2017 CLC 277

2017 C L C 277

[Peshawar]

Before Mazhar Alam Khan Miankhel, CJ

NADIR KHAN and 5 others

—-Petitioners

Versus

MUQADAR KHAN and 13 others

—-Respondents

Civil Revision No.872-P of 2010, decided on 22nd February, 2016.

(a) Qanun-e-Shahadat (10 of 1984)—

—-Arts. 49, 79, 80 & 117—Suit for declaration—Execution of sale deed—Document—Proof—Transaction with Pardanasheen lady—Long standing entries in the revenue record— Scope—Contention of plaintiffs was that they were owners in possession of suit property and alleged mutation in favour of defendants was based on fraud—Suit was decreed concurrently—Validity—Whoever desired court to give judgment as to any right or liability dependent on existence of fact must prove such facts—Plaintiff had failed to prove the alleged sale as well as execution and contents of sale deed–If a document was required by law to be attested, same should not be used as evidence until two attesting witnesses at least had been called for the purpose of proving its execution—If no such attesting witnesses were found, it must be proved that witnesses had either died or could not be found and document was executed by the person who purported to have done so—Mere production of sale deed would not absolve the plaintiffs from proving the contents of the same—Mere statement of plaintiffs with regard to death of witnesses of disputed sale deed would not absolve and exonerate them of their obligation to prove the contents of the same—Burden of proof would lie on the person claiming benefit and title from the transaction with old infirm, illiterate persons, women under influence of elders of family and parda observing ladies—Plaintiffs being beneficiaries of disputed sale had to discharge their burden but they had failed—Defendants being co-owners and co-sharers were owners in every inch of joint property till partitioned–Plaintiffs had failed to prove sale deed through cogent and tangible evidence—Long standing entries in the revenue record were in favour of defendants and plaintiffs had failed to rebut the said entries through evidence—Long standing entries in the register of record of rights would carry presumption of truth and could not be controverted by mere oral evidence unless proved otherwise by sufficient evidence—Courts below had ignored the facts and circumstances of the case reflecting from the record and evidence—Findings recorded by the courts below were illegal, result of misreading and non-reading of evidence—Impugned judgments and decrees passed by the courts below were set aside and suit was dismissed—Revision was allowed in circumstances.

Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704 ref.

Jang Bahadar and others v. Toti Khan and another 2007 SCMR 497; Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838; Dawa through L.Rs and others v. Muhammad Tayyab 2013 SCMR 1113 and Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152 rel.

(b) Civil Procedure Code (V of 1908)—

—-S. 115—Revisional jurisdiction of High Court—Scope—When concurrent findings of facts recorded by the courts below were result of misreading and non-reading of evidence and there was violation of law then High Court should rectify such error by interference in such illegal findings.

Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 and Mushtari Khan v. Jehangir Khan 2006 SCMR 1238 and Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 rel.

Muhammad Asif for Petitioners.

Waheed-ur-Rehman for Respondents.

Date of hearing: 22nd February, 2016.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, C.J.— This revision petition is directed against the judgment and decree dated 18.05.2009, passed by learned Trial Court/Civil Judge-V, Charsadda and that of learned Appellate Court/Additional District Judge-II, Charsadda dated 19.12.2009, whereby suit of the plaintiffs (respondents Nos.1 to 7 herein) has been concurrently decreed in their favour by both the Courts below.

