Present: Nasir Saeed Sheikh, J.
MUHAMMAD AMIN and 11 others--Respondents
C.R. No. 386 of 2003, heard on 25.9.2013.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, Rr. 21 & 27--Additional evidence--Oral transaction of sale incorporated in mutation--Application for seeking permission to produce additional evidence of two witnesses i.e. lumberdars who had identified deceased as executant of mutation--Beneficiary of transaction of sale incorporated in mutation--Obligation to prove--Necessary two witnesses--Concept of production of additional evidence was only for needs of Court and not for allowing to fill up lacuna--Order of closing rights to cross-examine--Validity--Petitioner did not produce best evidence proving the identification by two witnesses who were lumberdars in whose presence oral transaction of sale was claimed by petitioner to have been incorporated in revenue record--Patwari and Naib Tehsildar who appeared on behalf of petitioner did not categorically state that sale price was paid in presence by petitioner to deceased--Petitioner had failed to prove oral transaction of sale having been genuinely entered by deceased who was proved to suffer from some mental disorder--Therefore, in exercise of revisional jurisdiction High Court did not find it a fit case for interference in concurrent judgments and decree passed by Courts below--Respondents who were admittedly legal heirs of deceased had been rightly granted decree as prayed for by Courts below--Revision was dismissed. [P. 46] A & B
1992 SCMR 1832, 1998 SCMR 671, 2005 SCMR 348 & 2000 CLC 1272, rel.
Mr. Zubda Tul Hussain, Advocate for Petitioner.
Mr. Muhammad Iqbal Mohal, Advocate for Respondents.
Date of hearing: 25.9.2013.
One Din Muhammad s/o Gohar the predecessor-in-interest of the respondents died on 31.8.1995. He was admittedly the owner of land measuring 20 kanals 9 marlas described in the plaint. The petitioner claimed a Mutation No. 194 dated 12.4.1995 Ex. D-2 in his favour of the land measuring 20 kanals 9 marlas owned by the said Din Muhammad, which mutation was incorporated in the revenue record. Having come to know of the said mutation the Respondent Nos. 1 to 4 instituted a suit before the learned Civil Judge, Narowal seeking declaration and cancellation of the Mutation No. 194 dated 12.4.1995 on the ground that late Din Muhammad was suffering from mental disorder and had no mental capacity to enter into any transaction on the date on which the mutation in question was claimed by the petitioner in his favour. It was further contended in the plaint that the alleged oral transaction of sale incorporated in the Mutation No. 194 dated 12.4.1995 was without consideration and was a fake transaction which was outcome of forgery, fraud and misrepresentation and is therefore of no legal effect upon the rights of the respondents/plaintiffs. The possession of the property was also sought by the Respondent No. 1 to 4 in the prayer clause. The suit was contested by the petitioner and in his written statement he claimed that the deceased Din Muhammad was not suffering from any mental disease/disorder as alleged by the plaintiffs/respondents; he was just suffering from heart aliment and died a natural death. The petitioner further claimed that oral transaction of sale incorporated in the Mutation No. 194 dated 12.4.1995 was legally and factually got incorporated by the deceased Din Muhammad of his own free volition in his favour for a consideration of Rs. 150,000/-.
2. The learned Civil Judge, Narowal framed the following issues out of the pleadings of the parties:--
1. Whether the plaintiffs have got no cause of action and locus standi? OPD
2. Whether the suit is collusive and as such is not maintainable? OPD
3. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD
4. Whether the deceased Din Muhammad was suffering from mental disease long before his death and as such he was not competent to make the alleged transaction? OPP.
5. Whether the alleged Mutation No. 194 is the result of fraud and mis-representation, coercion and undue influence, if so, whether the same is liable to be set aside? OPP
3. After production of the oral as well as documentary evidence by the parties the learned Civil Judge, Narowal recorded crucial findings on Issues No. 4 & 5 in favour of the respondents/plaintiffs and decreed the suit in their favour through the judgment and decree dated 26.6.2002. The Mutation No. 194 dated 12.4.1995 was accordingly declared null and void, result of fraud and held to be liable to cancellation.
4. The petitioner preferred an appeal against the judgment and decree of the learned Civil Judge which appeal came up for hearing before a learned Additional District Judge Narowal. The learned first Appellate Court confirmed the findings of the learned trial Court on Issue No. 5 which issue was considered as vital issue by the learned First Appellate Court and was also held to be corollary of Issue No. 4. The appeal after upholding the findings of the learned Civil Judge on issues No. 1 & 2 as well as accordingly dismissed by the learned Additional District Judge through judgment and decree dated 4.3.2003.
