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Petitioner: BARKAT ALI and others VS Respondent: SAKHI MUHAMMAD and others
Court Name: Lahore High Court Judge(s): Muhammad Jehangir Arshad Title: BARKAT ALI and others vs SAKHI MUHAMMAD and others Case No.: C.Rs. Nos. 459-D and 460-D of 1993 Date of Judgment:2005-05-13 Reported As: 2005 YLR 2689 Result: Revisions accepted
JUDGMENT
JUDGMENT ' At the very outset it would not be out of place to mention here that earlier these civil revisions were dismissed by my learned brother Muhammad Akhtar Shabbir, J. Vide judgment and decree, dated 8-10-2002 but on an appeal the judgment and decree of my learned brother was set aside by the Hon'ble Supreme Court of Pakistan while accepting C.Ps. Nos. 1952 and 1953 of 2002 on 26-3-2003 with the following orders:- "This order shall dispose of Civil Petitions Nos.1952 and 1953 of 2002 as similar question is involved in these petitions. After hearing Mr. Ihsan-ul-Haq Chaudhry learned counsel for the petitioners and Mr. Muhammad Bashir-caveator, we are of the view that these cases be remanded to High Court for fresh decision. The reason for remand is that civil revisions' were dismissed by learned Judge of the High Court who was counsel for the respondent. We are of the view that this fact was not brought to the notice of the learned Judge otherwise he would refrain from hearing of such matter in which he has been engaged as counsel while at bar. Therefore, we convert these petitions into appeals and allow the same by setting aside the impugned judgment. The cases are remanded to the High Court for fresh decision on merits and are heard by another learned Judge. ' We further direct that Civil Revisions Nos.259 and 260 of 1993 shall be decided by the High Court within 2 months." ' I regret to point out that despite direction by the Hon'ble Supreme Court of Pakistan for the decision of these civil revisions within two months from the date of the order of the apex Court, dated 26-3-2003 either due to the fault of the office or the parties or even the over-slip of Court the order of the Hon'ble Supreme Court could not be complied with which cannot be approved by legal propriety or judicial and moral norms. Office is, therefore, put at notice to ensure that in future if any
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case is sent back by the Hon'ble Supreme Court with the direction for decision of the matter within a specified time the same shall be brought to the notice of the Additional Registrar and from today it would be the Additional Registrar to see that such-like cases are decided within the timeframe fixed by the Hon'ble Supreme Court of Pakistan. 2. As the Civil Revisions Nos.459-D of 1993 and 460-D of 1993 titled as "Barkat Ali etc. v. Sakhi Muhammad etc." have been filed against the same judgment of the two Courts below with regard to the same subject-matter relating to the same parties; hence both the civil revisions are being decided through this single judgment. 3. Both the above titled civil revisions call in question the judgment and decree, dated 1-11-1993 passed by the Additional District Judge, Bahawalnagar whereby two appeals filed by Sakhi Muhammad respondent against the judgment and decree of the learned Civil Judge, Fortabbas, dated 9-7-1988 were accepted and the judgment and decree passed by learned Civil Judge dismissing the declaratory suit filed by Sakhi Muhammad respondent and decreeing the suit for possession filed by the present petitioner were reversed against the petitioners and in favour of respondent. 4. The facts relevant for the disposal of both the title civil revisions briefly stated are that Sakhi Muhammad respondent filed suit on 28-9-1981 for declaration to the effect that he was owner in possession of the land measuring 12 Kanals situated in Chak No. 270/H.R. And Barkat Ali etc. Petitioners had got no concern whatsoever with the same and that the sale of said land through registered sale-deed, dated 19-9-1978 allegedly by Sakhi Muhammad respondent in favour of Barkat Ali etc. Petitioners Nos.1 to 3 and the subsequent sale-deed, dated 1-11-1984 by Nazir Ahmad petitioner No.3 in favour of petitioners Nos. 4 to 7 were against law, result of coercion, without consideration, hence void and ineffective qua his rights and for permanent injunction restraining Barkat Ali etc. Petitioners from claiming any right in respect of the said land on the basis of above mentioned sale-deeds and also from interfering into his possessory rights or alienating the property to anyone else. The said suit was filed on 28-9-1980. 