MUHAMMAD YOUSAF Versus AJAB NOOR
IKRAMULLAH KHAN, J.--- Through the instant Civil Revision, the petitioner has challenged the impugned Judgment dated 21/07/2006, passed by the learned Additional District Judge-XII, Peshawar, whereby the appeal filed by the petitioner against the Judgment dated 09/02/2005 passed by the learned Civil Judge, Peshawar was dismissed.
2. The briefly stated facts are that the petitioner instituted a declaratory suit in respect of a house situated at Panj Katta, Wazir Bagh, Peshawar, measuring 12 Marlas within specific boundaries well mentioned therein the heading of plaint, against the respondents, whereof claimed the ownership of the suit house on the basis of an agreement to sell dated 17.05.1995 and on an arbitration award of the same date. Also challenged therein, the sale deed dated 27/07/1995 in regard to the suit property in favour of the respondent No 1, being forged, factitious and based on misrepresentation and result of fraud and dishonesty, ineffective upon the right of ownership of the petitioner in regard to the suit house.
3. The respondents filed thereof, his written statement, whereof raised numerous legal and factual objections, while contended thereof, that the suit house had been purchased by respondent No. 1, on payment of sale consideration of Rs.1,20,000/-.
4. The trial Court, framed respective issues arising out of the divergent pleadings of the parties and thereafter parties were given opportunity to adduce their respective evidence, in support of their respective claims raised therein, their pleadings. On the conclusion of trial the learned Civil Judge dismissed the suit of the petitioner. On appeal, the learned Additional District Judge, also declined to give any relief to the petitioner and thereby while dismissing the appeal filed by the petitioner, upheld the impugned Judgment of the learned Civil Judge dated 09/2/2005. Being aggrieved and dissatisfied of the impugned judgments; hence, the instant revision petition before this Court.
5. The learned counsel for the petitioner contended thereof that, the impugned Judgment is extraneous, perverse and is result of misreading and non-recording of evidence; that the respondents miserably failed to prove the sale deed dated 27.07.1995 strictly in accordance with the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984; that the original sale deed was never produced before the trial Court, while permission for leading secondary evidence in regard to the alleged sale deed had not been obtained from the trial Court, which had made all the evidence in regard to proof of sale deed inadmissible; that the petitioner, being illiterate person, having blind faith in respondent No. 1 being his brother in law, who took the benefit of active confidence, played fraud upon the petitioner and executed the sale deed in his name instead of the petitioner, albeit the sale consideration was paid by the petitioner; that both the Courts below have not appreciated the evidence adduced by the petitioner in regards to agreement to sell and the Arbitration Award in favour of the petitioner in its true perspective, thereby rendered its judgment capricious, liable to be set aside; that essence of time stipulated therein the agreement to sell never made the vendor entitled to re-sale the property without cancellation of the agreement to sell.
6. On the other hand, the learned counsel for respondent No. 1, argued that, essence of time is determinable factor in deciding such like issues pertained to an agreement to sell; that petitioner was tenant upon the suit house and being brother in law of the respondent No. 1, purchased the suit house for respondent No. 1 and Rs. 40,000/- was given as earnest money, which was paid by respondent No.1 but, being in active confidence of respondent No. 1, the petitioner executed agreement to sell on its own name, being benamidar on behalf of respondent No.1, that petitioner was a Labourer, could not manage so much a huge amount in the year 1995, while Article 129 of the Qanun-e-Shahadat Order, 1984, gives an adverse inference against the petitioner, as he never remained in possession of the sale deed; that in previously instituted rent application against the petitioner, wherein both parties recorded their respective evidence, petitioner never took the plea, which has now been agitated in this second round of litigation; that, the petitioner had been dispossessed/ejected through the process of the Court in due performance of the ejectment order passed against the petitioner in regard to the suit house and is precluded by rules to agitate a new plea, not raised in previous litigation between the parties.
7. Arguments delivered by both the learned counsel for the parties were anxiously heard and scrupulously, perused the available record.
8. The first contention of the petitioner, that sale deed dated 27.07.1995 was not proved according to the provisions of Articles 79 of Qanun-e-Shahadat Order, 1984, and that permission for leading secondary evidence was also, not obtained in this respect from the trial Court, would need some explanation hereinafter as, it is established principle of law of evidence that the burden of proof lies on the person, who asserts and alleged a fact.
Article 118 of the Qanun-e- Shahadat Order, 1984, envisaged as:-
"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side".
9. The onus probandi, postulates that where no evidence adduced by one who asserted proposition must fail. For reference, the case of Mst. Sanawar Jan v. Temash Khan" (PLD 1991 Peshawar 101) may be referred.
10. The petitioner in his pleading as well as in his witness statement and examination in cross, had admitted the execution of the sale deed dated 27.07.1995 with the exception, that the sale consideration, paid at the time of execution of the deed Rs. 80,000/- was actually the money of the petitioner, given to respondent No. 1, for payment onward to the vendor as a balance amount in regard to completion of agreement to sell dated 17.05.1995.