5. Through the instant civil revision the judgments and decrees passed by the two Courts below have been assailed.
C.M. No. 1132-C of 2003
6. It is argued by the learned counsel for the petitioner at the very outset that the petitioner has moved an application under Order 41 Rule 27 of CPC for seeking permission to produce additional evidence of two witnesses i.e. lumberdars who had identified the deceased Din Muhammad as the executant of the mutation in question. This prayer was made through C.M. No. 1132-C of 2003 by the petitioner. The learned counsel for the petitioner argued that in order to prove the bona fide transaction in favour of the petitioner as incorporated in the Mutation No. 194 dated 12.4.1995, the production of two lumberdars i.e. Imdad Ali and Muhammad Ashraf be allowed. The learned counsel argued that the production of two lumberdars who have identified the deceased Din Muhammad is essential for the fair and just administration of justice and for the factual decision of the case.
7. The learned counsel representing the respondents has seriously contested this C.M. and has argued that the petitioner was allowed sufficient opportunities to produce his evidence before the learned trial Court and in view of the law that he was the beneficiary of the alleged transaction of sale incorporated in the Mutation No. 194 dated 12.4.1995 it was his legal obligation to have proved the due incorporated of the oral transaction of sale in the revenue record. The learned counsel argued that having failed to avail the said opportunities before the two forums below it was not a case in which this Court may consider the production of those two witnesses necessary for the decision of the instant civil revision. The learned counsel for the respondents argued that the concept of production of additional evidence is only for the needs of this Court and not for allowing the petitioner to fill up the lacunae in his case after so many years. The learned counsel for the respondents relied upon the judgments reported as Hakim Khan vs. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832), Muhammad Siddique vs. Abdul Khaliq and 28 others (PLD 2000 SC 20), Abdul Hameed and 14 others vs. Abdul Qayyum and 16 others (1998 SCMR 671), Shtamand and others vs. Zahir Shah and others (2005 SCMR 348) and Maqsood Ahmed vs. Muhammad Hussain (2000 CLC 1272) in support of his contentions.
8. I have considered the contentions of the parties on this C.M.
9. The two Courts below after examining the record as well as the documentary evidence have recorded the finding of facts against the petitioner and have decreed the suit in favour of the Respondents No. 1 to 4. The petitioner was the beneficiary of the transaction in question and it was his obligation to have produced the best evidence to prove the due incorporation of the oral transaction of sale claimed by him in his favour from the deceased Din Muhammad. The necessary two witnesses who were claimed to have identified the deceased Din Muhammad before the revenue authorities at the time of the incorporation of the mutation in question were not produced during the trial for the reasons best known to the petitioner. The case law cited by the learned counsel for the Respondents No. 1 to 4 is fully supportive of the fact that the provisions Order XLI, Rule 21 of CPC for production of additional evidence cannot be allowed to fill up the lacunae to the party who has failed before the two Courts below. The record available before this Court which is a revisional Court is sufficient to enable this Court to analyze as to whether the judgments and decrees passed by the two Courts below have been legally passed or not therefore this C.M. No. 1132-C of 2003 moved under Order XLI, Rule 27 of CPC for production of additional evidence is liable to be dismissed and is accordingly dismissed.
10. The learned counsel for the petitioner has argued the case on merits by contending that two medical certificates Exh. P1 & P2 regarding the mental disorder of the deceased Din Muhammad are the forged documents and have been manoeuvred by the respondents. It is further argued that the witness PW2 Momin Ali s/o Muhammad Ali produced by the respondents has been denied the necessary opportunity of cross-examination to the petitioner during the trial which has resulted into miscarriage of justice. It is further contended that the statement made by the PW-2 could not be accepted as the admission of the fact stated by such witness of the respondents in view of the judgment reported as Mst. Nur Jehan Begum through Legal Representatives vs. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) clause-C. The learned counsel for the petitioner contended that numerous opportunities were granted to the respondents to produce their witnesses by the learned trial Court and the right of cross-examination of the petitioner was closed upon PW-2 in an illegal manner just after three opportunities. It is next argued that the two Courts below have misread and mis-appreciated the evidence available on record.
