Muhammad Siddique vs Mukhtiar Ahmad

Stereo. H C J D A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH BAHAWALPUR

JUDICIAL DEPARTMENT

C.R. No.595-D of 2016

Muhammad Siddique (deceased) through L.Rs., etc.

Vs.

Mukhtar Ahmad.

JUDGMENT

Date of Hearing: 07.06.2022.

Petitioners by: Mr. Tariq Mahmood Khan, Advocate.

Respondent by: Mian Ishaque Muhammad, Advocate.

Anwaar Hussain, J. Through the present civil revision under Section 115 of the Code of Civil Procedure, 1908 (hereinafter “CPC”), the petitioners have laid challenge to the judgment and decree dated 24.10.2013 passed by the learned Trial Court and upheld, vide judgment and decree dated 07.05.2016, by the learned Appellate Court below whereby the suit instituted by their predecessor-in-interest, namely, Muhammad Siddique (hereinafter “the plaintiff”) was dismissed and resultantly impugned mutation No.1613 sanctioned on 17.01.2002 in favour of the respondent (hereinafter “impugned mutation”) was not declared to be illegal.

2.Learned counsel for the petitioners submits that the suit was instituted by the plaintiff challenging the legality of the impugned mutation on the ground that the same is illegal, void and without justification, inasmuch as the plaintiff never sold the suit property to the respondent and only intended to alienate the property measuring 04-Kanals out of the total suit property in favour of Jamia Siraj-ul-Uloom, which is supervised by the respondent as Mohatamim ) ;(ممتہمhowever, the entire transaction has

been maneuvered fraudulently. Adds that both the learned courts below have erred in appreciating the evidentiary resume of the case inasmuch as respondent being beneficiary of an oral sale mutation was obligated to prove the factum of necessary ingredients of an oral sale agreement detail whereof has not been stipulated in the written statement filed by the respondent. Adds that the respondent never appeared in person rather defended the suit through an attorney, who is real son of the respondent and is the one actually influencing the respondent to commit the fraud. Further contends that there are material contradictions in the testimony of the DWs qua the receipt of purported sale consideration by the plaintiff, which renders the entire transaction void in terms of Section 25 of the Contract Act, 1872. Places reliance on “Ali Muhammad and others v. Chief Settlement & Rehabilitation Commissioner and others” (1984 SCMR 94) in support of his contention.

3.Conversely, learned counsel for the respondent fully supports the impugned judgments while submitting that this Court in revisional jurisdiction shall exhibit utmost care in upsetting concurrent findings of the Courts below, which has been rendered after due appreciation of evidence by the Courts of law. Adds that the respondent has produced the scribe of the impugned mutation as well as one of the witness of the oral sale transaction in favour of the respondent and hence, requirements of Article 17 read with 79 of the Qanun-e-Shahadat Order 1984 (hereinafter “the Order, 1984”) has been complied with. Finally states that the fact that suit property is in possession of the respondent in itself indicates that oral sale transaction was genuine and the respondent was put in possession in furtherance thereof.

4.Arguments heard. Record perused.

5.The plaintiff sought decree for declaration as well as cancellation of the impugned mutation based on an oral agreement to sell. The respondent in his written statement claimed to be owner in possession of the suit property, on the basis of oral sale mutation, as a defence to defeat

the claim of the plaintiff. It is settled principle of law that the proceedings effecting a mutation are not judicial proceedings and do not confer any title and therefore, whenever genuineness of any mutation is challenged, the burden lies upon the party relying upon the mutation, to prove the actual transaction. Case titled as “Muhammad Iqbal and another v. Mukhtar Ahmed through L.Rs.” (2008 SCMR 855) is referred in this regard. Before examining the evidentiary resume of the case to opine as to whether or not the concurrent findings of the learned Courts below are result of mis- reading or non-reading of evidence, it is imperative to note that as many as eight issues were framed including relief, out of which issues No.1 to 3 were vital, which are reproduced hereunder:

“ISSUES

1.Whether appellant/plaintiff Muhammad Siddique sold his land measuring 4 kanals to the respondent/defendant for Rs.95,000/-? OPD.

