeal which too failed and was dismissed on 9‑7‑1984 by the learned Additional District Judge, Lahore. Hence the present civil revision.
8. The plaintiff‑petitioner produced two witnesses before the learned trial Court. Her father and attorney, Dr. Ramzan Ali Syed appeared as P.W.1 while she herself came to the witness‑box as P.W.2.
9. Respondent No.1 examined as many as six witnesses, which are D.W.1 Muhammad Zar, the then Additional Deputy Commissioner (General), Lahore, D.W.2 Sifte Ellahi, Record Keeper of the Office of the Sub‑Registrar, D.W.3 Ghulam Hussain Driver of Sardar Ahmad Sher Khan, Additional Deputy Commissioner (General), D.W.4 Imtiaz Hussain Bukhari, respondent No.1 himself, D.W.5 Zulfiqar Ali, defendant No.2, and D.W.6 Muhammad Shaft, general attorney of defendants Nos. 3 and 4.
10. In addition to the oral evidence, the petitioner produced exhibit P.1 power of attorney executed by her in favour of her father Dr. Ramzan Ali Syed, Exh.P.2, a share certificate issued by the Model Town Co‑operative Society Exh.P.3 a letter of the Model Town Co‑operative Society, dated 25‑9‑1980, and Exh.D.W.4/1, a letter written by respondent No.1 to the father of the petitioner.
11. Respondent No.1, produced EXh.D.1, certified copy of the registered sale‑deed, dated 14‑6‑1969. The other respondents also produced copies of their respective sale‑deeds.
12. It has been mainly urged on behalf of the petitioner that the learned Courts below while passing the impugned judgments, failed to consider that certified copy of the registered sale‑deed was not legally admissible in evidence. Ordinarily, the original sale‑deed should have been produced. Under section 65 of the Evidence Act, secondary evidence could only be produced if the loss of the original was proved, but in the present case the loss has not been proved. It has further been urged that the payment of price in case of sale of immovable property is an essential ingredient under section 54 of the Transfer of Property Act. In the present case, payment of consideration has not been proved and this fact has been altogether ignored by the learned Courts below. It has next been urged that execution of sale‑deed has also not been formally proved and the learned Courts below have also overlooked this aspect of the matter that the sale by the petitioner in favour of respondent No.1 could not legally take place as he was neither a member nor a shareholder of the Model Town Co‑operative Society.
13. The contentions raised on behalf of the petitioner have been considered and analysed. As a matter of fact, in the present case, the petitioner in her plaint raised the plea that she never executed any sale‑deed in favour of respondent No.1 and that if the latter was in possession of any sale‑deed, the same was forged and fictitious one. In order to prove the execution and registration of sale‑deed, respondent No.1 examined Ghulam Hussain D.W. 3 who is a marginal witness of the sale‑deed. He is an independent witness and not related to any of the parties. D.W.1 Chaudhry Muhammad Zar, who was then Additional Deputy Commissioner (General), Lahore, identified the petitioner before the Sub‑Registrar. He is a reliable judicial officer. There is nothing on the record to create any doubt about the veracity of this witness. He knew the parties intimately as the petitioner and her husband and this witness remained posted contemporaneously at different stations in the Province. The petitioner admittedly had cordial relations with the wife and other members of the family of Muhammad Zar and similarly Muhammad Zar was friendly with respondent No.1 and had also all regards for the petitioner. D.W.2 Sibte Ellahi brought the relevant records of the office of the Sub‑Registrar which indicated that the sale‑deed executed by the petitioner in favour of respondent No.1 was duly registered. In this manner, the .execution of the sale‑deed is fully proved and the main plea of the petitioner that she A never executed any sale‑deed in favour of respondent No.1 and that if there was any that was forged and false one, is negated.
