Mst. RAHIM KHATOON (deceased) Versus MUHAMMAD YASIN
ORDER
MALIK SHAHZAD AHMAD KHAN, J.--- Instant appeal has been filed against impugned judgment dated 14.03.2013, passed by the learned Lahore High Court, whereby the civil revision filed by Muhammad Yasin defendant / predecessor-in-interest of respondents 1(i) to 1(vi) (hereinafter referred to as the respondents), was accepted and the impugned judgments and decrees dated 26.07.1992 and 11.12.1994, of the learned Civil Judge, Lodhran and learned Additional District Judge, Lodhran, respectively were set-aside.
2. As per brief facts of the present case, Mst. Rahim Khatoon plaintiff/predecessor-in-interest of petitioners Nos. 1A(i) to 1A(vii) (hereinafter referred to as the petitioners), instituted a declaratory suit against the respondents and others regarding the suit house on the ground that the registered sale deed No. 372, dated 09.07.1987, was illegal, against facts, without consideration and based on fraud. The learned trial Court, as well as, the learned Appellate Court both decided in favour of the petitioners, whereby the suit filed by Mst. Rahim Khatoon was decreed and the appeal filed by the opponent party was dismissed. As a result thereof, the sale deed in favour of the respondents was declared to be null and void and the same was ordered to be cancelled. However, the learned High Court accepted the civil revision filed by the respondents and dismissed the suit filed by the petitioners on the ground that it was the duty of the petitioners/plaintiffs to prove the factum of fraud and forgery.
3. Arguments heard. Record perused.
4. It was claim of Mst. Rahim Khatoon (plaintiff/predecessor-in-interest of the petitioners) in her plaint that she was an illiterate lady and her age was about 80/90 years, at the time of execution of the alleged registered sale deed in favour of the respondents qua the suit house. She further stated that she was issueless and her husband had already died and the respondents, who were her close relatives committed fraud and told her that documents regarding payment of Zakat in her favour are to be executed, therefore, they took her before the Stamp Vendor and Registrar, where they fraudulently got executed an agreement to sell and sale deed in their favour.
It is true that presumption of truth is attached to the registered sale deed, which is a public document but the said presumption is rebuttable. As the vendors alleged fraud regarding the registered sale deed and agreement in question, therefore, it was duty of the respondents being beneficiaries to prove the genuineness of the transaction qua the suit house in their favour through bringing on record confidence inspiring and trustworthy evidence.
In this respect, we have noted that neither Registrar before whom the registered sale deed in question was executed nor any person from the Registrar Office was produced in evidence to rebut the claim of the petitioners. It was brought on the record during the evidence of the respondents that they paid the sale consideration to Mst. Rahim Khatoon (petitioner/plaintiff) through bank transaction but neither any bank statement nor any official/officer of the concerned bank was produced in their evidence by the respondents and as such the payment of sale consideration of the suit house by the respondents to Mst. Rahim Khatoon (petitioner/plaintiff), could not be proved in this case. Admittedly no relative of the plaintiff Mst. Rahim Khatoon, who was an illiterate and old lady, accompanied her at the time of disputed transaction. We are, therefore, of the view that the judgment of the learned High Court, whereby Mst. Rahim Khatoon (petitioner/plaintiff) was held responsible to prove the factum of fraud has been passed against the settled law of the country on the subject. We may refer here the case "Misbah Khanum v. Kamran Yasin Khan and another" (2022 SCMR 1629), wherein it was categorically observed that once the fraud is alleged by the original owner then the beneficiaries of the sale transactions were bound to show genuineness of the alleged transaction. Through the said judgment, the case of an elderly and illiterate lady challenging the sale transaction of a property was ultimately decided in her favour as the defendants who were beneficiaries of the disputed transaction could not prove the genuineness of the transaction. The respondents were legally bound to prove the genuineness of the alleged transaction by producing the concerned Registrar but the needful was not done. Similarly the respondents were bound to prove the payment of sale consideration but as mentioned earlier, the relevant bank record or any official/officer of the bank was not produced by the respondents to prove the factum of payment of sale consideration. We are, therefore, of the view that respondents, who were beneficiaries in this case, could not discharge the onus to prove the genuineness of the transaction in their favour.
5. Consequently, this appeal is allowed and the impugned judgment of the learned High Court dated 14.03.2013, is hereby set-aside. Resultantly the judgments and decrees dated 26.07.1992 and 11.12.1994, of the learned Civil Judge, Lodhran and learned Additional District Judge, Lodhran, respectively are hereby restored.
UN/R-4/SC Appeal allowed.