2.Whether the appellant/plaintiff received Rs.95,000/- from respondent/defendant? OPD

3.If the above issues are proved in affirmative to whether disputed mutation No.1632 as validly sanctioned in favour of respondent/defendant and was free from any fraud and forgery? OPD

6.The burden to prove that the plaintiff sold the suit property to the respondent against the payment of Rs. 95,000/- and the same was received by the plaintiff was on the respondent (defendant) meaning thereby that the respondent was obligated to prove that a sale stood concluded in terms of Section 54 of the Transfer of Property Act 1882 (hereinafter “the Act 1882”). Under Section 54 of the Act 1882 read with Article 17 and 79 of the Order 1984, the essential ingredients of a valid sale required to be proved, inter alia, include fixation of sale consideration between the parties concerned as well as receipt thereof and the presence of marginal witness. Case of Ali Muhammad supra is referred in this regard. Here it is imperative to note that since in terms of Order VI of the Code of Civil

C.R No. 595-D of 2016 4

Procedure, 1908, pleadings of a party must contain a statement in concise form of material facts on which the party relies for his claim or defence, therefore, it was obligatory on the respondent to mention in his pleading (written statement), the date, month, time and name of persons before whom the oral agreement stood concluded and the details of the terms and conditions settled between the parties. The respondent in his written statement stated as under:

:"ذعراتادتبایئ ۔ہیہکدمیعاےنپوقلولعفےسامعندوعی ٰےہاسےنوخدااقتنلدرجرکایارویوینیآرسیف5 ش ےک روبرو شیپ وہ رک ایبن دیا۔ ااقتنل دتموعہی رپ اےنپ دطختس ےئک اور اانپ نان اوگناھٹ تبث ایک اوراےنپانشیتخاکرڈاکربمنرحتبررکایا۔ومعضےکزعمزنیےنا یکروبرورویوینیآرسیفس ت اضہطبانشخیک۔ :وجابواقعی ایت ت رعدیضوعی ٰدرسےہدمیعےکقحںیمااقتنلبرانبےئڈرگیوظنمر1۔ہیہکرقفہربمن1 وہاسجےنارایضدتموعہیاکآدنئہدماعہیلعےکاسھتوسدہعیبرکےکدعبووصیلاسملزررمث "ہضبقلقتنمایک۔Rs.95000/-غلبماچپونےہرارروےپ

Perusal of the written statement reveals that the said requirements of law to give details of oral sale transaction were not met with by the respondent, which was fatal and this important aspect of the case has escaped judicial notice of the learned Courts below. On the contrary, when the evidence was led, the respondent improved his case inasmuch as the DWs deposed beyond pleading by referring to the time and date of payment of price consideration. It is settled principle of law that evidence cannot be led beyond pleading and, therefore, it could not be read and relied upon. If any authority is required in this regard, case titled “Saddaruddin (since deceased) through LRs v. Sultan Khan (since deceased) through LRs. and others” (2021 SCMR 642) is referred.

7.Similarly, perusal of record reveals that there is not only contradiction in the testimony of the DWs but also the factum of payment of the sale consideration by the respondent and receipt thereof by the

C.R No. 595-D of 2016 5

plaintiff remained in vacuum. The respondent himself never appeared and was represented through his son (as general attorney) who appeared as DW-5. In his examination-in-chief, DW-5 has stated as under: ت ت ہرار روےپ یاعئ55 "وبق ایبیات رمقاک نیل دنی یھب وہا اھت۔ریمے وادل ےن ے "دمحمدصقیوکدیےھت۔ (Emphasis supplied)

DW-2 who is retired Naib-Tehisldar and scribe of the impugned oral mutation and in his examination-in-chief has stated as under: ت "یاعئذموکردمحمدصقیےنریمےاسےنمعمجماعمںیمہیاقرارایکہکاسےن رمق "ووصلرکیلےہاورہضبقومعقاتخمرادمحرتشمیےکوحاےلرکدیاےہ۔ (Emphasis supplied)