5. The facts as stated in the suit of Sakhi Muhammad respondent basing his claim in his suit are that on 14-3-1977 one Muhammad Ashraf son of Ghulam Muhammad resident of Chak No.274/H.R. Got lodged criminal case against Sakhi Muhammad respondent and his sons under section 302/34, P.P.C. With Police Station, Fortabbas. Sakhi Muhammad respondent along with his son was arrested and remained in Jail for a considerable length of time. When Sakhi Muhammad respondent was released on bail Muhammad Ashraf complainant and witness of the said criminal case persuaded Sakhi Muhammad respondent for compromise and it was finally settled that Sakhi Muhammad respondent would transfer only construction of his house situated in Diggi Mohallah, Fortabbas to Muhammad Ashraf complainant which Sakhi Muhammad respondent did transfer to Muhammad Ashraf for a consideration of Rs.40,000. It is further alleged in the plaint that thereafter said Muhammad Ashraf turned hostile and started pressurising Sakhi Muhammad respondent for transfer of some agricultural land as a compromise consideration of the said criminal case, therefore, Sakhi Muhammad respondent got 12 Kanals land (hereinafter to be referred as disputed land) situated in Chak No.277/H.R., Fortabbas transferred in favour of respondents Nos.1 to 3 through the registered sale-deed, dated 19-9-1978 at the instance of said Muhammad Ashraf. It is also alleged in the plaint that the said transfer was not with free consent but was in fact the outcome of undue influence, coercion, without consideration and was motivated to seek acquittal of Sakhi Muhammad and his sons from criminal case. Finally it is averred in the plaint that neither any possession was ever delivered to Barkat Ali etc. Petitioners nor any sale consideration was ever received by Sakhi Muhammad, hence the said sale-deed was ineffective qua his rights. 6. Barkat Ali etc. Present petitioners besides contesting the said suit by filing written statement, dated 16-3-1985 also filed suit for possession on 11-7-1985 against Sakhi Muhammad respondent
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on the plea that the land comprising of Killa Nos.37/21, 22 measuring 12 Kanals situated in Chak No.277-H.R. Tehsil Fortabbas was sold to them by Sakhi Muhammad respondent through registered sale-deed, dated 19-9-1978 for a sum of Rs.60,000 and Mutation No.219 was also sanctioned to this effect and that the possession of the suit property was transferred to them which was at that time being cultivated by one Qutab-Din and that said sale was also sought to be pre-empted by Muhammad Hanif brother of Sakhi Muhammad respondent which suit was ultimately dismissed and appeal filed by Muhammad Hanif was also dismissed by learned Additional District Judge on 7-7-1980 and that after the dismissal of said suit and appeal Sakhi Muhammad filed suit for declaration (as described above) and having failed to obtain injunction in the said suit Sakhi Muhammad respondent firstly got his name entered in the Khasra Girdawari and two months thereafter forcibly and illegally obtained possession of the same for which he had no right. 7. Barkat Ali etc. In their written statement filed in the suit of Sakhi Muhammad reiterated their claim of purchase of the land through registered sale-deed whereas Sakhi Muhammad in his written statement filed by him against suit for possession of Barkat Ali etc. Repeated his story with regard to transfer of the said property to Barkat Ali etc. Through registered sale-deed at the instance of Muhammad A shraf etc. And further claiming that the said transfer was outcome of undue influence, coercion and that the same was without consideration. 8. Both the suits were consolidated by the learned trial Court and. Following consolidated issues were framed in suit titled as Sakhi Muhammad v. Barkat All etc. Resultantly the proceedings were conducted. ISSUES: (1) Whether the plaintiff Sakhi Muhammad has sold the suit property to the defendants Barkat Ali etc. Vide registered sale-deed, dated 10-9-1978 in consideration of Rs.60,000 with his free consent and as such he has no cruse of action? (2) Whether the plaintiff Sakhi Muhammad has got possession of the suit property during the pendency of the suit illegally and forcibly? If so, its effect? (3) Whether the defendant is entitled to get possession of the suit property? If so, on what terms and conditions? (4) What is the value of the suit property for the purpose of court-fee and jurisdiction? (5) Whether the registered sale-deed, dated 19-9-1978 is illegal, without consideration, void and ineffective against the rights of the plaintiff? (6) Whether the suit brought by the defendants Barkat All etc. Is liable to be dismissed in view of preliminary Objections Nos.1, 2, 3, 4, 5, of W.S.? (7) Which of the two parties are entitled to recover special costs under section 35-A, C.P.C.? (8) Relief. 9. Sakhi Muhammad plaintiff/ respondent produced in support of his case P.W.1 Sabir Ali son of Ghulam Muhammad, P.W.2 Haji Hakim Ali son of Sher Muhammad, P.W.3 Faiz. Ahmad son of Fateh Muhammad and closed his affirmative evidence on 2-11-1987 by tendering registered sale-deed Exh.P.1 and copies of Khasra Girdawari P-2 and reserved his statement till rebuttal. However, his statement as P.W.4 in affirmative as well as rebuttal was recorded on 8-3-1988 when Exh.P-3 was also placed on record. It may, however, be not out of place to mention here that previously there was a wrong practice being adopted in the trial Court whereby plaintiff after producing affirmative evidence used to appear both in affirmative and rebuttal after the closure of the evidence of the defendant. This practice was however, later on disapproved by this Court in 1997 CLC 494 and thereafter this practice was discarded and the Courts started recording statement of plaintiff separately in affirmative and rebuttal and till date the said practice is now being strictly adhere to. The irregularity committed by the trial Court in this case by recording the statement of Sakhi Muhammad plaintiff/respondent jointly in affirmative and rebuttal is, however, condoned under
