Find a Lawyer

Civil Petition for Special Leave to Appeal No. 70‑P of 1983, decided on 22nd November, 1983.

(On appeal from the judgment and order of the Peshawar High Court Abbottabad Bench, dated 22nd December, 1982 passed in Civil Revision No. 199/1977).

‑‑ Art. 185 (3)‑Civil Procedure Code (V of 1908), S. 115‑Revisional jurisdiction of High Court ‑ Leave to appeal granted by Supreme Court to examine questions (i) whether in exercise of its revisional jurisdiction High Court could go into questions of fact conclusively determined by concurrent findings of two Courts below when no jurisdictional defect or material irregularity pointed out and (ii) whether mere failure to prove payment of consideration would have effect of vitiating sale.

Abdul Samad Khan, Advocate-on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 22nd November, 1983.

Registered sale‑deed, dated 18‑2‑1971 pur ported to show that Lal Hussain respondent bad sold his 2/5 share in the disputed land in favour of the petitioner Bagga, for a consideration of Rs. 3,000. The respondent instituted a suit for declaration that the aforesaid registered sale‑deed, being a false and fictitious document was ineffective against his rights. In support of his case the respondent entered the witness box and asserted that he had never executed the sale‑deed in favour of the petitioner nor had he received any sale consideration therefore. As regards the marginal witnesses, he stated that one was close relation of the petitioner and the other was on inimical terms with him. The petitioner contested the suit and appeared himself in support of his case that the document was genuinely executed in his favour by the respondent after receiving stipulated consideration. He further produced the scribe of the document Ziauddin, who testified that in his presence the respondent and the marginal witnesses had put their thumb‑impression on the document. The trial Court relying on the evidence produced by the petitioner dismissed the suit of the respon dent. Respondent's appeal also met the same fate and the findings of the trial Court were affirmed by the learned District Judge, Hazara. The respondent then filed a Civil Revision before the Peshawar High Court which was allowed by the learned Single Judge vide his judgment, dated 22‑12‑1982, whereby the concurrent findings of the two Courts below were upset and the suit of the respondent was decreed. The petitioner is aggrieved by this judgment and seeks leave to appeal in the present petition.

2. We find from the judgment of the High Court that the decision of the learned Judge proceeds on the proposition that the failure to prove the payment of the sale consideration by the purchaser rendered the transaction ineffective in law and even the proof of execution of the instrument did not have the effect of conveying the title in the subject property to the purchaser upon registration of the document. Further the learned Judge reversed the findings of the two Courts below upon a reassessment of the evidence produced by the parties and held that the solitary statement of the petitioner coupled with the evidence of the scribe who did not testify to the payment of the consideration in his presence, was not sufficient to prove the validity of the sale transaction. The evidence of the finger prints expert was also rejected by the learned Judge on the ground that he had furnished no reasons in support of his opinion that the thumb‑impression on the document in question was that of the respondent.

3. After bearing the learned counsel appearing in support of this petition we feel that in the circumstances of this case the question whether the learn Judge could go into the questions of fact conclusively determined by the concurrent findings of the two Courts below, in the exercise of his revisional jurisdiction, when no jurisdictional defect of material irregularity in the exercise of the jurisdiction was pointed out, requires consideration. The further question that arises is whether mere failure to prove the payment of considera tion would have the effect of vitiating the sale, for, it seems well‑established that where title is intended to pass and the price intended to be paid, the mere fact that the price is not actually paid at the time of the conveyance will not prevent title from passing to the buyer. Leave is accordingly granted to examine these questions. Security for costs Rs. 2,500

S. Q. Leave granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.