14. Regarding the contention that EXh.D.1 was not legally admissible in evidence by virtue o the provisions of section 65 of the Evidence Act it may be observed that under the said provisions, secondary evidence may be given of the existence, condition or contents of a document in the cases enumerated in clauses (a) to (g) of section 65 ibid. Under clause (a), secondary evidence may be given when the original, is shown or appears to be in the possession or power of the person against whom the document is sought to be proved. Under clause (c) secondary evidence may be given when the original has been destroyed or lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own fault or neglect produce it in reasonable time. In the circumstances of the present case, it has been contended on behalf of respondent No.1 that the household effects of respondent No.1 and of the petitioner were in the house of the petitioner's father when the couple left for London. She was divorced by respondent No.1 in London and subsequently respondent No. 1 was not able to collect his household effects, including the original sale‑deed, from the house of the petitioner's father. It was suggested to the petitioner while appearing as P.W.2 that the household effects were in her father's house when they left for London. She did not admit this suggestion. She, however, conceded that when respondent No.1 was transferred to Lahore he used to stay with her father and when he was transferred to Sheikhupura even then he stayed in her father's house. The sale‑deed was a registered document. EXh.D.l, the certified copy of the sale‑deed has been produced. Under section 65 of the Evidence Act, certified B copy if a registered deed can be produced. In the above circumstances, it cannot be said that EXh.D.l has been illegally received in evidence.
15. Regarding the payment of consideration, the respondent's witnesses, namely respondent No.l himself and Ghulam Hussain have made contradictory statements, but in EXh.D.l it has been recorded that the sale price amounting to Rs.17,400 was already received by the petitioner before the sale‑deed was registered. The endorsement by the Sub‑Registrar is to the fact that she acknowledged before him of having already received the sale price. At the relevant time the petitioner was a lady doctor and is still so. She is not an illiterate Pardanasheen' lady and her admission of having received the C sale price before the Sub‑Registrar does not need any further proof. It is noteworthy that numerous authorities have been produced on behalf of the petitioner to support the contention that legally there cannot be any valid sale if the sale price has not been paid, l partly paid or promised to be paid. There cannot be any dispute about the principle enunciated in these authorities, but as already observed, in the present case, the payment of the sale price has been acknowledged by the petitioner herself before the Sub‑Registrar. Moreover, this plea was not taken by the petitioner in the plaint wherein she totally denied of having executed the sale‑deed.
16. No legal provision or bye‑laws of the Society have been shown to substantiate the contention that the sale in favour of respondent, No.1 could not legally be effected as he was not a member or shareholder of the Society although he has claimed that he had already applied for being made member of the Society.
17. In the light of what has been said above, it may be concluded that there is no substance in the contentions raised on behalf of the petitioner that the learned Courts below have acted with material irregularity in arriving at the impugned decisions, as they have not followed the provisions of section 65 of the Evidence Act and those of the section 54 of the Transfer of Property Act. It may also be observed that in the present case, the main question involved was as to whether the petitioner actually sold the disputed plot in favour of respondent No.1 through registered sale‑deed, dated 14‑6‑1969 or not. On this question the concurrent finding has been recorded the learned Courts below to the effect that she did sell the plot in dispute in favour of respondent No.1 and executed the sale‑deed, the certified copy whereof is EXh.D.1. The competency of the Courts below to record such finding has, of course, not been challenged. This means that a finding on a question of fact involved in the case has been recorded against the petitioner by the Courts of competent jurisdiction. Such a finding cannot be called in question by way of revision before the High Court in the absence of any jurisdictional error, illegality or material irregularity. In N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board. Madras PLD 1949 PC 26, it has been ruled by the Judicial Committee of the Privy' Council that section 115 of the Code of Civil Procedure empowers the High Court to satisfy itself upon three matters, (a) that the order of the subordinate Court is within its jurisdiction (b) that the case is one in which the Court ought to exercise jurisdiction and, (c) that in exercising jurisdiction the Court has not acted illegally that is, in breach of some provision of law, or with material irregularity that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. if the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusions of the subordinate Court upon questions of fact of law. No such shortcoming has been noticed in the present case and, therefore, there is no justification for this Court to interfere with the findings recorded by the Courts below.
18. For the foregoing reasons, this Civil Revision fails and is hereby dismissed with costs.
H.B.T./Z‑44/L Revision dismissed.