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section 99 C.P.C. Especially when the same was not objected to by the petitioners/defendants. Reliance is also placed on PLD 1987 Lahore 666. 10. In rebuttal the present petitioners produced Shah Muhammad son of Ghulab Din D. W.1 who is the witness of agreement to sell Exh.D-1 and receipt D-2. Muhammad Shafique son of Barkat Ali who is witness of sale-deed Exh. D-3. D.W.3 Muhammad Tufail son of Ali Muhammad who identified Sakhi Muhammad before the Registrar at the time of registration of sale-deed Exh. D-3. D.W.4 Muhammad Isamil for proving the factum of illegally taken possession of the same and finally appeared as his own witness as D.W.5 and closed his evidence by tendering documents Exh. D-4 to Exh. D-14 . 11. On the conclusion of the trial learned Civil Judge/trial Court vide judgment and decree, dated 9- 7-1988 dismissed the declaratory suit filed by Sakhi Muhammad respondent/defendant but decreed suit for possession filed by Barkat Ali etc. Present petitioners/defendants. Against the above mentioned judgments and decrees of the learned trial Court Sakhi Muhammad filed two appeals and the same were accepted by the learned Additional District Judge, Bahawalnagar on 1-11-1993 whereby the two judgments and decrees of the learned trial Court were reversed with the result that declaratory suit filed by Sakhi Muhammad respondent was decreed whereas suit for possession filed by Barkat Ali petitioner, was dismissed. Hence, this civil revision. 12. Learned counsel for the petitioners argue that the learned Appellate Court was legally wrong in concluding that sale-deed, Exh.D-3 was fictitious document, result of coercion, without consideration and that no legal sale took place in favour of the petitioners as no possession under the sale was delivered to the respondents. Learned counsel further contend that learned Appellate Court while holding so lost sight of the fact that Sakhi Muhammad respondent had admitted the execution of sale deed Exh.D-3, that Muhammad Hussain brother of Sakhi Muhammad filed a pre- emption suit against the said sale which was dismissed on 17-1-1979 (Exh.D-4) and appeal filed against said dismissal ot, suit also met the same fate before a learned Additional District Judge vide judgment and decree, dated 7-7-1980 (Exh.D-5) and that present suit was filed by Sakhi Muhammad after dismissal of said appeal and this fact has also been admitted by Sakhi Muhammad in his statement. It is argued that respondent Sakhi Muhammad neither in his plaint specifically mentioned the particulars of coercion, etc. Nor led any evidence to establish that the said deed was result of either coercion or undue influence. Further that after admitting execution of sale-deed (fixh.D-3) a very heavy onus lay on him to prove either that the said sale-deed was outcome of coercion, collusion or undue influence or that same was without consideration. Next contention is that endorsement of Registrar on the back of Exh.D-3 was sufficient evidence about the execution of the deed and that same was with consideration. In this respect reliance has been placed on "Hakim Ali v. Sakhi Muhammad and 16 others" (1996 SCMR 354), "Pirla and others v. Noora and others" (PLD 1976 Lahore 6), "Mst. Aisal Mali v. Allah Ditta and others" 1991 CLC Note 246 at p.191 and "Kazi Noor Muhammad v. Pir Abdul Sattar Jan" (PLD 1959 (W.P.) Karachi 348). It has further been argued that Article 102 of Qanun-eShahadat Order, in expressed terms excludes the production of oral evidence to contradict the contents of any contract, grant or other disposition of property of such matter, except the document itself or secondary evidence in cases in which secondary evidence is admissible under the law. The contention is that after admitting execution of Exh.D-3 the respondent could not produce any oral evidence either to contradict the terms of Exh.D-3 or to vary the contents of the same. In this respect, reliance is placed on 1992 CLC 2433. On the point of coercion learned counsel argued that coercion as defined in section 15 of the Contract Act means "committing or threatening to commit any act forbidden by P.P.C. Or unlawfully detaining or threatening to detain any property to the prejudice to any person whatever, with an intention to cause any person enter into an agreement" hence, according to learned counsel, the respondents could only succeed for avoiding Exh.D-3 on the ground of its having been executed through