11. In such a situation, when the execution of the sale deed dated 27.07.1995 was not only admitted by the petitioner himself in his pleading but also, the vendor PW-4 Ghulam Parvez when appeared as a witness on behalf of the petitioner, in unequivocal term, confessed the execution of sale deed dated 27.07.1995 and also admitted the sale consideration of Rs.80,000/- been paid by respondent No.1 and the sale deed dated 27.07.1995 was executed by him and his brother, the co-vendor in the Hujra of respondent No 1, which was also attested by the petitioner as a token of correctness in this regard, leave no doubt, that the sale deed was executed and its due execution was admitted by the petitioner as well as PW-4 the vendor. In such state of affairs the provisions of Article 113 of the Qanun-e-Shahadat Order, 1984, would be given effect to answer this proposition of law, which when reproduce postulates as:-
"No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleading".
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
12. The trial Court, while following the rule envisaged thereunder Article 113 of the Qanun-e- Shahadat Order, 1984, admitted the execution of the sale deed and did not invoke the proviso provided there under Article 113 of Qanun-e-Shahadat Order, 1984, and as such did not frame any issue in regard to the sale deed dated 27.07.1995.
13. The only exception, raised by the petitioner in regard to the sale deed was that the sale consideration was actually paid by him but was given to respondent No. 1, in view of active confidence, being his brother in law, for onward payment to vendor.
14. The provisions of Article 119 of the Qanun-e- Shahadat Order, 1984, envisaged as:-
"The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person".
15. In this regard the initial burden is always on a person, who, upon existence of certain facts, would seek a favourable judgment in his favour.
Likewise the provisions of Article 122 of the Qanun-e-Shahadat Order, 1984, stipulate as:-
"When any fact is especially within the knowledge of any person the burden of proving that fact is upon him".
16. The petitioner in the circumstances of the case was under obligation to prove the factum of sale consideration paid to vendor that it was actually the amount delivered to respondent No. 1 for onward payment to vendor, but the petitioner miserably failed to discharge this burden even, he did not appear in witness box, though his attorney and son, recorded his statement on behalf of the petitioner, but in such state of affairs, when a fact is specially in the personal knowledge of a person, in case he is alive, is bound to record his statement personally and to face, the test of cross examination. The petitioner failed to prove by any solid and believable evidence, that Rs. 80,000/- which was paid to the vendor, was the amount had handed over to the respondent No. 1 as balance sale consideration by the petitioner. The vendor when, appeared as PW-4 on behalf of and in support of the plea of petitioner in this regard, he in unequivocal term had admitted that the actual vendee was respondent No. 1 and the sale consideration had been paid by respondent No. 1 and petitioner had attested the sale deed as a witness.
17. It is by now a settled law that keeping in view the general rule applied there to the pleading, deviation from its own pleading shall be condemned being against the rule of secundum allegata et probata. The facts alleged thereof in one's pleading to be proved and nothing else. Party to litigation would only succeed on proving the facts alleged therein his pleadings.
18. Though there is an exception to the rules mentioned hereinabove, which has been incorporated thereunder Article 126 of the Qanun-e-Shahadat Order, 1984 as;-
"When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
19. True the petitioner was in possession of the suit house, but at the time of passing the decree in regard to the suit house, in favour of the respondent No. 1, it was already decided by a competent forum that petitioner was tenant and respondent No. I was landlord, and petitioner was ejected through due course of law.
20. In so far as the proof of good faith in transactions is concerned where one party is in active confidence to the other, in such situation the provisions of Article 127 of the Qanun-e‑Shahadat Order, 1984, had laid burden of proof on the person, who is in a position of active confidence with the adverse party.
21. Both the parties as claimed by them, are in active confidence of each other but both the parties failed to prove, that who was inactive confidence of the other, thereby failed to discharge this burden.
22. Though the petitioner in his pleading had claimed that he was the original vendee and respondent No. 1, fraudulently shown himself as vendee through the disputed sale deed, but strange enough, that if its plea of illiteracy and attestation of the sale deed as a vendee is accepted, even then, without proving the compelling circumstances, which left the original document in the possession of the respondent No 1 though not an owner as per the contentions of the petitioner, is not attractive to a prudent mind, which give adverse inference thereunder Article 129 of the Qanun-e-Shahadat Order, 1984, against the petitioner.
23. The provisions of Order VII, rule 15, C.P.C. envisaged as:-
"Where any such document is not in possession or power of the plaintiff, he shall if possible, state in whose possession or power it is".
24. The petitioner in his pleading never agitated such plea of active confidence, upon the respondent No. 1 that the original sale deed was handed over to him to keep it in safe custody by respondent No. 1.
25. A plea not raised in the pleading, could not be raised thereafter even in course of trial without permission of the Court and that too by amendments in one's pleadings.
26. The provisions of Article 129 of Qanun- e-Shahadat Order, 1984, postulates as:-
"The Court may presume the existence of any act, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the fact of the particular case."
