2012 M L D 651
[Peshawar]
Before Khalid Mehmood Khan, J
SALIMULLAH---Petitioner
Versus
NOOR ALI and 10 others---Respondents
Civil Revision No.341 of 2007, decided on 5th September, 2011.
(a) Specific Relief Act (I of 1877)---
----S.8---Limitation Act (IX of 1908), Art. 142---West Pakistan Land and Revenue Act (XVII of
1967)---Suit for possession---Limitation---Cause of action---Every fresh
Jamabandi would create fresh cause of action.
2000 SCMR 1574 rel.
(b) Specific Relief Act (I of 1877)---
----S. 8 & 54---Limitation Act (IX of 1908), Art.
142---West Pakistan Land Revenue Act (XVII of 1967), S.39---Suit for possession
and mandatory injunction for demolishing construction raised on suit land by
defendant---Plaintiffs plea was that during his stay abroad, defendant had
taken possession of suit land without having any right or title thereto and
raised construction thereon; and that Khasra Girdawri for year 1992 showed
defendant possessing suit land---Defendant's plea that suit was time barred;
and that vendor had delivered him possession of suit land after attestation of
its sale mutation in his favour---Dismissal of suit by Trial Court and
Appellate Court---Validity---Sale mutation attested in favour of defendant was
not regarding suit Khasra Numbers owned by plaintiff---Vendor at the time of
executing sale mutation in favour of defendant was neither owner of suit land
as per column of ownership nor having possessory right as per column of
cultivation, thus, he could transfer better title which he did not
have---Shajra Kishtwar showed that land purchased by defendant and suit land
was away from each other as they were intervened by two roads---Plaintiff had
filed suit in year 2001 after new settlement of year 1992 and preparation of
new settlement Jamabandies for years 1995-96 & 1999-2000---Every fresh
Jamabandi would create fresh cause of
action---Cause of action accrued to plaintiff in year 1999, thus, suit
was within time as per Art. 142 of Limitation Act, 1908---Tenant on basis of
entry of his name in Jamabandi as tenant-at-will could not claim any title to
suit land---Defendant for not having any title to suit land was not entitled to
compensation regarding construction raised thereon without lawful authority and
permission of plaintiff---Suit was decreed with direction to defendant to
remove such construction at his own cost.
2000 SCMR 1574;
1985 CLC 2020
and 1989 CLC
2066 rel.
(c) Specific Relief Act (I of 1877)---
----S. 8---Suit for possession---Construction raised on suit land by defendant
without lawful authority and permission of
plaintiff---Effect---Defendant would not be entitled to any compensation
regarding such construction.
1985 CLC 2020 and 1989 CLC 2066 rel.
Ahmad Ali Khan for
Petitioner.
Inamullah Khan Marwat
for Respondents.
Date of hearing: 5th
September, 2011.
JUDGMENT
KHALID MEHMOOD KHAN, J.---The petitioner though this petition
challenged judgment/decree dated 10-7-2007 passed by learned Additional
District Judge-II, Lakki Marwat vide which the appeal of the petitioner was
dismissed and judgment/decree dated 16-1-2006 passed by learned Civil Judge-I,
Lakki Marwat vide which the suit of petitioner was dismissed.
2. Shorts facts of the instant revision are that petitioner/plaintiff
filed suit for possession of the suit land bearing khata No.255, Khasra
No.2/2511 presently Khasra Nos.505, 506, 507, 503/1 measuring 1 kanal 17 marlas
situated in Mauza Ghazni Khel Tehsil and District Lakki Marwat against the
respondent No.1 with the plea that the petitioner/ plaintiff and pro forma
respondents are owners
in possession of
the suit land respondent No.1
without any right or title has taken the possession of suit land in his absence
and has also raised construction therein. In Para
"Bey" the petitioner/plaintiff prayed for permanent and mandatory
injunctions for restraining the defendant from raising construction or any
interference in suit property. In alternate if the defendant has raised any
construction the same be directed to demolish on his own cost.
3. Respondent/defendant No.1 contested the suit and filed, his
written statement. The learned trial court after framing issues, directed the
parties to produce their respective pro and contra evidence, which they did
accordingly. The learned trials Court after hearing the arguments from both
sides dismissed the suit of the petitioner/plaintiff vide judgment/decree dated
16-1-2006.
4. The petitioner/plaintiff impugned the judgment/decree of the
trial Court before the learned District Judge, Lakki Marwat, who entrusted the
same to the
Court of learned
Additional District Judge-II, Lakki Marwat. The learned
Additional District Judge-II, Lakki Marwat after hearing arguments of both the
sides dismissed appeal of petitioner vide judgment/order dated 10-7-2007, hence
the instant revision petition.
5. Learned counsel for the petitioner argued that the petitioner is
owner of the suit property which is not disputed and possession with the
respondent without any entitlement is also not disputed. He contended that
during taking possession of the property by respondent, the petitioner was in Kuwait and the
same has also been admitted by respondent himself. He submitted that as per
Khasra Girdawari the possession has been shown with the respondent in the year
1992 whereas the suit has been filed on 12-7-2001. He further argued that every
fresh jamabandi creates fresh cause of action even on this score too the suit
has been filed quite within time. He urged that being trespasser the respondent
is not entitled for any compensation.
6. On other hand, learned counsel for the respondent argued that
the suit property is in the possession of respondent from the date of
attestation of mutation and had constructed abadi in the shape of hotel on the
suit Khasra without any objection on the other side. He contended that vendor
Aslam Khan after attestation of mutation has handed over the possession of the
suit property and no one from any side even objected regarding peaceful
possession and construction therein. He submitted that not only the suit of the
petitioner is barred by time but also stopped due to his own conduct.
7. Arguments heard and record perused, in the light of which my
finding is as under.
8. The petitioner has been non-suited only on the ground of
latches. The learned lower Appellate Court has held that on the basis of
entries in jamabandi of 1992-1993 for the first time the cause of action has
been accrued to the petitioner, hence the suit has been hit by the limitation.
9. The second ground for the dismissal of the suit was that the
petitioner has not affixed a proper court-fee as per value of the suit
property. The lower Appellate Court has directed the petitioner to affix the
court-fee within one month as per value of the suit property. Regarding
affixation of the court-fee the petitioner as per direction of the Court has
affixed the same and from the other side did not raise any objection regarding
the affixation of court-fee, therefore, the only point for resolving the
controversy between the parties is limitation.
10. So far the question of limitation is concerned it is settled
law that every fresh jamabandi creates fresh cause of action. In this regard
wisdom can be drawn from law laid down by the apex Court in 2000 SCMR 1574.
According to revenue record respondent has purchased the land measuring 1 kanal
18 marlas through Mutation No.7552 attested on 23-9-1982 from one Aslam Khan
vendor. The said sale mutation was regarding Khasra Nos.2519 and 2593 which
after settlement have been converted into two Khasra Nos.2595 and 2596. Whereas
the petitioner is owner of Khasra Nos. 505, 506, 507, 503/1 and as per new
settlement the area of the said Khasra numbers is measuring 1 kanal 17 marlas.
In the said Khasra No. Aslam Khan vendor was neither owner as per column of ownership
nor in column of cultivation having possessory right. It is also admitted fact
that the petitioner was abroad when the possession was handed over to the
respondent by Aslam Khan vendor. It is also admitted fact that after returning
from abroad, the petitioner approached the respondent for handing over the
possession of the suit property and after fruitless efforts the present suit
has been filed in the year 2001. The learned lower Court in the impugned
judgment had admitted the fact that limitation had started after settlement of
the year 1992-1993. But it was ignored by the learned lower Court
that after new settlement jamabandies for the year
1995-96 Exh.P.W.1/10 and 1999-2000 Exh.P.W.1/11 were also prepared, whereas
suit was filed in 2001 after fresh jamabandi, hence cause of action accrued to
the petitioner in 1999, therefore, under Article 142 of the Limitation Act the suit of the petitioner is
well within time. The possession of the respondent is without any title or
justification, hence respondent is trespasser. Moreover, the claim of
respondent is contradictory because Aslam Khan vendor was neither owner nor in
possession of the suit property at the time of executing of sale mutation,
hence cannot transfer better title which he did not have, therefore, the
delivery of possession in favour of respondent is illegal. As per jamabandi the
name of petitioner is entered as tenant at will, therefore, the petitioner
cannot claim any title on the basis of said entry. In the prevailing
circumstances, the respondent is blowing cold and hot in the same breath, hence
respondent is not entitled for any compensation regarding the abadi constructed
on the suit property being without lawful authority and without permission of
the petitioner being so reliance can be made on 1985 CLC 2020 and 1989 CLC
2066. As per Shajra Kistwar the property purchased by the respondent and that
of the suit property intervened by two roads and is away from each other.
11. In view of above discussion, the petitioner has proved that the
impugned judgments/decrees of the lower Courts are not in accordance with law,
resultantly, I accept the instant revision petition and set aside the impugned
judgments/decrees of the learned lower courts. Respondent is directed to remove
the constructed abadi on his own costs.
S.A.K./335/P Revision
accepted.
2013 Y L R 1870
[Lahore]
Before Amin-ud-Din Khan, J
AHMAD ALI and others---Petitioners
Versus
BASHIR AHMED and others---Respondents
Civil Revisions Nos.3990 and 3775 of 2010, heard on 12th June,
2012.
(a) West Pakistan
Land Revenue Act (XVII of
1967)---
----Ss.42 & 45---Qanun-e-Shahadat (10 of 1984), Arts. 117 &
120---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908),
S.115---Suit for declaration---Mutation of sale---Attestation---Onus to
prove---Plaintiffs claimed that they were owners in possession of suit-land and
entries in revenue record had no legal value---Defendants resisted the suit by
raising the plea that they had purchased suit-land and revenue record supported
their version---Trial Court and Lower Appellate Court concurrently decided the
matter in favour of defendants---Validity---Onus to prove valid sale of land in
favour of predecessor of defendants was on defendants to prove valid sale and valid
attestation of mutation---Compliance of all conditions mentioned in S. 42 of
West Pakistan Land Revenue Act, 1967, for valid attestation of mutation were
necessary and without strict compliance, the mutation was nullity in the eyes
of law---Mutation in question did not create any right or title in suit
property in favour of predecessors of defendants and it had also no affect upon
the rights of predecessor as well as of plaintiffs---Mutation proceedings were
not judicial proceedings and did not at all happen to confer title---Whenever
genuineness of any mutation was challenged, burden was squarely on parties
relying upon the mutation, to prove actual transaction---High Court declined to
close its eyes and validate concurrent findings without application of
mind---High Court had to exercise its jurisdiction vested to it under S. 115,
C.P.C. and to interfere in illegal findings recorded by courts below, so as to
rectify illegality committed by two courts below, when they had ignored basic
provisions of law---High Court, in exercise of revisional jurisdiction set
aside concur-rent judgments and decrees passed by two courts below and decreed
the suit in favour of plaintiffs---Revision was allowed in circumstances.
Qasim Ali v. Sher Muhammad 2007 YLR 1770; Khushi Muhammad and others v. Bashir Ahmad and
others 2010 YLR 175; Muhammad Iqbal and
another v. Mukhtar Ahmad through L.Rs. 2008 SCMR 855; Wali and 10 others v. Akbar and 5 others 1995 SCMR 284
and Saleem Akhtar v. Nasir Ahmad PLD
2000 Lah. 385 ref.
(b) West Pakistan
Land Revenue Act (XVII of
1967)---
----Ss.42 & 45---Entry of Jamabandi---Scope---Till the time
entry of Jamabandi is not changed through valid attestation of mutation on the
basis of any transaction between parties or order passed by any court, previous
entry remains in field.
(c) West Pakistan
Land Revenue Act (XVII of
1967)---
----S.42---Specific Relief Act (I of 1877), S.42---Suit for
declaration---Limitation---Every wrong entry in new Jamabandi gives new cause of action to a person.
Fakhar-uz-Zaman
Akhtar Tarar for Petitioners.
Ch. Riaz Ahmad
Kataria for Respondents.
Date of hearing:
12th June, 2012.
JUDGMENT
AMIN-UD-DIN
KHAN, J.---Through this single judgment, I intend to dispose of Civil
Revisions Nos.3990 of 2010 and 3775 of 2010 as common questions of law and
facts are involved in these civil revisions.
2. Through this civil
revision the petitioners have challenged the judgment and decrees dated
15-10-2010 passed by the learned Additional District Judge, Sheikhupura,
whereby two appeals filed by the petitioners were dismissed against the
judgment and decrees dated 14-2-2007 passed by the learned Civil Judge,
Sheikhupura, whereby the suit for declaration filed by the petitioners was
dismissed and the other suit for possession filed by respondents Bashir Ahmed
and others was decreed.
3. Brief facts of the
case are that the petitioners-plaintiffs on 10-10-2001 filed a suit for
declarationthat they are owners in possession of the suit property measuring
11-kanal and 2-marla fully described in the head note of the plaint and stated
that entries in the Revenue Record against their rights have no legal value and
have prayed that Mutation No.48 attested on 2-7-1969 be declared as illegal,
void, fraudulent and against the law and facts. Written statement was filed.
The suit was contested. Another suit for possession of land "titled Bashir
Ahmad and others v. Ahmad Ali and others" measuring about 12-Marla
relating to the suit-land
which is subject-matter of the suit for declaration, was filed on
21-2-2002. This suit was also contested. The learned trial Court
consolidated both the suits and framed the consolidated issues and proceedings
were ordered in suit for declaration filed by the petitioners. Both parties
produced their respective evidence. The learned trial Court vide consolidated
judgment and decrees dated 14-2-2007 dismissed suit for declaration filed by
the plaintiffs-petitioners and decreed the suit for possession filed by the
respondents. Two appeals were filed before the first appellate court by the
petitioners and vide consolidated judgment and decrees dated 15-10-2010 both
the appeals were dismissed, hence these civil revisions.
4. Learned counsel for
the petitioners contends that the impugned Mutation No.48 is forged and
fictitious one. It does not contain the signatures or thumb-impression of the
alleged seller i.e. the predecessor of the petitioners. Further there is no
signatures of Lambardar, Pattidar or any respectable of the area. It has not
been sanctioned in Jalsa-aam, therefore, states that it is proved on record
that this mutation was got sanctioned on the basis of fraud. Further contends
that the respondents were bound under the law to prove the valid attestation of
mutation by producing Revenue Officer, Lambardar, Pattidar and Patwari etc.
None of the above said persons have been produced as witnesses. In this context
reliance has been placed on Qasim Ali v.
Sher Muhammad (2007 YLR 1770), Khushi
Muhammad and others v. Bashir Ahmad and others (2010 YLR 175) and Muhammad Iqbal and another
v. Mukhtar Ahmad through L.Rs. (2008 SCMR 855). He further contends that when
fraud has been alleged limitation is not a bar in filing of the suit. When
impugned mutation came in the knowledge of the petitioners-plaintiffs, they
filed the suit. In this context reliance has been placed on Wali and 10 others v. Akbar and 5 others (1995 SCMR 284).
Further contends that every entry in the next Jamabandi gives new cause of
action. In this perspective reliance has been placed on Saleem Akhtar v. Nasir
Ahmad (PLD 2000 Lahore 385).
5. On the other hand,
learned counsel for the respondents states that there are concurrent findings
of fact recorded by the two courts below, therefore, while exercising
jurisdiction this court is not required to reappraise the evidence available on
the file and has prayed for dismissal of the revision petitions.
6. I have heard the
arguments of the learned counsel for the parties and have perused the record
with their able assistance.
7. I have noticed that
the alleged mutation on the basis of which respondents have claimed rights in
the property has been sanctioned which is clear violation of section 42 of the
Land Revenue Act, 1967. Admittedly, this mutation is not signed or thumb-marked
by the seller. There is no identification by the Lambardar or the Councillor or
landowner of the estate. I have noticed that through Mutation No.47 the
proprietary rights were transferred in favour of Muhammad Ibrahim from the
Central Government and on the same day through Mutation No.48 whole of the land
from his name has been shown to be transferred in the name of Bahali etc. the
predecessor of the respondents through oral sale as the successors of Muhammad
Ibrahim filed suit for declaration and one of the plaintiffs Noor Muhammad
appeared as P.W.2 and made statement on oath therefore, onus to prove the valid
sale of the land in favour of predecessor of defendants was on the defendants
to prove valid sale and valid attestation of the mutation. I have observed that
copy of impugned mutation is Exh.P-2 as well as Exh.D-2 on the file which is
not signed or thumb-marked by Muhammad Ibrahim the alleged seller, Lambardar,
Councillor, Pattidar or identifier before the Revenue Officer. These conditions
have been mentioned in section 42 of the Land Revenue Act, 1967. The compliance
of all the conditions mentioned therein for valid attestation of mutation is
necessary, without strict compliance of section 42 ibid the mutation is nullity
in the eyes of law; therefore it does not create any right or title in the suit
property in favour of the predecessors of the respondents and it has also no
effect upon the rights of the predecessor as well as of the petitioners. As the
mutation proceedings are not judicial proceedings and do not at all happen to
confer title. Whenever genuineness of any mutation is challenged, the burden
squarely lies on the parties relying upon the mutation, to prove the actual
transaction. Reliance is placed on Muhammad Iqbal and another v. Mukhtar Ahmad through L.Rs.
(2008 SCMR 855) (supra). When this mutation is clearly against the law and
declared as such, therefore, no valid title in the suit-land was transferred in
favour of the predecessor of the respondents. It is settled law that till the
time the entry of Jamanbandi is not changed through the valid attestation of
mutation, on the basis of any transaction between the parties or the order
passed by any court, the previous entry remains in the field. I have observed
that through invalid attestation of mutation the entries in the Jamanbandi were
change, therefore when the impugned mutation is declared null
and void, the
previous entries automatically
take place on the surface of the Jamanbandi. Therefore, the law cited by the
learned counsel for the petitioners
that every wrong
entry in the
new Jamanbandi gives
the new cause action to a person, is fully applicable
to the facts of this case, therefore by no stretch of imagination, the suit can
be declared barred by limitation. Even otherwise, the petitioners-plaintiffs
are in possession of some portion of the suit-land for which the respondents
have filed suit for possession, it is also a strong circumstance in favour of
version of the petitioners-plaintiffs which supports the version with regard to
the limitation put forth by the plaintiffs.
8. Even otherwise
respondents were bound to prove the factum of sale independent of attestation
of impugned Mutation No.48 but they miserably failed to plead and prove the
same.
9. In this view of the
matter, the arguments advanced by the learned counsel for the respondents that
there are concurrent findings recorded by the two courts below, therefore, this
court cannot interfere in the concurrent findings, have no weight. This court
cannot close its eyes and validate the concurrent findings without application
of mind. This Court ought to exercise its jurisdiction vested to it under
section 115, C.P.C. and to interfere in the illegal findings recorded by the
courts below, so as to rectify the illegality committed by
two courts below,
when they have ignored the basic
provisions of law.
In the light of
what has been discussed above, Civil Revision No.3990 of 2010 and Civil Revision No. 3775 of 2010
are allowed. Resultantly, the judgments and
decrees passed by both the courts below are set aside. The suit for declaration
filed by the petitioners is decreed with
costs throughout and suit for possession filed by the respondents stands
dismissed.
MH/A-133/L Revision
allowed.
2013 S C M R 868
[Supreme Court of Pakistan]
Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ
Mian ALLAH DITTA through L.Rs.---Petitioner
Versus
Mst. SAKINA BIBI and others---Respondents
Civil Petition No.1261-L of 2010, decided on 20th March, 2013.
(Against the
judgment of the Lahore High Court, Lahore
dated 23-2-2010 passed in C.R. No.1202 of 2005.)
(a) Pardanashin lady---
----Legal protection provided to a pardanashin lady equally
available to an illiterate and ignorant lady---Scope---Protection provided to
Pardanashin lady in law was on account
of the fact that they invariably were helpless, weak and vulnerable---Said
considerations would equally be attracted to an illiterate lady particularly
when she was placed in circumstances which made her vulnerable to deceit
misrepresentation.
(b) Specific Relief Act (I of 1877)---
---S. 42---Suit for declaration---Pardanashin lady---Legal
protection provided to a pardanashin lady equally available to an illiterate
lady---Scope---Plaintiff, who was an illiterate lady, allegedly executed a
general power of attorney and agreement to sell in favour of her son-in-law
i.e. defendant---Plaintiff contended that both said documents were a result of
fraud and misrepresentation---Defendant contended that plaintiff admitted to
having thumb-marked the power of attorney and agreement to sell, therefore onus
was on her to prove that signatures were obtained through misrepresentation;
that plaintiff was not a pardanashin lady, to whom protection could be given, and
that it was repellent to common sense that a son-in-law could commit
fraud---Validity---Evidence led by plaintiff indicated that she was not a
literate lady, and that she had strained relations with her son-in-law on
account of the litigation between him and his wife---Impugned documents were not signed by any of the close relatives
of the plaintiff---Plaintiff did not have any independent legal advice at the
time of the alleged transaction whereby her valuable proprietary rights were
transferred---Payment of consideration mentioned in agreement to sell was shown
to be in cash, which in the circumstances of the case was suspect---General
power of attorney was registered through a Local Commission who never appeared
in the witness box---Onus was on the defendant to prove that the documents were
based on bona fide transactions, however he failed to discharge the
same---Considerations applicable in case of a pardanashin lady would equally be
attracted to an illiterate lady particularly when she was placed in
circumstances which made her vulnerable to deceit misrepresentation---Petition
was dismissed accordingly.
Jannat Bibi v.
Sikandar Ali PLD 1990 SC 642 rel.
Muhammad Shahzad
Shaukat, Advocate Supreme Court for Petitioner.
Javed Iqbal,
Advocate Supreme Court for Respondents.
Date of hearing:
20th March, 2013.
JUDGMENT
TASSADUQ HUSSAIN
JILLANI, J.---Facts giving rise to the instant petition briefly stated are
that predecessor-in-interest of the respondents Nos.(i) to (ix) Mst. Sakeena
Bibi filed a suit for declaration with consequential relief impugning the
general power of attorney dated 10-2-1991 and the agreement to sell qua the
house purported to have been executed on 19-5-1991 by her in favour of Dr.
Muhammad Naeem respondent (who was her son in law). It was averred that both
the documents were result of fraud and misrepresentation and that she had
neither executed the power of attorney nor the agreement in question. The suit
was resisted, written statement was filed and in terms of the divergent pleas
of the parties, following issues were framed:--
(i) Whether general
power of attorney bearing No. 879, Book No.4, Volume No. 369, registered on
10-2-1991, is a forged, fictitious document
and as such
is inoperative qua
the plaintiff's rights? OPP
(ii) If the above issue
is not proved in favour of the plaintiff whether all the documents prepared on
the basis of impugned power of attorney
are also void,
and inoperative against
plaintiffs rights? OPP
(iii) Whether the suit is
not maintainable in its present form? OPD
(iv) Whether the
plaintiff has no
cause of action
to file this suit? OPD
(v) Whether the
plaintiff has no
locus standi to
file the instant suit? OPD
(vi) Whether proper court
fee has not been paid on this plaint, if so, its effect? OPD
(vii) Relief.
2. The learned trial
Court in terms of its judgment and decree dated 28-3-1995 dismissed the suit
mainly on the basis of its findings on issues Nos.1 and 2. The said judgment
and decree, however, was reversed in appeal and the suit was dismissed by the
learned Additional District Judge vide judgment dated 10-5-2005. The learned
High Court has affirmed the said judgment and decree of the learned Appellate
Court vide the impugned judgment whereby petitioners' civil revision was
dismissed.
3. Learned counsel for
the petitioner submits that the learned two courts below have not appreciated
that having admitted to have thumb-marked the power of attorney and agreement
to sell, the onus was on the respondent-plaintiff to prove that the signatures
were obtained through misrepresentation which she miserably failed; that the
evidence led by the respondent was beyond the pleadings because it was never
her case in the plaint that her thumb impressions were obtained while she was
unconscious. He added that the general power of attorney is a registered
document and a presumption of truth is attached to it. The said presumption
could not be rebutted by the quality of evidence led by the
respondent-plaintiff. Learned counsel maintained that the general power of
attorney which respondent-plaintiff executed was not in favour of any stranger
but her own son-in-law i.e. respondent No.2 and it is repellent to commonsense
that he could have committed the fraud. In support of the submissions made,
learned counsel relied on Mirza Muhammad Sharif v. Mst. Nawab Bibi (1993 SCMR
462), Mst. Hawa v. Muhammad Yousuf (PLD 1969 Karachi 324), Janat Bibi v.
Sikandar Ali (PLD 1990 SC 642).
4. We have considered the
submissions made, the case-law cited and
have gone through
the impugned judgment
as also the
evidence on record.
5. Both the documents
which have been impugned in the suit i.e. power of attorney and agreement to
sell whereby respondent-plaintiff purportedly
agreed to sell
the house were
executed the same
day i.e. 22-1-1991. In terms of recital of the agreement to sell
(Exh.D.W1/2), the respondent-plaintiff purportedly sold the house at a
consideration of Rs.10,00,000 out of which she had already received Rs.600,000
in cash prior to the execution of the agreement to sell and the remaining
Rs.400,000 were paid when she signed and thumb-marked the said agreement.
6. Plaintiff Sakina
Bibi appeared as P.W.2 and she candidly stated that she is illiterate; that her
husband taught her how to sign; that all her children were living abroad; that
respondent/defendant No. 1 though her son-in-law but the relation between the
husband and wife (her daughter) were strained and the latter had to file suit
for maintenance; that her daughter was not living with the husband for the last
6/7 years and that the plaintiff had neither given him power of attorney nor
had executed any agreement to sell the house. P.W.1 Malik Muhammad Aslam is a
neighbor of respondent/plaintiff and he candidly stated that the relations
between plaintiff's daughter and respondent/defendant No.1 were strained; that
in 1991 she had gone to America to visit her son and in her absence defendant
No.1 broke open the locks of the house and took away valuable articles; that he
even forcibly took over the house; that he called her in America on which she
came to Pakistan with her son and that she had to go to police station
whereafter after negotiations respondent/defendant restored her possession.
Both these witnesses were subjected to lengthy cross-examination but they
remained consistent on all material points and their credibility could not be
shaken. The evidence led by the plaintiff indicated: first, that she was not a
literate lady; second, that relations between her and her son-in-law defendant
No.1 Dr. Muhammad Naeem were strained on account of tension and litigation
between him and his wife; third, that none of the impugned documents were
signed by any of plaintiff's close relatives; fourth, that she did not have
independent legal advice at the time of the said alleged transaction whereby
her valuable proprietary rights were being transferred; fifth, that the so
called witnesses were neither related to her nor were they her neighbors; sixth
the payment of consideration is shown to be in cash which in the afore-referred
circumstances is suspect. The credibility of those documents is further shaken
when we note that the general power of attorney through which defendant No. 1
(her son-in-law) was made her general attorney was registered through a Local
Commission, who was an Advocate and he never appeared in the witness box. In
the afore-referred circumstances, the onus shifted on the beneficiary i.e.
defendant No. 1 to prove that the documents were based on bona fide transactions.
The said onus, the defendants miserably failed to discharge. The contention
that the general power of attorney was given by the respondent/plaintiff not to
a stranger but to her own son-in-law and that she was not a 'Pardanasheen Lady'
for which the courts of law have provided protection is not tenable in the
facts and circumstances of the instant case, first, because it is in evidence
that the relations between the two were too strained on account of the discord
between him and her daughter and in the normal course of events she could not
have reposed that kind of trust; second, the protection provided to them in law
is on account of the fact that they invariably are helpless, weak and
vulnerable. The said consideration would equally be attracted to an illiterate
lady particularly when she was placed in circumstances which made
her vulnerable to
deceit misrepresentation. In Jannat Bibi v. Sikandar Ali (PLD 1990 SC
642), this Court quoted with approval the judgment of Indian Supreme Court in
AIR 1930 Calcutta 591 as under:--
"16. The above
rule applicable to pardhanashin ladies has been extended to ignorant and
illiterate women. Reference may be made to Graham, is dictum in Chainta Dasya
v. Bhalku Das AIR 1930 Cal. 591, which is as follows:--
"The rule of
law so far as pardahnashin women is concerned is well known and has been
clearly laid down in many decisions of the Privy Council. It is true that most
of these decisions relate to the case of pardahnashin ladies. We have not been
referred to any case in which the principle has been extended to the case of
other women who do not come within that class; but that does not seem to be any
reason why a rule which is applicable to pardahnashin ladies on the ground of
their ignorance and illiteracy should be restricted to that class only and
should not apply to the case of a poor woman who is equally ignorant and
illiterate and is not pardahnashin simply because she does not belong to that
class. If this view of the matter were adopted the effect clearly would be to
confer an unfair advantage upon rich women
as compared with
poor women. The
object of the rule of law is to protect the weak and
helpless, and it should not, in my judgment, be restricted to a particular
class of the community."
17. It would be of
advantage if the observations of Mitter, J. in the same case are also quoted
here:--
"It appears
and it is not disputed that the plaintiff is an illiterate village woman. She
is not in the strict sense of the term pardahnashin woman and the question
arises whether the same protection which is thrown round a transaction entered
into with a pardahnashin woman should be extended to the plaintiff in the
present case. It is true that outside the class of regular pardahashin women it
must depend in each case on the character and position of the individual woman,
whether those who deal with her are or are not bound to take special
precautions that her action should be intelligent and voluntary and to prove
that it was so in case of dispute. That was laid down by the Judicial Committee
of the Privy Council in the case of Hodges v. The Delhi and London Bank Ltd. (1901) 23 All.
137. So even in the case of woman who is outside the regular pardahnashin class
it is for those who lived with her to establish that she had the capacity of
understanding the transaction that was entered into and that she entered into
the transaction voluntarily and with full knowledge and import of what the
transaction meant."
7. For what has been
discussed above, the concurrent judgments and decrees dismissing the suit
neither reflect any misreading or non-reading nor the view taken is against the
law declared. We do not find any merit in this petition, which is dismissed and
leave refused.
MWA/A-12/SC Petition
dismissed.
2013 Y L R 2021
[Lahore]
Before Ali Baqar Najafi, J
HAFEEZ FATIMA---Petitioner
Versus
PHUL PEER SHAH---Respondent
Civil Revision No.100 of 2005, decided on 16th May, 2013.
(a) Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---Gift mutation in favour of
defendant alleged by plaintiff (an illiterate "pardahnashin" villager
lady) to be fraudulent for being based on forged Deed of
Hiba-bil-Iwaz---Proof---Marginal witnesses of such deed as defendant's witnesses
had admitted that such transaction had not taken place in their presence and
receipt of payment was already written---None of defendant's witnesses had
deposed that plaintiff had been explained contents of such deed and receipts
and consequences thereof---Factum of plaintiff having no male member in her
family was admitted by defendant---Patwari as defendant's witness had deposed
that defendant had presented suit mutation, while he denied to know about
presence of plaintiff---Patwari and Tehsildar while deposing as defendant's
witnesses had not produced in court
original pert-sarkar of suit mutation---Plaintiff deposed that defendant got
her thumb impression affixed on stamp paper on false pretext without explaining
her its real purpose---Plaintiff had denied to have appeared before Revenue
Officer for attestation of suit mutation---Plaintiff had not been identified at
time of attestation of suit mutation by a person, who could advise or protect
her interest---Revenue Officer had not attested suit mutation in open
assembly---Defendant had not proved pre requisites of "Hiba-bil-Iwaz"
i.e. payment of consideration and bona fide intention of donor to divest
property to donee---Defendant had not proved declaration of gift, its
acceptance and delivery of possession to him by plaintiff---Mere mutation
would not be enough proof of delivery of possession of suit
land---Suit was decreed in circumstances.
Malik Muhammad Khaqan v. Trustees of The Port of Karachi
(KPT) and another 2008 SCMR 428; Abdul Sattar v. Mst.Anar Bibi and others PLD 2007 SC 609; Allah Ditta and 5 others v.
Mst.Rasoolan Bibi through Legal Heirs and 6 others PLD 2006 Lah. 693;
Fateh Khan, and others v. Surriya Begum
2006 SCMR 930; Muhammad Nazir v. Khurshid Begum 2005 SCMR 941; Noor Muhammad
and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Mst. Bhagni v. Manzur Hussain
Shah PLD 1957 (W.P.) Lah. 574 and D.F. Mulla's Principles of Mohammedan Law at
p.168 ref.
Syed
Sharif-ul-Hassan through L.Rs. v. Hafiz Muhammad Amin and others 2012 SCMR
1258; Mst.Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384
and Fida Hussain through Legal Heirs
Muhammad Taqi Khan and others v. Murad Sakina 2004 SCMR 1043 ref.
(b) Islamic Law---
----Gift by pardahnashin lady---Pre requisites---Burden of proof
would lie on beneficiary of gift in case of its denial by such
lady---Principles.
Under the law, if
the gift is denied by the lady, the onus to prove the same shifts upon those
who claim such gift, which fact is required to be proved by maintaining the
quality of evidence, including the requirement that the said lady should have
been explained the nature of such transaction in detail.
In all the
transaction in which the donor is a pardanashin lady though not observing
pardah heavy onus lies upon the donee to show that the gift was made without
exerting influence. The transaction with pardahnashin lady has four prerequisites
namely, the proper advice before execution of the document, explaining the
contents of documents, conscious mental act and lastly the entire transaction
was to be free from any shadow of doubt or suspicion.
Muhammad v. Mst.
Rehmon through Mst. Sharifan Bibi 1998 SCMR 1354 rel.
(c) Islamic Law---
----Hiba-bil-Iwaz---Prerequisites stated.
A
"Hiba-bil-Iwiz" is sale in reality having two prerequisites namely,
payment of consideration and bonanue intention of the donor to divest property
to donee.
(d) Civil Procedure Code (V of 1908)---
----S. 115---Concurrent judgments of Court below---Revisional
jurisdiction of High Court---Scope stated.
Concurrent
judgments can always be interfered with, if the same are contrary to law for
the reason that they are not sacrosanct. Erroneous conclusion, if based on
misreading and non-reading of documentary as well as oral evidence and wrong
application of law, is always a ground to interfere with.
Fida Hussain
through Legal Heirs Muhammad Taqi Khan and others v. Murad Sakina 2004 SCMR
1043 rel.
Ch. Imran Hassan
Ali for Petitioner.
Ch. Muhammad Azam
Minhas for Respondent.
ORDER
ALI BAQAR
NAJAFI, J.---Through this Revision Petition the petitioner challenges both
the concurrent judgments and decrees dated 26-10-2004 passed by the learned
Addl. District Judge, Chakwal and 1-7-2004 passed by the learned Civil Judge
1st Class Choa Saidan Shah District Chakwal, whereby the suit of the petitioner
was dismissed.