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coercion, if the evidence produced by him is within four corners of law defining coercion as mentioned above. According to the learned counsel, the respondents claim to have executed sale- deed Exh.D-3 as he was persuaded by the petitioners to execute the same document under promise of respondent and his son's acquittal from a criminal case and that said document was executed under that promise, which amount to exercise of coercion and that whereas, in fact the respondent has not been able to produce any confidence-inspiring evidence to this effect. Learned counsel has also taken me through the contents of the plaint filed by Sakhi Muhammad respondent. According to the learned counsel, nowhere in the plaint it has been averred by Sakhi Muhammad respondent that land under Exh.D-3 was being conveyed as a security for seeking acquittal from a murder case and also additional security against the house situated in Diggi Mohalla transferred by Sakhi Muhammad to Muhammad Ashraf complainants of the criminal case as said Muhammad Ashraf apprehended that land under said house was owned by. Provincial Government and Ashraf may not be able to dispose of that house, so to ensure the sale of the said house along with the land, the land in question was got transferred in favour of the petitioners as additional security and it was for the first time that Sakhi Muhammad while appearing as his own witness as P.W.4 took the plea that land through the sale-deed Exh.D-3 was given as a security and no consideration passed under the said deed. It has next been argued that it is an admitted principle of law that in civil litigation a party must succeed on the strength of his own evidence and cannot rely upon the weaknesses of other side. The contention of the learned counsel for the petitioners is that to prove that sale-deed Exh.D-3 was either executed under coercion or was without consideration, the respondents could not succeed on the weaknesses of the evidence of the petitioners. Reliance is placed on PLD 1994 Supreme Court 351. Learned counsel for the petitioners while concluding arguments have pleaded that the judgment of the learned Appellate Court suffers from misreading and non-reading of evidence, whereas the judgment of the learned trial Court being based on proper appreciation of evidence, hence, the same merits to be restored. 13. On the other hand, Mr. Muhammad Ibrahim Khan and Raja Muhammad Sohail Iftikhar, Advocates while defending the judgment and decree of the Appellate Court argued that the factum of compromise in murder case between Sakhi Muhammad and Muhammad Ashraf complainant of the said criminal case, is admitted by D.W.2 Shafique who is also a witness of sale- deed Exh.D-3 and that it is also established from the record that the house situated in Diggi Mohalla given by Sakhi Muhammad respondent in consideration of compromise to Shaukat alias Shauki was also sold by said Shaukat and that from the statements of Shafique D.W.2, Hakim P.W.2 and Sakhi Muhammad P.W.4 case of coercion is fully established. They further argued that after the plea of respondents that sale-deed Exh.D-3 was without consideration, onus to prove that same was for consideration shifted on the petitioners and that the petitioners also failed to prove that possession of the land was even delivered to them. Learned counsel further argues that Barkat Ali, etc. Have nowhere taken the plea in their plaint that prior to sale-deed, agreement to sell Exh.D-1 and receipt Exh.D-2 were also executed on the same day i.e. 12-7-1978 and that no witness to prove the said agreement and receipt had been produced by the petitioners. Further argue that pre- emption suit filed by Muhammad Hussain against sale through Exh.D-2 had nothing to do with respondent Sakhi Muhammad as relationship of Sakhi Muhammad respondent with his brother. Muhammad Hussain were not on good terms. In support of their contention the reliance has been placed on "Mst. Jannat Bibi v. Faqir Muhammad" (1998 MLD 837); "Malik Haji and others v. Abdul Razak and others" (2001 MLD 1925); "Mst. Meraj Begum v. Mst. Shamshad Akhtar and another" (2000 YLR 1678); "Ghulam Bheek and others v. Mst. Salamat Bibi and others" (2001 CLC 1078) and "Manzoor Ahmad v. Haji Hasmat Ali through Legal Heirs" (2000 CLC 419). 14. After considering the above mentioned arguments of learned counsel for the parties, scanning and appraising the evidence and examining the case-law cited by the learned counsel for the
