ANWAR ZAMAN and 5 others vs BAHADUR SHER and others

' MUNIR A. SHEIKH, J.---This appeal by leave of the Court is directed against the judgment, dated 9- 1-1993 of the Peshawar High Court, through which Civil Revision No,474 of 1984 filed by the respondents against the judgments of the Courts below by which the suit of the appellants for possession of land through redemption was decreed, has been accepted and the said judgments and decrees set aside and the suit dismissed.

2. The facts of the case in brief are that the appellants filed a suit against the respondents for possession of land in dispute by redemption measuring 3 Kanals out of the total land measuring 26 Kanals and 15 Marlas bearing Khasra No,3226 situated in Mauza Topi Tehsil Swabi on payment of Rs,500 as mortgage amount. According to the averments made in the plaint, the said land measuring 3 Kanals was mortgaged through mortgaged deed on 12-7-1952 which was given effect to in the Revenue Record through mutation No,6978 attested on 13-9-1952. The appellants /plaintiffs are the successor-in-interest of Nawab Khan, the original mortgagor whereas the respondents/ defendants are the heirs of Nasir Khan, deceased mortgagee. The respondents/ defendants contested the suit. They denied the existence of relationship of mortgagor and mortgagee between the parties as they had become owners by adverse possession for more than 12 years. A plea was also raised that the land mortgaged to them was subsequently sold to them by the mortgagor through sale-deed, dated 2-12-1952. They also raised the plea of improvement over the land in dispute. The appellants/ plaintiff denied the execution of any sale-deed and also challenged its admissibly.

3. The trial Court after framing issues recorded the evidence of the parties. It was held by the trial Court that there existed relationship of mortgagor and mortgagee between the parties and the two sale-deeds, dated 2-12-1952 on which reliance was placed by the defendants /respondents were fictious and as such, in-admissible in evidence. The suit was decreed through judgment, dated 10-5-1981 subject to payment of Rs,500. The respondents/ defendants filed appeal against the said judgment and decree before the learned Additional District Judge, Swabi which was dismissed by the said Court through judgment, dated 3-9-1984. The judgments of both the Courts below were assailed in Civil Revision No,474 of 1984 by the respondents before the High Court. The High Court after reappraisal of oral as well as documentary evidence substituted its own findings for those of the concurrent findings of facts by the two Court below qua one of the sale-deeds Exh.D.W.1/1 about which it was held that the execution of the same had been proved and the same was a genuine document, as such, the suit was dismissed qua half of the property subject-matter of the suit i,e, 1-1/2 Kanal and for the remaining half the same was decreed.

4. Leave to appeal was granted to consider whether in exercise of jurisdiction under section 115, C.P.C., the High Court was legally justified to interfere in the concurrent findings of facts of the two Courts below as regards rejection of the sale-deed (Exh.D.W.1/1) based on the findings that the same was also not a genuine document.

5. We have examined the judgments of the trial Court and the First Appellate Court and find that the findings that this sale-deed was also not genuine document were based on elaborate appraisal of documentary and oral evidence and the following inferences drawn from the attending circumstances:-

(a) If the mortgagor had the intention to sell the land and divest himself of the ownership rights in the same, there was no reason not to execute the sale-deed on 12-7-1952 on which date the property was mortgaged through mortgage deed for the questioned sale-deed was alleged to have been executed only after a short period of five months. An ordinary prudent man would not adopt such a course if he had the intention to sell the land at the very out set and there is no explanation as to why this device was to be adopted to execute two documents within a short period of five months;

(b) The mortgage was given effect to in the Revenue Record through mutation sanctioned on 13-9- 1952 whereas no effort was made by the respondents /defendants to get mutation attested on the basis of the sale-deeds in order to record their names in the ownership column of the Revenue Record to secure their ownership rights. It was held that an ordinary prudent man would not wait for a long time to get the entries in the Revenue Record corrected according to the sale-deeds if the same had in fact been executed and was a genuine document and the mortgagor had sold the same;

(c) The sale consideration was intentionally shown at Rs,99 in order to avoid registration of the document, as if the same had been shown to have sold for Rs,100, it was compulsorily registerable and in that case it was not possible to maintain in secrecy the fraud played in preparing the said document.

(d) The original mortgage deed in spite of direction was not produced by the respondents/defendants which was in their possession.

6. The High Court after merely considering the statement of the scribe and the other witnesses came to the conclusion that the execution of the said sale-deed had been established and substituted its own findings as against the findings of facts recorded by both the Courts below. It is well-settled law that even if on the reappraisal of evidence, a different view could possibly be, taken, the same was no ground for interference with such findings of facts of the two Courts below in exercise of jurisdiction under section 115, C.P.C. The two Courts below had given strong reasons for raising interference against the documents on the basis of all attending circumstances and the said Courts were justified in raising those inferences, therefore, the High Court even if had formed its own opinion different from the Courts below, the findings of facts could not even then have been interfered with unless strong reasons had been given to reject the inferences drawn by the two Courts below. We find that in the impugned judgment of the High Court, those reasons have not been adequately and satisfactorily attended to and met with. On the same day, two sale-deeds were alleged to have been executed by the mortgagor in favor of the mortgagees. There was no mention made in the disputed sale-deeds as to how the mortgage money was to be adjusted after the sale of the land. No mention has been made even about the mortgage in the deed itself. If the mortgage money was to be adjusted towards the price of the land and was to be considered as part of the consideration then each sale would he deemed to be for a consideration for more than Rs,100 and ' they required registration without which no right of ownership could be transferred in favor of the vendee nor the ownership rights of the vendors under such an unregistered document could be extinguished as per provisions of the Registration Act. (See section 49 of the Registration Act). The mortgage deed which was admittedly with the respondents should have been produced and in fact an entry made in the same that due to sale of the land, the same had become ineffective and should have been delivered to the mortgagors. The said mortgage deed was not produced in spite of directions to the effect given to the respondents on the plea that the same had been lost which explanation was not found satisfactory by the two Courts below and according to our view, it was not rightly so found.

7. From what has been discussed above, the findings of the trial Court and the first appellate Court that both the sale-deeds were not genuine documents were based on elaborate, careful and correct appraisal of evidence which do not suffer from any misreading, as such, could not legally be interfered with under section 115, C.P.C., therefore, the impugned judgment of the High Court is not sustainable.

8. For the foregoing reasons, this appeal is accepted, judgment dated 9-1-1993 of the Lahore High Court passed in Civil Revision No,474 of 1994 is set aside and those of the two Courts below restored with the modification that in order to do complete justice instead of Rs,500, the appellants should pay an amount of Rs,10,000 within two months to the respondents/mortgagees as the amount of Rs,500 was advanced by the respondent as far back as 1952.

9. There will, however, be no order as to costs.