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Civil Revisions Nos. 146 and 147 of 1983/BWP, decided on 17th March, 1987.

---O.XLI,R.27 & S. 115--Productic, of additional evidence in Appellate Court--Application for--Revisions: jurisdiction, exercise of- Order of Appellate Court below on application of petitioner for production of additional evidence admittedly being on record, contention of petitioner that Appellate Court below decided his appeal without first deciding his application for production of additional evidence, held, was factually incorrect--Application for production of additional evidence having been rejected by Appellate Court below on merits could not be interfered with in revisional jurisdiction of High Court in circumstances

---S. 54--Qanun-e-Shahadat Order (10 of 1984), Arts.72, 74 & 102- Agreement of sale--Proof--Original agreement of sale was stated to have been lost but alleged loss not proved--Secondary evidence to prove such agreement, held, would not be admissible, especially when no attempt was made to produce stamp vendor to prove that stamp paper was really purchased for execution of sale agreement.

---S. 115--Transfer of Property Act (IV of 1882), S. 54 Sale agreement, validity of--Concurrent finding of Courts below Revisional jurisdiction, exercise of--Concurrent finding of two Courts below that alleged sale agreement was a fake document and that no sale took place between parties, held, could not be interfered with by High Court in exercise of revisional jurisdiction when Courts below had not committed any illegality or material irregularity in exercise of their jurisdiction as envisaged in S .115, C.P.C.

Mian Allah Nawaz and Ch. Naseer Ahmad for Petitioners.

M.A. Farani for Respondents.

Date of hearing: 17th March, 1987.

The revisional jurisdiction of this Court has been invoked to set aside the judgment and decree dated 30-6-1976 passed by the learned Civil Judge Ist Class, Chishtian and those of the learned Additional District Judge, Bahawalnagar dated 9-4-1983, who did not find favour with the stand of the petitioners. Civil Revision No.146/ 83/BWP. and Civil revision No. 147/83/BWP. arise out of the same judgment and are being decided by means of this consolidated judgment.

2. The brief facts of this case are that the land in dispute measuring 280 Kanals belonged to Allah Ditta and it was got by inheritance by his sons Ahman and Manda vide mutation No.23 attested on 24-3-1962. Ahman and Manda are stated to have sold this land in favour of Muhammad Suleman, Lirqman and Waryam vide mutation No.120 sanctioned on 25-9-1962. Since the land of Allah Ditta was not mutated in favour of Mst. Rai Bibi, the daughter of Allah Ditta, mutation No.120 was revised and 1/5th share was given to Mst. Raj Bibi. Muhammad Suleman, Luqman and Waryam brought a suit for the recovery of Rs.2,800 against Ahman and Manda the sale price of 1/5th share of the land purchased by them as it had gone out of the hands of the vendors and the vendees. Subsequently, Ahman and Manda brought a suit for possession of the land in dispute on the ground that they never sold the property in dispute in favour of Muhammad Suleman and others and the agreement to sell had been faked to their detriment. Both the suits were consoldiated. On the basis of the pleadings of the parties, the following issues were framed:-

(1)Whether the plaintiffs purchased the suit land from the defendants vide mutation No,120 dated 25-9-1962 for Rs.14,000 OP P.

(2) Whether 1/5th share of the land originally mutated in the names of the plaintiff was cancelled from the names of the plaintiffs on 17-9-1966 If so, with what effect OPP

(3) Whether the plaintiffs are entitled to receive from the defendants Rs.2,800 OPP.

(4) Whether the impugned sale is for consideration OPP

(5) Whether the impugned transaction is product of fraud, collusion as such is illegal, ultra vires and ineffective OPD

(6) Whether the impugned transaction is void for want of registration OPD

(7) Relief.

The learned trial Court dismissed the suit of Suleman and others pending for the recovery of Rs.2,800, whereas the suit filed by Ahman and Manda was decreed. The petitioners were unsuccessful in appeals filed against Ahman and Manda on 9-4-1983. Now they have filed these civil revisions.

3. At the very outset it was contended that the petitioners had filed .an application under Order XLI, rule 27, C.P.C. for the production of additional evidence as the comparison of the thumb marks of Ahman on the agreement to sell. Ex. P.1 was to be done and the first appellate Court without deciding that application decided their appeals. It is not factually correct because the order of the A learned first appellate Court regarding the disposal of their application filed under Order XLI rule 27 C.P.C is there. Suffice to say that the thumb mark of Ahman on Ex.P-1 has been superimposed at 2 points and is not decipherable enough to admit any comparison. The petition of the petitioners for additional evidence was rightly rejected.