2. Brief facts giving
rise to the filing of this revision petition are that the petitioner filed a
suit for declaration of ownership and possession to the extent that gift
Mutation No.4021 dated 18-12-1993 (Exh.D.7) was not at all made by her and as
such the same was forged, fictitious and ineffective upon her rights with
consequential relief of protection of possession. The property subject-matter
of land measuring 56 Kanals, 16 Marlas fully described in the head note of the
plaint was owned and possessed by the petitioner through her tenant and she
being an illiterate, simple "Pardanashin" villager lady, was earlier
married with Tahzeeb ul Hassan in the year 1967 but was deserted and ever since
she was residing with her aged mother. The father of the petitioner had already
died, who was a police employee, where after there was no male member in her
family.
3. Since the pension of
her father was not disbursed to her as well as her mother, therefore, the
respondent, who is also her collateral, on the pretext to help them obtained
her thumb-impressions on a stamp paper in her house. About three months before
filing the suit she came to know that the impugned mutation (Exh.D.7) was
prepared in his own name. It was further averred that she has not received an
amount of Rs.2,60,000 in presence of the witnesses by making
"Hiba-bil-Iwaz" and in alternate prayer if any gift is assumed the
same has been revoked at her option. Written statement was filed and out of the
divergent pleadings of the parties following issues were framed:--
(1) Whether the
plaintiff is owner in possession of the suit-land? OPP.
(2) Whether the gift
mutation pertaining to the suit-land bearing No.4021 attested on 18-2-1993 is
an outcome of connivance between the defendant and revenue staff and is
illegal, void and ineffective against the rights of the plaintiff? OPP
(3) Whether the suit is
not properly valued for the purposes of court fee, if so, what is the correct
valuation for the purpose? OP Party.
(4) Whether the
plaintiff is entitled to the decree as prayed for? OPP
(5) Relief.
4. In support of her
claim, the petitioner examined herself as P.W.1 and produced copy of Jamanbandi
for the years 1992-1993 Exh.P.1 and Exh.P.2, whereas the respondent examined
Haji Muhammad Bashir DW-1, Muhammad Lehrasab Patwari, DW-2, Mehboob Alam
Tehsildar DW-3, Muhammad Liaqat DW-4, Hadi Hussain Shah, DW-5, Muhammad Aslam,
Patwari DW-6, Muhammad Ashraf Patwari DW-7, Qazi Mehboob Alam, DW-8, Haji
Muhammad Akhtar, DW-9 and the respondent-defendant himself appeared as DW-10.
He also produced documents Exh.D.1 to Exh.D.10 in support of his claim. The
learned trial Court while returning joint findings on issues No.1, 2 and 4
treating them interconnected, placed onus to prove upon the petitioner that the
gift was not made, where affer the learned Civil Judge vide judgment dated
1-7-2004 dismissed the suit filed by the petitioner and appeal preferred by the petitioner also met the
same fate vide
judgment dated 26-10-2004 passed by the learned Addl.
District Judge, Chakwal, hence this revision petition.
5. Learned counsel for
the petitioner submits that the courts below have drawn erroneous presumption
on facts contrary to the evidence on record by giving reference to inadmissible
piece of evidence; that the impugned judgments are result of non-reading,
misreading of the material on file; that onus to prove the existence of a valid
gift was to be placed upon the respondent and not on the petitioner; that the
said onus was not discharged by the respondent as he has failed to prove the
ingredients of gift namely, declaration, acceptance of gift, transfer of
possession and consideration; that the plea of "Hiba-bil-Iwaz" was
just made in order to avoid pre-emption, which fact was even noted by the
appellate court; that as the petitioner is a Pardanashin, illiterate and simple
villager lady, the execution of document was not with her free will by
understanding its contents; that the required independent evidence was lacking;
that there are grave discrepancies in the statements of Muhammad Liaqat DW-4
and Hadi Hussain Shah, DW-5 the alleged witnesses of transaction, who denied
the presence of the petitioner at the relevant time; that the original mutation
was admittedly not on record as observed in Para-23 of the judgment of
appellate court, which fact cannot be ignored especially without explaining any
reason; that the transaction is not even "Hiba-bil-Iwaz" which lacks
its pre-requisite. Lastly, submits that the findings of two courts below are
not sacrosanct, which can be interfered with on the basis of illegality and
material irregularity resulting into grave miscarriage of justice. Place
reliance on Malik MUHAMMAD KHAQAN v. TRUSTEES
OF THE PORT OF KARACHI (KPT) and another (2008 SCMR 428), ABDUL SAT'TAR v.
Mst.ANAR BIBI and others (PLD 2007 SC
609), ALLAH DITTA and 5 others v. Mst.RASOOLAN BIBI through Legal Heirs and 6
others (PLD 2006 Lahore 693), Syed SHARIF UL HASSAN through L.Rs. v. Hafiz
MUHAMMAD AMIN and others (2012 SCMR 1258), Mst.RASHEEDA BIBI and others v.
MUKHTAR AHMAD and others (2008 SCMR 1384), FATEH KHAN, and others v. SURRIYA BEGUM (2006 SCMR
930), MUHAMMAD NAZIR V. KHURSHID BEGUM (2005 SCMR 941), NOOR MUHAMMAD and
others v. Mst. AZMAT-E-BIBI (2012 SCMR 1373), Mst. BHAGNI v. MANZUR HUSSAIN
SHAH (PLD 1957 (Writ Petition) LAHORE 574) and D.F. Mulla's Principles of
Mahomedan Law at page 168 and prays for setting aside of two judgments passed
by the courts below.
6. Conversely, learned
counsel for the respondent submits that revision petition is filed against the
concurrent findings of fact, which cannot be concurrent findings of fact, which
cannot be upset in exercise of section 115, C.P.C. by this court as there is
neither any illegality nor irregularity which has been pointed out; that in
para-3 of the plaint the petitioner herself has admitted to have thumb marked
but narrated different unbelievable story that the documentations were required
for the payment of pension of her late father for which such affixation of her
thumb impression was required; that in para. 22, 27, 28 and 29 of the judgment
of appellate court the possession of the respondent as a tenant has been
admitted by the petitioner; that the respondent has produced cogent evident to
prove his case believed as such by the courts below and prays for dismissal of
the revision petition.
7. I have heard the
learned counsel for the parties and perused the available record.
8. A perusal of Exh.D.1
reveals that no description of any property has been mentioned for which amount
of Rs.2,60,000 was paid to the petitioner on 2-2-1993. Both marginal witnesses/
DW-4 Muhammad Liaqat, and Hadi Hassan Shah, DW-5 had admitted that the
transaction had not taken place in their presence and that the said receipt was
already written. They do not say anything as to whether the petitioner was
explained the nature and contents regarding the transaction in question.
The respondent appeared
as DW-10, who himself has stated
to have paid the amount of Rs.2,60,000 to the petitioner in presence of Hadi
Hussain Shah DW-5, Muhammad Liaqat/DW-4 and Syed Asghar Shah but they have not
corroborated his statement. He has also admitted that the petitioner appeared
in the court by observing veil. He has also stated , that the petitioner
herself came to his house in November, 1992 in order to sell the suit land as
there is no male member in the family of the petitioner. However, none of the
witnesses have explained anywhere that at the time when the petitioner affixed
her thumb impression upon the receipt, she was explained about the contents of
Exh.D.1 with regard to its nature and consequence which was necessary and
mandatory requirement of law. DW.2 did not remain posted as Patwari at the
relevant time, therefore his statement is not relevant. DW-3 is admitted not to have possessed record
of pert sarkar which he was required to possess. DW-7 admitted that the said
mutation in question was presented by the respondent himself. He has also
admitted that he did not know whether the petitioner was present at the given
time. DW-8, the Tehsildar, also admitted not to have possessed the pert sarkar
and DW-9 has admitted that his signature is not affixed on pert sarkar.
9. On the other hand,
the petitioner appeared as P.W.1 who has explained in her cross examination
that she being an illiterate pardanashin and simple villager lady got her thumb
impression affixed on the false pretext by the respondent and that she was not
explained as to the real purpose behind. She also stated that she never ever
appeared before the Revenue Officer for sanctioning of mutation in question.
10. Under the law if the
gift is denied by the lady the onus to prove the same shifts upon those who
claim such gift, which fact is required to be proved by maintaining the quality
of evidence, including the requirement that the said lady should have been
explained the nature of such transaction in detail. Reliance can be placed on
MUHAMMAD v. Mst. REHMON through Mst.
SHARIFAN BIBI (1998 SCMR 1354). In all the transactions in which the
donor is a pardanashin lady though not observing parda heavy onus lies upon the
donee to show that the gift was made without exerting influence. The
transaction with pardanashin lady has four pre-requisite namely, the proper
advice before execution of the document, explaining the contents of documents,
conscious mental act and lastly the entire transaction was to be free from any
shadow of doubt or suspicion. Such
requirement of law have not been fulfilled in the instant case. The petitioner
was not even identified by a person who could advise or protect her interest. Reliance can be placed on Mst.RASHEEDA
BIBI and others v. MUKHTAR AHMAD and others (2008 SCMR 1384) and Syed SHARIF UL
HASSAN through L.Rs. v. Hafiz MUHAMMAD AMIN and others (2012 SCMR 1258).
11. Reverting to the
question of mutation suffice it to say that it is not a deed of title and is
merely indicative of some previous oral sale between the parties. When
challenged, the burden squarely lies on the beneficiary of the mutation to
prove not only the mutation but also the original, transaction which he is
required to fall back upon. In the instant case the original pert sarkar was
not produced, the revenue officials have not identified the petitioner. The
mutation was not sanctioned in open assembly by the Revenue Officer. Reliance,
therefore, can be placed on FIDA HUSSAIN through Legal Heirs Muhammad Taqi Khan
and others v. MURAD SAKINA (2004 SCMR 1043).
12. A
"Hiba-bil-Iwaz" is sale in reality, having two pre-requisite namely,
payment of consideration and, bona fide intention of the donor to divest the
property to donee. I am afraid, they are missing from the record.
13. As far as the proof of
requirement of gift is concerned, suffice it to say that neither the
declaration nor acceptance, transfer of possession for consideration on the
exercise of free will is visible from the record. Departing the possession of
property requires solid evidence and mutation simplicitor is not enough.
14. As to the concurrent
judgments which can always be interfered with if the same are contrary to law
for the reason that they are not sacrosanct. Erroneous conclusion if based on
misreading and non-reading of documentary as well as oral evidence and wrong
application of law is always a ground to interfere with. Reliance can be placed
on FIDA HUSSAIN through Legal Heirs
Muhammad Taqi Khan and others v. MURAD
SAKINA (2004 SCMR 1043).
15. For what has been
discussed above, this civil revision is allowed, the impugned concurrent
judgments passed by the courts below are set aside, and consequently the suit
of the petitioner-plaintiff is hereby decreed.
SAK/H-10/L Revision
accepted.
2013 M L D 1127
[Lahore]
Before Syed Iftikhar Hussain Shah, J
MUHAMMAD NASEER AHMAD and others---Petitioners
Versus
MUHAMMAD IBRAHIM SHABBIR---Respondent
Civil Revision No.751-D of 2001, heard on 29th May, 2012.
(a) Qanun-e-Shahadat (10 of 1984)---
----Arts. 79, 117 & 120---Document executed by Pardanashin
lady---Burden of proof---Beneficiaries of said document are bound to establish
by highly satisfactory and strong evidence that not only the document was
executed by such parda observing lady but also that such illiterate/parda
observing lady had fully understood the contents of the document.
(b) Qanun-e-Shahadat (10 of 1984)---
----Arts. 79, 117 & 120---Gift deed---Required standard of
evidence to establish a valid gift deed---Non-registration of gift
deed---Effect---Donee admitted that donor remained alive for five months after
the execution of the alleged gift deed in his favour but she did not get the
gift deed registered---Entries made after the death of donor---Donor did not
appear before the scribe of gift deed and had not put her thumb impression/signature
in his presence---Alleged attesting witnesses of deed also admitted that donor
did not appear before the scribe and he took the stamp paper to donor for
getting her signatures---Execution of gift deed was not proved in
circumstances.
Ch. Naseer Ahmad
for Petitioners.
Sardar Mehmood
Iqbal Khakwani for Respondents Nos.3 to 5 and 7 to 11.
Abdul Qayum Awan
for Respondent No.4.
Date of hearing:
29th May, 2012.
JUDGMENT
SYED IFTIKHAR
HUSSAIN SHAH, J.---Through this revision petition, the petitioners have
called in question the legality of judgment and decree dated 30-11-2001 passed
by the learned Additional District Judge Bahawalpur whereby appeal against the
judgment and decree dated 16-6-1994 passed by the learned Civil Judge Class 2nd
Class, Bahawalpur passing the preliminary decree in a suit for partition filed
by Muhammad Hassan, predecessor in interest of the respondents, was dismissed.
2. Succinctly, the
facts of the case are that the Muhammad Hassan, predecessor in interest of the
respondents instituted a suit for seeking decree for partition in respect of
House No.1323/13, B-III situated at Mohallah Hassanpura Bahawalpur stating that Mst. Ghulam Sakina,
sister of aforesaid Muhammad Hassan was owner of the aforesaid house, who died
issueless on 30-3-1987. The plaintiffs being legal heirs of Mst. Ghulam Sakina
deceased along with his sisters namely Bakhat Bibi and Mst. Manzoor Bibi is
entitled to the partition and separate possession of his share on the basis of
inheritance. During the pendency of the suit Muhammad Nazir Ahmad son of Mst.
Manzoor Bibi sister of Mst. Ghulam Sakina made an application for impleading
him as a party on the ground that the eastern portion of the said house was
transferred in his favour by Mst. Ghulam Sakina though gift deed dated 7-4-1987
as such, the property gifted away to him, cannot be made subject of the
partition suit. He was impleaded accordingly.
3. The
petitioners/defendants contested the suit and the learned trial Court out of
the divergent pleadings of the parties, framed the following issues:-
"Issues
No.1 Whether Mst.
Ghulam Sakina predecessor in interest of the parties transferred a portion of
disputed property as stated in Para No.1 of written statement filed by
defendants Nos.2 and 3 by way of Hibba Nama dated 7-4-1987, if so its effect.?
OPD 2 & 3
No.2 Whether Mst.
Nasreen Bibi the daughter of Sardar Rahim Bakhsh is a necessary party in this
suit? OPD 2 & 3
No.3 Whether the
suit is deficient for the purpose of court fee and jurisdiction? If so, its
effect and what is the proper court fee? OPD 2 & 3
No.4 Whether the
alleged Hibba Nama dated 7-4-1987 in favour of defendant No.3 is forged,
fictitious and inoperative upon the rights of defendant No.1 and plaintiff OP
defendant No.1 and OPP?
No.5 Whether the written
statement filed by defendant No.3 is deficient for the purpose of court fee?
OPD I
No.6 Whether the
suit property is liable to partition and among whom? OPP
No.7 Relief."
4. Learned trial Court
after recording the evidence and hearing the learned counsel for the parties,
concluded that Nazir Ahmad failed to prove the execution of gift deed Exh.D-1
in his favour and passed the preliminary decree by fixing the share of Muhammad
Hassan plaintiff as 1/2 and shares of Mst. Bakhat Bibi and Mst. Manzoor Bibi as
1/4 and 1/4 in the disputed property. The legal heirs of Mst. Manzoor Bibi and
Muhammad Nazir Ahmad deceased preferred an appeal against the aforesaid
preliminary judgment and decree which was also dismissed vide impugned judgment
and decree dated 30-11-2001. Hence, the legal heirs petitioners/defendants have
filed this revision petition.
5. Learned counsel for
the petitioner has contended that Mst. Ghulam Sakina has gifted away the
eastern portion of the disputed house in
favour of Muhammad
Nazir Ahmad vide
gift deed dated
7-4-4987 and the possession was handed over to him; that the petitioners
have proved the execution of gift deed by examining scribe thereof namely Abdul
Salam Chughtai DW-1 and Abdul Rashid Hashmi DW-2, its marginal
witness. The possession
was also delivered
to the donee
but both the learned Courts below have not appreciated this aspect
of the case
and passed the
preliminary decree in
favour of the respondents arbitrarily especially when
the witnesses examined by the respondents have also not specifically denied the
factum of the execution of gift deed in favour of Muhammad Nazir Ahmad
deceased. Relies on case titled
"Maulvi Abdullah and others v. Abdul Aziz and others (1987 SCMR
1403), "Abdullah and 3 others v. Abdul Karim and others, Abdul Karim and
others v. Abdullah and others (PLD 1968 Supreme Court 140)", and
"Muhammad Bashir v. Mst. Sattar
Bibi and another (PLD 1995 Lahore 321)".
6. On the other hand,
learned counsel for the respondents and the legal heirs of Muhammad Hassan
deceased have contended that Muhammad Nazir Ahmad deceased was in occupation of
the disputed house as a tenant; that the eastern portion of the house in
question was never gifted away to him; that gift deed dated 7-4-1987 is a
forged and fictitious document; that Mst. Ghulam Sakina deceased remained in
possession of the disputed property throughout her life time and she died in
the said house; that it has been admitted by the scribe of the gift deed that
the Mst. Ghulam Sakina had not put her thumb impression on the gift deed in his
presende; that she has been shown owner of the disputed property in the record
of the excise and taxation department; that the mutation of inheritance has
been rightly sanctioned in favour of the legal heirs of Mst. Ghulam Sakina
deceased; that the concurrent findings of both the learned Courts below on the
question of fact are liable to be maintained. Relies on case titled "Mst.
Siddiqan and others v. Muhammad Ibrahim and others 1993 MLD 1979" and
"Janat Bibi v. Sikandar Ali and others (PLD 1990 Supreme Court 642)."
7. I have heard the
learned counsel for the parties and have perused the record.
8. It is an admitted
fact that Mst. Ghulam Sakina died issueless and Muhammad Hassan, Mst. Bakkat
Bibi and Mst. Manzoor Bibi are her legal heirs. Muhammad Hassan instituted a
suit for seeking decree for separate possession of his share in the estate of
Mst. Ghulam Sakina wherein Muhammad Nazir Ahmad son of Mst. Manzoor Bibi made
an application for impleading him as a party on the ground that the eastern
portion of the disputed property was gifted away to him by Mst. Ghulam Sakina
deceased vide gift deed dated 7-4-1987. In order to prove the execution of gift
deed, Muhammad Nazir Ahmad examined the scribe of the document Abdul Salam
Chughtai DW-1, who admitted during cross examination that Mst. Ghulam Sakina
did not appear during the execution of the gift deed, he wrote gift deed
Exh.D-1 and Exh.D-2 and Exh.D-2 was executed in favour of Mst. Nasreen Bibi. He
further admitted that Mst. Nasreen Bibi and Mst. Ghulam Sakina did not appear
before him, Mst. Ghulam Sakina while standing behind the curtain informed him,
she did not put her thumb impression in his presence and Part No.3 of Exh.D-1
was prepared by Muhammad Nazir Ahmad himself, the identity card of Mst. Ghulam
Sakina was also produced by Muhammad Nazir Ahmad. He also admitted that
Muhammad Nazir Ahmad was not personally known to him and he himself informed
that he is Muhammad Nazir Ahmad. Abdul Rashid DW-2 stated that on the gift deed
Exh.D-1 and Exh.D-2 Mst. Ghulam Sakina put her signature in their presence and
he identified Mst. Ghulam Sakina at the time of execution of gift deed. During
cross-examination he further deposed that there was a distance of 12-feet in
between the sitting of petition writer and Mst. Ghulam Sakina and after the
execution of gift deed, he took the gift deeds and the register of petition
writer to Mst. Ghulam Sakina, who signed the same. He admitted that he did not
put signature on Exh.D-1 as a witness and he signed the same as identifier. He
also admitted that Mst. Nasreen Bibi daughter of Mst. Bakhat Bibi is alive and
Mst. Ghulam Sakina did not appear before Abdul Salam DW-1, the petition writer,
however she herself asked him about the execution of the document.
9. Where a document is
allegedly executed by a parda observing lady, the beneficiaries of that
document are bound to establish by highly satisfactory and strong evidence that
not only the document was executed by such Parda observing lady but also that
such illiterate Parda observing lady had fully understood the contents of the
document. But in this case the required standard of evidence is missing to
establish a valid gift. Allegedly, two gift deeds were executed by Mst. Ghulam
Sakina, one in favour of Muhammad Nazir Ahmad and the other in favour of Mst.
Nasreen Bibi but Mst. Nasreen Bibi never appeared during the litigation in
order to claim herself to be the donee/part of the disputed property. Muhammad
Nazir Ahmad, the donee, admitted that Mst. Ghulam Sakina remained alive for
five months after the execution of the alleged gift deed in his favour but she
did not get the gift deed registered in his favour. He also admitted the
execution of rent deed in favour of Mst. Ghulam Sakina. The copy of PT-I for
the year 1989-1990 also reveals that Muhammad Nazir Ahmad was in occupation of
the disputed property as tenant whereas Mst. Bakhat Bibi, Manzoor Bibi and
Muhammad Hassan have been shown owner of the disputed property. The aforesaid
entries were made after the death of Mst. Ghulam Sakina. Admittedly, Mst.
Ghulam Sakina, the donor did not appear before the scribe of Exh.D-1 and had
not put her thumb impression/signature in his presence. The alleged attesting
witnesses of deed namely Abdul Rashid Hashmi also admitted that Mst. Ghulam
Sakina did not appear before Abdul Salam DW-1, the scribe and he took the stamp
paper to her for getting her signatures. Muhammad Nazir Ahmad failed to prove
the execution of document Exh.D-1 in his favour in accordance with the
provision of Article 79 of the Qanun-e-Shahadat Order, 1984. The case-law
produced by the learned counsel for the petitioner is not directly applicable
to the facts and circumstances of the present case. In this case, the claimant
of the gift deed had badly failed to establish the execution of a valid gift
deed in his favour.
10. The concurrent
findings of both the learned Courts below are based upon the objective
appraisal of evidence
and correct application
of law. The
learned counsel for
the petitioner has
failed to point
out any material irregularity or illegality in both the impugned
judgments and decrees which are in accordance with law and are hereby
maintained.
Resultantly, the
revision petition in hand is without any merits, the same is hereby dismissed.
However, as this is an old case wherein the preliminary decree was passed on
16-1-1994, the learned trial Court is directed to dispose of the main case
expeditiously within a period of three months positively.
JJK/M-43/L Order
accordingly.
2014 Y L R 178
[Peshawar]
Before Mrs. Irshad Qaiser, J
ABU BAKAR and others---Petitioners
Versus
Mst. KHAYBER JAN and others---Respondents
Civil Revision No.378 of 2012, decided on 15th July, 2013.
(a) Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---Sale mutation---Burden of
proof---Sale transaction by a pardanashin lady---Precautions---Paradanashin
lady---Scope--Plaintiff filed suit to the effect that she was owner in
possession of suit property---Contention of defendant was that he had purchased
the said land through sale mutation---Suit was dismissed by the Trial Court but
same was remanded by the Appellate Court---Validity---Wherever an illiterate,
old-age person, pardanasheen lady or female issue of a Muslim was deprived of
her property through sale, exchange, gift, inheritance etc., then beneficiary
of the transaction would be required to prove its genuineness---Beneficiary
would be required to prove with confidence-inspiring evidence that same was the
result of free and independent advice of the person parting with the
property---Factum of fraud was to be proved by the person alleging the same but
in such-like circumstances mere assertion in pleading and evidence were
sufficient to discharge their burden---Defendant who alleged sale mutation in
his favour was required to strengthen the sale transaction to defeat the claim
of plaintiff---Defendant did not appear in the witness box to prove the
execution of mutation and payment of sale consideration---Tehsildar and Patwari
halqa were not produced to prove that they prepared and attested the same at
the instance of plaintiff and she had received sale consideration---Defendant
was bound to produce the marginal witnesses of the mutation to prove that same
was executed in their presence---Son of defendant appeared in the witness box
as attorney of his father but he had not stated about the inability of his
father to appear in the witness box---Trial Court had not considered such facts
at the time of decision of the case---Appellate Court had rightly found that
findings of Trial Court were ambiguous and evidence and material highlighted on
record were not discussed---Custom of year 1964 regarding obtaining of
signature/thumb-mark on the mutation required comprehensive
discussion---Defendant had failed to point out any illegality or irregularity
in the impugned judgment---No jurisdictional defect by the Appellate Court was
pointed out---Resolution of disputed issue on merit was the goal of
administration of justice---Revision petition was dismissed in circumstances.
Muhammad Iqbal v.
Mukhtar Ahmed 2008 SCMR 855; Muhammad Akram and another v. Altaf Ahmed PLD 2003
SC 688; Masood Akhtar v. Manzoor Ahmed 2005 CLC 1651; 2005 MLD 1013; 1990 CLC
1968; 1986 CLC 545; Mst. Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642;
Mst. Badshah Begum v. Ghulam Rasool and others PLD 1991 SC 1140; Ghulam Ali and
2 others v. Ghulam Sarwar Naqvi PLD 1990 SC 1; PLD 2011 Pesh. 10; 1993 SCMR
6187; 1994 CLC 1774 and 2000 SCMR 346 rel.
(b) Transfer of Property Act (IV of 1882)---
---S.54---Sale---Ingredients---Ingredients of sale
transaction to be proved were; sale by seller in favour of purchaser, fixation
of sale consideration as well as receipt of the same, delivery of possession of
transferred property to the purchaser and marginal witnesses.
(c) Administration of justice---
----Resolution of disputed issue on merit was the goal of
administration of justice.
Babar Khan for
Petitioners.
Ghulam Jelani for
Respondents.
Date of hearing:
15th July, 2013.
JUDGMENT
MRS. IRSHAD
QAISER, J.---The present petitioners (legal heirs of defendant Abdul Saboor
deceased) filed the present revision petition under section 115, C.P.C.
against the judgment
and decree dated
27-6-2012 passed by the learned Additional District Judge, Ghazi Haripur
in Civil Appeal No.13/13 vide which the judgment and decree dated 25-2-2012
passed by the learned trial Court was set aside and the case was remanded for
decision afresh.
2. The brief facts of
the case are that plaintiff/respondent Mst. Khyber Jan has brought the suit for
declaration to the effect that she is the owner in possession of the suit
property, the detail of which is given in the heading of the plaint, being the
legal heirs of deceased Faqir Muhammad who was the predecessor-in-interest of
both the parties. That she had neither sold her share to the defendant nor had
executed any sale mutation or received any sale consideration against the sale
mutation. That sale Mutation No.1469 dated 9-7-1964 allegedly executed by her
is fake, fictitious, based on fraud and misrepresentation being without any
sale consideration and thereby ineffective, in any manner whatsoever, upon her
rights and is liable to cancellation. She also sought permanent injunction in
order to restrain the defendant/petitioner from interference in the disputed
property on the basis of wrong entries and also prayed for possession if she is
dispossessed during the trial proceeding.
3. The defendant was
summoned who attended the Court and contested the suit. Issues were framed from
the divergent pleadings of the parties. Both the parties produced their
respective evidence and after hearing the arguments, the learned trial
Court vide judgment
and decree dated
25-2-2012 dismissed the suit of the plaintiff. Feeling aggrieved, the
plaintiff filed an appeal which vide judgment and decree dated 27-6-2012 was
accepted by the appellate Court and the case was remanded back to the trial
Court with the direction to decide the case afresh by giving cogent reason and
discussing the documentary material as well as oral evidence of the parties,
hence the present revision petition.
4. I have heard learned
counsel for the parties and perused the record with their assistance.
5. It is admitted fact
that Mst. Khyber Jan and Abdul Saboor were the real brother and sister and the
children of Faqir Muhammad who was the original owner of the property and after
his death his property was devolved amongst his legal heirs. As a result, the
plaintiff/respondent became the owner in possession to the extent of 1/6 share
being legacy of his late father. The defendant/petitioner admitted the claim of
the plaintiff; however, his contention is that she had alienated her share in
his favour through sale Mutation
No. 1496 dated 9-7-1964 against a valuable consideration.
The plaintiff denied the execution of any sale mutation and contended that she
being illiterate lady had neither received any sale consideration, nor appeared
before any competent revenue authority and never signed or put her
thumb-impression on any document. The alleged mutation is fake, fictitious and
is the result of fraud and connivance of the defendant with the revenue staff.
6. Now the question for
determination is that whether plaintiff had transferred her share for
consideration through the impugned sale mutation in favour of her brother
defendant or it is the result of fraud, without sale consideration, against law
and is the result of collusion with the revenue official.
7. The law of the land
on the subject is well-established and settled that wherever an illiterate, old
age person, pardanasheen lady or female issue of a Mohammaden is deprived of her
property through sale, exchange, gift, inheritance etc., then in such like
situation, the beneficiary of the transaction, whether the same is effected
through mutation, registered deed or the same is oral, would legally be
required to prove its genuineness. Beside he would also be required to prove
with confidence inspiring evidence that same was the result of free and
independent advice of the person parting with the property etc. Factum of
fraud, no doubt is a fact to be proved by the person alleging the same but in
such like circumstances mere assertion in pleading and evidence of the above
stated facts are sufficient to discharge their burden and then the beneficiary
in rebuttal of the same has to prove the genuineness of the transaction in his
favour. Reference is made to Muhammad Iqbal v. Mukhtar Ahmed (2008 SCMR 855),
wherein it is held;
"Section 45 West Pakistan Land Revenue Act 1967:--
Mutation---Onus to prove---Mutation proceedings are
not judicial proceedings and do not at all happen to confer title---whenever
genuineness of any mutation is challenged, the burden squarely lies on the
parties relying upon the mutation, to prove the actual transaction."
It is further held:
"Section.
45---Mutation, chal-lenging of---Effect---Where a mutation is challenged, the
beneficiary has to fall back upon and prove the original transaction.
In case Muhammad
Akram and another v. Altaf Ahmed (PLD 2003 SC 688) it is held;
"Once a
mutation is challenged, the party that relies on such mutation is bound to revert
to the original transaction to prove such original transaction which resulted
into the entry or attestation of such mutation in dispute--
In case Masood
Akhtar v. Manzoor Ahmed (2005 CLC Lahore 1651) it is held;
"Mutation by
itself would not create title and person deriving title thereunder had to prove
the transferor did part with ownership of property subject of mutation in
favour of transferee and that mutation was duly entered and attested--. Any
person, who was acquiring title through a mutation, burden of proof of proving
transaction embodied in mutation was upon him.
In case reported in
2005 MLD Lahore 1013 it is held;
"Mutation
whether attested or unattested, would not create any title and was not even
evidence of title---Important thing was to find out whether transaction
recorded in the mutation had taken place or not." Reference is also made
to 1990 CLC 1968, 1986 CLC 545.
In case Muhammad v.
Mst. Rehmon (1998 SCMR 1354) in respect of Parda Nasheen Lady it is held;
"Execution of sales-deed
by an illiterate lady---Burden of proof---Ingredients to prove the bona fides
of transaction---Where any sale executed by an illiterate lady, it is for the
purchaser to establish that she had executed the same of her own free-will
under independent advice from her relations and fully knowing the nature of
transaction.
Guidance is also sought
from case Mst. Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642, Mst.
Badshah Begum v. Ghulam Rasool and others PLD 1991 SC 1140 and Ghulam Ali and
two others v. Ghulam Sarwar Naqvi PLD 1990 SC 1.
In case PLD 2011 Peshawar 10 it held that;
"Beneficiary
of any document was bound to establish its genuineness. Reference may also be
made to 1993 SCMR 6187, 1994 CLC Lahore 1774 and 2000 SCMR 346.
8. Defendant claimed
the ownership of the suit property on the basis of sale mutation in his favour.
Here defendant is required to strengthen the legal sale transaction in his
favour to defeat the claim of the plaintiff for which the essential ingredients
being proved are;
(i) Sale by seller in favour of purchaser.
(ii) Fixation of sale consideration as well as receipt of sale
consideration between the parties concerned.
(iii) Delivery of
possession of transferred property to the purchaser.
(iv) Marginal witness.
9. In the present case,
the plaintiff/ respondent to prove her case has produced Muhammad Sadeeq
Patwari Halqa Moza Kundi who was examined as P.W.7 who produced revenue record
Exh.P.W.1/1 and Exh.P.W.1/2 and the Parth of disputed mutation Exh.P.W.1/3 are
states that:---
In his cross-examination
he admitted"
Jamil Ahmed SOK
Tehsil Ghazi was examined as P.W.3. He produced original impugned Mutation
No.1469 dated 9-7-1964 the photocopy of which is Exh.P.W.2/1. He states:--
He has not been cross-examined
the defendant. Plaintiff herself was examined as P.W.3 and in her statement she
has given the detail in respect of attestation of mutation wherein she stated
that she had never executed any mutation. She had neither appeared before any
revenue officer nor signed any document or put her thumb impression. Now the
burden shift on the defendant to prove the genuineness of the mutation but he
himself did not appear in the witness box to prove the execution of mutation
and payment of sale consideration. He also failed to produce the Tehsildar or
the concerned Patwari Halqa to prove that they have prepared and attested the
mutation at the instance of plaintiff and that she had received the sale
consideration:--
In this respect
reference is made to PLD 2003 SC 688 wherein it held;
"Most
important entries in connection with the attestation of mutation were the
Patwari Halqa who had to enter the mutation and the revenue officer who happens
to attest the same. Both of them were not produced and examined in Court. In
absence of the two officials, the mutation cannot be said to have been
proved"
10. It was also the duty
of the vendee/ defendant to produce the marginal witnesses of the mutation to
prove that it was executed in their presence. Defendant/ petitioner produce
only his son as DW.1 who was his attorney. He has not uttered a single word
about the inability of his father to appear in the witness box. But the trial
Court had not considered all these facts at the time of decision of the case.
In such view of the mater it has rightly been held by the appellate Court that
the finding of trial Court on issue No.7 which are bone of deep contention of
the parties are ambiguous in nature and evidence and material highlighted on
record is not discussed at all. Moreover, as per contents of the plaint the
plaintiff clearly stated that she neither appeared before any revenue officer
nor signed/thumb-impressed any mutation in question, followed by her statement,
where she narrated the same story. The prevailing customs of year 1964
regarding obtaining of signature/thumb-marks on the mutations including the
vendor as well as witnesses required comprehensive discussion. On the other
hand the defendant contended to have purchased the subject matter by way of
sale, where the learned trial Court failed to appreciate all these facts.
11. Here the petitioners have
failed to point out any illegality or irregularity in the impugned judgment. No
jurisdictional defect in the exercise of jurisdiction by appellate Court was
pointed out. The resolution of disputed issue on merit is the cherished goal of
administration of justice.