27. It is not attractive to a reasonable and prudent mind that the petitioner, as alleged that he was the real and actual vendee; but, attested the sale deed as a witness and also left the original deed in the possession of the respondent No. 1 and never ever till the time of institution of the suit, demanded back from the respondent No. 1, the original sale deed, nor ever described this aspect in his pleadings.
28. The Attorney and son of the petitioner, in his witness statement had admitted that he is matriculate and was present over there in the Hujra of respondent No. 1, at the time of execution of the sale deed but never raised objection that why respondent No.1 was shown as vendee in the sale deed nor ever attempted to have in their possession the original deed, which raised strong exceptions in this regard, that petitioner was not the vendee, otherwise at least the original deed of sale would have been in his possession and custody.
29. Now adverting to the previous litigation, concluding finally by the apex Court, in regard to ejectment petition filed thereof by the respondent No. 1 against the petitioner, whereof the petitioner had filed his written reply there to the ejectment petition, this Court in its Judgment dated 05.05.2003, delivered against the petitioner, had discussed the pros and cons of the agreement to sell, relied upon by the petitioner though not described therein his written reply, however was discarded by this Court, could not be permitted to raise an already decided issue herein the 2nd round of litigation, that respondent No. 1 has executed the sale deed in his name fraudulently. The copies of the Judgment and previous pleadings are annexed hereto this Revision Petition and had also placed on record in the trial Court by the respondent No. 1, which could be read as supportive evidence for the purpose to arrive to just and fair decision in regard to the controversy existed between the parties, in regard to the ownership of the suit house. The said statement recorded in the previous Rent proceeding, were duly confronted with the witnesses examined by the petitioner in support of his claim in the instant case.
30. The petitioner had not instituted the suit for specific performance, for the sole reason, that he categorically had admitted the execution of the sale deed dated 27.07.1995, and as such the respondent No. 1 is not bound to prove the sale deed strictly in accordance with the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984, being its execution admitted by petitioner and its own witnesses.
31. The contention of the petitioner, that no permission had been procured by the respondent No. 1 in order to adduce secondary evidence in regard to the missing sale deed, had been misconceived by the learned counsel for the petitioner, as respondent No. 1 had not proved the photo copy of the sale deed, but he had proved independently original contents of the register maintained by the petition writer whereof the parties to the sale and witnesses had signed and attested, as token of correctness the sale of the suit house in favour of the respondent No. 1, which are not be termed as copy of the original deed but itself is a kind of independent proof in this regard and a corroborative piece of evidence, scribed as original one.
32. Such entries, duly recorded by an authorized petition writer maintained thereunder the immediate control and supervisions of every Senior Civil Judge in this behalf of every District, does not come in the purview of secondary evidence as mentioned thereunder Article 74 of the Qanun-e-Shahadat Order, 1984.
33. The execution of the disputed sale deed had not been denied but rather admitted by the petitioner, so the production of the original deed is not the requirement of law. However, the petition writer register, in original had been produced, whereof the vendor had admitted its execution and attestation, was an appropriate proof that the disputed sale deed had been executed in favour of respondent No 1, being the vendee of the disputed house.
34. The next contention of the petitioner, that unregistered deed, never conferred proprietary right over an immovable property, nor deprive a person of his proprietary rights in an immovable property, needs no comments as in the present suit the vendor had never challenged the authenticity of the unregistered sale deed; but, rather admitted its execution and delivery of possession in favour of respondent No. 1, while petitioner could not be allowed to raise objection in this regard, as he was not the vendor of the suit property.
35. The provisions of section 53-A of Transfer of Property Act, 1882 is fully attractive to the present circumstances of the case and registration of sale deed becomes irrelevant. Reference may be given to the case of "Muhammad Yousaf v. Munawar Hussain" (2000 SCMR 204).
36. However to part with, and to give final findings in regard to the instant Revision Petition, though the petitioner was required to pray in alternative for the earnest money of Rs. 40,000/- which had been admitted by the respondent No. 1 as well as by the vendor, that such amount was paid by the petitioner (though with an exception, that it was handed over to the petitioner by respondent No. 1) but the petitioner failed to pray for return of Rs. 40,000/- from respondent No.1, however, keeping in view the peculiar circumstances of the case, this Court while invoking the jurisdiction conferred there under Order VII, rule 7, C.P.C. 1908, have come to the conclusion that the respondent No. 1, had admitted the payment of Rs. 40,000/- by the petitioner to the vendor but failed to discharge its burden that the said amount of Rs. 40,000/- was given to petitioner by respondent No. 1 for purchase of the suit house. The petitioner is entitled to recover the said amount of Rs. 40,000/- in addition to 2% simple interest per annum from the date of institution of the suit till the realization of the amount as mentioned hereinabove, through due course of law.
37. For the reasons given hereinabove, except the slight variation that petitioner may recover back, Rs. 40,000/- along with 2% interest thereon per annum, no any other blatant irregularity or illegality has been pointed out in the impugned judgment the instant revision petition, is devoid of merit, accordingly dismissed.
ZC/620/P Revision dismissed.