4. The cardinal point in this case is whether the alleged sale was in fact made by Ahman and Manda. Ahman and Manda are stated to have executed two separate agreements to sell in favour of the petitioners. The agreement deed executed by Manda is stated to have been lost but its loss was not proved and secondary evidence which was inadmissible was got recorded by the petitioners. No attempt was made to produce the stamp vendor in order to prove that Manda had really purchased the stamp papers for the execution of the agreement deed and in this manner, the sale alleged on the part of Manda has not been proved.

5. Mian Shah (PW.1) has stated that he had identified the parties before the tehsildar at the time of the attestation of the mutation and the parties had admitted the receipt of the sale price and the change of the possession. Muhammad Ali (PW.2) is the marginal witness of the agreement Ex.P-1 who has stated that 17-1/2 acres of land was sold in favour of the petitioners for Rs.14;000 and Rs.6,100 was paid to each vendor and Rs.1,800 was to be paid at the time of the attestation of the mutation. Muhammad Ali (P.W.2) belongs to village Lobarka and' not to the village of the parties. Dilawar (PW.3) is another marginal witness who corroborated the sale of the land in dispute in favour of the petitioners and the payment of the consideration thereof. Muhammad Siddique (P.W.4) is a stamp-vendor who has stated that he had vended the stamp paper in favour of Ahman and the entry was made in.his register. When subjected to cross-examination he admitted that after Sr. No.1097. Serials No.698 and 699 were there. He attributed this irregularity to his inadvertence. It shows that his register is not a reliable document and is open to objection. , Farzand Ali did not support the case of the petitioners and he was not examined. Sheikh Fazal Karim (Retd.) Tehsildar appeared in the witness-box as PW.6. He deposed that he had attested mutation No.1Z0 when he was Tehsildar, Minchinabad and the vendor had received Rs.1,800 from the vendees. In his cross-examination, he has stated that he did not know the parties nor did he know Mian Shah the headman of the viliage. The statement of Syed Manzoor Hussain Patwari Halqa Behram (P.W.7) is very significant. He has stated that he had got entered mutation No.120 which was attested by the Revenue Officer and a sum of Rs.1,800 was paid to the vendors before the Tehsildar. In his cross-examination he has completely demolished the case of the petitioners by stating that two months subsequent to the attestation of Mutation No.120, the defendants came to him and complained that the said mutation was got attested by producing some fake persons and the defendants were not the persons who had come to get the mutation attested and sum of Rs.1,800 which was paid before the Revenue Officer was returned to the vendees after the attestation of the mutation. This witness was not declared hostile or cross-examined. His statement is to be read as a whole and in a way he has supported the case of the defendants. Muhammad Suleman (P.W.8) corroborated his stand regarding the sale of this land and its payment to the vendors by parts. He had admitted it as correct that they were litigating over other mutations as well.

6. In rebuttal the respondents examined Farzand Ali (DW.1) who is the scribe of the agreement deed EX. P-1. He has stated that the vendor was not present when this document was written and the thumb-marks on the said document had already been obtained before it was scribed and no payment was mode in his presence. He has disowned some of the writing in this deed. He has also explained that word ------ " was written after it had been thumb-marked by some one. Abdul Aziz (DW.2) has simply stated that no sale of the land in dispute took place in his presence. Manda (DW.3) denied having sold any land to the petitioners. He has also denied the receipt of the consideration and his presence before the Tehsildar.

7.As regard the execution of Ex.P-1 Ahman denied his thumb-mark on this document, as has been superimposed on two points and is not decipherable and similar was the thumb-mark of Muhammad Ali an attesting witness. The father's name of Dilawar has not been written thereon. Apparently the thumb-mark had been obtained before hand and the word " " was subsequently written on it, which corroborates the statement of Farzand Ali, that this document was written after obtaining signatures thereon in the absence of the vendor. The Stamp Paper was purchased from Bahawalnagar and strangely enough it was got scribed by Farzand Ali a villager and not by petition writer who were available at the District headquarters in abundance. This document has been rubbed with oily hands so that it may put on an overlook. This does not find a mention in the proceedings conducted by the Revenue Officer for the attestation of the mutation. Both the lower Courts have concurrently found that it is a fake 'document and no sale took place between the parties. The learned lower Courts have not committed any illegality or material irregularity in the exercise of their jurisdiction as envisaged in section 115, C.P.C. I, therefore, dismiss both the Civil Revision with costs.

H.B.T/M-276/L. Revision dismissed.

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