PLJ 2023 Lahore 172
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Civil Procedure Code, 1908, S. 115--Suit for declaration--Decreed--Appeal--Allowed--Agreement to sell and sale consideration was not proved by respondents--Revenue officials, lambardar and member of union council were not appeared in favour of mutation--Balance of probabilities--Ingredient of contract--There is no explanation available on record as to why lumberdar or members of union council, being preferred witnesses have not appeared to identify and sign mutation--Tehsildar has never appeared to depose in favour of mutation or face cross-examination--Mere entry in diary or relevant page of diary is not a primary evidence, especially when revenue officer effecting entry has not himself produced daily diary before Court and he has not faced cross-examination of rival party--One of most important ingredient of contract is consideration and in present case, payment of alleged amount from respondent’s side to revision-petitioners--Respondent’s side produced numerous witnesses but, besides contradictory statements noted none of them have deposed that they have seen respondent’s side making payment to Hashim deceased--It was imperative for respondents to independently prove element of consideration, which is one of most essential ingredients of contract, by producing direct evidence--Both parties led their respective evidence, Court has to evaluate evidence on balance of probabilities and case is to be decided in favour of one party, unless evidence of rival arises to same degree of cogency as is required to discharge burden in civil matters--Evidence of revision-petitioners is not very coherent and contains inconsistency but more probable than evidence of other side--It appears that it escaped view
of Appellate Court and Court has relied upon statements of DWs, who were numerous in number, but none deposed as to consideration by giving direct trustworthy evidence and declared mutation in accordance with law, thus, fell to an error--Petition was allowed. [Pp. 177, 178. 180, 181, 182 & 183] A, B, C, D, E & F
2022 SCMR 1231, 2007 SCMR 957, 2003 SCMR 1008, 2022 SCMR 1009, 1991 SCMR 1508 and PLD 2007 SC 582 ref.
Mr. Muhammad Faisal Bashir Chaudhary, Advocate for Petitioner.
Malik Muhammad Zafar Iqbal, Advocate for Respondents.
Date of hearing 4.10.2022.
PLJ 2023 Lahore 172
[Multan Bench Multan]
Present: Sultan Tanvir Ahmad, J.
Mst. KANEEZA BIBI and 4 others--Petitioners
versus
SABIR HUSSAIN and 3 others--Respondents
C.R. No. 296-D of 2012, heard on 4.10.2022.
Judgment
Through the present Civil Revision, filed under Section 115 of the Code of Civil Procedure, 1908 (the “Code”), the revision-petitioners have assailed the judgment and decree dated 02.03.2012 passed by learned Additional District Judge, Khanewal, whereby, while accepting civil appeal No. 121-13 of 2010, the learned Appellate Court has set-aside the judgment and decree dated 03.04.2010 passed by learned Civil Court, Khanewal.
2. Facts, necessary for the disposal of the present revision petition, are that the revision-petitioners filed declaratory suit dated 25.02.2006 with the averments that they are owners in possession of the property measuring 32-Kanals in Killa No. 16/2, 17/2, 18/1, 23/2, 24, 25 in Muraba No. 57, Khatooni No. 199, Khewat No. 104 according to register haqdaran-e-zamin for the year 1996-1997 situated in chak No. 45/10-R Tehsil and District Khanewal (the “suit property’), which was allotted to the revision-petitioners by the cooperative farming society and one Bashir Ahmad, father of the respondents, who was cultivating the suit property being its lessee, has got recorded Mutation No. 526 dated 29.08.1999(the “mutation’) in the revenue record, while obtaining thumb impression of the predecessor of the revision-petitioners on the blank paper, by committing fraud and forgery. The revision-petitioners particularly challenged the consideration of the agreement on the strength of which aforesaid mutation was passed. The suit was contested by filing written statement by maintaining that father of the revision-petitioners Hashim deceased has sold the suit property to the respondents and received Rs. 430,000/- as earnest money. Out of the divergent pleadings of the parties, following seven (07) issues were framed:
1. Whether the plaintiff has no cause of action and locus standi to file the suit? OPD
2. Whether the suit is not maintainable as per preliminary objection No. 4? OPD
3. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? If so what is its correct valuation for the purpose of Court fee and jurisdiction? OPD
4. Whether the plaintiff has filed the suit in order to harass the defendants and defendants are entitled to get special cost u/s 35-A CPC? If so to what extent? OPD
5. Whether the impugned Mutation No. 526 dated 29.08.1999 was validly executed in favour of defendants? OPD
6. Whether the impugned Mutation No. 526 dated 29.08.1999 regarding disputed property is false, against law and facts, without consideration, liable to be cancelled and based on fraud? OPP