Whereas in cross-examination DW-2 stated as under:

""رمقاکنیلدنیریمےاسےنموہااھت۔ (Emphasis supplied)

Similarly, DW-3, while being cross-examined, stated as under: ت ت ت "ادنراجااقتنلےکوقرمقاکنیلدنیہنوہااھت۔یاعئرتشمیاورانشخدننکاگنےک دطختس دلیصحتار اصخ ےن وخد رکواےئ ےھت۔۔۔۔۔۔۔۔۔۔۔۔۔۔ہارے اسےنم یاعئ رمق عیب یک یتنگ رکراہ اھت ایبن ووصیل اک وہا اھت۔ ںیم ہی ہن ات اتک وہں ہک ینتک رمق ادا "وہیئیھت۔ (Emphasis supplied)

Perusal of the evidentiary resume of case reveals that the DW-2 and DW-3 are not aware of the exact amount of sale price paid. Similarly, DW-2 in his examination-in-chief only stated that the plaintiff acknowledged the factum of receipt of payment but has not deposed that the payment was actually made at the time of attestation of mutation whereas he contradicted his statement while being cross examined, hence, the payment of sale consideration and receipt thereof could not be proved by the respondent through confidence inspiring evidence.

C.R No. 595-D of 2016 6

8.Moreover, there is also contradiction in respect of the recording of the impugned mutation inasmuch as the DW-2, who is scribe of the impugned mutation, stated as under:

وک درج وہا ےہ ہکبج وظنمر9519110990 " ااقتنل دتموعہی وکوہاےہ۔۔۔۔۔۔۔۔۔۔رتشمیاتخمرادمحیھبومعقرپوموجد1019110990 "اھت۔ (Emphasis supplied)

On the contrary in his examination-in-chief, DW-3 deposed as under:

"درجایک۔1110 وکدمحمدصقیودلاظنمیلعےکےنہکرپااقتنلربمن9019110990"ومرہخ (Emphasis supplied)

On the top of above referred deficiencies in the case of the respondent as well the contradictions in statement of DWs, is the admission on part of the DWs that there is dissimilarity in the ink with which the signatures of and statement of the plaintiff was made and ink used for signatures of the identifier. DW-2 in cross-examination stated as under: ت ""ہیدرسےہہکااقتنلےکایبناوریاعئےکدطختسیکروانشیئںیمقر ےہ۔ (Emphasis supplied)

Similarly, DW-3, while being cross-examined, asserted as under:

ت "ہیدرسےہہکدلیصحتاراصخےکایبیاتودطختسیاعئےکدطختساورایفضادمحربمندارےک "دطختسیکروانشیئںیمقر ےہ۔ (Emphasis supplied)

9.On the other hand, the plaintiff appeared himself and made a categorical statement which remained unshaken and unrebutted inasmuch as the plaintiff offered the respondent to appear in person and take oath qua the genuineness of the transaction in the following manner:

"ریمی دماع ہیلع ےک اسھت وکیئ اخمتفل ہن ےہ۔ اور ہن یہ وکیئ برادری اک ڑگھجا ےہ۔ ریمی وٹپاری ےس اخمتفلیھتوج ہیاکم وہاےہ۔رگداوراوردلیصحتارےسریمیوکیئاخمتفلہنیھت۔دلیصحتارےنااقتنلرپ