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parties, to me the following points emerge for consideration and decision of this Civil Revisions:-- (I) Whether the sale-deed Exh D-3 was executed by Sakhi Muhammad respondent under coercion and same was without consideration? (II) After admission of execution of sale-deed Exh.D-2 whether Sakhi Muhammad could competently wriggle out of the same by taking the plea that same was outcome of coercion and without consideration? (III) Whether the oral evidence can be admitted and acted upon to deny the contents of registered sale-deed Exh.D-3 and oral variation in the sale-deed can be acted upon in terms of Article 102 of the Qanune-Shahadat Order? (IV) Whether the sale-deed Exh.D-3 was executed by Sakhi Muhammad as additional security against transfer of his house situated in Diggi Mohallah to one Shaukat in lieu of compromise consideration entered into between Sakhi Muhammad and Muhammad Ashraf complainant of the murder case? (V) Whether Sakhi Muhammad never sold the suit property to Barkat Ali, etc. Petitioners through sale-deed Exh.D-3 and the transfer of the property through Exh.D-3 in favour of Barkat Ali, etc. At the instance of Muhammad Ashraf complainant of the criminal case and the land in dispute was in fact intended to be re-conveyed to Sakhi Muhammad respondent after decision of the murder case in favour of Sakhi Muhammad? 15. A perusal of the judgment of the learned Appellate Court reveals that the learned Appellate Court laid much stress that as the petitioners produced no evidence to prove the execution of agreement to sell Exh.D-1 and receipt Exh.D-2 and that sale-deed Exh.D-3 having found no mention of the same, hence, the sale-deed Exh.D-3 could be considered as a validly executed documents but by holding so the learned Appellate Court fell into legal error by not taking note of an important fact that Sakhi Muhammad respondent had in so many words admitted the execution of sale- deed, hence, even if the sale-deed did not refer the agreement to sell Exh.D-1 and receipt of Exh.D- 2, nor both these documents having been proved by the petitioners the fact remains that the entire transaction merged into sale-deed Exh.D-3. Therefore, the question to prove the execution of agreement Exh.D-1 and receipt Exh.D-2 or reference to these two documents in Exh.D-3 looses its importance. It is an established principle of law that mere agreement to sell does not create any right and it is a document of sale which in fact not only creates right in an immovable property but also transfers title to the purchaser in the property transferred under the registered sale-deed. Even otherwise, non-proof or non-reference of Exh.D-1 or Exh.D-2 cannot be given any weightage in view of express admission of Sakhi Muhammad respondent where he has in so many words admitted the transfer of disputed property measuring 12-Kanal through registered sale-deed in favour of the petitioners though according to him same was without monitary consideration yet was in lieu of compromise made between him and Muhammad Ashraf in criminal case. Reference to para.3 of the plaint filed by Sakhi Muhammad is apt for this purpose. After admission of execution of sale-deed, transfer of property measuring 12-Kanal through registered sale-deed in favour of Barkat Ali, etc. a very heavy onus lay upon Sakhi Muhammad to have proved that the said transfer and the sale-deed was in fact without consideration and result of coercion. In the case of "Hakim Ali v. Sakhi Muhammad and 16 others" (1996. SCMR 354), the Hon'ble Supreme Court of Pakistan while dealing with a case of registered document and effect of Certificate appended by the Registrar and acknowledgement on the part of the Vendor to have received the consideration as mentioned in the sale-deed, held as under:-- "The document is a registered document, and it also contains a certificate signed by the Registrar while effecting the sale-deed. The document clearly shows the acknowledgement on the part of late Jagga Khan to have received the consideration of Rs.50,000 in lieu of the sale. The Sub- Registrar has appended a certificate certifying such acknowledgement on the part of the vendor
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late Jagga Khan. In our view, the most authentic documentary evidence and the facts enumerated and the certificate signed by Registrar will be presumed to have occurred and presumption of genuineness and correctness is attached to such certificate of the Sub-Registrar, because provision of section 60 of the Registration Act were complied with and the facts sought to be proved within the meaning of sections 52 and 58 of the Registration Act have also been proved, therefore, the Sub-Registrar's endorsement authenticcating the acknowledgement of the vendor to have received the consideration is a proof of the payment of consideration." 16. Similarly, this Court in the case of "Mst. Aisal Mali v. Allah Ditta and others" 1991 CLC Note 246 at p.191 held that Certificate of Sub-Registrar is admissible in evidence in accordance with provisions of section 60 of the Registration Act and the presumption of truth is also attached to the fact mentioned in the endorsement which have occurred therein. This Court again in the case of "Pirla and others v. Noora and others" (PLD 1976 Lahore 6) held that Registrar's endorsement on the back of sale-deed that some portion of the sale money was paid in his presence and rest acknowledged to…
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