  1. Facts in brief forming the background of the instant revision petition are that Muqadar Khan etc. (plaintiff/respondents Nos.1 to 7), filed a suit against Sher Ali and others defendants Nos.1 to 8 (respondents Nos.8 to 14 herein) and defendants Nos.9 to 15 (petitioners herein), for declaration and possession through partition to the effect that they along with defendants Nos.1 to 8, being owners and in possession of a land measuring 11 Kanal, 01 Marla in Khasra Nos.815/816 and 509, situated in the revenue estate of Moza Mahzara as well as a residential house, fully described in the heading of the plaint, enjoy its usufructs, hence, inheritance mutation No.4705 dated 02.10.1995, on behalf of Mst. Khan Khela in favour of defendants Nos.9 to 15, being forged, fictitious and based on fraud, is ineffective upon their rights, is liable to be cancelled, as she had already sold out her share to the predecessors of the plaintiffs and defendants Nos.1 to 8 in the year 1961 vide sale deeds; that plaintiff/respondents came to know qua the wrong entries in favour of the petitioners in the revenue record on the basis of inheritance mutation No.4705 of Mst. Khan Khela, when the petitioners brought a suit for produce before the Revenue Officer.
  2. The suit was contested by the petitioners by filing written statement, raising therein variety of objections, legal as well as factual. From the divergent pleadings of the parties, the learned Trial Court formulated issues. Parties adduced evidence in support of their respective stance and on conclusion of trial, the learned Trial Court, after hearing both the sides, decreed the suit of the plaintiff/respondents, against which, the defendants/petitioners preferred appeal before the learned Appellate Court, but was dismissed, hence, this revision petition.
  3. Learned counsel for the petitioners argued that petitioners being the LRs of Mst. Khan Khela are the owners of the suit property while plaintiff/respondents have got no concern with the same; that sale deeds relied upon by the plaintiff/respondents, are wrong, fictitious, void and based on fraud, having no adverse effect upon the rights of the petitioners; that the plaintiff/ respondents by placing reliance on the said sale deeds, were legally bound to have proved the genuineness of the same, but they bitterly failed to do so. He next argued that the alleged sale deeds were also void and against the law as Mst. Khan Khela was minor at the time of execution of the alleged sale deed, but the two Courts below have committed serious illegality by ignoring the above aspects.
  4. As against that, learned counsel for the respondent/plaintiffs submitted that the sale deeds being thirty years old documents, presumption of truth and correctness is attached to the same, which have been proved by the respondent/plaintiffs through the statement of Murad Ali (PW.2) son-in-law of the Deed-writer, who being well conversant with the handwriting and signature of his father-in-law, verified his handwriting and signatures over the sale deed (Exh.PW.2/1 consisting of 15 sheets); that statement of DW.1 also supports the claim of the plaintiff/respondents therefore, findings of the two Courts below, being well reasoned and based on proper appreciation of evidence and law on the subject, are not open to any interference by this Court. In support of his arguments, he placed reliance on the judgment of the Apex Court in case titled, “Muhammad Rafiq and others v. Muhammad Ali and others” (2004 SCMR 704).
  5. Arguments of learned counsel for the parties were heard and record of the case was perused.
  6. The bone of contention between the parties is the inheritance mutation No.4705 dated 02.10.1997 on behalf of Mst. Khan Khela in favour of her offspring (petitioner/defendants). The stance of the plaintiff/respondents is that the suit property was jointly owned by their predecessor, namely, Jafar Khan and the predecessor of defendants Nos.1 to 8, namely, Muzafar Khan, to the extent of 3/4 shares while Mst. Khan Khela (the predecessor of the petitioners), was owner only to extent of remaining 1/4th share, which she, later on, sold out to the predecessors of the respondents, through un-registered sale deeds dated 31.03.1961. The petitioner/defendants, in their written statement, have squarely denied the factum of any such sale on behalf Mst. Khan Khela (wife of defendant No.9/mother of defendants Nos.10 to 15). They alleged that she had been recorded as owner in the column of ownership prior to her death and that no such sale had ever been effected by her during her life time; that after demise her inheritance mutation No.4705 Exh.PW.1/2, was entered and attested on 02.10.1997, in the names of her husband (defendant No.9) now dead, and the present petitioners.
