Abdul Shakoor Vs Abdul Qayum etc

Judgment Sheet

PESHAWAR HIGH COURT,ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

CR No.543-A of 2019

JUDGMENT

Date of hearing.....................03/03/2022.......................................... Petitioner(s)...(Abdul Shakoor) by Malik Masood-ur-Rehamn Awan, Advocate................................

Respondent(s)...(Abdul Qayyum and others) by Syed Haseeb Haider, Advocate.............................

KAMRAN HAYAT MIANKHEL, J.- Through this

revision petition, the petitioner has called in questions the judgments and decree of both the Courts below i.e.

learned Civil Judge-VII, Haripur, dated 12.11.2013 and learned Additional District Judge-V, Haripur, dated 22.10.2019, respectively, whereby, the suit of the respondent/plaintiff was decreed and appeal filed by the petitioner/defendant was dismissed.

2.The gravamen facts necessary for

adjudication of this revision petition are that respondent/plaintiff brought a suit for cancellation of mutation No.4579 dated 5.6.2007 being result of fraud, misrepresentation and without consideration. The petitioner/defendant was put on notice, who appeared

and submitted his written statement and on the divergent contentions of the parties, issues were framed by the learned trial Court alongwith additional issue, ‘whether sale consideration has been paid’. After adducing pro and contra evidence by both the parties, the suit was decreed by the learned trial Court through its judgment dated 12.11.2013. The petitioner/ defendant preferred appeal, which was dismissed vide judgment and decree dated 22.10.2019, hence, this revision.

3.Arguments of the learned counsel for the parties heard and record perused with their able assistance.

4.Perusal of the record reveals that both the petitioners and respondents are real brothers and they entered into impugned transaction for the sale of 4 ‘kanals’ 14 ‘marlas’ of land in lieu of sale consideration of Rs.187,000/-. The plaintiff/respondent’s case is that his brother/petitioner promised him that the sale consideration will be paid later on and the respondent/ plaintiff on this assurance of his brother that as the transaction is between the brothers, he will pay the sale consideration later on, got attested the above said mutation. The respondent/plaintiff demanded time and again to pay the sale consideration but petitioner/

defendant extended issue of payment either on one pretext or other and finally denied to pay the same to the plaintiff/respondent.

5.Before adverting to the evidence of both the parties, it will be advantageous to reproduce section 54 of the Transfer of Property Act, 1882, as under:- “54. Sale defined. 'Sale' is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.”

The contents of the above mentioned section clearly depicts that payment of sale consideration is ‘sine-qua- non’ for valid sale. To prove their respective contentions, both the parties produced evidence. PW-1, who is attesting witness of the mutation, admits that no sale consideration was paid before him. PW-2, respondent/plaintiff, as his witness, avers that no sale consideration was paid and he being real brother of the petitioner/defendant believed the assurance given by him that he will pay the sale consideration at home.

PW-3, mother of petitioner and respondent deposed that in her own knowledge no money was paid to plaintiff/ respondent by petitioner/defendant, while in her cross-examination, she stated that she is not in knowledge that Abdul Shakoor respondent/defendant has paid the money in Tehsil or not. PW-4 is the real brother of both the parties, who deposed that a ‘jirga’

was constituted for settlement of the issue of non- payment of the sale consideration of the disputed land.

PW-5 states that respondent/plaintiff came to him as well as to Jehangir and Yousaf that the petitioner, his brother has not paid him the sale consideration. They went to petitioner but he refused to pay the sale consideration. The petitioner/defendant produced ‘Patwari’ as DW-1, who produced official revenue record, DW-2, who is Tehsildar and attested the mutation deposed that when he asked the respondent that whether money had been paid or not he answered in positive, while in cross-examination, he states that no money was paid before him. DW-3, who is also real brother of the parties, avers that when he asked plaintiff that whether money had been paid or not, he stated that he had received the money, while in cross-examination, he states that at the time of alleged sale consideration before Tehsildar, he was far-away from the parties so he cannot say whether Tehsldar has counted the money or not. So, his statement in chief about confirming the sale consideration from the respondent/plaintiff and his statement in cross-examination about the payment of sale consideration contradicts each other because when sale amount was paid before him then what was the need to ask the plaintiff/respondent that he had received

the money or not. DW-4 is the present petitioner, who deposed that he has paid the money to the plaintiff/respondent and that is why he got attested the impugned mutation, while in cross-examination he states that:-

"ميں نے صوفے پر بيٹھ کر نوٹ ديئے تھے۔ جب ميں نے نوٹ ديئے تو بدر " آدمی بھی موجود تھے۔6/5 زمان گواه ميرے ساتھ موجود تھا اور ديگر

6.It is by now settled law that any transaction of sale without conclusive proof of sale consideration is nullity in the eye of law. Mutation per se does not confer any title without proving payment of sale consideration. In the judgment reported as ‘Walayat (deceased) through L.Rs and others V. Shahadat through L.Rs and others’ (2021 CLC 584), it was held as under:

“There is no second thought that ordinarily a document is not proved itself unless admitted by its executant, otherwise, when there is specific denial and controverted while raising serious allegations, it becomes sine qua non for the beneficiary to prove the same as per section 102 of the Evidence Act, 1872.

Thus, the burden to prove the contents of the document, in addition to proof of execution and ingredients of the transaction couched therein, was on the beneficiaries, who should have led primary/secondary circumstantial internal evidence to dig out the truth/genuineness thereof.”

It was further held that:-

“Section 54 of the Transfer of Property Act, 1882, which says "sale" is transfer of ownership of immovable property in exchange for a price paid or promised or partly paid or partly promised, hence in order to prove that a transaction is sale, the passing of price or its promise might be contemplated. In absence thereof, mere registration of document to that effect does not operate to pass title to the beneficiary against such transaction.”

7.In the judgment reported as ‘Muhammad Shafi and other V. Allah Dad Khan’ (PLD 1986 SC

519)it was held that ‘Provision of Section 54, Transfer of Property Act, 1882, would have no application as one of the conditions of sale was not fulfilled.’

8.In another case reported as ‘Muhammad Yaqoob V. Mst. Sardaran Bibi and others’ (PLD 2020 SC 338), it was held that:-

“There could be no exception to the rule that payment of sale consideration could be proved through oral evidence but the oral evidence must be of unimpeachable character. This is an admitted fact that payment was not made before the Revenue Officer and the remaining witnesses including vendee herself

was not consistent in the mode and manner of payment”

Seeking guidance from above cited judgments and evidence brought on record leads me to a conclusion that payment of sale is ‘sine-qua-non’ for every transaction of sale. The petitioner/defendant in his written statement categorically stated that he had paid the sale consideration before the Revenue Officer in Tehsil but the Revenue Officer in his statement as DW- 2 contradicts this statement of petitioner/defendant.

The payment of sale consideration can also be proved through oral evidence but the petitioner/defendant also failed to prove through cogent oral evidence that he had paid the sale consideration. So in view of above, learned counsel for the petitioner/defendant failed to point out any misreading, non-reading or any jurisdictional defect in the concurrent findings of both the Courts below, calling for interference by this Court its jurisdiction under section 115 CPC.

9.For the reasons discussed hereinabove, this petition being bereft of merits is hereby dismissed.

Announced:

Dt.03.03.2022.

JUDGE

*/M.Saleem/PS*

(SB)Mr. Justice Kamran Hayat Miankhel