12. Accordingly, for the
reason stated hereinabove, the revision petition having no force is hereby
dismissed with no order as to cost.
AG/500/P Revision dismissed.
2008 SCMR 905
[Supreme Court of Pakistan]
Present: Javed Iqbal and Falak Sher,
JJ
MUHAMMAD ANWAR and 2
others----Petitioners
Versus
KHUDA YAR and 25 others----Respondents
Civil Petition No.3278-L of 2001, decided on 28th March, 2003.
(On appeal from the judgment, dated 8-6-20001 passed by Lahore High
Court, Bahawalpur Bench, in Civil Revision No.150-D of 1985/BWP).
(a) West Pakistan Muslim
Personal Law (Shariat) Application Act (V of 1962)---
----S. 2-A [as added by West Pakistan Muslim Personal Law (Shariat)
Application Act (Amendment) Ordinance (XIII of 1983)]---Succession of last
muslim male owner---Scope---Provision of S.2-A of West Pakistan Muslim Personal
Law (Shariat) Application Act, 1962 had retrospective effect---Such owner would
be treated as one, who at the time of his death was governed by Muslim personal
law, thus, his legacy would devolve in accordance with Muslim personal
law/Sharia.
Hakim Ali v. Barkat Bibi 1988 SCMR 293; Muhammad Qasim Khan v.
Mehbooba 1991 SCMR 515; Fazal Nishan v. Ghulam Qadir 1992 SCMR 1773; Rattigan's
Digest of Customary Law and Federation of Pakistan v. Muhammad Ishaq PLD 1983
SC 273; Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407; Ismail and another v.
Ghulam Qadir 1990 SCMR 1667 and Lal and 3 others v. Rehmat Bibi and another PLD
1991 SC 582 rel.
(b) Co-sharer---
----Limitation would not run against
co-sharer---Possession of legal heirs would be deemed to be that of their
deceased predecessor.
Muhammad Qasim Khan v. Mehbooba 1991 SCMR 515 and Ghulam Ali v.
Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.
(c) West Pakistan
Land Revenue Act (XVII of
1967)---
----S. 42---Civil Procedure Code (V of 1908), S.2(2) & O.XX,
R.6(1)---Mutation attested on basis of decree---Person not party to such
decree---Effect---Such decree would not be binding on such person---Question of
title could not be decided on basis of mutation got recorded on basis of
judgment/decree, which was not binding on such person---Such mutation would
have no adverse effect on title of such person.
Mehdi Khan Chauhan, Advocate Supreme Court and Ch. Mehdi Khan
Mehtab, Advocate-on-Record for Petitioners.
Nemo for Respondents.
ORDER
JAVED IQBAL, J.--- This petition for leave to appeal is
directed against the judgment, dated 8-6-2001 passed by learned Lahore High
Court, Bahawalpur Bench, Bahawalpur,
whereby the revision petition preferred on behalf of respondents has been
accepted and judgment/decree, dated 19-6-1982 passed by learned Civil Judge,
restored.
2. Precisely stated the facts of the case are that "Mst. Faiz
Ellahi predecessor-in-interest of the present petitioners filed a suit for
declaration to the effect that Noor Ahmad was the original owner of the land
detailed in the suit and that upon his death, he was survived by two sons and
two daughters namely Bagh Ali, Mehboob Alam, Mst. Faiz Elahi herself and Mst.
Sahib Nishan. Defendants Nos.1 to 7 in the suit are the legal heirs of said
Bagh Ali and Mehboob Alam while the other defendants are the legal heirs of
Mst. Sahib Nishan. It was also averred in the plaint that in the matters of
inheritance, the parties were governed by Shariat. She also stated to be in
possession of her share and thus, claimed to be owner in possession of 1/6
share in the estate of her father Noor Ahmad. The suit was vehemently contested
on the ground that Mst. Faiz was not the daughter of Noor Ahmad and factum of
possession was also denied. After framing of issues and recording the evidence
pro and contra suit was decreed in favour of Mst. Faiz by learned trial Court
by means of judgment/decree, dated 19-6-1982. Being aggrieved an appeal was
preferred by the petitioners which was accepted vide judgment/decree dated
21-3-1985 which was subsequently, set aside as a result of revision filed by
the respondent vide judgment impugned restoring the judgment/decree, dated
19-6-1982 of learned trial Court, hence, this petition.
3. It is mainly contended by Mr. Mehdi Khan Chauhan, learned
Advocate Supreme Court on behalf of petitioners that the controversy was
decided in the year 1989 and it was held by the Revenue Authority that legal
heirs of Noor Ahmad (deceased) are only two sons and three widows. It was also
decided on the basis of the statements got recorded by Asmat Bibi and Noor Elahi
that they were widows of Noor Ahmad but being issueless they required only
maintenance which was being provided to them. It is urged vehemently that the
judgment passed by the Chief Court of Bahawalpur State and its endorsement by
the Nawab of Bahawalpur State became final on the basis of which mutation of
inheritance was attested in favour of Mehboob Alam and Bagh Ali and being final
and closed transaction it cannot reopened. It is next contended that in view of
the provisions as contained in section 2-A of the West Pakistan Muslim Personal
Law (Shariat) Application Act, 1962 '(hereinafter referred to as the Act) the
question of inheritance once decided by the Court of competent jurisdiction
cannot be reopened merely on the ground that section 2-A of the Act was given
retrospective effect at it was not made applicable to the past and closed
transactions and the judgment/decrees passed by the Court of competent
jurisdiction could neither be revised nor set aside on the basis of section 2-A
of the Act. It is urged with vehemence that all the transactions/alienations/
mutations were completed in the year 1930 which aspect of the matter has been
ignored by learned High Court which resulted in serious miscarriage of justice.
It is also urged that it is a case of sheer misreading of the documentary as
well as oral evidence, specific reference has been made to Exhs.D.I and D.2
which have neither been read properly nor due importance has been given. It is
contended that the categoric admission made by Asmat Bibi widow of Noor Ahmad
before learned Chief Court of Bahawalpur State that she was issueless and
provided with maintenance should have been kept in view by the learned High
Court while deciding the controversy which has not been done for the reasons
best known to learned High Court which has caused serious prejudice against the
petitioners.
4. We have carefully examined the contentions as agitated on behalf
of the petitioners and scanned the entire evidence carefully. We have perused
the judgment/impugned. Let we make it clear at the out set that the learned
Appellate Court had framed Issue No.7-B to the effect that "Whether Noor
Ahmad deceased was governed by Shariat Law in the matter of inheritance and
succession and the daughters were given inheritance, if so with what
effect", incomplete ignorance of the fact that the West Pakistan Muslim
Personal Law (Shariat) Act (Amendment) Ordinance XIII of 1983 had already been
promulgated w.e.f. 1st of August, 1983.
5. There is no cavil with the proposition that section 2-A of the
Act being retrospective in effect, last male holder had to be treated as one
who at time of his death was governed by the Muslim Personal Law and
resultantly his legacy will be devolved in accordance with Muslim Personal
Law/Sharia. In this regard reference can be made to cases titled Hakim Ali v.
Barkat Bibi 1988 SCMR 293, Muhammad Qasim Khan v. Mehboba 1991 SCMR 515, Fazal
Nishan v. Ghulam Qadir 1992 SCMR 1773, Rattingan's Digest of Customary Law and
Federation of Pakistan v. Muhammad Ishaq PLD 1983 SC 273, Abdul Ghafoor v.
Muhammad Shafi PLD 1985 SC 407, Ismail and another v. Ghulam Qadir 1990 SCMR
1667 and Lal and 3 others v. Rehmat Bibi and another PLD 1991 SC 582.
6. We have also adverted to the objection of limitation which
appears to be baseless as it does not run against co-sharer which needs no
further elucidation in view of Exh. P.1 and Exh. P.2 showing that property had
remained in possession of both Zulfiqar and Shah Nawaz who were admittedly sons
of Mst. Faiz and their possession shall be deemed to be the possession of Mst.
Faiz. In this regard we are fortified by the dictum laid down in case titled
Muhammad Qasim Khan v. Mehbooba 1991 SCMR 515 and Ghulam Ali v. Ghulam Sarwar
Naqvi PLD 1990 SC 1. Much reliance has been placed by the learned Advocate
Supreme Court on behalf of petitioner on the judgment/decree, dated 26-3-1930
passed by the Chief Court but the learned Advocate Supreme Court could not
furnish any plausible justification regarding its applicability to the
respondents who were not party to it and hence it would have no binding effect
upto their extent. We may point out here that the question of title cannot be
decided on the basis of mutation dated 28-8-1930 got recorded on the basis of
judgment/decree, dated 26-3-1930 passed by the Chief Court which was not binding on the
respondents and resultantly the said mutation would have no adverse effect on
their title. The concurrent findings of facts arrived at by the learned dial
and Appellate Courts that Mst. Faiz is daughter of Noor Muhammad cannot be
reversed without sufficient lawful justification which is lacking in this case.
Much reliance has been placed on the endorsement of Nawab of Bahawalpur which
we afraid cannot frustrate the object as contemplated in section 2-A of the
Act. Mst. Faiz being daughter of Noor Muhammad shall be governed by Muslim
Personal Law and cannot be deprived of her due share conferred upon her by
Sharia due to previous litigation, point of limitation, earlier mutation or
endorsement of Nawab of Bahawalpur having no sanctity of law.
7. The judgment impugned being free from any illegality or
infirmity does not warrant interference. The petition being meritless is
dismissed and leave refused.
S.A.K./M-136/SC Leave
refused.
P L D 2009 Lahore
41
Before Syed Hamid Ali Shah, J
FAIZ MUHAMMAD through Legal Representatives and others---Petitioners
Versus
Mst. KHURSHID BIBI---Respondent
Civil Revisions Nos.715 and 716 of 1991, heard on 4th April, 2008.
(a) Qanun-e-Shahadat (10 of 1984)---
----Arts.117 & 120---Pardanashin lady---Onus to
prove---Shifting of onus--- Scope---Where a party wants to derive benefit from
transaction, where a Pardanashin lady is a party, in such a transaction it is
for opposite party to prove that such lady actually entered into transaction
and consented to sanction of mutation---Onus is never static and shifts during
trial.
Janat Bibi v. Sikandar Aliand others PLD 1990 SC 642 rel.
(b) Onus---
----Onus is never static and shifts during trial.
(c) Specific Relief Act (I of 1877)---
----S. 42---Declaration of title--Pardanashin
lady---Identification---Judgment at variance---Plaintiff ladies claimed to be
owners in possession of suit-land and assailed mutations of sale on ground of
those being a result of fraud and collusion---Trial Court dismissed the suit
but Appellate Court allowed the appeal and decreed the suit in favour of
plaintiffs---Validity---Statements of two prosecution witnesses and one defence
witness, negated the story of presence of ladies at the time of sanction of
mutation in question--Lumberdar or local councilor was not called to identify
plaintiffs---Absence of any close relative at the time of attestation of
mutation to identify vendors, supported the stance of plaintiffs that mutations
in question were attested through impersonation---Alleged sale consideration
was paid without receipt and defendant stated that whole amount of sale
consideration was paid at the time of sanction of mutation but mutation proved
otherwise---Mutation mentioned that it was sanctioned for consideration without
indicating that amount was paid at the time of sanctioning of mutation---No
witness of defendant came forward to state in witness box that the
consideration was paid in his presence at the time of attestation of mutation
in question---Defendant neither produced Fard Patwar nor Pert Sarkar and had
admitted that Roznamcha Waqiatti was also not available---In absence of
relevant material record of Revenue Department, veracity and genuineness of
mutation in question could not be established---No instance of misreading or
non-reading of evidence was found in judgment passed by Lower Appellate Court
and was free from any illegality or infirmity and did not call for interference
in exercise of revisional jurisdiction of High Court.
Noor Muhammad v. Sarwar Khan PLD 1985 SC 124; Mst. Raj Bibi and
others v. Province of Punjab through District Collector, Okara and 5 others
2001 SCMR 1591; Wali and 10 others v. Akbar and 5 others 1995 SCMR 284; Walyat
v. Mst. Kaneez Fataima 1994 MLD 1955; Muhammad Akram and another v. Altaf Ahmad
PLD 2003 SC 688; Director Food, N.-W.F.P. and another v. Messrs Madina Flour
and General Mills (Pvt.) Ltd. PLD 2001 SC 1 and Abdul Hameed and 14 others v.
Abdul Qayyum and 16 others 1998 SCMR 671 ref.
(d) Specific Relief Act (I of 1877)---
----S.42---Limitation Act (IX of 1908), S.18 & Arts.92 &
93---Declaration of title---Limitation---Fraud and misrepresentation---Land
owned by Pardanashin ladies was allegedly sold in favour of defendant and
mutation of sale was attested in year, 1974---Contention of defendant was that
suit filed in year, 1987, assailing mutation attested in year, 1974, was barred
by limitation- Validity---Mutation in question was effected through fraud and
misrepresentation and was a void transaction---Pradanashin ladies, who were
ignorant, weak and infirm, could not be deprived of their valuable rights on
the basis of transaction which was improbable and unnatural---Such transaction
did not attract provisions of Limitation Act, 1908, and could be challenged and
period to challenge such transaction had to run from the date of knowledge of
such transaction---Suit filed within three years of knowledge of fraudulent
transaction was within time.
(e) Civil Procedure Code (V of 1908)---
----S. 115 & O.XLI, R.27---Revisional jurisdiction of High
Court---Additional evidence, producing of---Principle---During pendency of
revision before High Court application was filed for permission to produce
additional evidence---Validity---Document sought to be produced in additional
evidence was available with petitioners and was not produced at the time of
recording of evidence---Permission of such document at the time when adverse
order had been passed against petitioners could not be allowed at belated
stage---Application was dismissed in circumstances.
Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and
others PLD 2003 SC 849 and Muhammad Yousaf v. Mst. Maqsooda Anjum 2004 SCMR
1049 rel.
Syed Hamid Ali Mir for Petitioners.
Islam Ali Qurashi for Respondent.
Date of hearing: 4th April, 2008.
JUDGMENT
SYED HAMID ALI SHAH, J.---Through this common judgment,
Civil Revision No.716-D-1991 and Civil Revision No.715 1991, being on identical
subject matter, are decided together.
2. Respondent Mst. Khurshid Bibi, through instituting suit against
the petitioners, sought declaration to the effect that she is owner in
possession of the suit land and that Mutation No.91, sanctioned on 16-12-1974,
is the result of fraud and collusion. The suit was contested by the defendants,
who controverted the assertions of the plaint and raised various preliminary
objections. Learned trial Court, framed 8 issues, out of the divergent
pleadings of the parties, recorded evidence and on conclusion of the trial,
dismissed the suit vide judgment and decree dated 05-05-1991. On appeal, the
judgment and decree of learned trial Court was reversed and through appellate
decree dated 10-12-1991, the suit was decreed, in favour of the plaintiff
(respondent herein). Hence this revision petition against the judgments at
variance.
3. The connected Civil Revision No.715-1991 has the similar facts
and law point. Mst. Barkat Bibi instituted the suit, sought declaration and
assailed Mutation No.90 sanctioned on 16-12-1974 before the civil Court and her
suit was dismissed vide judgment and decree dated 5-5-1991.On appeal, the
judgment was reversed and the suit was decreed vide appellate decree dated
10-12-1991.
4. The case of the respondent is that she, being an absentee and
parda nashin lady, kept receiving share of produce of her land from her tenant
(petitioner No.2). She has defied that she sold her land vide mutation No.91,
dated 16-12-1974 and claimed that the petitioners, in connivance with marginal
witnesses, manoeuvred a fake sale through impersonation. The respondent has
denied that she ever sold her property to the petitioners, through impugned
mutation, against the consideration of Rs. 40,000.
5. The petitioners, on the other hand, have emphasized that they
purchased land in dispute against the consideration of Rs.40,000 and at the
time of mutation, she was identified by Sher Muhammad and Safdar Ali, while
Jehangir, the real brother of vendor, was present at the time of mutation. The
possession was delivered to the vendees, after completion of the sale.
6. Learned counsel for the petitioners has contended that the lower
appellate Court has not comprehended the question of limitation. The plaintiff
had asserted in the plaint that she came to know about the impugned mutation,
two years prior to the filing of the suit and the suit was filed on 29-9-1987.
It was vehemently contended that no specific date was mentioned as to the
knowledge of sale and thus, there remains no justification for assuming the
date of knowledge. Each day's delay has to be explained and such exercise is
possible only, when a specific date is mentioned in the pleading. In the
absence of any specific date, period of limitation cannot be computed. Learned
counsel has placed reliance on the case of "Noor Muhammad v. Sarwar
Khan" (PLD 1985 SC 124). Learned counsel has further submitted that the
respondent, her sister and her mother, sold their land through Registered Deed
No.798 dated 18-6-1978 (Exh.D-2), wherein it has been incorporated that the vendors
have sold their entire land in the village. Learned counsel has added that the
vendors have admitted the earlier sale, in favour of the petitioners.
Similarly, another sale-deed was registered on the same day, with regard to the
land in dispute. It was urged that it is beyond comprehension that another sale
registered, on the same day, was not in the knowledge of the respondent.
Learned counsel went through Para 14 of the judgment of learned trial Court and
submitted that it was rightly observed by the trial Court and that, at the time
of sale of property through Exh.D-D-2, getting a copy of Fard Malkiat is a
necessary requirement. There is no reason that the respondent remained unaware
of the sale of their land through impugned mutation. It was emphasized that
finding of learned trial Court, has not been considered and discussed by the
appellate Court.
7. Learned counsel for the respondent, on the other hand, has
submitted that the mutation of sale, was incorporated without specific mention
of actual nature of transaction between the parties and the terms of sale.
Learned counsel has referred to the statement of DW-1, who had deposed that
mutation was entered on 14-2-974 and was sanctioned on 16-12-1974. No
justification for delay has been brought on record that why the attestation of
mutation was delayed for 10 months. The delay gives rise to the suspicion that
the period of 10 (ten) months was consumed to play fraud with parda nashin
ladies. Learned counsel has submitted that mutation is always entered at the
instance of vendor, but Abdur Razzaq, Patwari (D.W.2) has admitted that
mutation was entered at the request of Faiz Muhammad (vendee). Learned counsel
has pointed out that DW-2 has stated that vendor's thumb-impression is taken in
routine on Fard Patwar but he admitted that he had not brought Pert Patwar and
Pert Sarkar with him. The witness has stated that the mutation was entered at
the site, while other witnesses have stated that mutation was entered at the
`Dera' of Babu Muhammad Hussan. The witness then changed his stance and stated
that mutation was entered at Patwar Khana of Abdur Razzaq. The witness has
admitted that he had not brought with him and that Mst. Khurshid Bibi, was not
known to him and according to him, was a pardanashin lady. He has also stated
that he cannot state with certainty that the one who appeared before him, was
Khurshid Bibi, but he was told that Khurshid Bibi appeared before him, at the
time of attestation of mutation. Learned counsel then went through the
statement of Sardar Ali (DW-3), who admitted that he was not the resident of
the village. Khurshid Bibi was wearing Burqa and at the time of attestation of
mutation, her brother was not present. He has also admitted that Umar Wadda was
Lamberdar and he had not appeared as witness. Learned counsel has submitted
that DW-3 is identifier and has admitted having no visiting terms, with the
vendor at her house and was unaware of her residence. He had shown ignorance
about the sale consideration and admitted that he was not present at the time
of bargain. Learned counsel went on to appraise the evidence of Faiz Muhammad
(D. W.4) and submitted that according to his statement, sale consideration was
paid in presence of Sher Muhammad and Jehangir. Jehangir did not appear as a witness,
while Sher Muhammad has stated that mutation was sanctioned three days after
it's entry. Learned counsel has referred to section 42(7) of Land Revenue Act
and submitted that the witnesses who appeared to support the mutation, do not
fall within the categories of witnesses, as is required under subsection (7) of
the above provision. Learned counsel has submitted that name of Sher Muhammad
was added subsequently in Exh.P-I and at it's back there are thumb impressions.
The names of the persons, who put their thumb impressions, are written below
the thumb impressions, while in the instant case, the names are at the top of
the thumb impressions. Learned counsel has submitted that the objection of the
petitioners regarding limitation, has already been answered by the apex Court
in a case of Mst. Raj Bibi and others v. Province of Punjab
through District Collector, Okara and 5 others 2001 SCMR 1591, which has
identical facts. Learned counsel, to further support his contention that his
case is within limitation, has referred to the cases of Wali and 10 others v.
Akbar and 5 others 1995 SCMR 284 and Walyat v. Mst. Kaneez Fataima 1994 MLD
1955. Learned counsel then referred to the cases of Muhammad Akram and another
v, Altaf Ahmad PLD 2003 SC 688 and Director Food, N.-W.F.P. and another v.
Messrs Madina Flour and General Mills (Pvt.) Ltd. PLD 2001 SC 1 to contend that
fraud vitiates most solemn proceedings.
8. Learned counsel for the respondents, contesting the application
for additional evidence of the petitioners, has submitted that the petitioners
had moved his application, seeking permission to lead additional evidence,
after 6 years, which is not to be entertained. He has placed reliance upon the
case of Abdul Hameed and 14 others v. Abdul Qayyum and 16 others 1998 SCMR 671,
in support of this contention.
9. Heard learned counsel for the parties and record perused.
10. Barkat Bibi and Khurshid Bibi, who have specifically asserted in
their suits/plaints that they are pardanashin ladies, living permanently in District
Kasur, far away from the land in dispute and that they have not appeared before
the Revenue Officer for sanction of the impugned Mutations Nos.90 and 91 dated
16-12-1974. Issue No.1 was stuck in this regard and while framing the issue,
learned trial Court placed onus of proof of this issue, on the
plaintiff/respondent instead of defendants/petitioners. Learned appellate
Court, while passing the impugned judgment and decree, has observed that, where
a party wants to derive a benefit from the transaction, where a Parda Nashin
lady is a party, in which transaction, then it is for the opposite party to
prove that the Parda Nashin lady actually entered into transaction and
consented to the sanction of mutation. Lower appellate Court was right in
observing so. Onus is never static and shifts during trial. While holding so, I
am fortified by the dictum of Hon'able Supreme Court in the case of Janat Bibi
v. Sikandar Ali and others PLD 1990 SC 642.
11. The respondents/plaintiffs have claimed that they are Parda
Nashin ladies and the petitioners, through impersonation, produced some one
else, in their place, to effect mutation in the revenue record and got it
sanctioned. The factum of their being Pardanashin ladies, is evident from the
statement of D.W.3, who deposed that Khurshid Bibi was covered in veil and her
brother was not accompanying her. Two persons have identified these
ladies/vendors namely Sardar Ali son of Mian Muhammad Kharal (D.W.3) and Ghulam
Rasool son of Noor Muhammad. Ghulam Rasool appeared as P.W.3 and stated that he
does not know Mst. Khurshid Bibi/Barkat Bibi. He has totally denied the
identification of Mst. Khurshid Bibi, at the time of attestation of mutation.
He has also denied that he appeared before the Tehsildar or Patwari to identify
Mst. Khurshid Bibi. Sher Muhammad son of Jamal Din appeared as P.W.2 and
categorically stated that he has not identified the plaintiff. D.W.3 Sardar Ali
was admitted that vendor was not known to him and it was Faiz Muhammad, the
vendee, who had informed him that lady clad in Burqa, is the vendor. D.W.3 has
shown total ignorance about the children of vendor, name of her husband and
place of her residence.
12. The statements of P.W.2, P.W.3 and D.W.3 negate the story of
presence of the ladies at the time of sanction of mutation, as put forth by
Faiz Muhammad. The Lumberdar or a local councillor was not called to identify
her. The absence of a close relative at the time of attestation of mutation to
identify the vendors, supports the stance of the respondents that the impugned
Mutations Nos.90 and 91 were attested through impersonation.
13. Admittedly, the alleged sale consideration was paid, without
receipt thereof. D.W.4 Faiz Muhammad (vendee), has stated that the whole amount
of the sale consideration, was paid, at the time of sanction of the mutation,
but the mutation speaks otherwise. It. is incorporated in the mutation that it
is sanctioned for consideration of Rs.40,000, without mentioning that this
amount was paid at the time of sanctioning of the mutation. No. witness of the
defendant, came forward to state in the witness box that the sale consideration
was paid in his presence, at the time of attestation of the mutation. DW-2 has
neither produced Fard Patwar nor Pert Sarkar. He has admitted that Roznamcha
Waqiati is also not available. In the absence of material record of Revenue
department, the veracity and genuineness of the impugned mutation, has not been
established.
14. Now I will advert to
the question of limitation. Respondents have challenged mutation dated
16-12-1974 through filing suit on 29-9-1987. The suit has been filed, after 12
years, 9 months and 14 days of the attestation of the impugned mutation. The
respondents have justified the delay on the plea that the property in dispute
was in possession of the tenant Mehr Hazar Khan, who had been paying them share
of produce. Mehr Hazar Khan is now, through another sale, in possession of a
part of the property, being beneficiary of impugned sale, who had kept the
respondents in dark about the impugned mutation. This aspect cannot be ignored.
The suit was filed within three years of the disclosure of the fraudulent
transaction of alienation of the land of the respondents, through the impugned
mutations.
15. The petitioners, on the other hand, have asserted that sanction
of impugned mutations was in the knowledge of respondent, as they appeared
before Revenue Officer at the time of attestation. They had admitted in sale
deed (Exh.D-2) that they have sold their entire land in the village and that at
the time of sale through registered deed they had procured Fard from Patwari.
The had not filed the suit within the period of limitation, which was rightly
dismissed by the trial court.
16. I am not convinced with the stance of learned counsel for the
petitioners that the respondents had the knowledge of sale for various reasons.
Firstly, the vendors are Parda Nashin ladies, they are illiterate and have put
their' thumb impressions on various documents. They have no capacity or
understanding about the contents of registered sale deed. Secondly, Exh.D-2 was
executed through their special attorney and not by the vendors themselves. They
sale, through attorney, justifies the ignorance of the vendors about the
impugned mutation.
At this stage, reference to the case of Mst. Raj Bibi (supra),
requires specific mention, where two illiterate women were deprived of their
land and the purported sale, which was held valid by the courts, ignoring that
they were not identified by their close relatives and were residing in
different villages; sale consideration was not paid before the Tehsildar, at
the time of attestation of the impugned mutation nor the sale was incorporated
in Patwari's record; Roznamcha Waqiati did not bear the thumb-impressions of
two women, was held a fraudulent transaction and the apex Court, observing that
fraud vitiates most solemn proceeding or transaction. Such transaction, which
is based on fraud, is void. Notwithstanding the bar of limitation, such matters
can be considered on merits, so as not to allow fraud to perpetuate. The facts
and circumstances of the case in hands, are identical to the case of Mst. Raj
Bibi (supra) and the same are required to be treated in the same manner. The
impugned mutation effected through fraud and misrepresentation, is a void
transaction. Parda Nashin ladies, who are ignorant, weak and infirm, cannot be
deprived of their valuable rights on the basis of a transaction, which is
improbable and unnatural. Such transaction does not attract the provisions of
Limitation Act and can be challenged and the period to challenge such
transaction, runs from the date of knowledge of such transaction. The suit was
filed within three years of the knowledge of the fraudulent transaction, thus,
it was within time and rightly held so by the appellate Court.
17. An application has statedly been filed for permission to
produce additional evidence. The documents, sought to be produced in additional
evidence, was available with the petitioners. It was not produced at the time
of recording of evidence and it's permission is sought, at the time when an
adverse order has been passed against the petitioners. Thus, such document
cannot be allowed at this belated stage. It has been held by the apex Court in
the case of Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and
others PLD 2003 SC 849 and Muhammad Yousaf v. Mst. Maqsooda Anjum 2004 SCMR
1049 that an unsuccessful party cannot be allowed to adduce additional evidence
at belated stage.
18. For the foregoing, no instances of misreading or non-reading of
evidence, is found in the impugned judgments. They are devoid of any illegality
or infirmity and do not call for interference in the revisional jurisdiction of
this Court. These petitions have no force or merit and are accordingly dismissed,
with no orders as to the costs.
M.H./F-29/L Petitions
dismissed.
2010 S C M R 1358
[Supreme Court of Pakistan]
Present: Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ
MUHAMMAD SAEE---Petitioner
Versus
Mst. SHARAF ELAHI and another---Respondents
Civil Petition No. 1565-L of 2007, decided on 7th April
2010.
(Against the judgment dated 13-9-2007 passed by the Lahore High
Court, Lahore
in C.R. No. 1696 of 2007).
(a) Specific Relief Act (I of 1877)---
----S.42---Qanun-e-Shahadat (10 of 1984), Arts. 117 &
120---Constitution of Pakistan (1973), Art.185(3)---Transaction of exchange and
gift-Onus to prove---Illiterate, Pardahnashin lady---Effect---Plaintiff was an
illiterate and Paradahnashin lady who assailed mutation of exchange and gift
attested in favour of defendant on the ground of fraud---Trial Court decreed
the suit in favour of plaintiff and judgment and decree was maintained by Lower
Appellate Court as well as by High Court---Validity---On the time and day of
attestation of mutations in question, plaintiff was alone with defendant and
when she went to bank, she was again alone with defendant---Plaintiff did not
have any advice from any male member as depicted from evidence on
record---Defendant was beneficiary of transaction in question, therefore, it
was his duty and obligations to prove beyond any shadow of doubt that
transactions were executed in accordance with law---Defendant failed to prove
that consideration was passed on to plaintiff and also failed to prove the case
in terms of dictum laid down with regard to illiterate ladies in judgments
passed by Supreme Court---Defendant wanted to deprive poor illiterate and old
lady from her valuable land, therefore, Supreme Court declined to exercise its
discretion in his favour--- Leave to appeal was refused.
Ghulam Ali's case PLD 1990 SC 1 and Muhammad Shafi's case PLD 1986
SC 519 rel.
(b) Constitution of Pakistan (1973)---
----Art. 185 (3)---Jurisdiction of Supreme
Court---Scope--Interference in judgments passed by Courts
below---Principle---As ultimate Court in the land, Supreme Court, as a rule,
should give due weight and consideration to opinion of courts below and in
particular to opinion of court of first instance' which had the advantage of
hearing the parties, witnesses and watching their demeanour---Generally,
Supreme Court does not interfere with findings of fact recorded by primary
courts or a High Court when it is satisfied that findings of courts below are
on the whole reasonable and are not arrived at by disregarding any provision of
law or any accepted principle concerning appreciation of evidence--Jurisdiction
is not maintainable against concurrent findings of fact recorded by courts
below while exercising power under Art.185(3) of the Constitution---Such
jurisdiction is always discretionary in character and he who seeks equity must
come with clean hands.
Jahangir A. Jhoja, Senior Advocate Supreme Court for Petitioner.
Shahzad Shaukat, Advocate Supreme Court and Ghulam Farid Sanotra,
Advocate Supreme Court for impleaded Respondents.
Nemo for Respondents 1 - 4.
ORDER
CH. IJAZ AHMED, J.-- Necessary facts out of which the
present petition arises are that respondent No.1/plaintiff Mst. Sharaf Elahi
wife of Doost Muhammad filed a suit for declaration in the Court of Civil
Judge, Depalpur, District Okara against Muhammad Afzal, Muhammad Aslam, Noor
Ahmed respondents Nos.2 to 4/defendants and Muhammad Saeed
petitioner/defendant. Respondent No.1/plaintiff sought a decree for declaration
with permanent injunction to the effect that she is the owner in possession of
land measuring 23 kanals, 13 marlas and Mutations Nos.632 to 634 i.e. on the
basis of exchange and hibba be declared as in-effective on the rights of the
respondent No.1/plaintiff and result of fraud. The contents of the plaint
further reveal that the respondent No.1/plaintiff is an old, aged and
illiterate lady and respondent Nos.2 to 4 were his close relatives. The
contents of plaint further reveal that suit property was mortgaged with the Agricultural
Development Bank and for redumption of the property and repayment of the amount
to the Bank, she requested respondent Nos.2 to 4 to accompany her, so she could
make good the payment but they committed fraud with her in connivance with the
officials of the revenue department. The suit was contested by
petitioner/defendant No.3 only whereas respondents Nos.2 and 3/defendants Nos.1
and 2 were proceeded against ex parte whereas respondent No.4/defendant was
only a pro forma defendant. Petitioner/defendant No.3 filed written statement,
controverted the allegations levelled in the plaint. Out of the pleadings of
the parties, trial Court framed six issues and thereafter recording the
evidence and hearing the learned counsel for the parties, decreed the suit vide
judgment and decree dated 18-5-2005. Petitioner being aggrieved filed appeal in
the Court of Additional District Judge, Depalpur which was dismissed vide
judgment dated 30-8-2007. Petitioner being aggrieved filed Civil Revision
No.1696 of 2007 in the Lahore
High Court which was also dismissed vide impugned judgment dated 13-9-2007.
Hence, this petition.
2. Learned counsel for the petitioner submits that all the three
learned Courts below have not considered material evidence produced by the
petitioner/defendant, that it was specifically pleaded in the written statement
that Mutations Nos.632 to 634 dated 17-12-1996 were bona fide transactions and
were duly attested by the concerned revenue officers i.e. Niaz Ahmed Dogar Naib
Tehsildar who appeared as D.W.3 and Manzoor Ahmed Ex-Patwari who appeared as
D.W.5 and that the learned Courts below without even considering these material
pieces of evidence decreed the suit. He further urges that all the Courts below
had mis-read the evidence of Muhammad Afzal (D.W.7), Haji Khalid (D.W.8) and
Ghulam Dastgir (D.W.9).
3. The learned counsel for the respondents has supported the
impugned judgment.