7. Relief.
3. Both the parties led their respective evidence. Hashim, predecessor of the revision-petitioners, appeared as PW-1. Mushtaq Hussain and Muhammad Arif appeared as PW-2 and PW-3. As documentary evidence, copy of jamabandi, copy of khasra gardawari, copy of register haqdaran-e-zamin and sale deed in favour of the predecessor of the revision-petitioners were brought on record as Exh.P1 to Exh.P3. On the other hand, Mushtaq Ahmad, Shoaib Ahmad patwari halqa Chak No. 45/10-R, Iqbal Hussain, Manzoor Hussain, Syed Faqir Hussain, Muhammad Shafique, Rab Nawaz and Sabar Hussain appeared as DW-1 to DW-8. Agreement to sell dated 14.04.1999, attested copy of Mutation No. 526, copy of rapt roznamcha waqiati, register haqdaran-e-zamin for the year 2004-2005, copy of khasra gardawari, copy of register haqdaran-e-zamin for the year 1996-1997, copy of khasra gardawri are placed on record as Mark-A and Exh. D-1 to Exh. D-8.
4. The learned trial Court gave issue-wise findings and vide judgment and decree dated 03.04.2010, decreed the suit and declared that the mutation is outcome of fraud and cancelled the same. The respondents assailed the judgment and decree of the learned trial Court through civil appeal No. 121-13 of 2010 on 22.04.2010, which was allowed by the learned Appellate Court vide judgment and decree dated 02.03.2012 and while setting aside the judgment and decree dated 03.04.2010, the suit of the revision-petitioners was dismissed. Aggrieved from the same, present revision petition has been filed.
5. Mr. Muhammad Faisal Bashir Ch., learned counsel for the revision-petitioners has submitted that the learned Appellate Court has failed to apply the judicial mind while reaching to the conclusion that the learned trial Court has failed to properly evaluate the material on record; that the concerned tehsildar / Revenue Officer was never produced by the respondents-defendants, therefore, they have miserably failed to prove the mutation in terms of Section 42 of the Land Revenue Act, 1967 (the “Revenue Act’) and rule 34 of the West Pakistan Land Revenue Rules, 1968 (the ‘Revenue Rules’). It is further submitted by the learned counsel for the revision-petitioners that the evidence of the tehsildar, being the best person to depose as to the authenticity of the fact that the same was passed by him and in the presence of the concerned, has deliberately been withheld to avoid the consequences. The learned counsel has further submitted that agreement dated 14.04.1999(Mark-A / Exh. D1) (hereinafter called as the “agreement to sell”) could not be proved as per Section 17 read with Section 79 of Qanoon-e-Shahadat Order, 1984 (the “Q.S.O, 1984”). It is added by the learned counsel for the revision-petitioners that the respondents have miserably failed to prove the consideration involved in the agreement to sell by producing any direct evidence, hence the learned Appellate Court has wrongly arrived to conclusion that the respondents have successfully discharge their burden of proof. During the course of arguments, learned counsel for the revision-petitioners has relied upon the cases titled “Amjad Ikram v. Mst. Asiya Kausar & 2 others” (2015 SCMR 1), “Muhammad Nazir v. Khurshid Begum” (2005 SCMR 941), “Abdul Sattar and others v. Muhammad Ashraf and others” (2008 SCMR 1318), “Phul Peer Shah v. Hafeez Fatima” (2016 SCMR 1225) and “Muhammad Akram and another v. Altaf Ahmad” (PLD 2003 Supreme Court 688).
6. Conversely, Malik Muhammad Zaffar Iqbal, learned counsel for the respondents-defendants has submitted that producing tehsildar / Revenue Officer in view of statement of halqa patwari, who has identified the signature of the tehsildar, was not fatal for the case. It is further submitted by learned counsel for the respondents that the substantial portion of evidence produced by the revision-petitioners is based on hearsay evidence which has rightly been discarded by the learned Appellate Court. Learned counsel has read various parts of evidence to show that the balance of probability lies in favour of the respondents-defendants.
7. I have heard the arguments of learned counsel for the parties and perused the record with their able assistance.
8. Both parties have, essentially, asserted as to the failure to discharge burden to prove by rival side(s), pointing out the deficiencies in the evidence and credibility of the witnesses to prove or disprove the authenticity and validity of the following two documents:
i) the mutation, and
ii) the agreement to sell.
