Mst. RASOOLAN BIBI Versus GHULAM HAIDER
CH. MUHAMMAD MASOOD JAHANGIR, J.--- The instant petition has been directed against judgment and decree dated 25.4.2006 passed by the learned Additional District Judge, Mandi Bahauddin whereby the appeal filed by the plaintiff/respondent was accepted and the judgment and decree dated 13.7.2005 passed by the learned trial court dismissing the suit filed by the respondent/plaintiff was set aside.
2. The synopsis of the case are that respondent Ghulam Haider, being plaintiff brought a suit for declaration along with permanent injunction or in alternative sought for specific performance of agreement of exchange with the assertion that predecessor in interest of the defendants Nos.1 and 2 Ghulam Ali had orally exchanged the disputed property with his land and also received Rs.50,000/-from the plaintiff as the property in dispute owned by Ghulam Ali was more valuable and said Ghulam Ali was in need of some amount to prosecute the case of his son, who was involved in a murder case, that said amount was paid in presence of parties to Ghulam Ali who also executed a receipt dated 12.11.1990 Exh.P1, in favour of the plaintiff/respondent, that after the death of Ghulam Ali, his daughter Mst. Razia Bibi transferred her share to her mother Mst. Rasoolan Bibi defendant/petitioner No.1 vide mutation No.906 dated 27.4.1995, that the defendants were bound to transfer the disputed property to the plaintiff as a result of agreement of exchange and subsequent transfer of the suit land was ineffective upon the rights of the plaintiff.
3. Conversely the defendants resisted the said suit and denied the transaction of oral exchange as well as receipt of consideration of Rs.50,000/-. It is also averred by the defendants that receipt Exh.P1 was fictitious and forged.
4. The learned trial court in the light of divergent pleadings captured the disputed area of facts by striking the following issues:‑
1. Whether plaintiff is owner in possession of suit property and the entries in the revenue record are ineffective upon the rights of the plaintiff and illegal null and void and liable for cancellation? OPD
2. Whether the plaintiff is entitled to declaration and in alternative decree for specific performance of agreement as alleged by the plaintiffs? OPP
3. Whether the suit is not maintainable in its present form? OPD
4. Whether the suit is barred by time? OPD
5. Relief.
5. Both the parties adduced their evidence before the learned trial court. Then the suit was dismissed by the learned trial court and being aggrieved the plaintiff/respondent preferred appeal which was accepted through the impugned judgment and decree referred in para-1 ante.
6. Being dissatisfied, the instant civil revision has been filed by the defendants/petitioners.
7. The learned counsel for the petitioners/defendants has submitted that no deal for exchange of suit property between the parties had been ever settled or taken place, that the possession of the property was never delivered to the plaintiff/respondent under the alleged exchange, that alleged exchange according to the version of plaintiff had been settled in 1990 and the suit before the learned trial court was filed on 23.4.1998, which was badly time barred, but both the courts below did not advert to the said fact. He further mooted that the impugned judgment and decree passed by the learned Additional District Judge dated 25.4.2006 is not free from taint of misreading and non-reading of evidence. He lastly prayed for the acceptance of civil revision, setting aside of impugned judgment and decree and further prayed that the judgment and decree passed by the learned trial court be restored.
8. Conversely the learned counsel for the respondent/plaintiff supported the impugned judgment and decree and while relying upon the judgments reported as Haji Nowroz Khan v. Hussain Gul and 13 others (1980 CLC 17), Maung Tun Pe and another v. Maung Sein Myi and another (AIR 1929 Rangoon 293), Muhammad Hussain v. Ghulam Ali (PLD 1977 Kar. 285), Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. (Formerly Messrs Japan Cotton and General Trading Co. Ltd.) Karachi (PLD 1976 SC 781), Ch. Munir Ahmed through L.Rs. v. Muhammad Naeem (2010 CLC 1028), Nazir Ahmad v. Muhammad Rafiq (1993 CLC 257), AASA v. Ibrahim (2000 CLC 500), Muhammad Rafique and others v. Ghulam Murtaza through L.Rs. (2008 CLC 69), Sardar Ali v. Mst. Sardar Bibi alias Sardaran through L.Rs. (2010 SCMR 1066) and Moosa and others v. Muhammad Yakoob and others (PLD 1966 (W.P.) Kar. 376) and prayed for dismissal of the instant civil revision.
9. Arguments heard and record perused.
10. It is the case of the respondent/plaintiff that exchange of the suit land between the parties had been settled orally. No doubt through oral agreement a transaction between the parties could be settled and such a transaction could not be declared as void, but in such an eventuality a beneficiary is required to specifically narrate all the requisite ingredients in his pleadings otherwise he would be precluded to lead any evidence in this regard. The perusal of plaint reveals that in the present case the plaintiff/respondent has not mentioned the time, date, venue and the names of the witnesses to show that when, where and in whose presence the bargain of oral exchange was struck between the parties. No doubt the plaintiff/respondent in his plaint specifically pleaded that a receipt of payment of consideration was scribed on 12.11.1990 for the acknowledgment of oral exchange, but as per contents of the plaint, the execution of receipt Exh.P1 was a subsequent event and the basic transaction of exchange might have been settled at some prior point of time. The detail of such transaction is missing in the body of the plaint. Even no period for the completion of exchange transaction finds mention in the body of the plaint. It is well settled principle of law now that the narration of such detail is sine qua non for the success of a party who relies on an oral transaction. Reliance can be placed upon the judgments reported as Anwer Hussain Surya v. Sumair Builders through Partners (2008 CLC 418), Muhammad Alam and others v. Qalam Badshah and others (2012 YLR 521), Nazir Ahmad and another v. Yousaf (PLD 2011 SC 161) and Muhammad Nawaz through L.Rs. v. Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300).