11. The learned counsel representing the respondents controverted the arguments of the learned counsel for the petitioner by stating that the documents Exh. P-1 & P-2 were duly proved by producing two doctors who had issued those medical prescriptions and the documents were admitted without any objection. The learned counsel for the respondents contends that the right of the petitioner to cross-examine the witness PW-2 was closed through order dated 19.7.2001 passed by the learned Civil Judge and this order was not further assailed at any stage by the petitioner and therefore cannot be allowed to be assailed at the revisional stage. It is further contended by the learned counsel for the respondents that not only two doctors have appeared to prove the medical prescriptions regarding the mental ailment of the deceased Din Muhammad during the period the mutation in question was claimed by the petitioner but the circumstantial evidence produced by the respondents went unrebutted as the statement of PW-2 was not cross-examined who was the neighbourer of the deceased Din Muhammad and proved the factum of his mental disorderliness at the relevant time. It is further argued by the learned counsel for the respondents that even if the medical evidence as produced by the respondents is put at the side. It was a legal obligation of the petitioner to have proved the due entering of an oral transaction of sale by the deceased Din Muhammad with him and the due incorporation of the mutation in question in the Revenue Record. The learned counsel argued that the petitioner produced the Patwari and the Naib Tehsildar both of whom said that no sale price was exchanged between the petitioner and the deceased in their presence at the time of the alleged transaction. The two witnesses who identified the person who appeared as Din Muhammad before the revenue authorities at the time of incorporation of the mutation in question were not produced by the petitioner during the trial. It is further argued that in the absence of proof of payment of the sale price by the petitioner to the deceased Din Muhammad, no lawful sale can be said to have proved by the petitioner in his favour from the deceased taking the case in its extreme form, because proving genuineness of the sale transaction from the vendor deceased is a sine qua non for the alleged vendee who is the beneficiary of the oral transaction, to seek any relief from Court of law on the basis of such a mutation of sale in his favour. A prayer has been made that the two Courts below have recorded concurrent findings of facts against the petitioner therefore the civil revision merits to be dismissed.
12. I have considered the arguments of the learned counsel for the parties and have perused the record.
13. The learned Civil Judge has recorded the detailed findings after discussing the entire evidence on issues No. 4 & 5. In Para-12 of the judgment and decree dated 26.6.2002 the learned Civil Judge analyzed the produced evidence and recorded the findings of facts about the mental suffering of the deceased Din Muhammad. The detailed reasons of the learned Civil Judge recorded in Para-12 are reproduced below:--
"12. The plaintiffs's contention is that Din Muhammad was suffering from the dementia at the time of attestation of mutation and mentally, he was not fit to enter into a contrast of disputed land. The impugned mutation has been attested with the connivance of Patwari Halqa by exercising fraud Ex. P.1 out-door slip of Government Mental hospital Lahore dated 18.4.1995 is a description showing the mental capacity of Din Muhammad. Ex. P 2 is discharge slip of Din Muhammad from Services Hospital Lahore, which speaks that he was suffering from disease dementia. A note at fact of this document Ex. P-2, the context given by Senior Registrar Department of Psychiatry Services Hospital Lahore speaks that the patient was suffering from the Organic Brain Disease which is a progressive Deteriorating illness. It further speaks that he was suffering from the same since more than one year and was not fit to deal rational decision. The statement of PW-2 Moman Ali where he stated that Din Muhammad who was known to him and used to live in front of his house, was suffering mental disease, was not subjected to cross-examination. The other witnesses have categorically stated that Din Muhammad at the time of impugned mutation was suffering from `Dementia'. In this view of the matter, the plaintiffs have discharged the onus of proof and having beneficiary of the impugned mutation, the defendants are duty bound to discharge the burden of proof that at the time of attestation of mutation. Din Muhammad was fit mentally and he was able to make rational decision. Muhammad Zulfiqar Naib Tehsildar who has appeared as DW-3 has stated that Din Muhammad has appeared before him but the parties were not known to him personally, he was identified by the witnesses Muhammad Asghir who was appeared as DW-3 has stated that at the time of attestation of mutation Din Muhammad, Ashraf and witnesses were present and he was able to make rational statement. Patwari Halqa who has appeared as DW-1, in cross-examination has deposed that a week back from incorporation of Daily diary report, he came to know about Din Muhammad and prior to this Din Muhammad was not known to him. The defendants have failed to prove by convencing and cogent evidence that Din Muhammad at the time of attestation of impugned mutation was able to make rational decision especially in the presence of Ex. P-2 discharge slip issued by Services Hospital Lahore showing that he was suffering from `DEMENTIA' since more then one year. The statement of PW-2 which goes un-cross-examined by the defendants for the reasons best known to them, will amounts as an admission. The defendants have also failed to examine the witnesses of mutation to prove the genuineness of mutation and mental capacity of Din Muhammad at the time of impugned mutation for the reasons best known to them. As for as the genuineness of Ex. D-1 Daily Diary report is concerned over writing to the extent of"
is sufficient to hold a view that there is a `HANGIPHAGI'
" " hence Ex.D-1 is not confidence inspiring.
" " hence Ex.D-1 is not confidence inspiring.