4. We have given our anxious consideration of learned counsel for
the parties and perused the record. The material issues are issues Nos.1 and 4
which are reproduced hereunder:--
(1) Whether the exchange Mutation No.632 dated 17-12-1996 and
subsequent mutation on the basis of above said mutation i.e. Mutation No.633
dated 17-12-1996 and Mutation No.634 dated 17-12-1996 are product of fraud and
forgery, collusive, in-effective qua the rights of plaintiff and liable to be
cancellation? OPP
(4) Whether defendant No.3 is bona fide purchaser of suit land? OPD
5. The first appellate Court had decided both the issues jointly as
evident from paras 6 and 7 of the judgment. The first Appellate Court had
re-examined the evidence on record in depth keeping in view all the principles
of analyzing the evidence on record. The findings recorded in paras 6 and 7
depict that the first appellate Court had re-examined the evidence on record
minutely and thereafter upheld the findings recorded by the trial Court on the
said issues. It is an admitted fact that respondent/plaintiff is an aged, old
and illiterate lady. It is also admitted fact on record that on the time and
day of attestation of mutations i.e. on 17-12-1996, she was alone with the
respondents Nos.2 to 3 and petitioner/defendant. It is also an admitted fact
that when respondent/plaintiff went to the Agricultural Bank, she was alone
with the defendant Nos.2 to 3 and petitioner. The respondent No.1/plaintiff did
not have any advice from any male member as depicted from the evidence or
record. The petitioner is beneficiary of the transactions in question,
therefore, it is the duty and obligations of the petitioner/defendant to prove
beyond any shadow of doubt that the transactions were executed in accordance
with law. The petitioner/defendant had failed to prove that consideration was
passed on to the plaintiff. The petitioner/defendant has failed to prove the
case in terms of dictum laid down with regard to the illiterate ladies in
Ghulam Ali's case PLD 1990 SC 1. Similarly, petitioner/defendant has failed to
prove on record that consideration was paid to the respondent/plaintiff in
terms of law laid down by this Court in Muhammad Shafi's case PLD 1986 SC 519.
6. We are perfectly conscious that as ultimate Court in the land,
the Supreme Court, as a rule, should give due weight and consideration to the
opinion of the Courts below and in particular to the opinion of the Court of
first instance which had the advantage of hearing the parties, witnesses and
watching their demeanour. Generally, this Court does not interfere with the
findings of fact recorded by the primary Courts or a High Court when it is
satisfied that the findings of the Courts below are on the whole reasonable and
are not arrived at by disregarding any provision of law or any accepted
principle concerning the appreciation of evidence. This would be
notwithstanding that a different view might also be possible meaning thereby
this Court would not normally go behind the concurrent findings of fact
recorded by the Courts below, unless it can be shown that the finding is on the
face of it against the evidence or so patently improbable, perverse that to
accept it could amount to perpetuating a grave miscarriage of justice, or if
there has been any misapplication of a principle relating to appreciation of
evidence, or, finally, if the finding could be demonstrated to be physically
impossible. This being the practice and the rule of the Court in civil appeals,
the burden lies rather heavily on the petitioner to show that the concurrent
findings recorded by the High Court are not sustainable on the record and
should be interfered with by us.
7. In the case in hand, we have also re-examined the evidence on
record with the assistance of the learned counsel for the parties. We could not
find any infirmity or illegality while rendering finding of fact by the first
Appellate Court after re-appraisal of evidence in paras 6 and 7 of the judgment
which was approved by the learned High Court in the impugned judgment. It is a
settled law that constitutional jurisdiction is not maintainable against the
concurrent findings of fact recorded by the Courts below while exercising power
under Article 185(3) of the Constitution. It is also a settled law that
constitutional jurisdiction is always discretionary in character. He who seeks
equity must come with clean hands. Keeping in view the conduct of the
petitioner as highlighted by all the Courts below while rendering finding of
fact against the petitioner that petitioner wanted to deprive poor illiterate
and an old lady from her valuable land, therefore, we are not inclined to
exercise our discretion in favour of the petitioner.
8. The upshot of the whole discussion in that we find no merit in
this petition which is dismissed. Leave refused.
CMA No.250-L/2009:--As the main petition has been dismissed,
therefore, this application has become infructuous.
M.H./M-30/SC Petition
dismissed.
2010 Y L R 3101
[Lahore]
Before Ijaz-ul-Ahsan, J
MUHAMMAD RIZWAN QURESHI---Appellant
Versus
SHEHNAZ AKHTAR---Respondent
F.A.O. No.19 of 2010, decided on 10th June, 2010.
(a) Specific Relief Act (I of 1877)---
----S. 12---Civil
Procedure Code (V of 1908), O. XXXIX, Rr.1, 2---Suit for specific performance
of agreement and interim injunction---Plaintiff filed suit for specific
performance of agreement to sell on the ground that defendant had executed
agreement to sell in respect of disputed property and had received a sum of
Rs.3,000,000 out of consideration amount of Rs.3,200,000 and possession of
property had also been delivered---Plaintiff also filed an application under
O.XXXIX, Rr.1, 2, C.P.C. for the grant of interim
injunction---Defendant contested suit and denied execution of alleged agreement to sell and stated
that plaintiff was her tenant in possession of disputed property and she had
received a sum of Rs.100,000 by way of lease
money---Trial Court dismissed application for grant of temporary injunction---Contention raised by the plaintiff was
that pursuant to the agreement to sell, defendant had received an additional
sum of Rs.100,000 through
cheque---Validity---Defendant was an old, illiterate and parda observing
lady---Defendant had specifically denied having executed agreement to sell or
having received any sum by way of sale
consideration from the plaintiff---Receipt of
a sum of Rs.100,000 had
adequately been explained as lease money from the plaintiff who was admittedly
in possession as a tenant which was evident from copies of the revenue record---Plaintiff had neither managed to
establish a prima facie case nor was able to convince that he would suffer
irreparable loss in case the injunction was
not granted in his favour---High Court dismissed the appeal against order
denying the injunction and observed that remarks made in the order were of tentative nature which should not prejudice
final decision of the suit.
(b) Civil Procedure Code (V of
1908)---
----O. XXXIX, Rr.1,
2---Interim injunction---Essentials---In order to be entitled for interim
relief, the claimant must establish all three ingredients for the grant of
interim relief in his favour.
(c) Qanun-e-Shahadat (10 of
1984)---
----Art. 84---Agreement to
sell---Denial of execution---
Comparison of thumb
impression---Dismissal of application
for---Prejudice---Plea of---Effect---Contention that application for comparison
of thumb impression was not decided
by Trial Court, had prejudiced case of the
party---Suit was in its initial stages and the question of genuineness of the
signatures/thumb impression would be decided by the Trial Court after recording
evidence at the appropriate stage---Plea of
prejudice was repelled.
(d) Pardanashin lady---
----Where the executant of a
document was Pardanasheen or illiterate woman, notwithstanding the fact that
she was known to the vendee or was a stranger to him, if she denied the
execution of document, the party
placing reliance on such document must prove its execution---Burden of proving the negative fact was shifted
to such a woman, executant, if the initial burden of proving the genuineness of
document was discharged.
(e) Pardanashin lady---
----Identification of an
illiterate or Pardanasheen woman, vendor, must be established beyond doubt and
court must be vigilant in taking extra care to ascertain the genuineness of a
registered document which was alleged to have been executed by an illiterate or
parda observing lady.
Abdul Hameed through L.Rs. and others v. Shamsuddin and others PLD
2008 SC 140; Khawas Khan v. Sabir Hussain Shah 2004 SCMR 1259; Ghulam Muhammad
v. Farooq Ahmed and others 2002 SCMR 1801 and Arshad Khan v. Mst. Reshman Jhan
and others 2005 SCMR 1589 rel.
(f) Document, execution of---
----Document purporting to create a right in the property must be
proved to have been actually executed by a person, who allegedly executed such
document; however if the executant was an illiterate person and without being
aware of the contents of the document, put his/her thumb impression on it at
the instance of a third party, even an admission of such thumb impression would not ipso facto raise a
presumption of its being a genuine
document.
Abdul Hameed v. Mst. Aisha Bibi and another 2007 SCMR 1808 rel.
Taki Ahmad Khan for Appellant.
Syed Faiz ul Hassan for Respondent.
ORDER
IJAZ-UL-AHSAN, J.---The appellant filed a suit against the
respondent alleging that the respondent was owner of land measuring 17 Kanals,
13 Marlas situated in Mauza Sharam Kot Tehsil Pasrur District Sialkot. The land
in question had devolved upon the respondent as legal heir of her mother Mst.
Kaneez Fatima, deceased. It was alleged in the plaint that the respondent had
executed a written agreement to sell with the appellant on 17-7-2009. Through
the said agreement, she allegedly agreed to sell the aforesaid property to the
appellant in consideration of Rs.32,00,000. It was averred in the plaint that
the respondent had received a sum of Rs.30,00,000 in cash in the presence of
marginal witnesses of the agreement and had agreed to execute a sale-deed on
receipt of the balance amount of Rs.200,000 before 10-11-2009. It was also
stated that the appellant had been put in possession of the suit property. It was
further maintained that pursuant to the agreement to sell, the respondent had
also received an additional sum of Rs.100,000 through a cheque. The appellant
thereafter went to Pasrur Court
premises for execution and registration of the sale deed and waited for the
respondent. She did not turn up and subsequently, on being approached, refused
to execute the sale-deed.
2. The respondent contested the suit and raised legal as well as
factual objections. She specifically denied execution of the alleged agreement
to sell or receipt of sale consideration as alleged. It was contended that she
was an illiterate, old and Parda-observing lady. The land in question is
situated at Pasroor while she resides at Rahim Yar Khan, with her husband. She
alleged that the appellant was her tenant, he was in possession as tenant and
she had received a sum of Rs.100,000 by way of lease money. Since the said
amount was paid through cheque, the same was fraudulently being shown as part
payment of the sale consideration in order to deprive her of her property,
fraudulently and illegally.
3. After hearing the learned counsel for the parties and going
through the record, the learned trial Court rejected the application filed by
the appellant for temporary injunction.
4. The learned counsel for the appellant submits that the findings
of the learned trial Court that the appellant had not made any payment through
the bank is falsified by the photocopy of the cheque received by the respondent
in her bank. He further submits that appellant's prayer for comparison of
signature/thumb-impression of the respondent was not decided by the learned
trial Court, which has denied him the right to prove the genuineness of the
document. He argues that the appellant is a co-sharer in the Khata and any alienation
by the respondent in favour of the stranger would lead to unending litigation
between the parties.
5. The learned counsel for the respondent has contested the
assertions made by the learned counsel for the appellant. He submits .that the
agreement to sell is yet to be proved. Further, there is no evidence on record
that how and by what mode a huge sum of Rs.30,00,000 was paid to the
respondent. He points out that admittedly the property is situated in Pasroor
while the respondent permanently resides at Rahim Yar Khan. He has drawn my
attention to the stamp paper on which the alleged agreement to sell was
written. He points out that the same was purchased from Lahore, for which no plausible explanation is
forthcoming and raises serious doubts about the genuineness of the agreement.
He further submits that payment of Rs.100,000 through cheque is being cleverly
misinterpreted to create an impression that the said amount was paid toward
part payment of the sale consideration, which is patently incorrect. He submits
that the suit is patently fraudulent and an attempt to deprive a simple
illiterate lady of the property that had been inherited by her.
6. I have heard the learned counsel for the parties and examined
the entire record. In the first place, in filing the present appeal, the
mandatory provisions of Order XLIII Rule 3, C.P.C. have not been complied with.
Nothing has been produced on record to indicate that a notice of filing of this
appeal was sent to the respondent. The learned counsel for the respondent has
drawn my attention to copy of the notice that was allegedly sent to the
respondent. Strangely enough, it is addressed to the appellant. The agreement
to sell on the basis of which the suit in question has been filed, is yet to be
proved. There is no explanation available on record regarding purchase of the
stamp paper at Lahore
while the parties reside at Pasroor/Rahim Yar Khan. It is also open to question
as to how a sum of Rs.30,00,000 was paid by the appellant to the respondent in
cash without obtaining a any receipt or other document indicating such payment.
The assertion that the payment of Rs100,000 was made through cheque in the
account of the respondent and the said fact should form basis of establishing
that she has received a sum of Rs.30,00,000 neither sounds logical nor appeals
to reason. It is hard to understand why the payment of Rs.100,000 was made
through a cheque while a much higher amount i.e. Rs.30,00,000 was paid to an
old and illiterate lady without even obtaining a receipt. On the contrary the
explanation that the aforesaid amount of Rs.100,000 constituted the lease
payment, appears to be more logical and reasonable. The arguments advanced by
the learned counsel for the appellant that the application of the appellant for
comparison of the thumb-impression of the respondent was not decided and
therefore, his case has been prejudiced, does not carry much weight. It is
obvious that the suit is in its initial stages and the question of genuineness
of the signatures/thumb-impression would be decided by the learned trial Court
after recording evidence at the appropriate stage.
7. On perusal of the record, I find that the appellant neither
managed to establish a prima faice case nor was he able to convince me that he
would suffer irreparable loss in case the injunction was not granted in his
favour. Even otherwise, the appellant is adequately protected by the principle
of lis pendens in case the property is alienated during pendency of the
litigation. It is settled law that in order to be entitled for interim relief,
the claimant must establish all three ingredients for grant of interim relief
in his favour. To my mind the appellant has not been able to establish any one
of the three ingredients for grant of interim relief.
8. There is another aspect of the matter. The respondent is an
illiterate and Parda-observing lady. It is settled law that in case where the
executant of a document is pardanasheen or illiterate woman, notwithstanding
the fact that she is known to the vendee or is a stranger to him, if she denies
the execution of document, the party placing reliance on such document must
prove its execution and the burden of proving the negative fact is shifted to
such a woman, executant, if the initial burden of proving the genuineness of
document is discharged. The identification of an illiterate or paradanasheen
woman, vendor, must be established beyond doubt and Court must be vigilant in
taking extra care to ascertain the genuineness of a registered document which
is alleged to have been executed by an illiterate or Parda-observing lady.
Reference in this regard may be made to Abdul Hameed through L.Rs. and others
v. Shamsuddin and others (PLD 2008 SC 140), Khawas Khan v. Sabir Hussain Shah
(2004 SCMR 1259), Ghulam Muhammad v. Farooq Ahmed and others (2002 SCMR 1801)
and Arshad Khan v. Mst. Reshman Jhan and others (2005 SCMR 1589).
9. It has further been held that a document purporting to create a
right in property must be proved to have been executed by a person, who
allegedly executed such document. If the executant was an illiterate person and
without being aware of contents of the documents, put his/her thumb impression
on it at the instance of a third party, even an admission of such thumb
impression would not ipso facto raise a presumption of its being a genuine
document. Reliance in this regard may be placed on Abdul Hameed v. Mst. Aisha
Bibi and another (2007 SCMR 1808).
10. Admittedly, the respondent is an old, illiterate and Parda
observing lady. She has specifically denied having executed the agreement to
sell or having received any sum by way of sale consideration from the
appellant. The receipt of a sum of Rs.100,000 has adequately been explained as
lease money from the appellant, who is admittedly in possession as a tenant.
This is evident from copies of the revenue record, which have been examined by
me. In view of these facts and circumstances, I find that the learned trial
Court has rightly concluded that the case for grant of interim relief was not
made out.
11. There is no misreading or non-reading of evidence. The learned
counsel for the appellant has not been able to show any illegality or material
irregularity in the order passed by the learned subordinate Court. It is noted
that the learned subordinate Court has correctly appreciated and appraised the
relevant facts and circumstances of the case and applied the correct principles
of law to the same.
12. For the aforesaid reasons, this appeal is found to be without
substance and it is accordingly dismissed. It is, however, clarified that all
observations made in this order are of a tentative nature only. These shall not
prejudice the final decision of the suit, which will be decided by the learned
trial Court on merits in accordance with law and on the basis of the evidence
before it.
H.B.T./M-424/L Appeal
dismissed.
2008 Y L R 122
[Lahore]
Before Sardar Muhammad Aslam, J
Mst. HAYAT KHATOON and 2 others---Petitioners
Versus
ASIF NASRULLAH KHAN and 4 others---Respondents
Civil Revision No.1888 of 2005, Writ Petition Nos. 1404 of 2006,
heard on 13th June, 2007.
(a) Specific Relief Act (1 of 1877)---
----S.42---Declaration of title---Principal and attorney
relationship---Concurrent findings of fact by the courts below---Plaintiff
executed general power of attorney in favour of defendant, who, without
permission of plaintiff, transferred suit land in favour of his minor
son---Suit filed by plaintiff was concurrently decreed by Trial Court and
Appellate Court---Validity---Sale made by defendant was in utter violation of
law declared by superior courts and was rightly struck down---Concurrent
judgments and decrees of both the courts below did not call for any
interference in absence of any misreading or non-reading of evidence on
record---Revision was dismissed in circumstances.
Fida Muhammad v. Peer Muhammad Khan, deceased through legal heirs
PLD 1985 SC 341; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR
818 and Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR
1811 rel.
(b) Court Fees Act (VII of 1870)---
----S.7---Constitution of Pakistan (1973), Art.199---Constitutional
petition---Court fee, non-deposit of---Effect---Trial Court decreed the suit in
favour of petitioner and directed her to deposit court fee within thirty
days---Both the courts below, though had declined to extend time for deposit of
court fee but petitioner deposited the court fee stamps---Plea raised by
petitioner was that court fees stamps provided by her be deemed to be
valid---Validity---No consequence was provided in judgment and decree for
failure of petitioner to supply court fee stamp within stipulated period of
time---Matter in regard to recovery of court fee was between litigant and the
exchequer---No prejudice was caused to judgment debtor more particularly when
amount for supply of court fee was deposited---Delay in supply of court fee
stamp was neither wilful nor contumacious and in absence of any condition and
consequence, such delay had not frustrated the decree---Court Fees
Act, 1870, was not to be interpreted strictly to arm litigants with weapon of
technicalities against opponent to frustrate recovery of revenue for benefit of
State---High Court set aside the orders passed by two Court below and declared
that the Court fee stamps provided by petitioner were deemed to be
valid---Petition was allowed accordingly.
Shah Wali v. Ghulam Din alias Gaman and another PLD 1996 SC 983
ref.
Siddique Khan and 2 others v. Abdul Shakoor Khan and others PLD
1984 SC 289; Abdul Quddoos v. Mst. Shabana Parveen and another 1990 MLD 68;
Mst. Ghulam Fatima and 3 others v. Talib Hussain and 3 others 1990 MLD 1782;
Muhammad Aril v. Additional' District and Session Judge Kasur and 2 others 2001
CLC 192; Noor Khan v. Khan Muhammad 2002 CLC 402; Syed Fazar Hussain and others
v. Shaban and others PLD 2004 Lahore 577 and Rahim Khan through legal heirs v.
Habib Khan and another 2004 CLC 1044 distinguished.
Malik Noor Muhammad Awan for Petitioners.
Saif ul Haq Ziay for Respondents.
Date of hearing: 13th June, 2007.
JUDGMENT
SARDAR MUHAMMAD ASLAM, J.---This judgment shall dispose of Civil
Revision No.1888 of 2005 and Writ Petition No.1404 of 2006 as common question
of law and facts are involved.
2. Facts giving rise to this Constitutional petition and Civil
Revision are that two civil suits one for specific performance filed by Ahmad
Khan against Ghulam Qadeer Khan, and other for declaration by Mst. Hayat
Khatoon against Asif Nasrullah etc. were filed with the Civil Court. Both were
consolidated. Issues were framed and evidence was recorded in suit for specific
performance. The learned trial Court dismissed the suit for specific
performance while decreeing that of declaration, directing Mst. Hayat Khatoon
to pay Court fee worth Rs.15,000 within 30 days of the announcement of judgment
dated 20-12-2004. Ahmad Khan and Asif Nasrullah Khan, filed their respective
appeals assailing the judgment and decree of the learned trial Court, while
writ petitioners (decree-holders) filed civil revision assailing the order
dismissing petition for enlargement of time in deposit of Court fee, directed
by the learned trial Court.
3. Learned appellate Court dismissed both the appeals by its
consolidated judgment on 13-6-2005. Civil Revision was also dismissed on
10-6-2005 through an independent order. Asif Nasrullah has filed Civil Revision
challenging the appellate judgment while Ahmad Khan, plaintiff in suit for
specific performance remained satisfied with the judgment of the Courts below.
Decision rendered in revision was assailed in writ petition.
4. Learned counsel for the petitioner in constitutional petition
contends that judgment and decree of the civil Court was not conditional and
did not provide any penal consequence in case of non-deposit of Court fee
stamp, within stipulated period of 30 days, hence his suit otherwise decreed
cannot be dismissed on account of this sheer technicality. He relied on Shah
Wali v. Ghulam Din alias Gaman and another (PLD 1966 SC 983).
5. Learned counsel for
petitioner in Civil Revision (respondent in writ petition) argued that
non-deposit of Court fee stamp within stipulated time will result into
dismissal of suit. He submitted that time once fixed cannot be extended by the
Court. Relied on Siddique Khan and 2 others v. Abdul Shakoor Khan and others
(PLD 1984 SC 289); Abdul Quddoos v. Mst. Shabana Parveen and another (1990 MLD
68); Mst. Ghulam Fatima and 3 others v. Talib Hussain and 3 others (1990 MLD
1782); Muhammad Arif v. Additional District and Sessions Judge Kasur and 2
others (2001 CLC 192); Noor Khan v. Khan Muhammad (2002 CLC 402); Syed Fazar
Hussain and others v. Shaban and others (PLD 2004 Lahore 577) and Rahim Khan
through legal heirs v. Habib Khan and another (2004 CLC 1044).
6. In support of Civil Revision argued that learned Courts below
have erred in not applying correct law on the subject, which has occasioned
injustice. Respondent in Civil Revision (also writ petitioner) argued that
verdict of Courts below in decreeing suit for declaration was in accord with
the well settled law on the subject as General Attorney, Nasrullah Khan
transferred the disputed land in favour of his own minor sons without seeking
permission from the principal.
7. I have considered the submissions of the learned counsel for the
parties and perused the record.
8. Learned trial Court decreed the suit for declaration tiled by
Mst. Hayat Khatoon against Asif Nasrullah and another, etc. beneficiary of the
transaction. Undeniably, Nasrullah was the General Attorney. He transferred
land in favour of his own minor son without adverting to the principle to seek
his permission. Sale, thus, made was in utter violation of law declared in Fida
Muhammad v. Peer Muhammad Khan, deceased through legal heirs (PLD 1985 SC 341);
Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818); and Haji
Faqir Muhammad and others v. Pir Muhammad and another (1997 SCMR 1811) and was
rightly struck down. Concurrent judgments and decrees of both the Courts below
do not call for any interference in absence of any misreading or non-reading.
The civil revision is, thus, dismissed.
9. As far as writ petition is concerned, the petitioner (decree
holder) was directed by the Court to supply Court fee stamp within stipulate
period of 30 days from the date of judgment and decree i.e. 20-12-2004. He,
however; supplied the Court fee on 20-5-2005 of his own without intervention of
the Court.
10. No consequence was provided in the judgment and decree for
failure of the petitioner to supply Court fee stamp within stipulated period of
time. The matter in regard to recovery of Court fee was between litigant and
the exchequer. No prejudice has been cause to the defendant/judgment debtor,
more particularly when amount for supply of Court fee was deposited. Delay in
supply of Court fee stamp was neither wilful nor contumacious, and in absence
of any condition and consequence, will not frustrate the decree in a case of
this nature.
11. Reliance placed by revision petitioner to refuse enlargement of
time on the strength of judgments relied upon in Para No.4 are distinguishable
and apply to the peculiar facts of the case, therein. A brief survey of the
judgments cited are given, hereinafter. Muhammad Arif v. Additional District
and Sessions Judge, Kasur and 2 others supra. A suit for pre-emption was filed.
Application for rejection of plaint under order VII Rule 11 C.P.C. was moved.
The petitioner was directed to make up deficiency within 15 days. He aggrieved
of instituted revision petition, which, too, was dismissed. He did not comply
the order and filed application for extension of time under section 148, C.P.C.
which was dismissed. Order was assailed in Constitutional jurisdiction. It was
held that time can be extended if the Court has control over the lis. After its
disposal, the Court becomes functus officio. Resultantly, time was not
extended.
In Siddique Khan and 2 others supra, the Honourable Supreme Court
observed that an opportunity be granted to the party for payment of Court fee
before taking penal action. It was held that when considering options for
exercise of discretion for grant of time for supply of deficiency in Court
fees, considerations relevant to bar of limitation not to be taken into
account. With exception of one all the case relied upon by the revision
petitioners relates to pre-emption matters. The Honourable Supreme Court has
categorically held in Siddique Khan and others that an opportunity must be
granted before applying penal provisional under Order VII Rule 11 C.P.C.
In Noor Khan Supra, the pre-emption suit was decreed directing
deposit of pre-emption money by a specific date. Time was extended but on
failure to deposit decretal amount the matter went up to the Honourable Supreme
Court, which affirmed the order of dismissal. Thereafter, an application for
extension of time in deposit of pre-emption money was made which, was not
allowed.
Syed Fazar Hussain and others supra, was a case of delay in
depositing sale price. On failure to deposit pre-emption amount in time,
further period was not extended.
In Abdul Quddoos supra, the appellate Court had not granted time
for payment of Court fee, which lay in its discretion, the constitutional
jurisdiction was not exercised.
Riaz Ahmad Mansuri supra, In this case a suit for recovery of
damages under fatal accident was decreed subject to deposit of Court fee for a
specific date failing which the plaint shall stand rejected. It was, in this
background that further time was not extended as valuable right has accrued to
the other side.
12. In the case in hand substantial justice has been done. Landed
property of illiterate women was transferred by their attorney to his own minor
sons. Supply of Court fee stamp was made by the illiterate, paradanashin women
within a short span of time, when informed by her counsel. Court Fees Act is
not to be interpreted strictly to arm litigant with weapon of technicalities
against the opponent to frustrate recovery of revenue for benefit of State.
13. In view of the above discussion, the writ petition succeeds and
court fee stamp supplied by the petitioner on 28-5-2005 'will be deemed to be
valid.
M.H./H-29/L Order
accordingly.
2007 C L C 500
[Peshawar]
Before Muhammad Raza Khan, J
FIRDOS
SHAH----Applicant
Versus
Mst. MEMOONA BIBI----Respondent
Civil Revision No.23 of 2003, decided on 12th December, 2006.
(a) Specific Relief Act (I of 1877)---
----Ss. 42 & 54---Suit for declaration and perpetual
injunction---Predecessor of plaintiffs executed power-of-attorney in favour of
his brother, predecessor of defendants for purpose of management and disposal
of his property---Predecessor of defendants by exercise of power of attorney,
transferred property of his brother to his own wife in lieu of her dower vide
registered deed---Plaintiffs being legal representatives of deceased owner of
property, instituted suit for declaration to the effect that they were owners
of property belonging to their predecessor and that registered transfer deed in
respect of said property by defendants was wrong, fraudulent and illegal and
was ineffective on their rights---Plaintiffs also prayed for perpetual
injunction---Suit was concurrently decreed by the Trial Court and Appellate
Court---Validity---Both Courts below had properly appreciated evidence and
rightly applied law and particularly judgment of Appellate Court, was
comprehensive and speaking one---Findings of the Courts below, could not be
interfered with in revision by High Court.
(b) Contract Act (IX of 1872)---
----Ss. 188, 214 & 215---Power of attorney---Scope---Execution
of power-of-attorney, neither would amount to be divesting the principal of the
authority over the subject-matter nor would it amount to absolute right of the
attorney over the property as its owner--Attorney had to act as an agent of
principal and he had to account for all the transactions and it was not
sufficient to prove that attorney had the authority to enter into a
transaction, but in addition thereto, he was duty bound to explain that he had
rendered true accounts of the transaction to the principal---If the attorney
entered into a bargain of sale, he received the consideration on behalf of the
principal, which had to be refunded to him and in case of an exchange, he had
to explain the true value of the property received and that given in exchange---Transaction
of lease and mortgage, should also be for the benefit of the
principal---Attorney had to take the principal in confidence before converting
the property of the principal on the force of the power-of-attorney into
personal or for the benefit of his near relatives---If the property of the
principal was transferred against petty amount and there was no proof that said
amount was ever transferred by the attorney to the principal the transaction
would suffer from inherent defect of being contrary to law and authority of the
attorney.
Muhammad Youths Khan Tanoli for Petitioner.
Muhammad Asif Khan and Shujat Ali for Respondent.
Date of hearing: 12th December, 2006.
JUDGMENT
MUHAMMAD RAZA KHAN, J.---The facts lying in the background
of' this civil revision are that Sultan Shah, the predecessor of the
respondents, was the real brother of Firdoos Shah, the predecessor of the
petitioners. The said Sultan Shah executed a power of attorney in favour of his
brother Firdoos Shah for the purpose of management and disposal of his
property. By exercising the said power of attorney Firdoos Shah executed the
Deed No.375 on 10-8-1978 whereby he transferred his own landed property as well
as the property of his brother Sultan Shah to his wife Mst. Tahira Bibi in lieu
of her dower. The power of attorney was revoked in 1983. He did not challenge
the said registered Deed No.375 of 1978. The deed was not by then incorporated
in the Revenue Record. So in the year 1992 a mutation was entered which was
rejected by the Revenue Officer. During the proceedings of appeal a compromise
was allegedly effected whereby the right of Mst. Tahira Bibi to the disputed
land was conceded. The Collector did not accept the compromise and directed the
parties to approach the Civil Court
for the resolution of their dispute. However, the Additional Commissioner
accepted the compromise and consequently a mutation on the basis of the said
registered deed was attested. Prior to the attestation of the said mutation the
legal representatives of Sultan Shah had instituted a suit for the declaration
to the effect that they were the owners of the property belonging to Sultan
Shah and that the registered Deed No.375 dated 10-8-1978 was wrong, fraudulent
and illegal, therefore, ineffective on their rights. There was also a prayer
for perpetual injunction. This suit was decreed by the learned Civil Judge on
3-5-1999. The appeal against the said judgment and decree was dismissed by the
learned District Judge, Mansehra on 28-10-2002. Hence, this revision petition.
2. The learned counsel for the petitioners agitated four points at
the bar. Firstly, that the registered deed was a notice to the entire world
and, therefore, after the attestation of a registered deed, it was the
responsibility of the registration authorities to forward a copy of the deed to
the Revenue Authorities for its incorporation in the record of rights.
Secondly, that the delegation of authority to Firdoos Shah through a power of
attorney has not been denied and the said attorney included the transaction of
mortgage, sale, gift and exchange. So the exercise of the said authority was
not restricted and the attorney could transfer the property to his wife in lieu
of her dower and could also use the same for his personal account. Thirdly,
that the revocation was not retrospective in effect because the contents of the
revocation deed specifically mentioned that w.e.f. execution of revocation deed
the attorney shall cease to have any authority under the general power of
attorney. He further pointed out that once the attorney had exercised the
authority vested in him, the principal or his legal heirs can only sue the
attorney for damages but the transaction shall be deemed to have attained
finality. Fourthly, that the registered deed was executed in 1978 and the power
of attorney was revoked in 1983 but the said Sultan Shah who lived uptil 1992
or 1993 did not challenge the said registered deed during his life time. So the
suit for possession as well as for declaration subsequently filed was barred by
time. The learned counsel for the respondents, relying on various precedents
argued that the execution of the power of attorney was not denied but the terms
of the said authority has to be interpreted strictly, particularly when the
attorney is transferring the property to a person of close fiduciary
relationship. He further argued that the deed allegedly registered in 1978 was
not brought on the Revenue Record till the death of the predecessor of the
respondents which indicated mala fides of the predecessor of the petitioners.
With regard to the question of limitation he pointed out that the predecessor
of the petitioners was admittedly acting as the attorney for his brother Sultan
Shah, therefore, he was having the possession of all the property and so the
permissive possession neither bars the suit filed subsequently nor does it
constitute adverse possession. The learned counsel for the respondents Nos.3 to
7 argued, inter that the alleged compromise before the Collector had neither
been accepted by the said authority nor has been proved by the petitioners as
the marginal witnesses of the said alleged compromise had appeared as D.W.4 and
D.W.5 but they had neither confirmed the presence of the respondents-plaintiffs
at the time of the said compromise nor did they affirm the signature or
thumb-impression by the petitioners in their presence. Thus, the marginal
witnesses had negated the alleged compromise.
3. Despite the fact that there was a concurrent finding of both the
Courts in this case in favour of the respondents and particularly the learned
Appellate Court has discussed all the aspects of the case threadbare but in
addition thereto it has to be observed that the authority of an attorney needs
further consideration in this case. The execution of power of attorney neither
amounts to be divesting the principal of the authority over the subject-matter
nor does it amount to absolute right of the attorney over the property as its
owner. The attorney has to act as an agent of the principal. He has to account
for all the transactions. It was not sufficient to prove that the attorney had
the authority to enter into a transaction but in addition thereto he was duty
bound to explain that he has rendered true accounts or the transaction to the
principal. If he enters into a bargain of sale, he receives the consideration
on behalf of the principal which has to be refunded to him and in case of an
exchange, he has to explain the true value of the property received and that
given in exchange. Similarly, the transactions of lease and mortgage should
also be for the benefit of 'he principal. That is why, there is a restriction
that the attorney has to take the principal in confidence before converting the
property of the principal on the force of the power of attorney into personal
use or for the benefit of his nearer relatives. In this particular case the
amount of dower or Mst. Tahira Bibi was Rs.4,000. Firdoos Shah had transferred
his own landed property, along with considerable property of Sultan Shah, to his
wife in lieu of her dower. He had to justify the consideration of the land so
transferred and had to pay the consideration thereof to Sultan Shah. Section
215 of the Contract Act, provides for a situation where the agent deals on his
own account in the absence of the agency, (i.e. the subject-matter of his
authority), without principal's consent and the illustration (a) to the said
section prescribes that "A directs B to sell A's estate. B buys the estate
for himself in the name of C. A on discovering that B has bought the estate for
himself may repudiate the sale, if he can show that B has dishonestly concealed
any material fact or that the sale has been disadvantageous to him". Thus,
when the property belonging to Sultan Shah was being transferred by his
attorney Firdoos Shah to his wife in lieu of her dower, it was incumbent on
Firdoos Shah, firstly, to have sought the permission from the principal for
such transfer as well as for the consideration to be paid to Sultan Shah for
such transfer. If the property of the principal is transferred against petty
amount and there is no proof that even the said amount was ever transferred by
the attorney to the principal, the transaction shall suffer from inherent
defect of being contrary to law and the authority of the attorney. There can be
no doubt that the said power of attorney was general in nature authorizing the
predecessor of the petitioners to deal in the property in all manners of
transaction but the consideration of each transaction was the right of the owner
and the same had to be accounted for. In the case of accrual of rights of third
party, the action of misappropriation of trust could be maintained whereas the
right of third party being transferees for valid consideration with bona fides
could be protected. However, in the case of transfer of the property by the
attorney to a person closely related to him has to be strictly considered so
that the position could not be misused by the attorneys. The intentions can be
gathered from the fact that the said deed registered in 1978 was not
incorporated in the Revenue Record till the death of the said Sultan Shah.
There is no doubt that the registered deed amounts to notice to the
public-at-large but in view of the relationship of principal and agent, the general
trend of transactions by the attorneys may not come to the notice of the
principal or anyone related to him unless such a transaction is incorporated in
the Revenue Record where it can be noticed by everybody. In view of the
position of Firdoos Shah, as is appearing from the evidence, the confidential
execution of a deed can be presumed particularly when he can convince persons
like D.W.3 and D.W.4 to attest a document which was allegedly executed by the
persons not known to the marginal witnesses and who had not signed or
thumb-impressed the deed in their presence and more particularly when one of
them was admittedly a minor.