C.R No. 595-D of 2016 7

ریما ایبن وھجیا اھکل ےہ۔ ایفض ادمح اس ومعضاک ربمندار اھت۔ ہی ہتپ ےہ ہک ادبا دیجم ودل ادباراتسر وکنےہ رھپ اہک ہک ادبا دیجم وک وطبر زدنیمار اجاتن وہں۔ دماعہیلع ےک ادبا دیجم اور ایفض ادمح رمید ںیہ اس ےئیل ان ت ےساخمتفلےہ۔ایفضادمحاورادبا دیجمہیفلحااھٹدںیہکںیمےنارایضدتموعہیدماعہیلعوکقروخیک ہرار روےپ دمیع ےن دماع ہیلع ےس ےیل ںیہ وت ریما55999/- ےہ اور دلیصحتار ےک روبرو ایبن دیا اور دوعی ٰاخرجقرامدیااجےئ۔اسااقتنلرپریمااوگناھٹطلغےہ۔ااقتنلرپریمےدطختسہنںیہ۔ارگااقتنلرپریما ش ت ٰ اوگناھٹ اور دطختس حیص یاب وہ اجےئ وت ریما دوعی ٰاخرج قرام دیا اجےئ۔ ارگ دماع ہیلع فلح ااھٹ ےل وت دوعی اخرجقرامدیااجےئ۔ ہیطلغےہہکںیمطلغاہشدتدےراہوہں۔ہیطلغےہہکںیم ےنوخدااقتنلدرج "رکایادلیصحتارےکروبروشیپوہرکایبندیا۔ہیطلغےہہکںیمےنااقتنلرپاانپاوگناھٹاگلیااوردطختسےئیک۔ (Emphasis provided)

The respondent never appeared himself to accept the offer of the plaintiff to depose on oath. It is pertinent to note that a party personally knowing the circumstances of the case was bound to appear as its own witness and submit to cross-examination failing which adverse presumption can be drawn. In this regard, case titled “Feroz Khan and others v. Mst. Waziran Bibi” (1987 SCMR 1647) in referred. Moreover, the respondent side being beneficiary of oral sale mutation was under obligation to prove its genuineness, however, he made no effort to get the thumb impression or signatures of the plaintiff got compared which aspect also goes against the respondent and truth of the respondent could be discredited. Importantly, PW-2, namely, Abdul Majeed who is purportedly the witness of the impugned mutation and as per statement of the scribe of the impugned mutation the identifier of the plaintiff as well, appeared from the plaintiff side and denied the transaction in totality. Testimony of PW-2 also remained unshaken and uncrossed in material terms. When confronted with the situation qua contradictions contained in statements of the DWs and denial on part of the second marginal witness of the impugned mutation qua its genuineness, learned counsel for the respondent acknowledged that though the second marginal witness of the impugned mutation namely, Abdul Majeed deposed against the respondent, nevertheless the scribe appeared and testified that the plaintiff acknowledged the receipt of sale price which is sufficient to prove the

transaction, however, no explanation could be offered qua the contradictory stance of DWs. Even otherwise, the averments of the learned counsel for the respondent is misconceived inasmuch as there is no cavil to the proposition that a scribe of a document may be considered as an attesting witness under certain circumstances if such scribe is shown or described as witness in the said document, which is not the situation in the instant case. Case titled “Sheikh Muhammad Muneer v. Mst. Feezan (PLD 2021 Supreme Court 538) is referred in this regard. Even otherwise, the scribe (DW-2) in the instant case was not witness of the transaction and only stated that the plaintiff acknowledged the receipt of sale consideration before the former. Much emphasis has been laid in the impugned judgments as well as during the course of arguments on the point that the possession of the suit property with the respondent in itself indicates that same was delivered pursuant to the oral agreement between the parties and is proof of the genuineness of the impugned mutation. The argument is misconceived and in this regard the case of Saddaruddin supra is referred, wherein it has been held by Hon”ble Supreme Court that even prolonged possession alongwith title documents are not sufficient to prove the genuineness of the transaction.

10.As a sequel of the above discussion, the learned Courts below have misread and non-read the evidence on record and this civil revision merits acceptance, hence, is allowed. As a natural corollary, the impugned judgments and decrees of the learned Courts below are accordingly set aside and the suit of the plaintiff is decreed as prayed for with no order as to costs.

(ANWAAR HUSSAIN)

Judge

Approved for reporting

Judge

Maqsood*