9. To prove the mutation, learned counsel for the respondents-defendants have relied upon evidence of Iqbal Hussain (DW-3) and Manzoor Hussain (DW-4). Both of them claimed to be the witnesses of mutation, however, there is no denial of the fact that consideration was not paid in front of them. The said witnesses have also admitted during their cross-examination that the preferred witnesses as per Section 42 of the Revenue Act i.e. the lumberdar or the members of union councils were not present at the time when concerned revenue officer allegedly obtained signatures of the parties. There is no explanation available on record as to why the lumberdar or members of union council, being preferred witnesses as per the Revenue Act, have not appeared to identify and sign the mutation. It is also admitted position that revenue officer / tehsildar has never appeared to depose in favour of the mutation or face the cross-examination. It will be advantageous to see the relevant part of Section 42 of the Revenue Act, which reads as follows:
(1) xxx
(2) xxx
(3) xxx
(4) xxx
(5) xxx
(6) xxx
(7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court the Revenue Officer shall make the order under sub-section (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or member of Zila Council, Tehsil Council or Town council concerned, whose signatures or thumb impressions shall be obtained by the Revenue Officer on the register of mutations.
(8) xxx
(9) xxx
(10) xxx
(11) xxx
The relevant part of rule 34 of the Revenue Rules is as under:-
(1) xxx
(2) xxx
(3) xxx
(4) xxx
(5) The signature or thumb-impression of the headman or member of the Union Committee, Town Committee or Union Council concerned, shall also be obtained at the time of making entries, relating to changes in revenue records.
(6) xxx.
(Emphasis supplied)
10. The aforesaid provisions of law clearly reflect that unless the mutation is of inheritance or it is followed by a registered deed or it is being incorporated on an order of the Court, the same is required to be caused in presence of the person whose right has been acquired and it is necessary that such person is identified by two respectable persons preferably Lambardar, Member Union Committee, Union Council or Town Committee. In the absence of fulfillment of the said requirement of law, the factum of entry in the record cannot carry any presumption of truth. Mere entry in the diary or the relevant page of the diary is not a primary evidence, especially when the revenue officer effecting the entry has not himself produced the daily diary before the Court and he has not faced the cross-examination of the rival party.
11. The Honourable Supreme Court of Pakistan in case titled Zulfiqar and others versus Shahdat Khan (PLD 2007 Supreme Court 582) held that although roznamcha waqiati is required to be maintained under the West Pakistan Land Rules, 1968 and that it is maintained during the course of performance of the official duty is admissible, yet if the report contains statement of private individual, its correctness is required to be proved. In case titled Khalil Ahmad versus Abdul Jabbar Khan and others (2005 SCMR 911), the Honourable Supreme Court of Pakistan decided that entering a mutation or reporting the fact of acquisition of any right in an estate by the patwari is merely ministerial act which does not confer or extinguish any right in any property. In the absence of fulfillment of the requirement of law and failure to produce the revenue officer the entry in the record / mutation cannot carry any presumption of truth, leaving the parties to prove their respective contentions.
12. The second document relied by the respondents to establish sale in their favour is the agreement to sell which was initially marked as “mark-A” and then after confrontation, the same was brought on record as Exh. D-1. In order to prove the agreement to sell as well as consideration of Rs. 4,40,000/- , the revision-petitioners produced Mushtaq Ahmad son of Abdul Haq as DW-1 and Rab Nawaz son of Shahadat Ali as DW-7. Mushtaq Ahmad / DW-1 claimed that he is witness of the agreement to sell, however, throughout in his statement, examination-in-chief as well as cross-examination, I have not found that he ever deposed that the consideration, all or in parts, was paid in his presence. Rather the following part of his cross-examination suggests contrary:
میں نے Mark-A پر اپنا عہدہ بطور پٹواری تحریر نہ کروایا تھا ۔ مجھے دونوں فرقین کچہری میں ملے تھے اور تحریر Mark-A پر صابر حسین نے دستخط کیے تھے۔ Mark-A کی تحریر کے وقت صرف صابر موجود تھا۔ میں Mark-Aپر اپنی گواہی ڈال کر چلا گیا تھا تصدیق کی بابت مجھے علم نہ ہے۔ یہ غلط ہے کہ مدعا علیہم کے والد بشیر کے ساتھ مل کر یہ دستاویز Mark-Aتیار کی ہے رپٹ پر ہاشم کے دستخط وغیرہ موجود نہ ہیں۔
Rab Nawaz (DW-7), with respect to consideration, has deposed that Hashim deceased told him regarding this payment. During his examination, he deposed as under:
4,40,000/- روپے کا سودا ہوتا تھا 4,30,000/-روپے مسمی ہاشم نے وصول کرنا تسلیم کیے اور باقی 10,000/-روپے بوقت انتقال وصول کیا جانے کا اقرار کیا۔
The following part of cross-examination of Rab Nawaz (DW-7) is also very relevant:
ہاشم نے رقم کچہری میں وصول کی عرضی نویس موجود نہ تھے پھر ہم عرضی نویس کے پاس آ گئے۔ میں نہ بتا سکتا ہوں کہ نوٹ 1000/- کے کتنے تھے اور 500, 500 کے کتنے تھے۔ مشتاق گواہ Mark-Aکچہری میں پہلے سے موجود تھا۔ اچانک وہ یہاں موجود تھا اور اس کی گواہی ڈال دی گئی۔
13. The above part of the statement is negating presence of Mushtaq Ahmad (DW-1) at the time of payment of consideration. It is apparently stated by DW-7 that payment was made prior to visiting deed-writer and Mustaq Ahmad (DW-1) by chance reached when the agreement to sell was written and signed. It is evident from the above statements that the alleged witnesses of agreement to sell have never seen Hashim deceased receiving any payment from Bashir Ahmad. The two witnesses have not merely contradicted each other but apparently relied upon confirmation made by Hashim deceased as far as considerations are concerned.