4. The revocation could not be retrospective in effect and,
therefore, any transaction by the attorney in favour of a third party may be
considered to be lawful and the right of a third party could be protected but
the transfer of huge property against a petty sum of dower in favour of his own
wife has to be scrutinized with caution and though the revocation may not
operate retrospectively but such transfer shall not be approved unless the bona
fides were established.
5. The question of estoppel and limitation is also nullified for
the reason that the alleged compromise before the Collector was not proved
through the evidence and the possession of the suit property with the
predecessor of the petitioners being permissive one, coupled with the fact that
he was also a co-owner being a real brother of Sultan Shah, therefore, the
possession of a co-owner will neither amount to adverse possession nor shall it
bar a suit for declaration and possession.
6. Both the Courts have properly appreciated the evidence and rightly
applied the law and particularly the judgment of the learned Appellate Court is
comprehensive and speaking one. Finding no interference, the revision petition
is, therefore, dismissed. No order as to costs.
H.B.T./5/P Revision
dismissed.
2010 Y L R 3222
[Lahore]
Before Muhammad Khalid Mehmood Khan, J
MUHAMMAD
YOUSAF---Appellant
Versus
MUHAMMAD RAMZAN and another---Respondents
Regular Second Appeal No. 90 and Civil Revision No.1455 of 2008,
decided on 6th July, 2010.
(a) Specific Relief Act (I of
1877)---
----Ss. 8, 12 & 42---Contract Act (IX of 1872),
S.214---Qanun-e-Shahadat (10 of 1984), Art.79---Plaintiff filed suit for
possession through specific performance of agreement to sell or in alternative
the recovery of Rs. 1,800,000 and permanent injunction against defendants on
the ground that one of the defendants had received Rs.1.5 million of sale
consideration and had handed over possession
of one of the rooms---One of the defendants contested suit on the ground that he
never allowed his general attorney to sell disputed property because ultimate
beneficiary of the same was brother of the
general attorney and said defendant also filed suit for declaration and
permanent injunction both against general attorney and his brother---Trial
Court decreed suit of the plaintiff and dismissed the suit filed by one of
the defendants---Appellate Court, on appeals,
dismissed the same---Validity---Plaintiff and one of the defendants were real brothers---Amount of
Rs.1.5 million was not proved to have been
paid---One of the marginal witnesses had not appeared and as such, it had been
proved on record that the ultimate beneficiary of the alleged agreement to sell was the brother of
the plaintiff---Lower courts below had not
considered the evidence which clearly showed that not a single penny was paid
to the principal/one of the defendants
and it was the general attorney who played the fraud with collusion of his real
brother; however if there was a transaction of Rs.1.5 million between one of
the defendants and the general attorney as
alleged, it was very easy for the general attorney to obtain a decree on the
basis of that; why did he arrange a
new agreement to sell---Natural inference in such circumstances was that he was
not confident about the new agreement to sell and as such decided -to insert
the disputed agreement to sell in the transaction with collusion and connivance
of his real brother---High Court
allowed appeal and set aside the judgments and decrees of both the courts below
in a suit for specific performance of agreement to sell which
suffered from mis-reading and non-reading of record.
Fida Muhammad v. Pir Muhammad Khan (Deceased) through legal heirs
and others PLD 1985 SC 341; Haji Faqir Muhammad and others v. Pir Muhammad and
another 1997 SCMR 1811; Muhammad Ashraf and 2 others v. Muhammad Malik and 2
others PLD 2008 SC 389; Qasim Ali v. Khadim Hussain through Legal
Representatives and others PLD 2005 Lah. 654; Mrs. Nasrin Awan v. M. Sadiq and
2 others 1989 ALD 136(2); Madholal Sindhu v. Asian Assurance Co. Ltd. and
others AIR 1954 Bombay 305 and Abdul Rahim v. Mukhtar Ahmad and 6 others 2001
SCMR 1488 ref.
Abdul Rahim v. Mukhtar Ahmad and 6 others 2001 SCMR 1488
distinguished.
(b) Specific Relief Act (I of
1877)---
----S. 12---Suit for specific performance of agreement to sell---Decree under Specific Relief Act, 1877 was
discretionary relief and could be allowed only to a person who approached the
court with clean hands.
(c) Contract Act (IX of 1872)---
----S. 214---Agent/attorney if transferred the property in
favour of those who were closely
related to hint and that; ultimate beneficiary of the said transfer was the attorney, he was bound to
obtain the consent of the principal, failing which, the
principal was at liberty to repudiate the transaction.
(d) Qanun-e-Shahadat (10 of 1984)---
----Art. 79---Two marginal witnesses of the agreement
were required to be examined for proving the same.
Ch. Manzoor Hussain Basra for Appellant.
Ijaz Ahmed Chadhar for Respondent.
Date of hearing: 28th May, 2010.
JUDGMENT
MUHAMMAD KHALID MEHMOOD KHAN, J,---I propose to decide
Regular Second Appeal No.90 of 2008 and Civil Revision No.1455 of 2008 through
this single judgment.
2. On 21-7-1999 respondent No.1, filed a suit for possession
through specific performance of agreement dated 2-7-1998 or in the alternative
recovery of Rs.18,00,000 and permanent injunction against the appellant and
respondent No.2 claiming that the appellant is the owner of a house, detailed
in the heading of the plaint, he on 21-11-1997 appointed respondent No.2 his
general attorney with the authority to sell, alienate, mortgage and gift etc.
his house; the respondent No.2 vide agreement t to sell dated 2-7-1998 agreed
to sell the property to respondent No.1 against consideration of Rs.1.8 million
and received Rs.1.5 million as earnest money and balance amount of Rs.3,00,000
was agreed to be payable at the time of registration of sale-deed before the
Sub-Registrar; the sale-deed was agreed to be executed within one year; the
respondent No.1 received Rs.300,000 on 22-2-1999 against receipt and handed
over the possession of one room to him and, as such, the entire consideration
was paid. On refusal of appellant and respondent No.2 to execute the sale-deed,
the respondent No.1 filed a suit for specific performance of agreement to sell
or in alternative a decree for recovery of Rs.1.8 million against the appellant
and respondent No.2.
3. On 23-8-2001 the appellant also filed a suit against the
respondents for declaration and permanent injunction praying that he is the
absolute owner in possession of house detailed in plaint and agreement to sell
dated 13-7-1997, general power of attorney dated 21-7-1997 and agreement dated
22-2-1999 are without lawful authority, illegal, void and without consideration
and the possession of one room with the respondent No.2 be ordered to be
delivered to him.
4. Both the suits were consolidated and in a suit filed by
respondent No.1 for specific performance, the respondent No.2 submitted a
conceding written statement, the appellant contested the suit and the suit
filed by the appellant was contested by both the respondents. The learned trial
Court framed the consolidated issues as under:
"ISSUES:
(1) Whether the
defendant No.1 did not give the power to defendant No.2 to alienate the suit
property in any manner? OPD-1
(2) Whether
the defendant No.1 executed an agreement dated 13-11-1997 in favour of
plaintiff? OPD-1
(3) Whether the
defendant No.1 executed an agreement dated 13-11-1997 in favour of defendant
No.2 in which it was agreed by him that if the defendant No.1 remained fail to
pay Rs.15,00,000 to him, he will execute the sale-deed regarding the disputed
house in favour of the defendant No.2? OPD
(4) Whether the
defendant No.1 empowered the defendant No.2 to alienate the disputed property?
OPD-2
(5) Whether the
plaintiff is entitled to a decree of a specific performance of the agreement
dated 2-7-1998 executed by the defendant No.2 on behalf of defendant No. 1? OPP
(6) Whether the
defendant No.1 was bound by agreement of specific performances, executed by
defendant No.2 in favour of the plaintiff? OPP
(6-A) Whether the defendant No.1 is the owner in the possession of
the disputed house and agreement to sell dated 13-11-1997 General-Attorney
dated 21-11-1997 and agreement dated 2-7-1998 is forged, fictitious and result
of fraud and liable to be cancelled? OPD-1
(6-B) Whether the defendant No.1 is entitled to recover the
possession of the room allegedly given to the plaintiff as licensee? OPD-1
(7) Relief.
5. Learned trial Court vide judgment and decree dated 27-9-2006
decreed the suit titled "Muhammad Ramzan v. Muhammad Yousaf and
another" for possession through specific performance of agreement and suit
titled "Muhammad Yousaf v. Muhammad Yar and another" was dismissed.
The appellant filed two appeals against the judgment and decree of the learned
trial Court dated 27-9-2006 and the learned appellate court on 25-9-2008
dismissed both the appeals. The appellant assailed both the - judgments and
decrees through Regular Second Appeal (R.S.A. No.90 of 2008) and the Revision
Petition (C.R. No.1455 of 2008).
6. Learned counsel for the appellant submits that respondent No.1
is the real brother of respondent No.2, he submits that appellant has never
allowed the respondent No.1 to sell his house without his consent and
knowledge; the agreement to sell is collusive and the ultimate beneficiary of
the same is respondent No.2. He further submits that as per written statement
filed by respondent No.2 he claimed that appellant was not in a position to
repay the loan of Rs.1.5 million and for securing and repayment of said loan,
he appointed him as his general attorney enabling him to recover his amount,
hence admittedly the respondent No.2 was not empowered to sell his house. He
further claims that agreement to sell is a collusive document and is without
his consent and knowledge, the alleged agreement to sell has not been proved;
one of the marginal witnesses has not been examined and the scribe of the
document cannot be treated as the marginal witness. He adds that in case of
transfer of property by the general attorney in his favour or in favour of a
benami purchaser, the agent is bound to get the specific permission of
principal for his act which is lacking in the present suit; he finally submits
that learned courts below have misread and non-read the record. Learned counsel
relied on Fida Muhammad v. Pir Muhammad Khan (Deceased) through legal heirs and
others (PLD-1985 SC 341), Haji Faqir Muhammad and others v. Pir Muhammad and
another (1997 SCMR 1811), Muhammad Ashraf and 2 others v. Muhammad Malik and 2
others (PLD 2008 SC 389), Qasim Ali v. Khadim Hussain through Legal
Representatives and others (PLD 2005 Lahore 634), Mrs. Nasrin Awan v. M. Sadiq
and 2 others (1989 ALD 136 (2) Lahore) and Madholal Sindhu v. Asian Assurance
Co. Ltd. and others (AIR 1954 Bombay 305) in support of his contentions.
7. Learned counsel for the respondents submits that both the courts
below have scanned the evidence minutely and their unanimous conclusion is that
agreement to sell was a genuine document. It has been proved that respondent
No.2 has received the entire consideration of Rs.1.8 million and, as such,
rightly passed the impugned decree in accordance with law; he further submits
that it has been proved beyond any shadow of doubt that it is the habit of the
appellant to appoint attorney to some one and to obtain money from him and then
revoke the power of attorney. He has defrauded number of persons through this
mode. Learned counsel for the respondents has relied on Abdul Rahim v. Mukhtar
Ahmad and 6 others (2001 SCMR 1488) in support of their contentions.
8. Heard and record perused carefully.
9. Perusal of said record shows that controversy between the
parties is that appellant is claiming that he appointed respondent No.2 his
attorney but has not authorized him to enter into an agreement to sell without
his consent and knowledge that too with his brother; his version is that not a
single penny was paid to him and the agreement to sell is collusive and
fraudulent, the ultimate beneficiary of the said agreement is the respondent
No.2, whereas the stance of respondents Nos.1 and 2 is that respondent No.2 is
a valid general attorney of the appellant against consideration and entered
into an agreement to sell with respondent No.1 who paid Rs.1.5 million as earnest
money and on the day of execution of agreement to sell Rs.300,000 paid the
balance amount against receipt and the respondent No.2 has handed over the
possession of one room of the property to him. The act of revocation of general
power of attorney on the part of appellant is fraudulent and is meant to cause
the loss to the respondents. Two agreements have been claimed in this case. One
is Ex.P.l shown to be executed by the appellant in favour of respondent No.2,
the contents of which show that appellant is admitting that he has to pay a sum
of Rs.1.5 million to respondent No.2 and promised to pay the said amount due up
to 30-6-1998 and in case of his default, his house bearing No.5 double storey
situated at Qasba Peer-wala, Bano Bazar will be deemed to be sold in favour of
respondent No.2 and he will become its absolute owner. Ex.P.2 is the document
of General Power of attorney shown to be executed on 21-11-1997 by appellant in
favour of respondent No.2. The third document is Ex.P.3 (agreement to sell dated
2-7-1998), the contents of which show that respondent No.2, being the general
attorney of appellant agreed to sell a house measuring 8-marla situated in Bano
Bazar, Pasrur to respondent No.1 against consideration of Rs.1.8 million, out
of which, a sum of Rs.1.5 million was paid on the day of execution of the
agreement and the balance amount was agreed to be paid at the time of execution
of sale-deed on or before 2-7-1999. Exh.D-1 is the revocation of deed dated
26-2-1999 revoking the general power of attorney dated 21-11-1997.
10. The entire case between the parties revolves against these four
documents. In a suit filed by respondent No.1 against the appellant and
respondent No.2 for specific performance of agreement, the respondent No.2
conceded the claim of respondent No.1 but the appellant controverted the claim
and claimed that the agreement to sell is collusive and fraudulent, the
executant of the agreement was appointed attorney only to manage the affairs of
the property, respondent No.2 and respondent No.1 are the real brothers. They
in collusion with each other have managed the said agreement to sell. The
agreement to sell Exh.P-3 shows that respondent No.2 has received Rs.1.5
million from the respondent No.1 being the part consideration of house and
received Rs.300,000 through receipt Exh.P-3/1, these two documents are shown to
be executed by the respondent No.2 in favour of respondent No.1. In agreement
to sell, there are two marginal witnesses but only one witness appeared as
P.W.7 who deposed in his examination-in-chief that the amount of Rs.1.5 million
was paid one day after the execution of agreement he deposed that he signed the
said document as marginal witness. In examination-in-chief, he states that when
agreement was written, Muhammad Ramzan, Muhammad Yar, he and Dr. Sohail were
present, he states that amount was given in the presence of Abdul Rehman who
counted the said amount, he admits that appellant was not present at the time
of transaction. Abdul Rehman appeared as P.W.6, he in cross-examination admits
that he has not counted the amount, he states that the matter of payment of
Rs.300,000 is between Din Muhammad, Yar and Muhammad Ramzan but the receipt
Exh.P.W.3/1 shows that Deen Muhammad was not present at the time of execution
of receipt. Muhammad Ramzan appeared as P.W.5, he deposed in his examination-in-chief
that he purchased house from Muhammad Yar, Rs.1.5 million was paid at the time
of execution of agreement to sell whereas P.W.7 deposed that amount was paid
one day after of execution of agreement, he deposed that at the time of bargain
Muhammad Yousaf was present whereas P.W.7 admits that at the time of bargain
Muhammad Yousaf was not present, Muhammad Yar handed over the possession of one
room after taking over the same from Muhammad Yousaf, he admits that except one
room the sold house is in possession of appellant, he admits that Muhammad
Yousaf was not present on the day of execution of agreement to sell, he admits
that Yar Muhammad has not paid the amount of Rs.1.5 million in his presence.
Admittedly for getting the decree, the respondent No.1 has to prove the payment
of consideration, one of the marginal witnesses Dr. Sohail has not appeared and
the other witnesses have deposed different stories about the payment of Rs.1.5 million
even to respondent No.2.
11. The stance of respondent No.2 in the suit for specific
performance is that he entered into an agreement to sell with respondent No.2
and received the entire consideration. He further averred that he is the duly
authorized agent of the appellant. His case is not that he paid the amount of
Rs.1.8 million to appellant but he alleged that the appellant has to pay Rs.1.5
million to him which he vide Exh.P. 1 agreed to pay up to 30-6-1998 and in
acknowledgement of the said loan, he appointed him his general attorney with
the powers to sell his house, he advanced his claim on the basis of Exh.P.1,
for the sake of argument. If, it is admitted that Exh.P-1 was executed by
appellant, there is a clause in the agreement that in case of appellant failure
to repay Rs. 1.5 million, the house will be deemed to be the property of
respondent No.2 but surprisingly the respondent No.2 while executing the
agreement to sell Exh.P.3, is not claiming to be the owner of said house but is
entering into the agreement to sell Exh.P.3 with his real brother as general
attorney of the appellant. In the agreement Exh.P.3, the attorney confirms that
he has handed over the possession of the house to the purchaser on receipt of
Rs.1.5 million but admittedly he is not in possession of the house. If the
respondent was confident that on the basis of Exh.P.1 he is the owner of house,
why he executed the Exh.P.3 as attorney of appellant. The argument of learned
counsel for the respondents is that in fact the general power of attorney was
executed by appellant in lieu of an agreement Ex. P.1 which confirms that
appellant has borrowed Rs.1.5 million from the respondent No.2 and agreed to
pay within one year and on his failure to pay the respondent No.2 will become the
owner of said house, and he also executed Exh.P.2, the contents of Exh.P.2
general power of attorney show that this fact does not find mention in the
document.
12. The argument of learned counsel for the respondents that
general power of attorney is against consideration and is irrevocable and
amounts to a sale-deed and admittedly the appellant has failed to return his
amount and, as such, the document of
general power of attorney has become a sale-deed. This argument of learned
counsel for the respondents has no force for the simple reason that there is no
reference available in the document of attorney of the alleged agreement
Exh.P-1 nor the respondent No.2 has filed any suit against the appellant for
the performance of Exh.P.1. The present suit is for specific performance of
Exh.P.3 filed by respondent No.1. Further if this document of attorney is
assumed to be executed in pursuance of Exh.P-1 and is against consideration,
this document should be required to compulsory registerable under section 2(21)(b)
of Schedule-I of Stamp Act being the conveyance deed, but this document is
registered only under section 17 of the Registration Act and is revocable as
the same is without consideration.
13. No doubt respondent No.2 has admitted the execution of Exh.P.3
but the appellant is contesting this agreement because he is not executed the
same, under the document of attorney Exh.P.2 the principal admittedly is the
owner of the house. Under Article 79 of the Qanun-e-Shahadat Order, two
marginal witnesses of the agreement are required to be examined for proving the
agreement. P.W.7 Abdul Rasheed appeared who deposed that Muhammad Ramzan agreed
to purchase a house against consideration of Rs.1.8 million and paid
consideration Rs.1.5 million to him at Sialkot after one day of execution of
Exh.P.3. He in his cross examination admits that when transaction was entered
into with respondent No.1, Muhammad Yar, he and Doctor Sohail were present. He
admits that the cash was paid before Abdul Rehman who counted the same. He admits
that a sum of Rs.300,000 was not paid before him and he is not aware when
Rs.300,000 were paid. He further admits that Muhammad Yar has sold this house
to his real brother on the basis of that attorney. He admits that appellant
Muhammad Yousaf was not present at the time of bargain nor he was present at
the time of execution of the agreement. He admits that Muhammad Yar is only in
possession of one room whereas the entire house is in possession of appellant.
Doctor Sohail is the second marginal witness of agreement to sell, he has not
been produced nor any evidence has been brought on record confirming that said
witness has died or is alive. In the absence of any evidence it will be
presumed that he is alive and has been withheld by the respondents. The scribe
appeared as P.W.6, he deposed that Exh.P.3 is written by him on the instruction
of respondents. Both signed before him, Abdul Rasheed and Doctor Sohail signed
it as marginal witnesses. He in his cross examination admits that he has not
counted the amount of Rs.1.5 million whereas the marginal witness P.W.7 Abdul
Rasheed in his cross examination deposed that Abdul Rehman (P.W.6) has counted
the amount of Rs.1.5 million, Abdul Rehman's admission that he never counted
the amount, negate the statement of P.W.7. This fact coupled with
non-appearance of other marginal witness namely Doctor Sohail is sufficient to
prove that no consideration was paid and this fact strengthened the stance of
appellant that the ultimate beneficiary of this agreement is Muhammad Yar, the
respondent No.1.
14. The argument of learned counsel for the appellant that under the
document of power of attorney, the respondent No.2 was authorized to execute
the sale agreement without the consent and knowledge of his principal. Under
section 214 of the Contract Act, the agent/attorney if transferred the property
in favour of those who were close related to him and that ultimate beneficiary
of the said transfer is the attorney, he is bound to obtain the consent of the
principal, failing which, the principal is at liberty to repudiate the
transaction. It is proven fact that respondents Nos.1 and 2 are the real
brothers. Amount of Rs.1.5 million was not proved to be paid. The marginal
witness Doctor Sohail has not appeared and, as such, it has been proved on
record that the ultimate beneficiary of the alleged agreement to sell Exh.P.3
is Muhammad Yar. Hence the appellant has successfully proved that it is a shame
transaction.
15. The argument of learned counsel for the respondents that power
of attorney executed in his favour is against consideration, if this is the
case then definitely the attorney will be empowered to sale the property of the
principal without his consent and knowledge but the evidence produced and the
pleadings of the parties proved that the general power. of attorney was without
consideration. The argument of learned counsel for the respondents that this
power of attorney is with reference to Exh.P.1 the agreement but surprisingly
the existence of that agreement is not find mentioned in the deed of power of
attorney nor the respondent No.2 has claimed the performance of that document.
So the ratio of judgment Abdul Rahim v. Mukhtar Ahmad and 6 others (2001 SCMR
1488) (ibid) is not applicable in this case. The learned courts below have
failed to appreciate this aspect of the case and have fallen in error while
deciding that the power of attorney is against consideration. The suit of
respondent No.1 shows that it has two pleas, in the first instance, he prays
for a decree of specific performance of agreement Exh.P.3 but in alternative he
prays for return of Rs.1.8 million but from the appellant and not from
respondent No.2 who entered into agreement to sell with him. The learned trial
court should have passed decree of Rs.1.8 million against respondent No.1 as he
has admitted the execution of agreement and received the amount. The respondent
No.1 even after the admission of his claim by the respondent No.2 has not
pressed the decree against him. This act of respondent No.1 further
strengthened the stance of appellant that ultimate beneficiary of the agreement
to sell is respondent No.2.
16. From the above said discussion it is proved that respondent
No.2 is the ultimate beneficiary of the alleged agreement to sell executed by
him in favour of respondent No.1 and, as such, the suit of the plaintiff
(Muhammad Ramzan) should have not been decreed for specific performance of the
agreement against the appellant (Muhammad Yousaf).
17. The learned Courts below have not considered the evidence
produced by respondent No.1 which clearly shows that not a single penny was
paid to the principal/the appellant and it was the respondent No.2 who played
this fraud with collusion of his real brother. If there was a transaction of
Rs.1.5 million between the appellant and respondent No.2 as alleged it was very
easy for the respondent No.2 to obtain a decree on the basis of agreement dated
13-11-1997 (Exh.P.1), why he arranged a new agreement to sell. The natural
inference in these circumstances is that he was not confident about Exh.P.1 so
he decided to insert the agreement to sell in the transaction with the
collusion and connivance of his real brother. Decree under the Specific Relief
Act is discretionary relief and can be allowed only to a person who approaches
the Court with clean hands.
18. As far as the suit for declaration and permanent injunction
filed by appellant against the respondent is concerned, the appellant has
himself admitted in suit that his son Muhammad Naeem entered into business of
prize bonds with the respondent No.2 and in pursuance of that business he
executed agreement dated 13-11-1997 Exh.P.1. He also admits that he also
executed general power of attorney in favour of the respondent. No evidence has
been placed on record that the said agreement was without consideration, what
happened about the business between the son and respondent No.2. He further
admits that he has handed over possession of one room to respondent No.2 with
reference to Exh.P.1. The appellant has failed to prove on record that said
agreement was obtained through fraud and misrepresentation or it was without
any consideration and, as such, in the absence of any evidence, the suit was
rightly dismissed by the learned courts below.
19. In view of the above said discussion, it is proved that
judgments of both the Courts below qua suit for specific performance of
agreement suffer from misreading and non-reading of record and are liable to be
set aside. Therefore, I set aside both the judgments and decrees dated 27-9-2006
and 25-9-2008 passed by learned courts below in suit titled "Muhammad
Ramzan v. Muhammad Yousaf and other" and dismissed the revision petition
(C.R. No.1455 of 2008) to the extent of suit titled "Muhammad Yousaf v.
Muhammad Yar and other". Appeal is allowed. There is no order as to costs.
M.U.Y./M-472/L Appeal
accepted.
2006 C L C 79
[Lahore]
Before Muhammad Muzammal Khan,
J
MOEEN AKHTAR and 2
others---Appellants
versus
Dr. ABDUS SATTAR through Legal
Heirs---Respondents
Regular Second Appeal No. 190 of 1988, heard on 7th
July, 2005.
(a) Specific Relief Act (I of
1877)---
----S. 12---Contract Act (IX of
1872), Ss. 188 & 214---Qanun-e-Shahadat (10 of 1984), Arts.79 &
117---Registration Act (XVI of 1908), Ss.18 & 47---Civil Procedure Code (V
of 1908), O.XV, R.1---Suit for specific performance of agreement to
sell---Agreement by husband as general attorney of his second issueless wife in
favour of his sons from first wife---Agreement was alleged to have been
executed on 24-7-1968---Owner/wife died on 3-6-1976---Suit was filed on
18-3-1979---Attorney in written statement admitted receipt of entire sale price
from plaintiffs---Plea of donee-defendant (Dar-ul-Aloom) was that suit property
was partly dedicated by its owner on 11-11-1968 through a registered Waqf Deed
witnessed by attorney; and that agreement had been prepared subsequent to death
of owner under connivance between attorney and his sons in order to deprive
donee of Waqf property---Trial Court dismissed suit to extent of Waqf property,
which judgment was upheld by Appellate Court---Validity---No explanation on
record as to why after receipt of entire sale price by attorney, sale-deed was
not executed in favour of plaintiffs---Family circumstances/understanding among
parties if were of such nature that no title
document was needed for transfer of suit property in favour of plaintiffs, then
why agreement was got executed---Both owner and attorney being literate persons
had signed Waqf Deed---Had agreement been executed earlier to Waqf Deed, then
same property would not have been included in Waqf for litigation by
donee---Registered Waqf Deed carried a presumption of its
execution---Donee/defendant while appearing in witness box had deposed that
such property had previously been donated to "Anjuman-e-Himayate-Islam"
in March, 1962, but on its refusal to take over same was transferred to
donee/defendant---Such statement would show that intention of owner was to give
such property for some pious purpose---Attorney had executed agreement in
favour of his own sons without concurrence of his principal, which was in fact
a transfer in favour of agent himself---Plaintiffs could not succeed against
donee by merely producing two marginal witnesses of agreement, who were not
aware of transfer of property in the name of donee-defendant---Agreement
neither being registered nor so required under law would not put owner or
subsequent purchaser through whatever means at alarm---Conceding written
statement of attorney was not honest and being without concurrence of owner
would not furnish basis for judgment against him under O.XV, R.1, C.P.C.---High
Court dismissed revision petition in circumstances.
Maqsood Ahmad and others v.
Salman Ali PLD 2003 SC 31; Jamil Akhtar and others v. Las Baba and others PLD
2003 SC 494; Fida Muhammad v. Pir Muhammad Khan through L.Rs. and others PLD
1985 SC 341; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997
SCMR 1811; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818;
Muhammad Siddique and 2 others v. Mst. Shagufta Begum alias Shagufta Rafique
1994 CLC 1690; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291;
Mst. Kaniz Fatima through L.Rs. v. Muhammad Salim and 27 others 2001 SCMR 1493;
Abdul Hakeem v. Habib Ullah and 11 others 1997 SCMR 1139; Muhammad Sain v.
Muhammad Din 1996 SCMR 1918 and Lutufur Rehman and others v. Zahoor and others
PLJ 1999 SC 204 rel.
(b) Contract Act (IX of
1872)---
----Ss. 188 &
214---Registration Act (XVI of 1908), Ss.18 & 47---Agreement to sell by
attorney in favour of his real sons---Nonregistration of
agreement---Effect---Such agreement would not put owner or subsequent purchaser
through whatever means at alarm.
(c) Specific Relief Act (I of
1877)------
----S. 12---Contract Act (IX of 1872),
Ss.188 & 214---Civil Procedure Code (V of 1908), O.XV, R.I --- Suit for
specific performance of agreement to sell---Agreement by husband as general
attorney of his second wife in favour of his sons from first wife---Plaintiffs
filed suit after death of owner step-mother---Attorney in written statement
admitted receipt of entire sale price from plaintiffs---Effect---Such conceding
written statement being not honest and without concurrence of owner-wife would
not furnish basis for judgment against attorney under O.XV, R.1, C.P.C.
Masud Akhtar Sheikh for
Appellants.
Qamar Riaz Hussain Basra for Respondents.
Date of hearing: 7th July, 2005.
JUDGMENT
MUHAMMAD MUZAMMAL KHAN, J.--- Instant regular second appeal assailed
judgments/decrees dated 7-7-1982 and 30-7-1988 passed by Civil Judge and
learned Additional District Judge, Lahore,
partly dismissing suit of the appellants and their appeal, respectively.
2. Succinctly, relevant facts are that
one Mst. Rashida Khanum deceased was owner of the suit property and being
married to Dr. Abdus Sattat deceased respondent No. l , had appointed him as
her general-attorney on 13-3-1962 who was claimed to have entered into an
agreement to sell dated 24-7-1968 in favour of his sons, agreeing to sell land
measuring one Kanal which had two parts (i) 13 Marlas and 75 sq.ft. out of
Khasra No.2831 and (ii) six Marlas and 146 sq.ft. out of Khasra
No.8272/3360/l/l situated at Baghbanpura, Lahore.
Mst. Rashida Khanum died on 3-6-1976
and after her death, sons of Dr. Abdus Sattar from his first wife, filed a suit
for specific performance of the agreement to sell dated 24-7-1968, averring
that their step-mother Mst. Rashida Khanum who was owner of the land measuring
one Kanal detailed in the plaint through her attorney, after receiving entire
sale price, delivered the possession of the land which is in their possession
as owners but in spite of their desire to have the sale-deed executed, the
vendor failed to perform his part of contract. It was further pleaded that late
Mst. Rashida Khanum always treated the plaintiffs as owners in possession of
the property and on account of family transaction, any registered sale-deed
could not be finalized as it's necessity was not felt although the plaintiffs
had always been ready and willing to perform their part of contract. It was
also asserted in the plaint that after death of Mst. Rashida Khanum, dispute
among the heirs regarding her property cropped up and on account of denial of
other legal heirs of the agreement in their favour, requirement of filing suit
arose.
3. Out of respondents who were
defendants in the suit, Dr. Abdus Sattar deceased being defendant No.1 filed a
concessional written statement and expressed his willingness that suit of the
plaintiffs may be decreed in their favour but defendants' Nos.3 and 4 resisted
the suit and denied existence of agreement to sell dated 24-7-1968 besides
raising certain preliminary objection in their written statement. Likewise,
respondent/defendant No.5 also contested the suit denying existence of
agreement to sell and claimed that owner i.e. late Mst. Rashida Khanum in her
life time created a "Waqf" in its favour through a registered-deed
regarding suit property thus, contested the grant of decree for specific
performance in favour of the appellants. In view of controversial pleadings of
the parties, framing of issues necessitated and the learned Civil Judge who was
cognizant of the matter, after doing the needful, on the basis of his appraisal
of evidence, partly decreed the suit of the appellants to the extent of six
Marlas and 146 sq.ft. out of Khasra No.8272/3360/ 1 / 1 and their suit with
regard to land measuring 13 Marlas and 75 sq.ft. bearing Khasra No.2831 was
dismissed as the same was held to be part of "Waqf" created by the owner,
vide judgment and decree, dated 7-7-1982.
4. The appellants aggrieved of
decree with regard to part of the suit-land, filed an appeal before the learned
Additional District Judge but remained unsuccessful as their appeal was
dismissed on 30-7-1988. None of the defendants had filed any appeal or
cross-objections against the decree of the trial Court dated 7-7-1982. The
appellants thereafter filed instant second appeal before this Court which was
admitted to regular hearing and after completion of record, has now been placed
for final determination. The respondents, except respondent No.5, opted not to
contest the appeal and have not appeared in spite of their service. They have
also not challenged the decision of the two Courts below by filing any appeal
or cross-objections before this Court also.
5. Learned counsel for the
appellants submitted that the two Courts below fell in error in not granting
decree to the appellants with regard to the whole of the property on the ground
that part of the same was Waqf" property which was created subsequently to
the agreement to sell in their favour and thus, had no legal consequence. It
was further submitted that after agreement to sell, entire sale price
whereunder had been paid, vendor was left with no title to include property
subject of the agreement, in the Waqf deed hence, suit of the appellants should
have been decreed, in its entirety. It was also argued with emphasis that the
owner of the property i.e. Mst. Rashida Khanum alias Umtul Rashid was
step-mother of the appellants, who having married Dr. Abdus Sattar father of
the appellants, remained issueless and through her lawfully appointed
attorney/husband, received the entire sale price of the property and having
executed the agreement to sell dated 24-7-1968 transferred the possession of
the property, made the appellants full owners.
According to him, under law
transaction of sale stood completed on payment of entire sale price and
transfer of possession under the sale but a contrary view taken by the two
Courts below being against to the principles governing the subject, is not
sustainable. It was further submitted that Mst. Rashida Khanum in her life time
never challenged the agreement in favour of the appellants and did not deny
their title in the suit property thus, the respondents who had claimed
hereditary rights through her husband, could not refute entitlement of the
appellants thus, their suit in part was incorrectly dismissed. It was further
argued with emphasis that the Waqf-deed dated 11-l1-1968 being subsequent to
the agreement in favour of the appellants, created no title in favour of
respondent No.5 so as to giving right to it, to contest the suit of the
appellants especially when executant of the agreement had filed a conceding
written statement. It was also submitted that in view of Provisions of Order
XV, rule 1, C.P.C. decree of dismissal of suit of the appellants, deserved
reversal but this aspect of the matter escaped notice of the First Appellate
Court to the disadvantage of the appellants.
6. Learned counsel for respondent
No.5 refuted the arguments of the appellants, supported the concurrent
judgments of the two Courts below and urged that agreement dated 24-7-1968 was
prepared subsequent to the death of Mst. Rashida Khanum, under connivance between
father and sons in order to deprive respondent No.5 of the property dedicated
by the owner for pious purposes. According to his submissions, had the
agreement to sell been existence at the time of creation of Waqf on 11-1 1-1968
or the same had been in the knowledge of the donor, she could not have included
the suit property in the "Waqf Nama" which was duly witnessed by Dr.