  7. In support of their claim, Muqadar Khan plaintiff No.1 for himself as well as attorney for the remaining plaintiffs appeared as PW.3 and produced Fazal Khaliq Lumbardar of the village as PW.4, Muhammad Alam as PW.5 while Patwari Halqa who produced the relevant revenue record was produced as PW.1. Similarly, Haji Murad Ali son-in-law of the deed-writer, namely, Saadullah Khan, was examined as PW.2, who verified the hand writing and signatures of his deceased father-in-law/Deed-writer over the sale deeds (Exh.PW.2/1). In rebuttal, petitioner/defendants examined Shakirullah as DW.1, who is the son of the Deed-writer. He produced extracts of the relevant Register of his father Exh.DW.1/1, wherein the alleged sale deeds have been incorporated. Defendant No.1 and defendant No.10, appeared as DW.2 and DW.3, respectively. In support of their stance, they also brought on record some certified copies of the proceedings before the Revenue hierarchy and Civil Court, between the parties regarding the suit land.
  8. Record transpires that Jaffar Khan was the predecessor of the parties, who, firstly, contracted marriage with Mst. Amtu Jan. From her he had a son, namely, Muzafar Khan i.e. (father of defendants Nos.1 to 8) and a daughter Mst. Khan Khela i.e. (wife of defendant No.9 and mother of defendants Nos.10 to 15/petitioners). The suit property belonged to Mst. Amtu Jan, and on her demise, the same devolved upon her husband Jaffar Khan as well as his son and daughter named above, vide mutation No.262 (Exh.PW.1/D-1), attested somewhere in June 1954. The said mutation was properly incorporated in the record of rights for the year 1958-59 (Exh.PW.1/D-5). After the death of Mst. Amtu Jan, the predecessor of the parties Jaffar Khan, contracted second marriage with Mst. Hazrat Bibi, who is the mother of plaintiff/ respondents Nos.1 to 7). The plaintiff/respondents get their respective share from their father Jafar Khan, who himself inherited from the legacy of said Mst. Amtu Jan. The stance of the plaintiffs is that the disputed property was sold by Mst. Khan Khela in favour of her father Jafar Khan vide sale deed Exh.PW.2/1 including her share in the suit house. Perusal of the sale deeds reveal that though the same were allegedly executed way back in the year 1961, but never saw the light of the day till filing of the present suit in the year 2005, and that too, by the LRs of Jafar Khan, who was also the father of Mst. Khan Khela. No doubt, if there is nothing on record qua the exact date of demise of Mst. Khan Khela and Jaffar Khan deceased, at the same time, there is no denial of the fact that Jaffar Khan, who was also the maternal grandfather of the petitioners, has neither filed any suit on the basis of the said sale deeds nor tried to incorporate the same in the revenue record, during his life time. Besides, after the death of Mst. Khan Khela, the plaintiff/respondents and defendant/petitioners remained locked into litigation about the usufruct of the suit property before the revenue hierarchy (Exh.DW.2/1), which too, reflects that the plaintiffs, after the demise of Mst. Khan Khela, did not base their claim on the basis of the alleged sale deeds. A decision of the District Collector dated 08.02.2003, along with documents in this regard would reflect that the plaintiffs also fraudulently managed to procure agreement deeds in the year 2002, in the back date i.e. 08.12.1997. Similarly, the extracts of the Register of the Deed-writer concerned regarding the disputed sale deeds Exh.DW.1/1, wherein it has been mentioned that “the transaction has not taken place due to minority of Mst. Khan Khela”, shows an attempt on behalf of her father, but was abortive, as the sale was not completed due to minority of Mst. Khan Khela and thereafter, her father left the same at that stage and did not try to implement those deeds.
  9. Whatever the case may be, the legal position in the instant case would be that plaintiff/ respondents Nos.1 to 7, stepped into the shoes of their father Jaffar Khan, who was the alleged beneficiary of the alleged sale deeds, therefore, were legally bound to prove the same through cogent and reliable evidence. The learned counsel for the plaintiff/ respondents Nos.1 to 7 in his argument though admitted this legal position, but his stance was that since the deeds were thirty years old document, therefore presumption of correctness under Article 100 of the Qanun-e-Shahadat Order, 1984, was attached to them, so there would be no need to lead further evidence in proof of the same. He while further elaborating his stance submitted that plaintiffs have produced Fazal Khaliq Lumbardar (PW.4)/the son of late Abdul Khaliq the marginal witness of the sale deeds. No doubt, the deeds are apparently thirty years old and original of the same are also in possession of the plaintiffs and son of the marginal witness of the deeds, also appeared as a witness and verified the signature of his father as marginal witness over the deeds, but presumption of correctness to such a document, let it be thirty years old, cannot be attached, as the beneficiary of these deeds/documents i.e. propositus of the parties Jaffar Khan, left the same half way after getting the note of minority of Mst. Khan Khela, his daughter and during his remaining life he did not try to implement/act upon these documents. In this regard I am fortified by the view of the august Apex Court in the case of “Jang Bahadar and others v. Toti Khan and another” (2007 SCMR 497), wherein it has been held that:–