The learned Civil Judge also held that the passing of the consideration to the executant of the mutation Ex. D-2 have not been proved by the petitioner and this finding was recorded by the learned Civil Judge in Para-13 in the following words:--
"13. In order to ascertain the genuineness of impugned mutation, an other important aspect of the transaction is passing on of consideration Muhammad Azam Patwari Halqa appearing as D-1 has stated that the consideration was paid in his presence but in cross-examination, he deposed that the consideration was paid in the presence of Tehsildar. Tehsildar who has appeared as DW-2, has failed to state that the consideration was paid in his presence. He states that it was admitted in his presence Muhammad Asghir Defendant No. 1 has stated that the consideration was paid in presence of Tehsildar and witnesses, but to prove the passing-on of consideration, witnesses have not been examined in witness-box for the reasons best known to them. There is such remarkable contradiction about payment of consideration that a man of ordinary prudence can hardly believe the passing-on of consideration which was on essential (essential) ingredient in case of sale which is also a fatal blow to defendants."
14. Thus the learned Civil Judge after appreciating the evidence available on the record decreed the suit in favour of the respondents/plaintiffs.
15. The learned First Appellate Court duly analyzed the findings of the learned Civil Judge and held after relying upon the judgment reported as Hakim Khan vs. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832) that the petitioner was the beneficiary of the challenged transaction and it is he who has to prove the due entering of the transaction by the deceased with him as well as its incorporation in accordance with law in the revenue record. The learned First Appellate Court observed as follows in the judgment and decree dated 4.3.2003:
"Defendants have only produced Patwari DW-1 and Naib Tehsildar DW-2 and Defendant No. 1 himself appeared as DW-3. Din Muhammad was not personally known to the Patwari. He has admitted in his cross-examination that Din Muhammad met to him one week prior to sanctioning mutation and not before. No question of personal knowledge of Naib Tehsildar arised while two lumberdars who identified Din Muhammad before Patwari while he recorded his statement for sanction of mutation has not been produced. To the mind of this Court these two persons were the best available evidence to whom being owner of the village Din Muhammad was known but that evidence has been withheld by the defendants. As against that plaintiffs have provide by adducing cogent evidence as discussed above that Din Muhammad was not fit to enter into any transaction.
In these circumstances defendants failed to prove that Mutation No. 194 was duly sanctioned while Din Muhammad was duly capable to enter in that transaction. Finding of learned trial Court on Issue No. 5 are also up-held."
16. No illegality and misreading of evidence have been pointed out by the learned counsel for the petitioner in the above mentioned findings recorded by the two Courts below. The learned Civil Judge passed the order of closing the right of the petitioner to cross-examine PW-2 vide order dated 19.7.2001 which order was not assailed by the petitioner for a long time till the passing of judgment and decree by the learned Civil Judge on 26.6.2002. The grounds of appeal as annexed with the instant civil revision also do not contain any ground assailing the said order dated 19.7.2001 nor the contents of the judgment passed by the learned First Appellate Court disclose any arguments addressed by the learned counsel for the petitioner against the order dated 19.7.2001 therefore the order dated 19.7.2001 has attained finality. The petitioner did not produce the best evidence proving the identification by the two witnesses who were lumberdars Imdad Ali and Muhammad Ashraf in whose presence the oral transaction of sale was claimed by the petitioner to have been incorporated in the revenue record. The Patwari and Naib Tehsildar who appeared on behalf of the petitioner did not categorically state that the sale price was paid in their presence by the petitioner to the deceased Din Muhammad. There was no background highlighted by the DW-1 that he had previous acquaintance with the deceased Din Muhammad as in his cross-examination he admitted that he did not know the deceased a week prior to the entering of the mutation in question. The Naib Tehsildar Ch. Zulfiqar Ali who appeared as DW2 alleged that he did not know the deceased Din Muhammad personally therefore the production of these two witnesses as DW1 & DW2 who have otherwise not stated to have witnessed the exchange of sale price between the vendor and the vendee, is of no help to the petitioner Muhammad Asghar who appeared as DW3 and stated that the sale price of Rs. 150,000/- was paid by him in the presence of the Tehsildar. This stance taken by the petitioner as DW3 is not supported by the statements of DW1 & DW2. The petitioner had failed to prove the oral transaction of sale having been genuinely entered in his favour by the deceased Din Muhammad who was also proved to be suffering from some mental disorder as well. Therefore in exercise of my revisional jurisdiction I do not find it a fit case for interference in the concurrent judgments and decrees passed by the two Courts below. The respondents who are admittedly the LRs of deceased Din Muhammad have been rightly granted the decree as prayed for by the two Courts below.
17. The instant civil revision being devoid of any merits is accordingly dismissed with costs throughout.
(R.A.) Petition dismissed