14. The respondents also attempted to prove the consideration through the witnesses of mutation but their evidence, to this extent, is also indirect evidence. Iqbal Hussain son of Manzoor Hussain (DW-3), during his examination-in-chief, has very frankly conceded that the consideration was never paid in his presence:-
اقرار نامہ ماہ اپریل میں لکھا گیا تھا لیکن مجھے تاریخ یاد نہ ہے۔ رقم کی ادائیگی میرے سامنے نہ ہوئی ہے بلکہ اس نے میرے سامنے اقرار کیا تھا۔
Same is the position of Manzoor Hussain (DW-4) and when he was asked specific question in this regard, he deposed:
میں بوقت ادائیگی رقم موجود نہ تھا۔بلکہ رقم کی وصولی کا اقرار میرے سامنے ہوا تھا ۔
Syed Faqeer Hussain Shah (DW-5), deed writer, was produced by the respondent’s side, who also admitted that he is not witness of payment of consideration, rather Hashim deceased told him the same. The following part of his cross-examination is relevant:
یہ درست ہے کہ Mark-A کی تحریر اور میرا اصل رجسٹر نمبر 248پر اس دستاویز کے کوائف تحریر ہیں ہر دو تحریروں میں اختلاف ہے ۔ یہ درست ہے کہ ہر دو تحریر مختلف اشخاص کی ہیں۔ میں فریقین کو نہ جانتا تھا ۔ میں گواہان کو بھی نہ جانتا تھا۔ میرے سامنے کوئی رقم کے بارے میں لین دین نہ ہوا تھا بلکہ میرے سامنے مسمی ہاشم نے رقم کی وصولی کا اقبال کیا تھا۔
15. One of the most important ingredient of contract is consideration and in the present case, the payment of alleged amount of Rs. 4,40,000/- from the respondent’s side to the revision-petitioners. In this regard, the respondent’s side produced numerous witnesses but, besides contradictory statements noted above, none of them have deposed that they have seen the respondent’s side making payment to Hashim deceased (predecessor of the revision-petitioners) and as a matter of fact, all the witnesses, may that be appearing in support of mutation or the agreement to sell relied upon others statements or confirmations.
16. Article 71 of the Q.S.O. 1984 requires oral evidence to be direct, which reads as follows:
“Oral evidence must be direct.---Oral evidence must, in all cases whatever be direct, that is to say---
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead, or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection:
Provided further that, if a witness is dead, or cannot be found or has become incapable of giving evidence, or his attendance cannot, be procured without an amount of delay of expense which under the circumstances of the case the Court regards as unreasonable, a party shall have the right to produce شھادہ علٰی الا شھادہ shahada ala al-shahadah by which a witness can appoint two witnesses to depose on his behalf, except in the case of Hudood.”
(Emphasis supplied)
Payment of consideration is something that can be seen, therefore, there should have been some reliable statement(s) of the witnesses who can confirm that he has seen payment being made by the purchaser to the seller. For this proposition of law, reference can be made to the law settled by the Honourable Supreme Court in cases titled “Farid Ullah Khan v. Irfan Ullah Khan” (2022 SCMR 1231), “Abdul Qayyum v. Muhammad Sadiq” (2007 SCMR 957) and “Gulzar Ahmad and others v. Muhammad Anwar and others” (2003 SCMR 1008).
