MUHAMMAD SHARIF vs BASHIR AHMAD

ORDER

' The petitioner filed a suit for possession of the suit land through pre-emption which was decreed by the learned Civil Judge, Daska vide judgment and decree dated 22-6-1986 on payment of Rs.25,000. An appeal filed by the petitioner was dismissed by the learned Additional District Jude, Sialkot vide judgment dated 17-12-1986. Hence this revision petition.

2. The only point involved in this petition relates to the sale price. The petitioner had alleged in the plaint that the land in dispute was sold for Rs.11,000 and the remaining amount was fictitiously entered to defeat the right of the petitioner. There is a concurrent finding of the learned Courts below in regard to the payment of the price of the suit land and they have held that a sum of Rs.25,000 was paid as price of the suit land. The learned counsel for the petitioner has argued that no evidence was produced by the respondent to prove a sum of Rs.14,000 paid as earnest money.

The respondent besides himself appearing as D.W.1 has produced Muhammad Din D.W.2 who is a marginal witness of the sale-deed. He is an independent witness. There is no discrepancy or contradiction in the evidence of D.W.1 and D.W.2. Their evidence is supported by the sale-deed Exh.

D.1 and in particular by the endorsement of the Registrar thereon in which it is recorded that the vendor admitted the receipt of Rs.14,000 paid prior to the registration and the remaining amount of Rs.11,000 had been paid before the Registrar. Therefore, the respondent succeeded in discharging the onus in regard to the payment of price amounting to Rs.25,000. It then lay on the petitioner to rebut the strong oral-cum-documentary evidence but no cogent and reliable evidence was produced by him. The petitioner as P.W.1 had stated that he had been told by one Razzaq that the land was sold for Rs.11,000 but the said Razzaq was not produced. On the other hand Zakir Hussain D.W.2 was produced and he stated that he was present at the time of bargain but his evidence cannot be believed because he is not a marginal witness of the said sale-deed. In any case the evidence of the said P.Ws. Does not suffice to rebut the evidence produced by the respondent. As such the learned Courts below were right in holding that a sum of Rs.25,000 was actually paid as price of the land.

3. Learned counsel for the petitioner has stated that the petitioner put in an application for decision of the case on oath but the respondent refused to agree to that process and has argued that an A adverse presumption from the same may be drawn against the respondents. This is not the correct legal position. Decision on oath is possible if both the parties agree to that process. It is also possible under Article 163 of Qanun-e-Shahadat Order, 1984 if there is no evidence available with a plaintiff and he can support his claim only by his own oath and by no other means. In that case if the B plaintiff of a case takes the oath the respondent also takes the oath and if he refuses the claim of the plaintiff the case or plea of the plaintiff fails. This is known as Half-e-Radd. But when evidence is available and can be produced then resort to Article 163 ibid cannot be made. In this case both the parties have led evidence and, therefore, the provisions of the said section could not apply to it. C Therefore, no adverse presumption against the respondent could be drawn.

4. It may be added that the petitioner produced no evidence whatsoever on the issue relating to the market value or to establish that the market value of the land in dispute was less than Rs.25,000. Therefore, the said amount would be taken to be the market value. There is no material irregularity or illegality in the judgments and the decrees of the learned Courts below. The revision petition is dismissed in limine.