Abdus Sattar. It was further submitted that agreement to sell dated 24-7-1968
was a fake document that is why no suit for specific performance was filed till
the time the suit in hand was filed on 18-3-1979 after lapse o' 1 l
years and that too after the death of Mst. Rashida Khanum who died on 3-6-1976.
It was further argued that concurrent judgments of the two Courts below being
in consonance with the evidence on the file, cannot be disturbed in revisional
jurisdiction, as the same do not suffer from any defect of
misreading/non-reading the record.
7. I have minutely considered the
respective arguments of the learned counsel for the parties and have examined
the record, appended herewith. Agreement to sell dated 24-7-1968, performance
of which was prayed through suit in hand, was executed by Dr. Abdus Sattar in
his capacity as general-attorney of his wife late Mst. Rashida Khanum who was
step-mother of the appellants. Though executant of agreement dated 24-7-1968
i.e. Dr. Abdus Sattar father of the appellants had admitted receipt of entire
sale consideration by filing his concessional written statement before the
trial Court but there is no explanation as to why after receiving the entire
sale price, a regular registered-deed was not executed in favour of the
appellants. The explanation furnished by the appellants for non-execution of
the sale-deed that on account of family circumstances/understanding among the
parties, resulted in non-execution of any titled document, on the face of it,
is not acceptable as the same does not appeal to. reasons. If the circumstances
of the family were such that no title document was needed for transfer of suit
property in favour of the appellants then why an agreement to sell was
executed? Another stance which goes to negate the agreement to sell is that
both Dr. Abdus Sattar and his wife Mst. Rashida Khanum alias Umtul Rashid were
literate persons and both of them signed "Wagf Nama" dated
11-11-1968. Had the agreement to sell been executed earlier to it i.e.
24-7-1968, it is not imaginable that the same property would have been included
in Waqf for litigation for the donee. Waqf-deed dated 11-11-1968 is a
registered document which carried a presumption of it's execution but through
the agreement in question, an attempt has been made to negate the same. The
obvious reason behind preparation of agreement to sell was that the property of
the donor was bestowed to respondent No.5 and father of the appellants wished
that the same should go to his own sons. Respondent No.5 while appearing in the
witness-box categorically deposed that this property was previously
donated/handed over to "Anjuman-e-Himayat-e-Islam" in March, 1962 who
later on refused to take over the same whereafter it was transferred to
respondent No.5 i.e. "Darul Uloom Jamia Naeemia This statement shows the
intention of the donor who intended during her life that this property be given
for some sacred purpose.
8. There is another aspect of the
matter, deceased respondent No. I acted as an. general-attorney of the owner,
executed agreement to sell in favour of his own sons without concurrence of his
principal as is evident from the above discussion, which as a matter of fact
was a transfer in favour of Agent himself. Under the provisions of sections 188
and 214 of the Contract Act, 1872, the general-attorney was required to take
special permission from his principal while transferring her property in his
own name or in the name of his close
fiduciary relations but record is absolutely thirsty of the proof that Mst.
Rashida Khanum alias Umtul Rashid ever gave any such permission because she
appeared to be ignorant of this agreement, having first transferred the suit
property in favour of "Anjuman-e-Himayat-i-Islam" and then in favour
of respondent No.5 through a registered "Waqf Nama" dated 11-11-1968.
Reference in this behalf can conveniently be made to the judgments of the Honourable
Supreme Court in the cases of Maqsood Ahmad and others v. Salman Ali PLD 2003
SC 31; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Fida
Muhammad v. Pir Muhammad Khan (deceased) through L.Rs. and others PLD 1985 SC
341; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811
Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 besides
judgment by this Court in the case of Muhammad Siddique and 2 others v. Mst. Shagufta Begum alias Shagufta Rafique 1994 CLC
1690.
9. Assuming but without
conceding, if the agreement to sell was really executed on 24-7-1968 the same
being not registered as the same was not so required under law, did not put the
owner or subsequent transferee through whatever means, at alarm hence onus to
prove this document as lawful/valid in terms of Articles 79 and 117 of
Qanun-e-Shahadat Order, 1984 heavily lay upon the Agent or the transferees from
him i.e. the appellants, besides proof that on the basis of power of attorney,
property owned by the principal had been legally transferred by the attorney in
the names of his sons but none of them discharged the onus shifting on their
shoulders hence "Wagf Nama" dated 11-11-1968 could not have been
adjudged, as prayed by the appellants. The appellants could not succeed in
their suit against respondent No.S by merely
producing two marginal witnesses of their agreement i.e. P.W.1 and P.W.2 who
were not aware of transfer of property in question in the name of "Darul
Uloom Jamia Naeemia" through "Waqf Nama" dated 11-11-1968. All
this brings me to hold that suit of the appellants to the extent of respondent
No.5 was correctly dismissed and the appellants were rightly refused the
discretionary relief by way of specific performance. For the reasons already
detailed above, conceding written statement of deceased respondent No. I was
not honest and being without concurrence of the owner, did not furnish lawful
basis for judgment against him under Order XV, rule 1, C.P.C. but in spite of
it, since decree in favour of the appellants regarding land measuring 6 Kanals
and 146 sq. ft. bearing Khasra No.8272/3360/l/1 of Baghbanpura was not
challenged by any of the respondents before the First Appellate Court or before
this Court hence, the same will continue.
10. For the reasons noted above,
concurrent judgments of the two Courts below having been passed in accordance
with the evidence on the file, cannot be interfered with in revisional
jurisdiction of this Court under section 115, C.P.C. in view of the judgments
in the cases of Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291;
Mst. Kaniz Fatima through L.Rs. v. Muhammad Salim and 27 others 2001 SCMR 1493;
Abdul Hakeem v. Habib Ullah and 11 others 1997 SCMR 1139; Muhammad Sain v.
Muhammad Din 1996 SCMR 1918 and Lutufur Rehman and others v. Zahoor and others
PLJ 1999 SC 204, hence, affirming those, this second appeal being devoid of any
merit/force is dismissed with costs throughout.
S.A.K./M-1204/L Appeal dismissed.
2004 S C M R 1530
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad
Khokhar, JJ
MUHAMMAD MUNIR---Petitioner
Versus
MUHAMMAD SALEEM and others---Respondents
Civil Petition No. 763-L of 1999, decided on 7th May,
2002.
(On appeal from the judgment, dated 7-4-1999 passed by
the Lahore High Court, Lahore in R.S.A. No. 483 of 1970).
(a) Specific Relief Act (I of 1877)---
----S. 12---Transfer of Property Act (IV of 1882),
S.41--- Constitution of Pakistan
(1973). Art. 185(3)---Suit for specific performance of agreement to sell---Vendor
after entering into agreement to sell with plaintiff executed sale-deed in
favour of defendant in year 1967---Defendant claimed to be bona fide purchaser
of suit-land for valuable consideration without noticed prior agreement---Trial
Court dismissed suit, which decision was upheld by First Appellate Court, but
High Court in second appeal decreed the suit---Validity---Defendant had later
on surrendered possession of suit-land in favour of vendor, who had again
transferred the same to other persons in year 1982---Defendant despite
registered sale-deed in his favour coupled with delivery of possession way back
in year 1967 had been out of possession throughout, which rendered transaction
in his favour as being shrouded in mystery---Defendant having surrendered
vacant possession in favour of vendor had virtually lost his right, interest
and title to suit-land---Defendant had not challenged before competent Court
subsequent transaction of sale in favour of other persons, who were in
possession of suit-land in their own right ---Sale-deed in favour of defendant,
thus, would be of no value--Such conduct of defendant had disentitled him to
exercise of equitable discretion in his favour---Supreme Court dismissed the
petition being misconceived and devoid of merit.
(b) West
Pakistan Land
Revenue Act (XVII of 1967)-----
----Ss. 39 & 42---Mutation entries in record of
rights---Maintained for fiscal purpose---Such entries, neither decide question
of title finally nor confer right of ownership to the property.
(c) West
Pakistan Land
Revenue Act (XVII of 1967)-----
----S. 42---Mutation entries---Power of Revenue
Officer to correct wrong entries---Scope---Revenue Authorities may be able to
rescind and revoke mutation entries wrongly entered, but they are not empowered
in law to annul and set aside a registered sale-deed, which has far greater
value and weight.
Ch. Muhammad Afzal
Wahla, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for
Petitioner.
Nemo for Respondents.
Date of hearing: 7th May, 2002.
JUDGMENT
RANA BHAGWANDAS, J.---Leave to appeal is
sought against the High Court order. dated 7-4-1999 passed in R.S.A. No. 483 of
1970 setting aside the findings on Issues Nos.1 and 1A in a suit for Specific
Performance of Contract filed by the respondent No.1 against respondent No.2,
(since dead, survived by his legal heirs) as well as the petitioner.
2. Ilam Din predecessor-in-interest of respondents
Nos. (i) to (iv) agreed to sell the suit-land in favour of respondent No.1 vide
agreement, dated 6-6-1965 for a consideration of Rs.3,400 out of which a sum of
Rs.2,900 was received by him on two occasions [lam Din himself contested the
suit on the premises that the transaction was hit by the provisions of section
19 of the Colonization of Government Lands (Punjab) Act, 1912, (hereinafter
referred to as the Act). After the conferment of proprietary rights on him vide
Mutation No.41, dated 17-6-1969 he executed a registered conveyance deed in
favour of the petitioner on 15-6-1967 transferring the suit-land for sum of
Rs.7,000 duly registered on 1-10-1967 ,
3. Learned counsel states that with the execution of
the sale-deed possession of the suit-land was also handed over to the
petitioner but for reasons not known to him, the possession of the land was
surrendered in favour of Ilam Din, who again transferred the land in favour of
Farman Ali and Noor Elahi vide registered deed, dated 21-9-1982. Stance of the
petitioner before the trial Court was that he was purchaser for valuable
consideration without notice of prior agreement. Trial Court, however,
dismissed the suit on the preliminary ground that the transaction in favour of
the petitioner was hit by the provisions of section 19 of the Act. An appeal
preferred from the judgment and decree of the trial. Court also failed leading
to Regular Second Appeal by the respondent No.1 before the High Court which has
been accepted through the judgment impugned in this petition on the premises
that to fact the transaction was not violative of the provisions contained in
section 19 of the Act. It appears from the record and as stated by the learned
counsel that proprietary rights were conferred on the respondent No.2 on
17-6-1967, therefore, we are to the agreement with the view taken by the High
Court that the registered sale-deed executed on 15-7-1967 was free from any
encumbrance or any legal impediment '
4. Learned counsel vehemently contended that the
petitioner being bona fide purchaser of the suit-land for valuable
consideration without notice of prior agreement this issue was neither decided
by the High Court nor the case remanded to trial Court for decision on the
issue raised by the petitioner. Learned counsel may be correct to this extent
but we find from the record that despite a registered sale-deed for
consideration in favour of the petitioner, coupled with the delivery of A
possession in his favour way back in 1967 he has been out of possession through
out which renders the transaction in his favour as being shrouded in mystery.
Learned counsel could not dispute the ground reality that the petitioner has
not challenged the subsequent transaction of sale through the registered
sale-deed, dated 21-9-1982 in favour of Noor Elahi and Farman Ali who are
admittedly in possession of the suit-land in their own right.
5. Learned counsel attempted to justify his stance by
contending that in fact his client has challenged the subsequent mutation
before the Revenue Authorities but we are of the considered view that mutation
entries in the Record of Rights are maintained for fiscal purposes and do not
decide the question of title finally. At any event, such entries do not confer
right of ownership to property. Furthermore, Revenue Authorities might be able
to rescind and revoke the mutation entries wrongly entered, in law they are not
empowered to annul and set aside a C registered sale-deed which has far greater
value and weight. Petitioner either did not obtain possession frown Ilam Din or
on counsel's own statement having surrendered vacant possession of the land in
favour of the vendor has virtually lost his right, interest and title to the
land for which he owes an explanation Learned counsel was completely unaware of
the background of parting with possession of land allegedly given to the
petitioner at the time of sale. He has been, unable to account for this act of
divesting the petitioner of physical possession of the land which alone tends
to show that the conduct of the petitioner has never been above board. It is
rather short of being a bona fide purchaser for valuable consideration
disentitling him to the exercise of equitable discretion in his favour. In our
view, even if the order of the High Court was modified by remanding the case to
the trial Court for decision on issue No.4 it would be only of academic value
as right, interest and title to properties acquired by Noor Elahi and Farman
Ali has not been challenged before a competent Court of law and the document of
sale in favour of the petitioner would be of no value higher than a simple
piece of paper. The whole transaction in our view appears to be shrouded in
mystery and there appears to be something wrong at the root of the cause.
6. For the foregoing reasons, we find no merit in this
petition which is wholly misconceived and without any merit which is accordingly
dismissed.
S.A.K./M-582/S Petition
dismissed.
2004 S C M R 1536
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Muhammad
Nawaz Abbasi, JJ
ASHRAF ALI (deceased) through his legal heirs and
others---Petitioners
Versus
MARYAM BIBI and 4 others- --Respondents
Civil Appeals Nos. 1521 and 1522 of 1999, decided on
28th November, 2002.
(On appeal from the judgment of Lahore High Court,
Lahore, dated 28-6-1999 passed in R.S.A. Nos.516 of 1977 and 535 of 1977
respectively).
(a) Specific Relief Act (I of 1877)---
----S.42---Civil Procedure Code (V of 1908),
S.100---Constitution of Pakistan
(1973), Art. 185(3)---Title over suit-land---Re-appraisal of
evidence---Accepting of second appeal by High Court---Grievance of petitioners
was that finding of fact had been recorded by Appellate Court after
assessing/perusing the entire evidence on record thus there was no
justification with High Court to accept the appeals without giving cogent
reasons---Plea raised by the petitioners was that possession of the suit
property was passed on to them on 12-2-1969 and there was an entry about
possession of the petitioners in the Revenue Record---Petitioners raised
further pleas that vendor of the suit-land remained alive for three years after
its sale and he did not raise any objection to the transaction and that
re-appraisal of evidence on record was necessary for doing justice between the
parties---Leave to appeal was granted by Supreme Court to consider the points
raised by the petitioners.
(b) Transfer of Property Act (IV of 1882)---
----S.54---Specific Relief Act (I of 1877),
S.42---West Pakistan Land Revenue Act (XVII of 1967), Ss. 42 & 45---Civil
Procedure Code (V of 1908), S.100---Valid sale---Determination---Re-appraisal
of evidence by High Court in exercise of jurisdiction under S.100,
C.P.C.---Mutation of sale in favour of defendants was assailed before Trial
Court on the ground that the same was the result of fraud---Trial Court decreed
the suit in favour of plaintiffs but Appellate Court allowed appeal and
dismissed the suit---High Court in exercise of jurisdiction under S.100, C.P.C.
reversed the findings of Appellate Court and restored that of the Trial
Court---Contention of the defendants was that mutation of sale was sanctioned
in open meeting, thus mere denial to the genuineness of the transaction of sale
would not be sufficient to challenge the title of the
defendants---Validity---High Court was not supposed to disturb the findings of
facts based on evidence through reappraisal of evidence in second appeal but if
issue of fact had not been properly determined by the Lower Courts by reason of
any substantial error or defect of drawing a wrong inference about the correct
legal position which materially affected the decision on merits, High Court in
second appeal could correct such error in the interest of substantial
justice---Controversy as to whether mutation by itself was a sufficient proof
of the sale and would create a valid title being a mixed question of law and
facts could conveniently be gone into by High Court in second appeal if the
inference drawn was contrary to law---High Court having come to the conclusion
that no valid sale was in existence between the parties to create title, had
rightly reversed the finding of Appellate Court on the relevant issue---Supreme
Court declined to take any exception to the conclusion drawn by High
Court---Appeal was dismissed.
Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court
and C.M. Lateef, Advocate-on-Record (absent) (in both cases) for Appellants.
Muhammad Munir Peracha, Advocate Supreme Court and Ch.
Tanveer Ahmed, Advocate-on-Record (absent) (in Loth cases) for Respondents.
Date of hearing: 28th November, 2002.
JUDGMENT
MUHAMMAD NAWAZ ABBASI, J.---The above titled
two appeals involving common question of law and facts are proposed to be
disposed of through this single judgment.
2. Leave was granted in these appeals vide order,
dated 26-11-1999 as under:---
"On 28-4-1975, Mst. Maryam Bibi etc. filed a suit
against Ashraf Ali etc., the petitioners in C.P. 1239-L of 1999 seeking
declaration to the effect that they were the owners of the land in dispute on
the ground that they were the legal heirs of Ismail, deceased. They claimed
that Ismail deceased had only leased out the land in favour of the petitioners
for five years and the Mutation No. 17 having been attested by the Revenue
Authorities was illegal, against facts, collusive, without consideration, based
upon fraud and ineffective upon the rights of the respondents. They claimed the
possessions of the suit-land. It was prayed that the petitioners be restrained
from alienating the land in any manner whatsoever. The petitioners contested
the suit by filing written statement on 8-5-1975. The respondents filed another
suit on 2-5-1975 in the Court of Civil Judge 1st Class, Nankana Sahib against
Muhammad Ramzan etc., the petitioners in C.P. No. 1240/L of 1999 asking for a
declaration to the effect that they were the owners of the land in dispute
being legal heirs of Ismail deceased and their predecessor never sold the land
to the petitioners. It was further prayed that Mutation No.27 sanctioned in
favour of the petitioners was illegal, against facts, collusive, without
consideration, based upon 'fraud and ineffective upon the rights of the
respondents. It was prayed that the petitioners might be restrained from
alienating the suit-land in any manner or effecting any improvement upon it.
The petitioners contested the suit. The trial Court after framing issues arising
out of the divergent pleadings of the parties and recording evidence, decreed
both the suits vide separate judgments, dated 27-11-1976. The petitioners filed
appeals against the decision of the Civil Judge. An Additional District Judge,
Sheikhupura vide two separate judgments, dated 31-5-1977 accepted both the
appeals and in consequences, dismissed the suits of the respondents. The
respondents filed two Regular Second Appeals Nos.516 and 535 of 1977 before the
Lahore High Court which were accepted vide separate impugned judgments, dated
28-6-1999 and in the result, the judgments and decrees of the learned
Additional District Judge, dated 31-5-1977 were set aside and those of the
trial Court, dated 27-11-1976 were restored. These petitions for leave to appeal
have been instituted against the above judgments. Learned counsel for the
petitioners has submitted that a finding of fact has been recorded by the
Appellate Court after assessing/perusing the entire evidence on record. This
being so, there was no justification with the High Court to accept the appeals
without giving cogent reasons. He added that this was a case of
misreading/non-reading of evidence of the parties. An injustice has been done
to the petitioners. He argued that possession of the suit property was passed
on to the petitioners on 12-2-1969, there is an entry about possession of the
petitioners in the Revenue Record. He continued to argue that the vendor,
Muhammad Ismail remained alive' for three years after its sale and he did not
raise .any objection to the transaction. Finally, it is submitted that this is
a fit case for reappraisal of the evidence on record: to do justice between the
parties. The points raised by the learned counsel, inter alia, need
consideration. Leave to appeal is, accordingly granted.
3. The dispute in Civil Appeal No. 1521 .of 1999
relates to land measuring 71 Kanals 1 Marla owned by Muhammad Ismail,
predecessor in-interest of respondents. The claim of the appellants was that
Muhammad Ismail executed an agreement of sale of the land in their favour on
8-2-1969 for a consideration of Rs.27,000, out of which a sum of Rs.7,000 was
paid as earnest money and subsequently on payment of balance sale price of
Rs.20,000 the land with possession was transferred in their name vide Mutation
bearing No. 17, dated 12-2-1969. The dispute in the Civil Appeal No. 5122 of
1999 relates to the land measuring 4 Kanals and the claim of the appellants
namely Muhammad Ramzan and another was that Muhammad Ismail,
predecessor-in-interest of respondents sold this land to them .for a
consideration of Rs.4,000 vide Mutation No.27, dated 16-3-1969.
4. The respondents who are predecessor-in-interest of
Muhammad Ismail, vendor filed civil suits seeking declarations that the sales
in question were fake and ineffective to their right. The suits were decreed by
the Court of first instance but same were dismissed by the Appellate Court in
appeals. The High Court in the second appeals filed by the respondents held
that in absence of any other evidence in proof or genuineness of transaction of
sale, the mutation alone would neither create nor extinguish the title and
allowed the appeals through separate judgments under challenge in the present
appeals.
5. Learned counsel for the appellants has contended that
mutations of sale were sanctioned in the open meeting held in the premises of
the office of union council on the identification of vendor by the members of
the union council and in absence of a very strong evidence to the contrary, the
bare denial to the genuineness of the transaction of sale would not be
sufficient to challenge the title of appellants.
6. We having heard the learned counsel for the
parties and gone through the record find that witnesses have said nothing in
their statements about the date of sanction of mutations and the presence of
vendor at the time of sanction of mutations. Their evidence is also silent
about the date and place of payment of the balance price before Tehsildar. The
learned counsel for the appellants when confronted that in the present case,
the essential elements to constitute a valid sale through, mutation were found
missing, he submitted that since the mutations were sanctioned in the open
meeting at a public place in presence of independent persons, therefore, a legitimate
presumption would be raised in favour of validity of sales and the finding of
fact was wrongly reversed by the High Court in second appeal. There is no cavil
to the proposition that the High Court is not supposed to disturb the findings
of facts based on evidence through reappraisal of-evidence in second appeal but
if an issue of fact has not been properly determined by the lower Courts by
reason of any substantial error or defect of drawing a wrong inference about
the correct legal position which materially effected the decision on merits,
the High Court in second appeal could correct such error to the interest of
substantial justice. The controversy as to whether mutation by itself is a
sufficient proof of the sale and would create a, valid title being a mixed
question of law and-facts, could conveniently be gone into by the High Court in
second appeal if the inference drawn was contrary to law in the given facts.
The learned Judge in the High Court in the present case having come to the
conclusion that no valid sale was in existence between the parties to create
title, reversed the finding of First Appellate Court on the relevant issue and
we in the light of legal position emerging from the facts of the case would
take no exception to the conclusion drawn by the High Court.
7. For the foregoing reasons, both these appeals fail
and are accordingly dismissed. There will be no order as to costs.
M.H./A-369/S Appeal
dismissed.
2001 SCMR 1591
[Supreme
Court of Pakistan]
Present:
Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ
Mst.
RAJ BIBI and others‑‑‑Appellants
Versus
PROVINCE OF PUNJAB through District Collector,
Okara
and 5 others‑‑‑Respondents
Civil
Appeals Nos. 1329 and 1330 of 1995, decided on 26th February, 2001.
(On
appeal from the judgment of the Lahore High Court, Lahore dated I1‑5‑1994
passed in Civil Revisions Nos.506 and 507 of 1991).
(a)
West Pakistan Land Revenue Act (XVH of 1967)‑‑‑
‑‑‑‑Ss.
42(7)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Mutation, legality of‑‑‑Leave
to appeal was granted by the Supreme Court to examine the contentions that two
illiterate women had been deprived of their land in collusion with the Patwari
and the Courts below had ignored some basic features of the case while upholding
the legality of the impugned mutation; that at the time of attestation of
mutation none of the male relatives of the women was present, that they were
alleged to have been identified by a person who was Lambardar of a different
village who did not state as to how he was acquainted with the two women
residing in a different village: that according to one of the vendees who
appeared on behalf of other vendees at the trial consideration for the sale was
paid before the Tehsildar while the attesting officer denied that it was so
paid and that neither the mutation register nor the relevant page of the
Patwari's Roznamcha Waqiati bore the thumb‑.impressions of the two women.
(b)
West Pakistan Land Revenue Act (XVII of 1967)‑‑‑
‑‑‑‑S.42‑‑‑Mutation,
attestation of‑‑‑Plea of fraud‑‑‑Burden of proof‑‑‑Where pleas of fraud,
deception and misrepresentation had been taken by the illiterate Pardahnashin
ladies in alleged disposal of their properties, the onus in such cases lay on
the person who had taken advantage of the transaction to prove the genuineness
and bona fides of the document through which transaction had been executed and
the contents of such documents were fully conceived and understood by the
executant independently and freely.
Jannat
Bibi v. Sikandar Ali and others PLD 1990 SC 642 ref.
(c)
Pardahnashin lady‑‑‑
‑‑‑‑
Transfer of property of Pardahnashin lady‑‑‑Plea of fraud‑‑‑Burden of proof‑‑‑Where
pleas of fraud, deception and misrepresentation had been taken by the
illiterate Pardahnashin ladies in alleged disposal of their properties, the
onus in such cases lay on the person who had taken advantage of the transaction
to prove the genuineness and bona fides of the document through which
transaction had been executed and the contents of such document were fully
concerned and understood by the executant independently and freely.
Jannat
bibi v. Sikandar Ali and others PLD 1990 SC 642 ref.
(d)
West Pakistan Land Revenue Act (XVII of 1967)‑‑‑
‑‑‑‑S.42‑‑‑Mutation,
attestation of‑‑‑Total land of illiterate Pardahnashin ladies was got mutated
at their back‑‑‑Validity‑‑‑Ladies emphatically denied the sale and their
appearance before the Revenue Officer or the receipt of any sale consideration‑‑‑Lambardar
of the concerned village was available to witness the mutations but Lambardar
of another village was presented for the purpose who had not explained as to
how he knew the Pardahnashin ladies‑‑Neither the register of mutations nor the
mutation bore the thumb impressions of the two ladies who were allegedly identified
by the Lambardar of another village‑‑‑Revenue Officer while attesting the
mutations had not insisted for the presence of the male relatives of the ladies
who could identify them and the presence of respectables of the locality
'preferably the Lambardar of the area as required by S.42(7) of the West
Pakistan Land Revenue Act, 1967‑‑‑Beneficiary party, in circumstances, had to
establish by a strong and reliable evidence that the documents i.e. disputed
mutations were genuine and bona fide and had been voluntarily and freely
entered and attested at the free‑will of the executants‑‑‑Where the evidence of
the beneficiaries in the record was not only unsatisfactory but was incredible,
such evidence could not be attached any credence ‑‑‑Pardahnashin ladies, in
circumstances, were not a party to the mutations and they were totally kept in
dark about the transactions and fictitious mutations were got attested with the
connivance of the Revenue Staff‑‑‑Mutation proceedings wherein the two ladies
had denied their participation were not only in gross violation of S.42(7) of
the West Pakistan Land Revenue Act, 1967 but were also false and fictitious, as
such, the mutations being illegal, the entire structure built on them would
fall to the ground‑‑‑Fraud vitiates even the most solemn transaction as such
any transaction based on fraud would be void and notwithstanding the bar of
limitation the matter could be considered on merits so as not to allow fraud to
perpetuate.
(e)
Fraud‑‑‑
‑‑‑‑Limitation‑‑‑Fraud
vitiates even the most solemn transaction as such any transaction based on
fraud would be void and notwithstanding the bar of limitation the matter can be
considered on merits so as not to allow fraud to perpetuate.
Rana Abdur
Rahim Khan, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record
(absent) for Appellants.
Respondent
No. 1: Ex parse.
Mian
Saeed‑ur‑Rehman Farrukh, Advocate Supreme Court for Respondents.
Date
of hearing: 28th February, 2001.
JUDGMENT
MIAN
MUHAMMAD A.1MAL, J.‑‑‑By this common judgment we propose to dispose of
Civil Appeals Nos. 1329 and 1330 of 1995 as they have arisen out of the common
judgment, impugned in both the appeals and involve identical questions of law
and facts.
2.
Brief facts of the case are that on 9‑6‑1984 the plaintiffs/appellants in both
the appeals filed two separate suits before the Civil Court, Okara seeking
declaration to the effect that they were owners of the suit land and the
alleged Mutations Nos.86 and 102 attested on 17‑1‑1974 and 29‑8‑1974,
respectively were illegal, collusive, fraudulent, without consideration and
inoperative upon their rights. As a consequential relief, decree for possession
of the suit land was also prayed for. It was alleged in both the plaints that
the appellants were owners of the suit land; that they had never alienated it
in any way to respondents Nos.2 to 6 and they were still owners of the same;
that Ghulam Nabi respondent No‑3 who was a Patwari in the Revenue Department,
he with the connivance of respondents Nos.2, 4 to 6 and the revenue staff got
the above‑mentioned mutations attested in the names of respondents Nos.2 to 6
whereas neither the appellants ever alienated the land to them in any manner
nor they got entered any alienation in Roznamcha Waqiati; that the appellants neither
appeared before the Revenue Officer for attestation of the alleged mutations
nor received the alleged consideration of Rs.32,000 in each case; that the
respondents Nos.2 to 6 had illegally and forcibly occupied the suit land and
despite requests of the appellants they refused to deliver its possession to
them. Respondents Nos.2 to 6 resisted the suits and alleged that they have
purchased the suit land for a consideration of Rs.32,000 in each case. It was
further alleged that the appellants got criminal case registered against them,
wherein they were found innocent and exonerated from the charges. They prayed
for dismissal of the suits. On divergent pleadings of the parties, the trial
Court framed issues, recorded evidence of the parties and after hearing their
learned counsel, decreed both the suits vide two separate judgments dated 31‑3‑1990.
Feeling aggrieved, respondents Nos.2 to 6 filed two appeals, which were allowed
by Additional District Judge‑II, Okara vide two separate judgments dated 25‑2‑1991
and both the suits of the appellants were dismiss, Feeling dissatisfied, the
appellants filed two civil revisions, which have been dismissed vide common
judgment impugned herein. The appellants impugned the common judgment of the
High Court by filing two petitions for leave to appeal, wherein leave to appeal
was granted to consider:‑‑
"In
support of these petitions it is contended that two illiterate women have been
deprived of their land by respondents Nos.2 to 6 in collusion with the Patwari
and that the Courts below have ignored some basic features of the case while
upholding the legality of the mutation. In this context it is pointed out that
at the time of the attestation of the mutation none of the male relatives of
the petitioners was present; they were alleged to have been identified by
Muhammad Ramzan who was a Lambardar of a different village. He did not state
how he was acquainted with the two women residing in a different village.
According to one of the vendees who appeared on behalf of other vendees at the
trial consideration for the sale was paid before the Tehsildar. The attesting
officer denied that it was so. Neither the mutation register nor the relevant
page of the Patwari's Roznamcha Waqiati bore the thumb‑impressions of the two
sisters.
The
contentions raised in support of this petition need examination.; Leave to
appeal is granted. During the pendency of the appeal the respondents should not
alienate the land."
3.
Learned counsel for the appellants contended that the appellants were four
sisters, who were illiterate pardanashin ladies, they were gifted the land in
dispute by their father in two parcels each measuring 12,9 Kanals 15 Marlas,
which was duly mutated in their names by two mutations, one in favour of Mst.
Raj Bibi and Mst. Shehlla Bibi jointly and the other in favour of Mst. Saidan
Bibi and Mst. Sahiran Bibi jointly. Respondents Nos.2 to 6 got the said land
transferred in their names by giving it the colours of sale purportedly by the
appellants for a consideration of Rs.32,000 in each case. The appellants when
came to know about the fictitious and fraudulent mutations, they challenged the
same through the civil suits. Learned counsel submitted that the respondents
are collaterals of the appellants and are residents of village Dhaliana, but
the disputed mutations were got attested by them on the identification of
Muhammad Ramzan Lambardar of village Fatyana (D.W.4) and Muhammad Ashiq D.W.6,
son‑in‑law of respondent No.3. At the time of attestation of the mutations,
neither any male relative of the appellants was present nor they participated
in mutation proceedings, therefore, they remained ignorant about the alleged
alienations. He submitted that the mutation register and Roznamcha Waqiafi do
not bear the thumb-impressions of the appellants, as such through fraudulent
and collusive mutations, the entire land of the appellants was grabbed by the
respondents, out of whom, Ghulam Nabi respondent No.3 was a Patwari, who
enacted the entire drama. He urged that in sale, the payment of consideration
was precise question which has not been satisfactorily answered by the
respondents. He referred to the statement of Muhammad Ramzan (D.W.4), Muhammad
Ashiq (D.W.6) and Ghulam Nabi (D.W.7), who have stated that sale consideration
of Rs.32,000 was received by the appellants before Tehsildar but the Tehsildar
(D.W.5) in his statement, has denied that any payment was made in his presence
to the vendors whom he did not know.
4.
On the other hand, learned counsel for the respondents contended that Ghulam
Nabi respondent No.3 was appointed Patwari in 1975 whereas the disputed
mutations were attested in the year 1974, therefore, the allegation of
manoeuvring of the mutations is not maintainable. He submitted that possession
of the land in dispute was delivered to the respondents in pursuance of the
mutations in 1974 whereas the suits were brought in 1984, therefore, the suits
being hopelessly time‑barred, were liable to be dismissed.
5. It is now well‑settled that in cases where
pleas of fraud, deception and misrepresentation have been taken by the
illiterate Pardanashin ladies in alleged disposal of their properties, the onus in such cases lies on
the person who takes advantage of the transaction to prove the genuineness and
bona fides of the document through which transaction has been executed and that
the contents of such document were fully conceived and understood by the
executant independently and freely. Reference can be made to Jannat Bibi v.
Sikandar Ali and others PLD 1990 SC 642. The appellants are alleged to have
executed two Mutations Nos.86 and 102 attested on 17‑1‑1974 and 29‑8‑1974,
respectively, with a gap of more than seven months but strangely enough both
were attested in similar circumstances with the same set of attesting witnesses.
Mst. Raj Bibi and Mst. Saidan Bibi while appearing in their respective suits,
stated that neither they have sold their landed property to the defendants
/respondents nor have appeared before any Revenue Officer nor have received any
consideration. They deposed that the respondents have forcibly occupied their
land and got the mutations attested by producing some other ladies. In cross‑examination,
they denied the sale in favour of the respondents and their appearance before
the Tehsildar. Haji Muhammad Tufail Lambardar of village Dhalyana (P.W.2) and
Muhammad Abbas (P.W.3) also stated that the plaintiffs have neither sold their
land to the defendants nor have received any money. They further deposed that
the defendants have committed fraud and have forcibly occupied the land of the
plaintiffs. On the other hand, Muhammad Khan, Office Qanoongo (D.W.1), Ahmad
Ali (D.W.2) and Inayat Khan, Naib Patwari (D.W.3) appeared and produced record.
