SULEMAN vs Mst. ZEENAT JAN and 2 others
This is a petition for leave to appeal arising from a civil suit for declaration and injunction filed by the petitioner claiming ownership in possession of the suit land and seeking cancellation of a mutation on the ground that the sale consideration was not paid. The trial court decreed the suit in favor of the plaintiff. Upon appeal, the appellate court modified the decree, granting Rs. 40,000 as the price of the land instead of a declaration. The High Court subsequently allowed a revision application and dismissed the suit in toto. The core legal question concerns the proper assessment of evidence regarding the burden of proof for the payment of sale consideration and possession. The Supreme Court granted leave to examine the evidence in light of these contentions, holding that further examination is warranted as to whether the burden of proof regarding payment was properly discharged and assessed by the lower courts.
- Whether the burden of proof regarding the payment of sale consideration lies on the defendant who asserts making the payment after denial by the plaintiff?
- Whether the High Court was justified in dismissing the suit in toto upon a revision application?
- Whether the lower appellate court and the High Court properly assessed the evidence produced by the parties regarding possession and sale consideration?
ORDER
' SAJJAD ALI SHAH, C.J.---Petitioner before us is plaintiff in the suit, which was filed by him for declaration and injunction to the effect that he was the owner in possession of the suit land and that the transaction with regard to its sale in favour of defendant No,1 did not materialise as the consideration was not paid, hence Mutation No,759 was liable to be cancelled. Keeping in view the pleadings of the parties as many as 15 issues were framed, from which the crucial issue is whether the defendants have paid the sale consideration to the plaintiff and the defendants, are in possession of the suit property, and therefore, the mutation in dispute has rightly been entered in favour of the defendants. The trial Court after evaluation of the evidence decreed the suit, against which an appeal was filed which is allowed and in consequence, instead of declaration, the suit was decreed for Rs,40,000 as price of The suit land to be paid to the plaintiff by the defendants.
Against the said decision, a revision application was filed in the High Court, which is allowed and in consequence the suit is dismissed in toto.
2. Before us contention is raised on behalf of the petitioner/plaintiff that the suit should not have been dismissed in toto by the High Court as burden of proof with regard to the payment of sale consideration amounting to Rs,40,000 was on the defendants, who made positive assertion that they made the payment after denial by the plaintiff and in that connection evidence produced by the parties has not properly been assessed by the First Appellate Court and the High Court. It is further contended that the mutation was not sanctioned and possession remained with the plaintiff as the sale consideration was not paid.
3. Leave is granted to examine the evidence in the light of the contentions mentioned above.