17. The claim of the revision-petitioners is that the respondent side, being tenant (mustajir) and close to Hashim deceased who was illiterate person and was facing charges of murder, subjected him to fraud and the documents in question lack consideration. This stance is denied by respondents by claiming that the mutation and agreement to sell is backed up with lawful consideration. In the circumstances of present case, it was imperative for the respondents to independently prove the element of consideration, which is one of the most essential ingredients of contract, by producing direct evidence, as already observed by the Honourable Supreme Court of Pakistan in cases titled “Mst. Rabia Gula and others v. Muhammad Janan and others” (2022 SCMR 1009), “Ghulam Qadir v. Kalay Khan and others” (2007 SCMR 1184) and “Muhammad Ilyas v. Mst. Ijazan and another” (1991 SCMR 1508). It will be beneficial to reproduce the following extract of “Mst. Rabia Gula and others” case (supra):
“….Accordingly, we find the High Court is correct in its findings as to the inconsistencies and clear contradictions in the testimony of her two witnesses, namely, Sultan-ul-Mulk (DW-1) and Wali-ur-Rehman (DW-2) on material particulars of the sale transaction and of the sale mutation recording the same in the revenue record. No independent witnesses, in particular, the patwari who entered, and the revenue officer who sanctioned the sale mutation were examined in evidence. In fact, no cogent, reliable evidence was produced by Mst. Khursheed Begum (appellant No. 3) to prove payment of the sale-consideration, the most essential ingredient of a valid sale, to the respondent. This being so, the High Court has correctly recorded its finding in the impugned judgment, as to invalidity of the alleged sale of the Suit Property No. 2 and also of the sale mutation.”
(Emphasis supplied)
18. Learned counsel for the parties have also raised dispute as to burden and standard of proof. They have read the evidence of rival sides pointing out the discrepancies with the contentions that the said discrepancies should lead to adverse conclusion. There are no two views about the proposition that onus is normally on the one who asserts. The person seeking relief fails when he has not led evidence in his support. In the present case, both parties led their respective evidence, thus, the Court has to evaluate evidence on the balance of probabilities and the case is to be decided in favour of one party, unless the evidence of rival arises to the same degree of cogency as is required to discharge the burden in civil matters. Reliance, in this regard, can be placed on case titled “Miller v. Minister of Pensions” (1947 All England Law Reports, Vol-2, Page 372). The relevant extract is as follows:
“… This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that tribunal can say: “We think it more probable than not” the burden is discharged, but, if the probabilities are equal, it is not.”
(underlining added)
The Honourable Supreme Court of Pakistan in case titled “Khalid Hussain and others v. Nazir Ahmad and others” (2021 SCMR 1986) has observed, regarding the point in hand, as follows:
“6. There is no cavil to the proposition that the onus to prove the claim is ordinarily on the person moving the Court to seek his relief, as he is the one who is to fail if no evidence at all is given on either side. However, when the contesting party takes up a defence and desires the Court to pronounce judgment as to his legal right dependent on the existence of facts which he asserts, then the onus to prove those facts lies on him. It is after the
parties have produced their respective evidence that, the Court is to consider and evaluate the evidence, in civil cases, on the touchstone of preponderance of evidence. It is on whose side the scale of evidence tilts would emerge as the victor, and be awarded the positive verdict.”
(Emphasis supplied)
19. There are passages of evidence given by PWs, which are read by learned counsel for the respondents in isolation, which can set a reasonable prudent person to think that perhaps learned trial Court was not properly directing itself, as it appeared to the learned Appellate Court as well, however, when the evidence of two sides as a whole is read, balance tilts towards the revision-petitioners, especially when I see hearsay aspect of evidence as to the consideration.
20. Hashim deceased appeared as PW-1 and deposed as per his claim in the suit that the respondent's side was in possession of suit property as tenant (mustajir); took Hashim to revenue authority, and in order to effect entry in his favour from cooperative farming society and in the garb of the same obtained his signature on the blank papers, which were used for preparing the documents relied by the respondents. His statement is supported by PW-2 and PW-3. Undoubtedly, the evidence of the revision-petitioners is not very coherent and contains inconsistency but more probable than the evidence of other side. It appears that it escaped view of the learned Appellate Court and the learned Court has relied upon the statements of DWs, who were numerous in number, but none deposed as to the consideration by giving direct and/or trustworthy evidence and declared mutation in accordance with law, thus, fell to an error.
21. For what has been discussed above, the judgment and decree dated 02.03.2012 passed by the learned Appellate Court is set-aside and present revision petition is allowed. Resultantly, the decree of the learned trial Court shall hold the field. No order as to costs.
(Y.A.) Petition allowed
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