Muhammad Ramzan Lambardar village Fatyana D.W.4 stated that he identified the
appellants at the time of attestation of the mutations and they received
Rs.32,000 as sale consideration in each case before the Tehsildar. Jawad Hassan
M.I.C. (D.W.5) deposed that in 1974 he attested the disputed mutations as
Tehsildar in favour of the defendants. The vendors were identified by Muhammad
Ramzan Lambardar, Muhammad Abbas Lambardar and Muhammad Ashiq Pattidar Deh. In
cross‑examination, he conceded that neither he personally knew the vendors nor
any payment was made before him to the vendors. He showed his ignorance that
Ghulam Nabi, defendant was a Patwari under him and denied that mutations were
attested at his behest. Muhammad Ashiq (P.W.6) stated that he was Pattidar of
the village and he signed the attestation as a marginal witness. In cross-examination,
he stated that sale amount was counted and placed on the table of the Tehsildar
which was received by the vendors. He admitted that Ghulam Nabi and Ghulam
Mustafa defendants were his son‑in‑law and brother‑in‑law, respectively. He deposed
that at the time of attestation only he and Muhammad Ramzan were present.
Ghulam Nabi (D.W.7), one of the defendants, stated that they have purchased the
suit land for a sum of Rs.32,000 in each case from the plaintiffs in 1973‑74
and the sale amount was paid before the Tehsildar. The land is in their
possession ever since. In cross‑examination, he stated that he passed Patwar
Examination in 1961 and was posted in 1975. He denied the suggestion that sale
consideration was not paid before the Tehsildar and they have committed fraud
with the plaintiffs and mutations were got attested collusively without paying
any consideration.
6.
The appellants have emphatically denied the sale and their appearance before
the Revenue Officer or the receipt of any sale consideration. The resume of the
evidence, in nutshell, is that the total land of the illiterate Pardanashin
ladies was got mutated at their back by the defendants in their favour. In such
a case, the beneficiary party had to establish by a strong and reliable
evidence that the documents i.e. disputed mutations were genuine and bona fide
and had been voluntarily and freely entered and attested at the free‑will of
the executants. The evidence of the defendants in this regard is not only
unsatisfactory but is incredible as well. According to Jawad Hussain; M.I.C.
(D.W.5), the vendors were identified by Muhammad Ramzan (D.W.4), a Lambardar of
a different village whereas Haji Muhammad Tufail (P.W.2) Lambardar of the
concerned village where land was situated was available. Muhammad Ramzan
(D.W.4), Lambardar of a different village did not disclose as to how he knew
the appellants. When Haji Muhammad Tufail (P.W.2), Lambardar of village
Dhalyana was available, why was he not associated with the attestation proceedings.
Another question is that when the Revenue Officer was attesting the mutations
with regard to the property of the illiterate Pardanashin ladies, why did not
he insist for the presence of the male relatives of the ladies who could
identify them and the presence of respectable persons of the locality,
preferably Lambardar or members of the area concerned as required under section
42(7) of the West Pakistan Land Revenue Act, 1967. According to D.W.5, he did
not know the vendors and no payment to them was made before him while Muhammad
Ramzan (D.W.4), Muhammad Ashiq (D.W.6) I and Ghulam Nabi (D.W.7) stated that
sale consideration, which is an essential ingredient of sale, was paid to the
vendors before the Tehsildar. The contradictory statements of the said
witnesses make the transaction doubtful. The respondents being beneficiaries of
the transactions, their evidence was imbued with interest and such evidence
cannot be attached any credence. I From the evidence on record, an irresistible
conclusion can be drawn that the appellants were not a party to the mutations
and they were totally kept in dark about the so‑called transactions and
fictitious mutations were got attested by the defendants in their favour with
the connivance of the revenue staff, of the entire land of the plaintiffs at
their back as neither the mutation register, Roznamcha Waqiati nor the disputed
mutations bear the thumbimpressions of a appellants.
7.
Another aspect of the case is that disputed mutations were attested by the
Revenue Officer in utter disregard of mandatory provisions of section 42 of the
West Pakistan Land Revenue Act, 1967. The appellants unequivocally stated that
they had not appeared before any Revenue Officer in connection with the alleged
sale. Neither the register of mutations nor the mutations bear their thumb‑impressions,
who were allegedly identified by Muhammad Ramzan (D.W.4), a Lambardar of a
different village and Muhammad Ashiq (D.W.6), father‑in‑law of Ghulam Nabi
Patwari and one of the alleged vendees of the disputed land and beneficiary of
the alleged transactions, who manoeuvred the whole drama in connivance with the
Revenue Officer. Ghulam Nabi (D. W.7) has stated that he passed Patwar
Examination in 1961 at the age of 19 years and when he joined service, he was
24/25 years of age. As such, he joined service in the year 1966‑67 and at the
time of attestation of disputed mutations he was in active service, who managed
to grab the property of the helpless ladies in league with the " Revenue
Officer. The mutation proceedings in which the appellants have denied their
participation were not only in gross violation of section 42(7) of the Act
ibid, but were also false and fictitious as such, the mutations being illegal,
the entire structure built on them would fall to the ground.
8.
There is no specific issue with regard to the suit being time‑barred as such
objection has not been taken in the written statements. However, the learned
trial Court in its finding on Issue No.4 observed that the suits were within
time holding that the plaintiffs had not sold their landed property to the
defendants and the disputed mutations were fraudulently got attested by the
defendants without consideration and knowledge of the plaintiffs. Learned
appellate and the revisional Courts, however, did not specifically advert to
this aspect of the case. It is well‑settled that fraud vitiates even the most
solemn transaction as such any transaction based on fraud would be void and
notwithstanding the bar of limitation the matter can be considered on merits so
as not to allow fraud to perpetuate. The appellants previously in 1976 filed
two suits asserting the disputed 'mutations to be fraudulent, collusive and
illegal but the plaints in the said suits were returned on the ground that the
Court had no pecuniary jurisdiction to adjudicate them. The appellants also got
registered a case under section 420, P.P.C. against the respondents but it was
filed within a month. The appellants submitted, application to the Deputy
Commissioner for holding inquiry into the fraud committed in the attestation of
mutations by the respondents in connivance E within to revenue staff, but it
too, did not bear any fruit. This shows that illiterate Pardanashin ladies have
been running from pillar to post to seek redress of their grievance but they
failed and ultimately the defrauded women approached the Civil Court again, where trial Court
decreed the suits but the Appellate Court and the High Court dismissed the
same. We are of the considered view that the learned Appellate Court and the
High Court misread the evidence on record and they arrived at the erroneous
conclusions.
9.
In view of to above, we allow these appeals, set aside the judgments and
decrees of to Additional District Judge‑II, Okara dated 25‑2‑1991 and that of
the Lahore High Court dated 11‑5‑1994 and restore tat of the trial Court wit
costs throughout.
M.B.A./R‑30/S
Appeals
allowed.
2007 Y L R 1770
[Lahore]
Before Sh. Hakim Ali, J
QASIM ALI---Petitioner
Versus
SHER MUHAMMAD---Respondent
Civil Revision No.102-D of
1993/BWP, heard on 8th March, 2007.
(a) Specific Relief Act (I of 1877)---
----S.42---Transfer of Property Act (IV of 1882), S.54---West
Pakistan Land Revenue Act (XVII of 1967), S.42---Declaration of
title---Mutation of sale---Burden to prove--Non-production of revenue officer
as witness---Effect---Plaintiff assailed mutation of sale sanctioned in favour
of defendant on the ground of its being based upon fraud---Trial Court
dismissed the suit filed by plaintiff but Appellate Court allowed the appeal
and decreed the suit---Validity---To prove sale transaction having been made
through mutation, it was for the defendant to prove fact of sale---Mere
incorporation of entries in next Jamabandi could not prove its genuineness nor
grant of any benefit could absolve the defendant from proving sale transaction
independently, which was denied by plaintiff at the very outset---Essential
ingredients of sale transaction and payment of price of land were not proved on
record by defendant---Burden of proof could not be placed upon the shoulder of
plaintiff for proof of sale transaction, which was alleged and asserted by
defendant---Party who asserted the transaction had to prove it
himself--Omission to produce Tehsildar, who had attested the mutation and
Patwari who had entered the mutation was to affect adversely the case of
defendant---Sale transaction having not been proved, High Court declined to
take any exception to judgment and decree passed by Lower Appellate Court.
Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890;
Hyder through Legal Heirs v. Raja and 5 others 2000 YLR 1490; Muhammad Lehrasab
Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR 338; Gharib Shah and others
v. Zarmar Gul PLD 1984 SC 188 and Bakhtiar and 3 others v. Member III, Board of
Revenue, Balochistan, Quetta and 20 others PLD 1984 Quetta 158 ref.
Muhammad Akram and another v. Altaf Ahmad PLD 2003 SC 688; Naja and
2 others v. Shahmand and 4 others PLD1985 Lah. 607; Abdul Majeed and 6. others
v. Muhammad Subhan and 2 others 1999 SCMR 1245; Muhammad Azam and others v.
Muhammad Yar and others 1988 CLC 2388 and Hakim Khan v. Nazeer Ahmad Lughmani
and others 1990 MLD 89 rel.
(b) West Pakistan
Land Revenue Act (XVII of
1967)---
----S.39---Mutation not a proof of title---Mutation itself does not
confer any right or 'title in property in dispute---Mutation is sanctioned for
fiscal purposes only---Person who claims sale in his favour has to prove sale
transaction independently in accordance with legal evidence brought on record
of the case.
(c) West Pakistan
Land Revenue Act (XVII of 1967)---
----S. 42---Mutation, sanctioning of---Principles---Mutation
not sanctioned in village where suit-land is situated, is violative of the provision
of S.42 of West Pakistan Land Revenue Act, 1967---Assistant Collector, under
S.42 of West Pakistan Land Revenue Act, 1967, has to conduct inquiry in common
assembly in the estate where land is located and to pass order after vendor has
been identified by two respectable persons of the union council concerned.
Ijaz Ahmad Ansari for Petitioner. .
Muhammad Mahmud Bhatti, for Respondent.
Date of hearing: 8th March, 2007.
JUDGMENT
SH. HAKIM ALI, J.---Facts forming background of this civil
revision are that Sher Muhammad, respondent had filed a suit for recovery of
possession, with regard to 52 Kanals of agricultural lands, situated in Mauza
Falak Sher Chishti, Tehsii and District Bahawalnagar, with prayer of
declaration that Mutation No.358, sanctioned on 26-9-1973 in favour of Qasim
Ali, defendant/petitioner, allegedly on behalf of Sher Muhammad, plaintiff, was
against facts, illegal, fictitious, forged, collusive and without
consideration, therefore, was ineffective upon the rights of the plaintiff. In
the aforementioned plaint, prayer for grant of permanent injunction restraining
the defendant to claim himself owner of the property was also made. Aforesaid
suit was resisted by Qasim Ali, defendant, who filed the written statement on
3-2-1981. Issues were framed upon the pleadings of the parties and the parties
had produced their evidence. After appreciation of evidence, learned Civil
Judge dismissed the suit on 13-4-1992. Against that judgment and decree of
dismissal, Sher Muhammad, plaintiff filed an appeal before the learned District
Judge, Bahawalnagar, which was accepted
through the impugned judgment and decree dated 7-11-1992. Hence, this revision.
2. Petitioner's learned counsel
submits that the plea taken by the plaintiff in his plaint was that he had
leased out the land in dispute to defendant and the lease was at the rate of
Rs.400 for the entire land (16-1/2 acres) per year but the amount received was
Rs.2,600, which amount was admitted to have been received by the plaintiff.
Therefore, from this fact it was obvious that the amount received by plaintiff
was not for lease but it was the sale consideration for the entire land.
Further submits that delivery of possession to defendant/petitioner was
also an admitted fact. Accordingly, it was
for the plaintiff to prove that there was no sale and the land was leased out
to the defendant. As per learned counsel for the defendant, plea of lease was
not proved by the plaintiff on the record. Both the learned Courts below had
declared that plaintiff had failed in his plea to prove that the land was
leased out to the defendant. It has further been argued by the learned counsel
that the entries of mutation .having been carried in jamabandi, so in
that event, according to PLD 1979 SC 890
(Abdul Ahad and others v. Roshan Din and 36 others), the entries of mutation
had, consequently got presumption of correctness. According to the learned
counsel, the plaintiff had failed to adduce the reasons, as to why the
possession was delivered to Qasim Ali, defendant, particularly, when the plea
of lease was disbelieved by both the learned Courts below.
3. Conversely, respondent's learned
counsel submits that it was incumbent upon the defendant to prove the factum of
sale and for that purpose, Patwari, who had entered the mutation and the
Tehsildar/Assistant Collector Grade-II, who had attested the mutation, were to
be brought into evidence. Due to failure to produce these witnesses, adverse
presumption was to be raised against the version adopted by the defendant, that
sale was made or mutation was rightly attested. Learned counsel has relied upon
PLD 2003 SC 688 (Muhammad Akram and another v. Altaf Ahmad) for the above noted
arguments. No transfer of title can take place when the sale amount exceeds
Rs.100 and the sale is not evidenced through registered sale-deed. Relies upon
2000 YLR 1490 (Ryder through Legal Heirs v. Raja and 5 others. By referring to
2001 SCMR 338 (Muhammad Lehrasab Khan v. Mst. Ageel-un-Nisa and 5 others)
learned counsel submits that to prove the sale and mutation, burden of proof
was upon the shoulders of the petitioner/defendant, who had failed in this
regard. It has also been submitted by learned counsel that the identifier of
the vendor in a mutation must be resident of the union council concerned as
provided by section 42 of the West Pakistan Land Revenue Act, 1967. To support
this PLD 1984 SC 188 (Gharib Shah and others v. Zarmar Gul) has been relied
upon. Mutation which was sanctioned in violation of the provisions of section
42 of the aforesaid Act, was void, nullity in the eye of law and no right had
accrued to the persons in whose favour it was sanctioned. Learned counsel has
cited for this proposition (PLD 1984 Quetta 158 Bakhtiar and 3 others v. Member
III, Board of Revenue, Balochistan, Quetta and 20 others).
4. Heard and record examined. To
appreciate the facts and the law applicable to the facts, it is necessary to go
through the averments of the plaint. In para.No.2 of the plaint, the
version adopted by Sher Muhammad, plaintiff was that he had leased out orally
6-1/2 acres of land, out of his 'owned lands to defendant at the rate of Rs.400
per annum and that defendant had been paying the lease money on each year by
year. Fifteen days before the institution of the suit, plaintiff came across
from Patwari that defendant had become owner of 52 Kanals of lands, upon which
the scrutiny of revenue papers was conducted and it was found that defendant
had got sanctioned Mutation No.358 showing an oral sale having been entered
into for Rs.2,600 in his favour on 26-9-1973 allegedly by the plaintiff
although plaintiff had not transacted any sale with the defendant nor had
received any consideration. It was further alleged that plaintiff had not
appeared before any Revenue Officer to get the mutation sanctioned and the
mutation entries were fictitious, collusive, without registration, based on
fraud and misrepresentation and it was sanctioned in the absence of plaintiff.
.From the bare reading of the plaint. I have nowhere found that the plaintiff
had admitted the receipt of Rs.2,600 from the defendant. In these
circumstances, plea raised by learned counsel, for the defendant that plaintiff
had admitted the receipt of Rs.2,600 was not found correct from the averments
of the plaint. The other argument of the learned counsel for the petitioner
that possession was admitted to have been delivered to the defendant, cannot
grant any benefit to the petitioner because nature of the possession was also
mentioned to have been granted to defendant on lease. Therefore, this fact of
possession cannot prove the sale transaction. To prove the sale transaction
having been made through Mutation No.358 dated 26-9-1973 (Exh.P.1/Exh.D.1), it
was for the defendant/petitioner to prove the factum of sale. Mere
incorporation of the entries in the next jamabandi cannot prove its genuineness
nor grant any benefit or absolve the petitioner from proving the sale
transaction independently, which was denied by the plaintiff at the very
outset. Vide the following decisions:
(Naja and 2 others v. Shahmand and 4 others) PLD1985 Lah. 607
(Abdul Majeed and 6 others v. Muhammad Subhan and 2 others) 1999
SCMR 1245
Muhammad Azam and others v. Muhammad Yar and others (1988 CLC 2388)
and
Hakim Khan v. Nazeer Ahmad Lughmani and others (1990 MLD 89).
Law on this point is also settled that mutation itself does not
convey any right or title in the property in dispute. It is sanctioned for the
fiscal purposes only. The person who claims the sale in his favour has to prove
the sale transaction independently in accordance with the legal evidence
brought on the record of the case.
5. To remove and settle the conflict of findings of facts between
two Courts, below, evidence brought on record has also been scrutinized by me.
D.W.2 Hakeem Nazar Muhammad was the witness who was admittedly neither owner
nor resident of Mauza Falak Sher Chishti although hs9 was cited as identifier
of Sher Muhammad vendor. Moreover, it has also been found from his evidence
that mutation in dispute was not sanctioned in the Mauza itself. Thus the
sanction of mutation was made by Tehsildar in violation of the provisions of c
section 42 of the West Pakistan Land Revenue Act, 1967 which had mandated the Assistant Collector to conduct inquiry in the
common assembly in the estate where the land was located and to pass order
after the vendor was identified by two respectable persons of the union council
concerned. According to that witness, he had never seen even the land of whole
Mauza Falak Sher Chishti. He had not known even the distance of the
aforementioned Mauza from Bahawalnagar city. He had clearly mentioned that no
amount was paid before him.
6. The other witness, D.W.3
Muhammad Abdullah had clearly admitted that no transaction of sale was settled
and no sale amount was paid before him. He had, deposed in his evidence that he was not remembering as to whether order was written upon
the mutation or not?
7. The last witness is D.W.4 Muhammad
Ameer who initially stated that Rs.2,400 were
settled for sale transaction but upon interference and inkling from defendant,
he changed his version from Rs.2,400 to Rs.2,600. He also deposed that only Rs.2000
were paid before him to the vendor as earnest money. No other witness was
brought to corroborate this fact of payment of Rs.2,000 or with regard to
settlement of sale bargain. It is an important fact that for the remaining
amount of Rs.2,400 no other witness was brought on the record by defendant
before whom that amount was paid to the vendor.
7A. D.W.5 Muhammad Sabir had
clearly Mentioned that he had not participated in the transaction, while the
statement of Qasim Ali, D.W.6 cannot be believed as it was a self-serving
statement of a party (defendant himself). It has also been found from his
statement that at the time of alleged sale transaction, Muhammad Bakhsh Machhi,
Muhammad Ameer and Noor Muhammad were also present. Muhammad Ameer D.W.4 had
not corroborated the fact of payment of the whole sum as stated by Qasim Ali,
defendant himself, while Muhammad Bakhsh Machhi and Noor Muhammad were not
produced by the defendant, into his evidence. Therefore, essential ingredients
of settlement of sale transaction, payment of price of the land, were not
proved on the record by the defendant.
8. It may be mentioned here that burden
of proof cannot be placed upon the shoulder of the plaintiff for the proof of
the sale transaction, which was alleged and asserted by defendant. The party,
who asserts the transaction, has to prove it himself.
9. Learned counsel for the
respondent has correctly relied upon PLD 2003 SC 688 (Muhammad Akram and
another v. Altaf Ahmad) that the failure to produce Tehsildar (Assistant
Collector), who had attested the mutation and the Patwari, who had entered the
mutation, having not been produced was to affect adversely upon the case of the
petitioner. Therefore, having found from the evidence and from the record, that
defendant has failed to prove the sale transaction, decretal of suit in favour
of plaintiff by learned District Judge, cannot be taken any exception. Decree passed
in favour of plaintiff/respondent is upheld and the C.R. is dismissed with no
order as to costs.
M.H./Q-6/L Revision
dismissed.
P L D 2007 Supreme Court 582
Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk and Syed
Jamshed Ali, JJ
ZULFIQAR and others---Appellants
Versus
SHAHDAT KHAN---Respondent
Civil Appeals Nos.848 and 849 of 2005, decided on 10th April, 2007.
(Against the judgments dated 27-4-2004 passed by the Lahore High
Court, Lahore in C.Rs.No.1827 and 1828 of 2002).
(a) Constitution of Pakistan (1973)---
----Arts. 185(2)(d)(e) & 185(3)---Supreme Court Rules, 1980,
O.XII, R.2 & O.XIII, R.1---Conversion of petition for leave to appeal into
direct appeal---Limitation---Filing of petition within time---Non-raising of
objection by Office of Supreme Court that appeal and not petition was
competent--Prayer for conversion of petition into direct appeal with
condonation of delay caused in filing direct appeal---Validity---Counsel had
committed mistake in filing petition, but its effect was aggravated by silence
of the office---Contributory negligence of the Office could not be pressed as a
sole ground to seek condonation of delay---Right of appeal was much stronger
than right of filing petition---Giving up right of appeal by a litigant would
not necessarily mean giving up his right of filing of petition---Non-suiting a
litigant for not filing appeal would amount to punishing him for not availing a
right, which ensured to his benefit---Neither appellant had been negligent nor
was mistake to file petition instead of appeal was so reckless that discretion
ought not to be exercised in his favour---Supreme Court condoned delay in
filing appeal.
Taza Gul and others v. Haji Fazal Subhan 2006 SCMR 504; Collector,
Land Acquisition, Anantnag and another v. Mst. Katiji and others AIR 1987 SC
1353; Investment Corporation of Pakistan v. Syed Jamaat Ali Shah and another
1992 SCMR 1195; Haji Muhammad Nawaz v. Hussain Shah 1990 SCMR 1621; Sardar
Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy
Commissioner, Abbottabad and others 1991 SCMR 2164 and Chairman, N.W.F.P.
Forest Development Corporation and others v. Khurshid Anwar Khan and others
1992 SCMR 1202 ref.
(b) Administration of justice---
----Act of court or public functionary, on the actions of whom a
citizen has no control, should not be allowed to prejudice anyone.
(c) Constitution of Pakistan (1973)---
----Art.185(2)(3)---Petition for leave to appeal---Wrong provisions
of law quoted on memo. of petition would not debar Supreme Court from hearing
same as appeal, if within time.
(d) Interpretation of statutes---
----Provision made in a statute for benefit of an individual
neither could be waived nor liable to be pressed to his disadvantage.
(e) Constitution of Pakistan (1973)---
----Art. 185(2)(3)---Right of appeal stronger than right of filing
petition---Giving up right of appeal by litigant would not mean giving up his
right of filing petition---Principles.
A provision made in a statute for the benefit of an individual
cannot only be waived, but such a provision cannot be pressed to his
disadvantage. This is said in the context that right of appeal is much stronger
right than the right of filing a petition, and if a litigant gives up his right
of appeal, he does no necessarily mean that he has given up his right to file a
petition. To non-suit a litigant for not filing an appeal would in fact amount
to punishing him for not availing a right, which enured to his benefit.
(f) Constitution of Pakistan (1973)---
----Art. 185(2)(3)---Supreme Court Rules, 1980, O.XII, R.2 &
O.XIII, R.1---Limitation Act (IX of 1908), S.3---Petition or appeal, filing
of---Delay, condonation of---Non-applicability of provision of S.3 of
Limitation Act, 1908 to such petition or appeal---Effect---Condonation of delay
being in discretion of court, if declined, would result in dismissal of
petition or appeal as barred by time.
(g) Limitation---
----Expiry of limitation having effect of creating a valuable right
in favour of opposite party, but always subject to discretion of court.
(h) Punjab Pre-emption Act (IX
of 1991)---
----Ss. 2(d), 3, 4 & 13---West Pakistan Land Revenue Act (XVII
of 1967), S.42---West Pakistan Land Revenue Rules; 1968, R.34---Preemption
suit---Talb-i-Muwathibat, performance of---Plaint showed that pre-emptor came
to know of sale through vendee on 18-8-1995, when he made Talb-i-Muwathibat;
that date of attestation of mutation mentioned in Pert Patwar and Pert Sarkar
was 17-8-1995 and 24-8-1995 respectively---Pre-emptor had not pleaded that sale
was complete before attestation of mutation---Neither copy of Roznamcha Waqiati
was produced in evidence nor was vendor or Patwari examined---No evidence on
record to show that sale price and possession of land had passed on to vendee
before attestation of sale---Validity---In absence of specific plea and
evidence of payment of sale price to vendor, oral sale would be deemed to have
completed on attestation of mutation and not before any date prior
thereto---Suit was dismissed in circumstances.
Muslim Law as Administered in India
and Pakistan;
Begum v. Muhammad Yaqoob 16 All. 444 and Parumal and others v. Wadero
Mahomedali and others 171C 39 rel.
(i) Pleadings---
----Plea not raised in pleading---Effect---Decision of case could
not possibly rest on such plea---Rationale behind such consistent law would be
not to take other party by surprise.
(j) Punjab Pre-emption Act (IX of
1991)---
----Ss. 2(d), 3 & 4---Transfer of Property Act (IV of 1882),
S.54---`Sale'---Connotation---Definition for sale as given in Punjab
Pre-emption Act, 1991 not similar to that, given in Transfer of Property Act,
1882---Expression "permanent transfer" used in definition of sale in
Punjab Pre-emption Act, 1991 connoted a
fully consummated sale, which would be interpreted in the light of Injunctions
of Islam---Sale would come into existence on payment of sale price and transfer
of possession.
Monajal Huq v. Shafiullah and another PLD 1964 Dacca 640 rel.
(k) West Pakistan
Land Revenue Act (XVII of
1967)---
---S. 42---West Pakistan Land Revenue Rules, 1968, R.34---Mutation
of sale---Entry in such mutation referring to report recorded in Roznamcha
Waqiati---Evidentiary value---Such note/entry was not primary evidence of
contents of Roznamcha Waqiati, thus, would not constitute any evidence at all
of sale.
Noor Muhammad v. Abdul Ghani 2002 CLC 88; Karam Shah v. Mst. Ghulam
Fatima and 3 others 1988 CLC 1812; Sattar Muhammad and 2 others v. Hussian
and 3 others PLD 1988 Pesh. 48 and Haq Nawaz v. Malik Gul Hussain through Legal
Heirs and another 1994 MLD 585 rel.
(l) Punjab Pre-emption Act (IX of
1991)---
----S. 6---Civil Procedure Code (V of 1908), O.XLI,
R.22---Constitution of Pakistan (1973), Art.185(3)---.Pre-emption
suit---Superior right of pre-emptor, issue of---Concurrent
findings of three courts below in favour of pre-emptor---Judgments of two
courts below were in favour of vendee on other issues---Vendee sought to
challenge such. right of pre-emptor before Supreme Court on the ground that entire
case would be open on au appeal---Validity---No such plea was raised before
High Court---Vendee in view of findings of two courts below in his favour could
question findings on issues against him by virtue of enabling provisions of
O.XLI, R.22, C.P.C.---Concurrent finding of three courts below in favour of
pre-emptor could not be re-opened before Supreme Court.
Haji Muhammad Abbas and another v. Shaheen and another 1982 CLC 232
and Syed Haji Imambakhsh Shah and others v. Mir Muhammadali Khan Haji Ali Murad
Khan AIR (33) 1946. Sindh 55 ref.
(m) West Pakistan Land Revenue Rules, 1968---
----R. 34---West Pakistan Land Revenue Act (XVII of 1967),
S.42---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Roznamcha Waqiati,
report/entry recorded in---Evidentiary value---Report/entry made by Patwari
during the course of performance of official duty would be admissible---Such
report/entry, if contained statement of a private person; would be required to
be proved to establish its correctness---Principles.
Although Roznamcha Waqiati is required to be maintained under the
West Pakistan Land Revenue Rules, 1968 and entry made during the course of
performance of official duty is admissible yet if the report contains the
statement of a private individual, then it is required to be proved to
establish its correctness. Under section 42 of the West Pakistan Land Revenue
Act, 1967 it is the person acquiring a right in the land who has to make such a
report to the Patwari Halqa. In the present case the report was made by the vendor,
therefore, within the scope of section 42, West Pakistan Land Revenue Act, 1967
it is even doubtful whether such a report, at the instance of vendor (a person
alienating his right) could be said to have been recorded by the Patwari in the
discharge of his official duty.
Noor Muhammad v. Abdul Ghani 2002 CLC 88; Karam Shah v. Mst. Ghulam
Fatima and 3 others 1988 CLC 1812; Sattar Muhammad and 2 others v. Hussian and
3 others PLD 1988 Pesh. 48 and Haq Nawaz v. Malik Gul Hussain through Legal
Heirs and another 1994 MLD 585 ref.
Gul Zarin Kiayani, Advocate Supreme Court and M.S. Khattak,
Advocate-on-Record for Appellants (in both cases)
Raja M. Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad
Khan, Advocate-on-Record for Respondents (in both cases).
Date of hearing: 14th December, 2006.
JUDGMENT
SYED JAMSHED ALI, J.---This judgment shall dispose of Civil
Appeals Nos. 848 and 849 of 2005 as the questions of law and fact arising
therein are common. Vide Mutation No.194 (in C.A. No.848 of 2005) entered on
9-8-1995 and attested on 24-8-1995 the petitioner purchased land measuring 46
Kanals 18 Marlas for a consideration of Rs.200,000 and vide Mutation No.193 (in
C.A. No.849 of 2006) entered on 9-8-1995 and attested on 24-8-1995, the
petitioners got in exchange land measuring 44 Kanals, 15 Marlas.
2. Against the aforesaid transactions, separate pre-emption suits
were filed by Shahdat Khan, respondent on the ground that he was Shafi Sharik,
Shafi Khalit and Shafi Jar. The exchange vide Mutation No.193 was claimed to be
a sale for a consideration of Rs.90,000. The two suits were contested. The
learned trial Court found that the respondent-preemptor had superior right.
However, the suits were dismissed on the ground that
"Talb-e-Muwathibt" was not made after attestation of the mutations.
This was vide separates judgments and decrees dated 25-9-2001. The two appeals
of the pre-emptor were also dismissed. Civil Revisions Nos.1827 and 1828 of
2002 of the pre-emptor-respondent were allowed vide the impugned dated
27-4-200. The learned High Court was of the view that the oral salt; was
complete when the matter was reported to Patwari Halqa on 9-8-1995, therefore,
Talb-e-Mawathibat made thereafter on 18-8-1995 was in order.
3. The appellants, in the first instance, filed C.P.L.As. Nos. 1655
of 2004 and 1656-L of 2004. Since the impugned judgments of the learned High
Court were of reversal, and the value of the subject-matter was more than
Rs.50,000, appeals under Article 185(2) were competent, the learned counsel for
the appellants with a view to filing appeals withdrew both the petitions which
were dismissed vide order dated 15-7-2005. They then filed the present appeals
which are barred by time by 425 days and applications for condonation of delay
have been moved in both the cases.
4. The learned counsel far the appellants submits that in
C.A.No.848 of 2005, the value of the suit for the purpose of jurisdiction as
indicated in the plaint was Rs.24,000 while in the other case it was Rs.23,000
which mislead the appellants- to file petitions in the first instance. He
strenuously urged that the confusion continued to prevail till this Court in
Taza Gul and others v. Haji Fazal Subhan 2006 SCMR 504 clarified that the value
of the subject-matter in a pre-emption case for the purpose of appeal before
this Court shall be the market value of the land. He also relied upon the said
judgment to contend that in the said case, the petition which was erroneously
filed was converted into appeal and the delay was condoned. In these cases, he
contends, the petitions were filed within thirty days and the mistake of mere
quoting Article 185(3) did not take away the jurisdiction of this Court to hear
the aforesaid petitions as appeals. Therefore, according to him, even the withdrawal
of the petitions by the counsel was a mistake which could not, in the
circumstances, be said to be tainted with negligence or bad faith. Another limb
of his submission was that section 3 of the Limitation Act did not apply, by
its own force, to the appeals and petitions before this Court and, therefore,
in the matter of condonation of delay, the approach has to be liberal to ensure
that technicalities are not allowed to operate as tyrant master and the cases
are heard on merits. Reliance was placed on Collector, Land Acquisition,
Anantnag and another v. Mst. Katiji and others
AIR 1987 SC 1353. Yet another contention was that in accordance with a
three members bench judgment in Investment Corporation of Pakistan v. Syed Jamaat Ali Shah
and another 1992 SCMR 1195, the petition initially filed could be heard as such
even though an appeal lay and its conversion into appeal was not required. He
also relied upon the following judgments i.e. Haji Muhammad Nawaz v. Hussain
Shah 1990 SCMR 1621, Sardar Abdur Rauf Khan and others v. The Land Acquisition
Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164, Chairman,
N.W.F.P. Forest Development Corporation and others v. Khurshid Anwar Khan and
others 1992 SCMR 1202 to contend that conversion of petitions -into appeals,
has liberally been allowed by this Court a delay condoned. He lastly submits
that in fact the office of this Court also contributed in delay because at the
time of presentation of the petitions it was not pointed out that appeals being
competent the petitions would not be entertainable. Had the office so pointed
out the delay in filing the appeals could be avoided. He next submits that.
even on merits the concurrent judgments of the two Courts were reversed by the
learned High Court and 'the question of law being raised herein is of utmost
importance inasmuch as that it is a question of first impression and in case
these appeals are not heard on merits, the judgment of the learned High Court,
which in his view, lays dawn wrong law, will continue to occupy the field.
5. On merits, his contention is that right of pre-emption under the
Punjab Pre-emption Act, 1991 arises out of a perfected sale and, therefore, the
"Talb-e-Mawathibat" could only be made after completion of the sale.
He maintains that the question as to completion of the sale will have to be
examined in the light of the principles of Islamic Law and the report in
Roznamcha Waqiati entered on behalf of the vendor on 8-8-1995 (which was not
otherwise proved) could not be said to have brought about a perfected sale.
6. It is vehemently contended that in fact it has never been the
case of the pre-emptor that the sale was complete any time before attestation
of the mutation: The pre-emptor made "Talb-e-Mawathibat" on 18-8-1995
and the plea taken in the plaint was that copies of Part Parwar supplied to him
by the Patwari indicted that the mutations were attested on 17-8-1995. He
further submits that an appeal has the effect of re-opening of the entire case.
On this premises he sought to argue that the pre-emptor had no right to claim
pre-emption of a large parcel of laud because under the Muslim Law, pre-emption
on the basis of contiguity extends only to small pieces of land. Reliance was
placed on Haji Muhammad Abbas and another v. Shaheen and another 1982 CLC 232,
Syed Haji Imambakhsh Shah and others v. Mir Muhammadali Khan Haji Ali Murad
Khan AIR (33) 1946 Sindh 55. He further urged that common source of irrigation
from Government owned canal does not confer right of pre-emption. In raising
this contention, he submits that a question of law could be raised at any stage
of the proceedings. He next contends that. issue No.6-A, regarding Talbs, was
settled on 22-9-2001 at the arguments stage and without taking any evidence and
allowing opportunity to either side to produce evidence the cases were decided
on 25-9-2001. This caused serious prejudice to the appellants. It was also
urged specifically in the revision before the learned High Court but was not
attended to.