“It is not essential for a Court to attach the presumption of execution of a document more than 30 years old in all the cases without attending to the other relevant facts and circumstances of the case before raising such presumption and not merely because any such presumption was claimed, to be attached to such document”.

Same view has been reiterated by the august Apex Court in case of “Ch. Muhammad Shafi v. Shamim Khanum” (2007 SCMR 838), in the following words:–

“It is settled law that presumption qua thirty years old document under Article 100 of the Qanun-e-Shahadat Order, 1984, is permissive and not imperative. The Court must consider the evidence of the documents, in order to enable it to decide whether in any specific case it should or should not presume proper signature and execution. It is settled law that the Court should be very careful about raising any presumption under Article 100 in favour of old documents specially when the same are produced during the trial of suits in which under proprietary rights are set up on the basis of such documents/deeds. It is also settled law that the Court may refuse to apply the presumption where evidence in proof the document is available or where the evidence has produced and disbelieved.”

  1. It is the settled law of evidence under Article 117 of the Qanun-e-Shahadat Order, 1984, that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that those facts exist, but the plaintiffs failed to prove the alleged sale as well as execution and contents of the disputed sale deeds, firstly, under Article 79 of the Qanun-e-Shahadat Order, 1984, according to which if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, and if no such attesting witness can be found, then under Article 80 of the Order, 1984, it must be proved that the witnesses have either died, or cannot be found and that the document was executed by the person who purports to have done so, therefore, mere production of the disputed sale deeds would not absolve the plaintiffs from proving contents of the sale deed in terms of Article 79 or 80 of the Qanun-e-Shahadat Order, 1984. It has been held by the Hon’ble Supreme Court in case of “Dawa through L.Rs. and others v. Muhammad Tayyab” (2013 SCMR 1113) that;

“Admissibility of a document in evidence, by itself, will not absolve the party from proving its contents in terms of Article 79 provided under the scheme of the Order”.

Mere statement of the plaintiffs regarding death of witness of the disputed sale deeds would not absolve and exonerate them of their legal obligation to prove the contents of the same. Guidance in this regard can be derived from the judgment of the Hon’ble Supreme Court in case of “Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs” (2005 SCMR 152). The plaintiffs are alleging sale of the disputed property in favour of their father by Mst. Khan Khela (late) through the disputed sale deeds. Admittedly, Mst. Khan Khela was an illiterate lady. It is well settled law of the land that transactions with old infirm, illiterate persons, women under the influence of elders of the family and pardah observing ladies, burden of proof would lie on the person claiming benefit and title from the transactions. As stated earlier, the plaintiffs being beneficiaries of the suit sale have to discharge their burden but they failed.

  1. The learned counsel for the plaintiff/respondents also laid a great stress on the question of possession of the suit property with the plaintiffs, but in view of this Court, that would also not support the stance of the plaintiffs as the suit property was owned by Mst. Khan Khela, who was residing there with her husband Dilawar Khan (defendant No.9). Since, father of Mst. Khan Khela, namely, Jaffar Khan was co-sharer in the suit property and was also in possession of the same along with the suit house. As explained above, the two sets of defendants get their share direct from the legacy of Amtu Jan whereas the plaintiffs get their share from their father Jaffar Khan, who inherited it from Mst. Amtu Jan. After getting married to defendant No.9, she used to reside with him in his house, but being co-owner in the house and co-sharer in the landed property, she remained in constructive possession till her life time and after her deal, the present petitioners fell into her steps, therefore, have attained the same status. So being co-owners and co-sharers, are owners in every inch of the joint property unless partitioned. The respondents Nos.1 to 7, who are the beneficiaries of the un-registered sale deeds, have failed to prove their stance through cogent and tangible evidence. They also failed to rebut the long standing entries in the revenue record (Record of rights) in favour of the defendant/petitioners through cogent and convincing evidence. In light of mandate of Article 49 of the Qanun-e-Shahadat Order, 1984, such long standing entries in the revenue record, especially in the Register of Record of Rights, do carry presumption of truth and cannot be controverted by mere oral evidence unless proved otherwise by sufficient and convincing evidence.
  2. The two Courts below have squarely ignored the above discussed facts and circumstances of the case reflecting from the available record and evidence, therefore, the findings of the Courts below being patently illegal, result of bare misreading and non-reading of material evidence and based on conjectural presumptions and erroneous assumption, warrant interference by this Court.
  3. Though, the High Court, normally does not interfere in the concurrent findings of facts recorded by two Courts below, but when there is gross misreading and non-reading of evidence and patent violation of the law, the revisional Court/High Court, is under legal obligation to rectify the error by interference in such illegal findings.

Reliance in this regard can also be placed on the cases of “Nazim ud Din and others v. Sheikh Zia ul Qamar and others” (2016 SCMR 24), “Mushtari Khan v. Jehangir Khan 2006 SCMR 1238 and Ghulam Muhammad and 3 others v. Ghulam Ali” (2004 SCMR 1001) Thus, by following the command of law declared by the Apex Court and statutory provisions of section 115, C.P.C., instant revision petition is allowed, impugned judgments and decrees of the two Courts below are set aside and consequently, suit of the plaintiff-respondents is dismissed. Parties are left to bear their own costs.

ZC/264/P Revision allowed.

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