11. To prove the event of alleged oral exchange plaintiff himself appeared as PW1 and in his cross examination he deposed as under:- whereas his supporting witness Manzoor Ahmed PW4 during his cross-examination narrated as under.
12. The perusal of deposition of PW1 leaves no room to believe that when the oral exchange between plaintiff and Ghulam Ali, the predecessor-in-interest of the petitioners/defendants was settled, no other person was present. On the other hand plaintiff's own witness PW4 said something altogether different that it was settled in his presence. Such a contradiction cannot be considered a minor variation. The contradictory stand of both PW1 and PW4 during the trial has shattered the existence of alleged oral exchange as it relate to settlement of the basic transaction. The contention of the learned counsel for the respondent/plaintiff that for the acknowledgment of oral exchange, a receipt Exh.P 1 was executed and the plaintiff fully proved the execution of said receipt by producing marginal witnesses as well as scribe of the said document is also without force. The alleged oral exchange between plaintiff and Ghulam Ali had been settled one day prior to the execution of receipt Exh.P 1 and if it was so, then why the details regarding time, date and venue could not be mentioned in the plaint. Furthermore the marginal witness as well as alleged author of the receipt were interested one being close relatives of the plaintiff. Even otherwise, the receipt Exh.P1 did not bear the name as well as signature of its scribe Mukhtar Ahmad PW3 and most importantly the said Exh.P1 had been scribed by an un-licensed person not trained in the trade of authoring such like documents just to avoid its entry in the relevant register who under the rules was obliged to enter the same into his register issued by competent authority in this regard, so that the signatures or thumb impression of the executant would be obtained against the entry of execution of the relevant transaction. The case law cited by the learned counsel for the respondent reported as to Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. (Formerly Messrs Japan Cotton and General Trading Co. Ltd.) Karachi (PLD 1976 SC 781) and Sardar Ali v. Mst. Sardar Bibi alias Sardaran through L.Rs. (2010 SCMR 1066) and Moosa and others v. Muhammad Yakoob and others (PLD 1966 (W.P.) Kar. 376) argue that receipt Exh.P1 did not require registration is not helpful to him in the light of above referred observation and further the said case law is not applicable to the facts and circumstances of the present case.
13. The next submission of learned counsel for the plaintiff that Exh.P1 was produced in the evidence and the petitioners/defendants did not raise any objection at the time of its exhibition, therefore, the execution of said Exh.P1 stood admitted by the petitioners/defendants is also not well founded. There is no hard and fast rule that if a document has been brought on record without any objection from the adverse party, the contents thereof will be deemed to be admitted by him rather the concept is that a party relying upon a document had to prove its contents when the execution of said document had denied judgments reported as Muhammad Jameel v. Muhammad Sharif (1985 CLC 2353), Mughees ud Din Mirza v. Mst. Maryam Masood and 3 others (2008 CLC 1287), Muhammad Ilyas v. Hussani (2000 MLD 160), Muhammad Hussain v. Fiaz Bakhsh and another (2001 CLC 1203) and Muhammad Akram and another v. Mst. Farida Bibi and others (2007 SCMR 1719).
14. The next argument of the learned counsel for the respondent/plaintiff that the revenue official entered rapat roznamcha in daily register of waqiati Exh.P2 and corrected the record of revenue is also meritless and suffice it to say that rapat roznamcha by itself would not confer any title in the immoveable property. The insertion of any such entry by the revenue official in the absence of concerned person whose rights or entries were going to be changed carries no presumption. The change embodied in Exh.P2 would have to be established independently and the plaintiff/respondent was thus required to prove the event mentioned in the said document as well by procuring the concerned revenue officials who brought the change in the said register. Reliance can be placed upon the judgments reported as Lal Khan v. Bashir Ahmad (1989 CLC 140), Muhammad Younas v. Shahid Naveed (1989 CLC 837), Tooti Gul and 2 others v. Irfanuddin (1996 SCMR 1386) and Zulfiqar and others v. Shahdat Khan (PLD 2007 SC 582).
15. There is yet another aspect of the case that when both the parties i.e. plaintiff and Ghulam Ali had entered into alleged oral exchange and total consideration was also paid by the plaintiff to the executant, then why any exchange deed or mutation was not executed and only a receipt regarding payment of money on a plain paper was executed. Admittedly neither there was any clog over the disputed property nor the executant was in such a condition that the same could not be brought before the attesting officer. No such evidence is available on the file and even the plaintiff did not bring his suit before the learned trial court in the life period of Ghulam Ali who died about 1-1/2 years after the alleged settlement of oral exchange. The other case law referred to by learned counsel for the respondent is also not applicable to the facts and circumstances of the present case.
16. On the touchstone of above discussion and analysis of available as well as considering the case law it is safely concluded that the learned trial court passed an eminent judgment while dismissing the suit of the plaintiff/respondent whereas the learned lower appellate court failed to repel the said well founded reasoning of the learned trial court while delivering the impugned judgment and decree. The epitome is that impugned judgment and decree dated 25.4.2006 passed by the learned Additional District Judge, Mandi Bahauddin is not sustainable, which is accordingly set aside by allowing the present revision petition and the judgment and decree dated 13.7.2005 passed by the learned Civil Judge, Phalia whereby the suit filed by the respondent/plaintiff was dismissed is restored with no orders as to costs.
ZC/R-30/L Revision allowed.