MUHAMMAD SALEEM Versus MANSOOR ARIF

GHULAM RABBANI, J .---This appeal with leave of this Court is directed against the judgment dated 3-7-2002 passed by the Lahore High Court, Lahore in Civil, Revision No. 2032 of 1997.

2. The above appeal was heard by us and vide our short order it was allowed in the following terms:--

"We have heard the learned counsel for the appellant-defendant and have gone through the record with his assistance. We have also heard the learned counsel for the respondents who has supported the reasoning of the impugned judgment.

2. For the reasons, to be recorded later, this appeal is allowed. As a consequence, the revisional judgment dated 3-7-2002 and the judgment of the learned Additional District Judge, Shorkot dated 2-12-1997, are set aside. The judgment/decree of the learned trial Court dated 26-10-1992 thus stands restored."

3. Briefly stated facts of the case are that predecessor-in-interest of respondents Malik Gulbaz Khan (original plaintiff) was owner of suit land viz: 7 kanals, 4 marlas situated in Khasra No. 126, Khata No. 369 of Village Garh Maharaja Tehsil Shorkot, District Jhang. He filed a suit before Civil Judge Shorkot, District Jhang for declaration, cancellation of documents and partition stating that at the request of his son Rustam Ali defendant No. 2 (Respondent No.10 herein), who was already lessee of the suit-land, he had agreed to execute lease deed in his favour but, his said son being in collusion with appellant/defendant No.1, brought the plaintiff before the Tehsildar and fraudulently got the sale-deed executed in his favour vide registered sale-deed dated 22-5-1989. He asserted that he had not sold out the suit-land to the appellant. The suit was contested by the other side including the above named son of plaintiff and the appellant Muhammad Saleem. Parties adduced their respective evidence on the issues framed on the pleadings and then after hearing the parties learned Trial Court dismissed the suit with costs vide judgment dated 26-10-1992.

4. Aggrieved, the respondents filed an appeal which was allowed by Additional District Judge, Jhang and the suit of the plaintiff was decreed vide judgment and decree dated 2-12-1997. Against that appellant filed Civil Revision No.2032 of 1997 which was dismissed vide judgment impugned herein.

5. In his arguments, learned counsel for the appellant contended that judgments of the Appellate and Revisional courts were based on misreading and non-reading of evidence, whereas learned Civil Judge on correctly appreciating evidence of both the parties, dismissed the suit. According to him the allegation of fraud/collusion in between respondent No.10 and the appellant could not be proved while appellant was successful in proving the execution of registered deed (Exh.D-1) in his favour. On the other hand learned counsel for the respondents wholly relied on the impugned judgment by saying that it was correctly passed on evidence adduced by the parties.

6. Khizer Hayat appellant's brother was examined as D.W. 1 since the appellant had, by that time, gone out of country. In his capacity as attorney of appellant, he deposed that appellant had purchased the disputed area for an amount of Rs.1,50,000 which were received by seller Gulbaz Khan who had put his thumb-impression on the sale-deed after it was read over to him. According to this witness, the seller had admitted before the Registrar/Tehsildar the sale and the receipt of sale consideration whereafter the document to which Bilal (D.W.7) and one Rustam were marginal witnesses, was registered. This witness deposed further that after getting possession, they had constructed a shop, godown, installed a meter and a Diesel Engine and that the sale consideration was paid through cheque of Rs.1,30,000 and Rs.20,000 in cash. The marginal witness Bilal Ahmad (D.W.7) in his evidence stated the sale deed was read over to the plaintiff and he was given Rs.20,000 in cash and a cheque for Rs.1,30,000. In cross-examination, he stated that it was incorrect that the plaintiff had not received any amount. Naib Tehsildar/Sub-Registrar, Raja Zafar Abbas, who appeared as D. W.2 stated that the sale-deed (Exh.D1) was produced before him and the vendor had admitted the payment in his presence and after that he had taken his thumb impression on sale-deed. Ashiq Ali (D.W.6) deposed that he had identified Malik Gulbaz before Sub-Registrar; that Malik Gulbaz thumb marked the sale deed in his presence and that the vendor had admitted before the Registrar the receipt of sale price and completion of sale-deed in his presence. In cross-examination this witness gave the details about the sale transaction. Relevant extract from his statement reads as follows:

Safdar Abbas, Manager UBL appeared as D.W.3 and stated that an amount of Rs.1,30,000 was drawn from Account No.2393 of Muhammad Saleem, appellant, through cheque No.18526924 which was a bearer cheque in the name of Gulbaz son of Malang. He further stated that cheque was issued on 22-5-1989 by Muhammad Saleem and the cash was received by Rustam Ali. It seems that since Rustam Ali who was none else than the son of vendor; had received the cash of Rs.1,30,000, therefore, the plaintiff side attempted to build up the case of fraud in execution of the sale deed, which in fact, stands negated by Naib Tehsildar/Sub-Registrar in his evidence. Be that as it may, D.W.6 Ashiq Ali who was a councillor and had identified the vendor before the Sub-Registrar, in his evidence, stated the circumstances in which the vendor, according to him, had given to his son Rustam Ali the money which he received in lieu of sale of the property in question. It may further be stated that the vendor intended to sell the property is also evident from the evidence of Patwari Halqa, Munshi Nisar Muhammad who appeared as D.W.5 and stated that on 18-5-1989 Gulbaz got the copy of Fard Malkiat Exh.D-3 for sale in presence of Malik Rustam and Muhammad Saleem and the said transaction was duly recorded in Roznamcha Waqiati. He further stated that Malik Gulbaz was residing in the same house where Malik Rustam was living. Possession of appellant was admitted by the P.W.4 in his cross-examination. He stated that:--

7. From evidence discussed above, it is established that defendant side successfully proved the execution of the sale-deed and the payment of sale consideration while nothing tangible was brought on record to establish the alleged fraud in transacting the sale in question, rather P.W. 1 Ghulam Nabi son of Gulbaz Khan, who is one of the respondents herein and was examined as plaintiff having been joined so after death of his father, admitted in his evidence in unequivocal terms that he had no knowledge how the defendant No.1, now appellant herein, had got the disputed area transferred in his name; so also, in his cross-examination he stated that he had no knowledge as to when the document was registered.

8. Considering the afore-mentioned, by our short order while allowing the appeal we set aside the impugned judgment dated 3-7-2002 passed by the Lahore High Court, Lahore as well as judgment and decree dated 2-12-1997 of the Additional District Judge Shorkot and restored the judgment/decree of the learned Civil Judge II Class Shorkot dated 26-10-1992 in terms reproduced hereinabove. These are the reasons for the same.

S.A.K./M-93/SC Appeal accepted.