7. On the other hand, the learned counsel for pre-emptor has
vehemently opposed this appeal. He submits that the pre-emptor was informed by
the vendee on the spot on 18-8-1995 that he had purchased the land in dispute
on which Talb-e-Mawathibat was made, meanwhile on 9-8-1995, report had already
been lodged in Roznamcha Waqiati by the vendor which amounted to sale and,
therefore, the pre-emptor was not bound to wait for making Talb-e-Mawathibat
till attestation of the mutation. He contends that, presumption of truth was
attached to Roznamcha Waqiati which clearly established that sale had taken
place on 9-8-1995. Reliance was placed on Muhammad Subhan and others vs. Mir
Qadam Khan and others (2001 MLD 1716), Fazal Rehman v. Abdul Qayyum 1996 SCMR
1201 and Zafar Ali v. Zainul Abidin and another (1992 SCMR 1886). On the
question of limitation, his contention is that there was no justification to be
guided by the valuation of the suit for the purpose of .jurisdiction as given
in the plaint. Therefore, the filing of petitions, in the first instance, was a
grossly negligent act which could not be condoned particularly the record does
not show that any application was moved either for conversion of petitions into
appeals or hearing the aforesaid petitions as such. Instead, these were withdrawn.
According to him, the defence of limitation is a valuable right which has
accrued to the pre-emptor.
8. We have considered the submissions of the learned counsel for
the parties and have gone through the record. We will first like to attend to
the question of limitation. As noted by this court in the case of Taza Gul
supra, petitions and appeals in pre-emption matters used to be filed on the
basis of jurisdictional value as given in the plaint or as altered by the
court. However, in the said case, it was clarified that the actual value of the
subject matter shall be the determinative factor. The mistake in the said case
to file a petition instead of an appeal was considered to be bona fide and
since as appeal it was beyond the prescribed period of limitation, when filed,
the delay was condoned. In the cases in hand the petitions were filed well
within thirty days and no condonation was involved if the office had pointed
out on presentation thereof' that appeals, and not petitions, were competent,
the defect could be rectified. Thus in fact, although a mistake was committed
by the learned counsel in filing the petitions yet its effect was aggravated by
silence of the office. It is well-settled principle of law that act of the
Court or act of a public functionary on the actions of whom a citizen has no control should not be
allowed to prejudice anyone. Although contributory negligence by the office
could not be pressed as a sole ground to seek condonation of delay yet viewed
in the over ail peculiar facts and circumstances of the case and the reasons to
follow we are of the view that in this case it was an important circumstance,
bearing on the question of exercise of discretion. We will also like to observe
that mere quoting a wrong provision of law i.e. 185(3) instead of 185 (2) of
the Constitution on the memo. of petitions originally filed did not stand in
the way of this Court to hear the said cases as appeals because even as appeals
these were within time. We may also like to refer to the case of Investment
Corporation of Pakistan
supra in which instead of an appeal a petition was filed. It was heard as such,
leave was granted and it was ultimately is allowed. We will like to reiterate
here that a provision made in a statute for the benefit of an individual could
not only be waived but also that such a provision cannot be pressed to his
disadvantage. This is being said in the context that right of appeal is much
stronger right than the right of filing a petition and if a litigant gives up
his right of appeal, he does not necessarily mean that he has given up his
right to file a petition. To non-suit a litigant for not filing an appeal would
in fact amount to .punishing him for not hailing a right which enured to his
benefit. We accordingly, condone the delay in filing these appeals.
9. The contention of learned counsel for the appellants that
section 3 of the Limitation Act does not apply has not impressed us because
even if it does not apply, condonation of delay is in the discretion of this
Court and in case it is declined the result would be the same i.e. dismissal of
a petition or appeal as bared by time. We are, therefore, not inclined to
examine this contention of the learned counsel in further details.
10. As far as the contention of .the learned counsel for the
respondent, that limitation has the effect of creasing a valuable right in
favour of the pre-emptor is concerned, suffice is to say that it is always
subject to the discretion of the court. In these cases, we do not find that the
appellants have been negligent or mistake to file the petitions instead of
appeals was so reckless that discretion ought not to be exercised in their
favour.
11. As far as the controversy on the merits of the case is
concerned, we will like to observe at the outset that it has never been the
case of the pre-emptor that the sale was complete any time before attestation
of the mutations. In fact, his case in the plaint was that he came to know of
the sales on 18-8-1995 on which date, Zulfiqar one of the vendees was found
ploughing the disputed land, who informed the respondent of the sales on which
Talb-e-Mawathibat was made. However, in para. 5 of the plaint it was averred
that copy of Part Patwar supplied to the respondent showed 17th August, 1995 as
the date on which the mutations were attested. In J this paragraph, it was also
stated that after obtaining Part Sarkar the date of attestation of mutation was
found to he 24-8-1995. The first question, therefore, which was required to be
considered is the effect of absence of a specific plea that the sale had been
completed before attestation of the mutations- and the second is as to whether
a mere report in Roznamcha Waqiati amounted to a sale and whether a transaction
amounted to sale is to be examined with reference to Islamic Law or the General
Law contained in the Transfer of Property Act or any other statute.
12. As far as the first
question is concerned, there is ample authority that unless a case is set
upon pleadings, decision of the case cannot possibly rest on such a plea. This
has been the consistent law with the rationale that the other party is not be
taken by surprise. The contents of the plaint show, that the pre-emptor claimed
to have been misled by copy of Part Patwar of the mutations which showed
17-8-1995 as the date of attestation of the two mutations. In fact going
through the plaint carefully, plaintiffs own case was that Talb-e-Mawathibat was made on the basis of the copies of the
mutation supplied by Patwari showing 17th September, 1995 as the
date of attestation of the mutations. It has never been his case that the sale
had been completed before attestation of the mutation on a particular date
necessitating Talb-e-Mawathibat. We say it with respect to the learned Single
Judge, that concurrent findings of the two courts could not have-been upset on
the ground that when Talb-e-Mawathibat was made sale had already taken place.
As far as the second question is concerned, we will like to observe that
sections 3 and 4 of the Punjab Pre-emption Act, 1991, are a complete answer.
According to former section; "in the
interpretation and the application of the provisions of this Act, the Court
shall seek guidance from the Holy Quran and Sunnah" and according to the
latter section, "The provisions of this Act shall have effect
notwithstanding anything in other law for the time being in force. Sale has been defined in
section 2 (d) which is as follows:--
"2. (a)to(c) xxxxxxxxxxxx
(d) "sale" means permanent transfer of the ownership of
an unmovable property in exchange for a valuable consideration and includes
transfer of an immovable property by way of Hiba-bil-Iwaz or Hiba-ba-Shart
al-Iwaz but does not include.
(i)to(v)xxxxxxxxxxxxx
13. A perusal of the above definition shows that it .is not exactly
the same which is mentioned in section 54 of the Transfer of Property Act. We
are of the view that the expression "permanent transfer" in the
definition of sale in this Act connotes a fully consummated sale and it has to
be interpreted in the light of Injunctions of Islam as laid down in Mouajal Huq
v. Shafiullah and another (PLD 1964 Dacca 640). The sale is brought into
existence not only on payment of the sale consideration but also transfer of
possession. From perusal of the record, we find that Roznuncha Waqiati was not
produced instead reliance was placed on a note incorporated on the mutation
sheet. The aforesaid not was not even primary evidence of the contents of
Roznamcha Waqiati. We have also noticed that neither Roznamcha Waqiate was
produced nor Muhammad Azeem, the vendor was examined. The reference to
Roznamcha Waqiati on the mutation sheet did not constitute any evidence at all
of the sale. There was no evidence that sale consideration and possession had
passed on the vendees before attestation of the mutation. We will like to note
here the views of Kashi Prasad Saksena as to time of enforcement and
establishment of the pre-emption right from his treatises titled "Muslim
Law as Administered in India and Pakistan":--
"The time for the enforcement of the right to pre-empt and the
formalities which establish this right are distinct question in the Muslim
system. The question, as regards the time of enforcement of the right of
pre-emption, has assumed importance, as a Muslim cannot have his right
established without making the `demands' which must be made after the sale is
complete. The sale, according to the Muslim Law, is completely by payment of
the price and the delivery of the possession by the vendor to the vendee, but
in some cases, under the Transfer of Property Act, it is not complete unless
made by a registered instrument."
In Begum v. Muhammad Yaqoob (16 Allahabad 444) a Full Bench of the
Allahbad High Court held shat sale must he complete according to Muslim Law and
not in accordance with General taw. Further, in view of express provisions of
sections 3 and 4 Holed above completion of sale is to be seen in the light of
principles of Islamic Law and in the absence of specific plea and the evidence
of payment of sale consideration to the vendor we are constrained to hold that
the oral sate in this case shall be deemed to have been completed on
attestation of the mutation and not before any date prior thereto. We may also
like to refer here to Parumal and others v. Wadro Mahomedali and others (17 IC
39) according to which assertion of right of pre-emption before completion of
the sale is ineffectual.
14. As far as contention of the learned counsel for the appellants
that the entire case is open on au .appeal and therefore, he is within his
right to question even the superior right of the pre-emptor respondent is not
tenable. Although the judgment of the two Courts were in favour of the
appellants yet while defending these judgments they could question findings on
issues against them by virtue of enabling provisions of Order XLI, Rule 22 of
the Code of Civil Procedure. The impugned judgment of the learned High Court
shows that no such plea was raised before it that the pre-emptor did not have
the superior right. Even, otherwise, the superior pre-emptive right of the
respondent has concurrently been found by the three Courts in his favour which
could not he reopened before this Court.
15. The judgments cited by the learned counsel for pre-emptor may
now be examined. In the case of Muhammad Subhan supra, a learned Single Judge
of the Peshawar High Court took the view that "Talb-e-Muwathibat" was
required to be made 'immediately on completion of the sale and the pre-emptor
should not have waited for attestation of the mutation. In the case in hand
there was no averment that the sales had been completed before attestation of
the mutations nor was there any proof
on the record of completion of the sale before attestation of the mutation. In
the case of Maroof Khan and another supra, an oral sale was held to be complete
after delivery of possession and recording the statement of the vendor by the
Revenue Officer. In the case of Zafar Ali supra, the mutation was entered on
28-8-1987 and was attested on 15-9-1987. As per plaintiff's own showing he came
to know of the sale mutation on 12/13th August, 1988 but the
"Talb-e-Muwathibat" was made on 16th August, 1988 but the
"Talb-e-Muwathibat" was belatedly made and that too after attestation
of the sale mutation.
16. As noted above, copy of the Roznamcha Waqiati was neither produced
nor the vendor or the Parwari was examined. Therefore, the entry in the
mutations referring to the report recorded in Roznamcha Waqiati was not the
primary evidence. Although Roznamcha Waqiati is required to be maintained under
the West Pakistan Land Revenue Rules, 1968 and entry made during the course of
performance of official duty is admissible yet if the report contains the
statement of a private individual, it is required to be proved to establish its
correctness. It may also be noted here that under section 42 of the West
Pakistan Land Revenue Act, 1967 it is the person acquiring a right in the land
who has to make such a report to the Patwari Halqa. However, in the case in
hand the report was made by the vendor and, therefore, within the scope of
section 42, it is even doubtful whether such a report, at the instance of
vendor (a person alienating his right) could be said to have been recorded by
the Patwari in the discharge of his official duty.
17. The question was .examined in a number of cases. In Noor
Muhammad v. Abdul Ghani 2002 CLC 88 validity of a mutation of sale was in
question. The beneficiary of the mutation was, inter alia, relying upon the
entry in Roznamcha Waqiati. While repelling the contention the learned High
Court made the following observation:--
"The mutation itself is not an instrument of title. Such a
mutation in the light of a specific denial by the owner and an attesting
witness of the deed would not have any probative value as the presumption
stands rebutted. Similarly, an entry recorded in the Roznamcha Waqiati if not
proved to have been made at the instance of the plaintiff and also not proved
to have been signed by him would also have no evidentiary value."
18. In Karam Shah v. Mst. Ghulam Fatima and 3 others 1988 CLC 1812
which: arose out of a pre-emption matter iii which the mutation was entered on
10-6-1971 and was sanctioned on 24-6-1971. In this case, the vendee's defence
was that date of entry of mutation should be taken as date of completion of
sale for the purpose of limitation on the assertion that the entry by the
Patwari on the mutation sheet carried presumption of truth. The argument was
repelled with the following observation:--
"It is difficult to agree with this proposition. An attested
mutation may carry a rebuttable presumption of truth but an unattested mutation
entered simply by a Patwari has no significance, importance or value in the
eyes of law. Supposing if the mutation was riot put up for attestation or if
the mutation was rejected, the position would have been that no mutation
carrying a rebuttable presumption of truth would have been in the filed. In
that case -only a note by the Patwari would have remained on the record and
would have no value. It may be added that an attested mutation in itself is not
a document of aide, it is an evidence of a fact that a sale .recorded therein
has been made. Therefore, a note recorded by the Patwari in which statement of
the parties to a sale or of a vendor is recorded has to be proved through
cogent evidence."
19. In Sattar Muhammad and 2 others v. Hussain and 3 others PLD
1988 Pesh. 48 arose out of a suit for declaration based on title derived
through a mutation. The plaintiff relied on the entry made by the Patwari in
Roznamcha Waqiati which was repelled with the following observation:--
"It is undisputable that no presumption of correctness
attaches to the entry made in Roznamcha Waqiati, as the same does not form part
of the record of rights. Such an entry is, therefore, to be proved especially
when the same is to be used against the subsequent purchaser, in the same
manner as any other fact' is proved."
In the said case it was also observed that neither the vendor had
appeared nor the Patwari who had recorded entry in Roznamcha Waqiati had
appeared to prove the sale and, therefore, it was not proved.
20. In Haq Nawaz v. Malik Gul Hussain through Legal Heirs and
another 1994 MLD 585 a learned Single Judge of the Lahore High Court took the
view that Roznamcha Waqiati being a public document maintained by the Patwari
in the discharge of his official duties was admissible per se. Even if it was
so, no presumption of truth was attached to it unless the maker was examined.
We will like to observe W here that to hold that an entry in Roznamcha Waqiati
amounts to a sale will be laying down a hazardous proposition of law inasmuch
as that fate of land holdings will be at the mercy of a Patwari.
21. For what has been stated above, these appeals are allowed and
the impugned judgments of the learned High Court are set aside with the result
that the suits filed by the respondent stand dismissed. No order as to costs.
S.A K./Z-6/S Appeals
accepte
2010 Y L R 175
[Lahore]
Before Ijaz ul Ahsan, J
KHUSHI MUHAMMAD and others---Petitioners
Versus
BASHIR AHMAD and others---Respondents
Civil Revision No.1928 of 2009, decided on 6th October, 2009.
West Pakistan Land
Revenue Act (XVII of 1967)---
----S.42---Specific Relief Act (I of
1877), S.42---Mutation---Non attestation and verification of---Effect---Plaintiffs
filed suit for declaration along with permanent injunction in respect of the disputed land claiming therein that
defendants being tenants in possession of the
disputed property were not owners of the
same and alleged mutation for alienation of disputed
property was a result of fraud and
collusion with Halqa Patwari as the same was neither attested nor verified in
accordance with law---Defendants contested as well as filed another suit in
respect of the same disputed property
on the ground that they ,had purchased the said disputed property for a
consideration of Rs.30,000 in the year
1981 and the alleged mutation was
entered with free consent of the
plaintiffs---Trial Court decreed suit of the
plaintiffs and dismissed suit of the
defendants--Appellate Court on appeal upheld the decision of the Trial Court---Validity---Mutation was
incomplete, unattested, without verification and even lacked signatures and
thumb-impressions of the vendor/vendee which was necessary to lend any
authenticity to a document of such nature---Document was required to be
verified and attested by the Revenue authorities after completing various
procedural formalities---Other than alleged mutation there was no credible and
reliable evidence available on record that might even remotely support the case
of the defendants or had shown that the disputed property was sold/transferred
by the plaintiffs in favour of the defendants---High Court declined to
interfere in concurrent findings of both courts below.
Ch. Muhammad Yasin Zahid for
Petitioners.
ORDER
IJAZ UL AHSAN, J.---The respondents filed a suit against the
petitioners seeking a declaration along with perpetual injunction relating to
land measuring 12-Kanals situated in Village Masoo Sharif, Tehsil and District
Nankana Sahib. Subsequently, the petitioners also filed a suit regarding the
same property seeking the same relief. The case of the respondents was that
they were owners of the suit-land and the petitioners were in possession as
tenants. When the petitioners refused to give a share in the crop, the
respondents got suspicious and made the necessary inquires. At the stage it
transpired that the petitioners had raised a claim to be owners of the suit
property. The petitioners had allegedly managed to manipulate the Revenue
Record and had got Mutation No.290 dated 4-3-2009 entered in their favour in
collusion with the Halqa Patwari. The said mutation, however, was neither
attested nor verified in accordance with law. Further it lacked signatures or
thumb impressions of the vendor. It also came to the knowledge of the
respondents that on the basis of fake and frivolous mutation, the petitioners
had entered their names in the register Haqdaran Zamin. The stand taken by the
respondents was that they had never sold the property in question nor had they
received any consideration for the same. They alleged that Mutation No.290
dated 4-3-1981 was fake, illegal and fictitious. The respondents sought a
declaration and permanent injunction in respect of their rights in the suit
property.
2. The petitioners submitted
their written statement and inter alia took the position that the respondents
had no locus standi, the suit was barred by time and that the suit property had
been purchased by them for a consideration of Rs.30,000 in the year 1981. They
also stated that mutation No.290 was entered with the free consent of the
respondents and that the petitioners had been owners in possession of the suit
property since then.
3. On 24-4-2009 the learned trial
Court framed as many as nine issues. Issue No.1 was the most material. Onus to
prove the same was placed on the respondents. It would be instructive to
reproduce issue No.1, which was cast as follows:--
"Whether the plaintiffs are
entitled to the relief of declaration that they are owners in possession of suit property and Mutation No.290 dated
4-3-1981 is fake and frivolous and has no effect on rights of the plaintiffs.
If so, on what grounds and effect?"
The parties produced oral as well
as documentary evidence. The learned trial Court examined Mutation No.290 dated
4-3-1981 which was relied upon by the petitioners for the purpose of claiming
ownership. It found that the document had no verification and was incomplete in
various respects including absence of any thumb impression or signatures of the
vendor on the backside of the alleged mutation. The document, in the opinion of
the trial Court was highly doubtful. In the absence of thumb-impressions or
signatures of the vendor and the vendee and lack any corroborative evidence in
any form, the learned trial Court cane to the conclusion that Mutation No.290
dated 4-3-1981 was fake and not worthy of reliance. Therefore, it did not
confer any proprietary rights on the petitioners. On the basis of this finding
and failure of the petitioner to prove a sale transaction that could justify
Mutation No.290, issue No.3 which related to the right of the petitioner to
seek relief of declaration and permanent injunction was also decided against
the petitioners. After a detailed and exhaustive analysis of the documentary
and oral evidenced produced, the learned trial Court decreed the suit of the
respondents and dismissed the suit of the petitioners.
4. The findings of the trial
Court were alleged in appeal. The appellate Court reappraised the entire
evidence and came to the same conclusion. The learned appellate Court found
that Mutation No. 290 dated 4-3-1981 was fake and the petitioners had failed to
establish and prove their case in any manner whatsoever. The learned appellate
Court also observed that in Exh. P.3 the names of the petitioners were
mentioned as tenants/cultivators and not as owners of the disputed property.
He, therefore, proceeded to dismiss the appeal.
5. I have heard the learned
counsel for the petitioners. I have also gone through the judgments of the
lower Courts and perused the evidence produced by the parties in support of
their respective claims.
6. The case of both petitioners
hinges on Mutation No. 290, dated 4-3-1981. The said document is in-complete,
unattested, without verification and even lacks signatures or thumb impressions
of the vendor/vendee which are necessary to lend any authenticity to a document
of this nature. In addition, the document is required to be verified and
attested by the Revenue authorities after completing various procedural
formalities. The document in its present form as produced in the Court, does
not inspire confidence and does not deserve to be relied upon in order to
determine rights of ownership in the property. I have noticed that other than
Mutation No.290 there is no credible and reliable evidence available on record
that may even remotely support the case of the petitioner or show that the
property in question was sold/transferred by the respondents in favour of the
petitioners. The distinct impression that with one gets from a perusal of the
evidence on record and pleadings of the parties points towards an effort on the
part of the tenants/ cultivators to hoodwink the landlords/ owners in
connivance with less than scrupulous officials of the Revenue Department.
7. The learned counsel for the
petitioners has not be able to persuade me to take a different view than the
one concurrently taken by the two Courts below. I have not found anything to
persuade me to hold that the learned lower Courts have misread the evidence,
acted illegally or with material irregularity in arriving at their conclusions.
The petition is without merit and is accordingly dismissed.
M.U.Y./K-66/L Petition
dismissed.
1996SCMR336
[Supreme Court of Pakistan]
Present: Saleem Akhtar,
Muhammad Ilyas and
Muhammad Bashir Khan
Jehangiri, JJ
BINYAMEEN and 3 others‑‑‑Appellants
versus
Chaudhry HAKIM and
another‑‑‑Respondents
Civil Appeal No. 516 of
1992, decided on 16th October, 1995.
(On appeal from the
judgment/order of the Lahore High Court, Lahore dated 22‑4‑1991 passed in Writ
Petition No. 2831/1991).
(a) Civil Procedure
Code (V of 1908)‑‑‑
‑‑‑‑Ss. 12(2) & 115‑‑‑Constitution
of Pakistan (1973), AA.185(3) ‑‑‑ Leave to appeal was granted to consider
whether District Judge in exercise of its revisional jurisdiction acted legally
in directing Trial Court to admit in evidence document which had not been
earlier relied upon by respondent.
(b) Civil Procedure
Code (V of 1908)‑‑‑
‑‑‑‑S. 12(2) &O.VI, R.
4‑‑‑Variation in pleadings and proof‑‑‑Effect‑‑‑Plea of oral agreement had been
pleaded by respondent‑‑‑Respondent, subsequently applied to place on record
document which did not speak of oral agreement but of written agreement‑‑‑Trial
Court rejected respondent's application for placing on record that document‑‑‑Case
proceeded and at the time of argument in Trial Court, respondent filed revision
against non‑admission of document in question‑‑‑Appellate Court, in spite of
the fact that revision was filed after 5 years, allowed such document to be
produced and proved‑‑Petitioner's Constitutional petition was dismissed by
High Court ‑‑‑Validity‑‑Document in question, nowhere stated that earlier or
on the same date there had been any oral agreement between parties‑‑‑Appellant,
thus, changed plea of oral agreement to written agreement‑‑‑Such charge was not
permissible in law and furthermore such document could not have proved plea of
oral agreement pleaded in application under S.12(2), C.P.C.‑‑‑Party can plead a
case if it had been mace out by it in its pleadings‑‑‑No evidence can be led or
looked into in support of plea which had not been taken in pleading‑Variation
in pleading and proof was not permissible in law‑‑‑Party pleading oral agreement
could not prove it by producing document which did not speak of oral agreement
but of written agreement ----Proof should not differ from pleadings---Trial
Court was competent to decide about admissibility of document in
question----Revisional Court did not act legally and had committed material
irregularity which might cause miscarriage of justice---Respondent was not
entitled to produce and prove document in question.
Government of Pakistan (now Punjab) through Collector, Bahawalpur v. Haji Muhammad
PL.D 1976 SC 469 rel.
(c) Pleadings‑---
‑‑‑‑ Practice and
procedure‑‑‑No evidence can be led or looked in support of a plea which had not
been taken in pleadings.
(d) Civil Procedure
Code (V of 1908)--
‑‑‑‑O.VI, R.1‑‑‑Variation
in pleadings was not permissible in law.
(e) Civil Procedure
Code (V of 1908)‑‑‑
‑‑‑‑S. 115‑‑‑Revision,
filing of‑‑Limitation‑‑‑No period of limitation was provided at the relevant
time yet Revisional Court was duty bound to have examined whether in facie of
laches of five years, it ought to have exercised its discretion in favour of
respondent‑‑‑Conduct of respondent in proceeding with case up to argument stage
without any objection and resorting to file revision application after five
years, completely underlined his mala fides and intention to prolong litigation
against minors‑‑‑Such conduct of respondent disentitled him from seeking remedy
by filing revision‑‑‑Order of High Court wherein it did not set aside order of
Revisional Court as also order of District Court whereby it had allowed
respondents belated revisional petition were set aside in circumstances.
Muhammad Hanif Niazi,
Advocate Supreme Court for Appellants.
Respondents: Ex parte.
Date of hearing: 16th
October, 1995.
JUDGMENT
SALEEM AKHTAR, J.‑‑‑This
appeal with the leave of the Court arises from the judgment of the learned
Judge in chamber, whereby Constitution petition filed by the appellants against
the order passed by the learned District Judge, Kasur by which he had allowed
the Revision Petition preferred by respondent No. 1 and directed the Trial
Court to admit in evidence the document sought to be proved by respondent No. 1
with a right of rebuttal to the appellants, was dismissed. Leave was granted to
consider the question whether in exercise of its revisional jurisdiction the
learned District Judge acted legally m directing the trial Court to admit in
evidence a document which had not been earlier relied upon by respondent No. 1.
2. The brief facts are
that appellants Nos. 1, 2 and 3 filed a suit for declaration with consequential
relief of permanent injunction that their father Muhammad Yousuf had gifted the
land in dispute through an oral gift on 2‑1‑1981 and possession was delivered
to them. An ex parte decree was passed in their favour as Muhammad Yousuf did
not appear and accordingly in pursuance of the decree, mutation was sanctioned
on 23‑8‑1982 in favour of the appellants. Respondent No. 1 alleged to be an
influential person of the locality being Ex‑Chairman, District Council and
M.PA. filed an application under section 12(A), C.P.C. (12(2), C.P.C.) for
setting aside the decree dated 5‑7‑1981 having been obtained by fraud. During
the Trial, respondent No. 1 sought to produce a document describing it as a
receipt. The appellants objected to its production on the ground that it was a
sale agreement which was neither relied upon nor filed alohgwith the plaint. It
was further objected that respondent No. 1 having pleaded that the disputed
property was sold to him by an oral agreement, it did not lie at that stage to
produce a documentary evidence showing an agreement to sell. The learned Trial
Court by its order dated 13‑7‑1985 held that the document sought to be produced
was an agreement of sale and not a receipt and holding the objection raised by
the appellants refused to allow the production of the said document and the
same was not admitted in evidence. The proceedings in application under section
12(2) continued and evidence of the parties was recorded. The matter was then
fixed for arguments when respondent No. 1 filed a revision application on 30th
April, 1990 before the District Judge challenging the order dated 13‑7‑1985.
The learned District Judge by order dated 26‑2‑1991 accepted the same, inter
alia, holding that the document in question had been placed on record under the
signature of the Court before framing the issues and as such the Trial Court
had illegally refused to admit the documentary evidence. The appellants filed
Constitutional petition against this order which was dismissed by the impugned
order.
3. The learned Judge in Chamber
held that the order of the Trial Court declining to admit the document in
evidence amounted to a case decided and the learned District Judge had the
jurisdiction to entertain and decide the revision petition under section 115,
C.P.C. On merits it was held that the learned District Judge "has not
accepted the reasoning of the Trial Court that the document sought to be
produced in evidence was not relied upon by the respondent. It has instead been
found by the District Judge that the document though initially not annexed with
the plaint was subsequently placed on record by the respondent before the
framing of the issues under the signatures of the Court then without contest
from the opposite side, so raising a presumption that the document was placed
on record with the permission of the Court and consent of the opposite
side". According to the learned Judge this finding was not questioned by
the counsel for the appellants and if the document were admitted the appellants
will have had a right of rebuttal. The question of authenticity genuineness and
its relevancy was left open to the Trial Court to decide it in due course.
4. The learned counsel
contended that respondent No. I having pleaded an oral agreement could not be
allowed to prove the same through a written agreement which respondent No. 1
was seeking to do by producing the agreement. From the document placed on
record it is clear that respondent No. 1 challenged the decree passed in favour
of the appellants on the plea that Muhammad Yousuf had orally agreed to sell
the disputed property on 15‑12‑1980 and the sale price of Rs.3 lacs was fixed.
It was further alleged that in compliance with this agreement, sale deed dated
17‑9‑1981 was effected between respondent No. 1 and Muhammad Yousuf. Possession
was also alleged to have been given to him on 15‑12‑1980. Respondent No. 1 has
thus based his case on the plea of oral agreement dated 15‑12‑1980 which was
prior to date of gift dated 2‑1‑1981 made by Muhammad Yousuf in favour of the
appellants. In order to prove this plea, respondent No. 1 sought to produce
during evidence Iqrarnama, the disputed document dated 15‑12‑1980. The contents
of the document show that it was an agreement to sell for Rs.3 lacs and Rs.25,000
were received by Muhammad Yousuf. This document does not anywhere show that
earlier or on the same date there had been any oral agreement between the
parties. The appellants thus changed plea of oral agreement to a written
agreement. This was not permissible in law and furthermore such a document
could not have proved the plea of oral agreement pleaded in application under
section 12(2), C.P.C. It is a well be settled principle of law that a party can
prove a case which has been pleaded by it. In support of his contention, the
learned counsel for the appellants referred to Government of Pakistan (Now
Punjab) through Collector, Bahawalpur
v. Haji Muhammad (PLD 1976 Supreme Court 469). It is also a well‑settled
principle that no evidence can be led or looked into in support of a plea which
has not been taken in the pleading. A party is required to plead facts
necessary to seek relief claimed and he would be entitled to produce evidence
to prove those pleas. Variation in pleading and proof is not permissible in
law. A party pleading an oral agreement cannot prove it by producing a document
which does not speak of the oral agreement but speaks of a written agreement.
This would amount to substituting a completely new plea which had not been
pleaded. As proof cannot be different from pleading respondent No.1 should not
have been allowed to produce a document to prove a completely different fact
and different plea. The Trial Court was competent to decide whether a such
circumstances respondent No. 1 could be allowed to produce this document which
could' not have proved the oral agreement and was introducing a completely new
case without amending the plaint. The revisional Court, therefore, did not act
legally and has committed material irregularity which may cause miscarriage of
justice.
5. The learned counsel
contended that respondent No. 1 was debarred from filing application as he
allowed the case to proceed up to the argument stage and filed the revision
application after five years of the order passed by the learned Trial Court. At
the time the matter was proceeding before the Court below there was no time
limit fixed for filing revision application. However, the practice had been
that it should be filed within a period of 90 days and if there is delay it
should be satisfactorily explained. In the present case respondent No. 1 sought
to file revision petition after a period of 5 years. In spite of the fact that
no period of limitation was provided at that time, the learned District Judge
was duty bound to have examined whether on the face of such latches he ought to
have exercised his discretion in favour of respondent No. 1. The conduct of
respondent No. 1 in proceeding with the case up to the argument stage without
any objection and resorting to' file revision application after 5 years
completely manifests his mala fides and intention to prolong the litigation
against the appellants who were minors. Such conduct of respondent No. 1
disentitles him from seeking a remedy by filing a revision petition. We, therefore,
allow the appeal, set aside the impugned order of the High Court and the order
passed by the learned District Judge with no order as to costs.
AA./B‑285/S Appeal
accepted
2009 SCMR 114
[Supreme Court of Pakistan]
Present: Muhammad Qaim Jan
Khan and Zia Perwez, JJ
MUHAMMAD
TAJ----Petitioner
Versus
ARSHAD MEHMOOD and 3
others----Respondents
Civil Petition No.983 of 2008, decided on 30th July, 2008.
(On Appeal from the judgment,
dated 17-6-2008 of the Islamabad High Court, Islamabad passed in Civil Revision No.323 of
2007).
(a) Contract Act (IX of 1872)---
---S. 55---Time as of the essence of contract---Principle---Question of
time being essence of contract has to be decided with reference to facts of
each case.
(b) Specific Relief Act (I of 1877)---
----S. 12---Contract Act (IX of 1872), S.55---Constitution of Pakistan
(1973), Art. 185 (3)---Specific performance of agreement to sell---Time as
essence of contract---Determination---Suit filed by plaintiff against
defendant/owner of property was dismissed by Trial
Court and earnest money was forfeited in favour of defendant---Judgment
and decree passed by Trial Court was set aside by Lower Appellate Court which
judgment was maintained by High Court in exercise of revisional
jurisdiction---Plea raised by defendant/owner of property was that time was of
the essence of contract and plaintiff failed to make payment according to terms
of contract---Validity---Contracts where time was of the essence of contract,
as stipulated under S.55 of Contract Act, 1872, was generally not attracted to
transactions involving sale of immovable property---Merely mentioning of a
specific date for performance of agreement would not make time the essence of
contract but such intention was to be gathered from terms agreed amongst the
parties contained in contract in the light of
facts and circumstances of the case---Condition of transfer of property
in the office of Capital Development Authority
stipulated further condition in addition to the date---In absence of
issuance of `No Objection Certificate' such transfer was not possible---Within
couple of days, after issuance of `No Objection Certificate', plaintiff served
legal notice calling upon owner of the property/defendant to transfer the property
in his favour followed by suit for specific performance---Supreme Court did not
find any ground for indulgence in concurrent judgment and decree passed by
Lower Appellate Court and High Court---Leave to appeal was refused.
Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983
SC 344; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494 and Mst.
Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544 distinguished.
(c) Power of attorney---
----Transfer by agent in favour of his close fiduciary
relations---Principle---Whenever general attorney transfers property of his
principal in his own name or in the name of his close fiduciary relations, the
attorney has to take special permission from the principal.
Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494 ref.
Ibad-ur-Rehman Lodhi, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 30th July, 2008.
JUDGMENT
ZIA PERWEZ, J.---Petitioner seeks leave to appeal against
the impugned judgment of the Islamabad High Court, Islamabad dated 17-6-2008,
whereby Civil Revision No.323 of 2007 filed by the petitioner was dismissed.
2. Suit for specific performance with respect to Property No.2241
situated in C.D.A. Colony I-10/1, Islamabad, hereinafter referred to "as
the said property" against the sale consideration of Rs.5,23,000 was
instituted by Muhammad Yaseen now represented through his Legal Heirs. An
amount of Rs.30,000 was paid by the deceased as earnest money and balance of
sum of Rs.4,93,000 was to be paid at the time of transfer of the said property
on or before 20-5-1991. However, it appears that No Objection Certificate which
was a prerequisite condition for effecting transfer of the said property was
issued by the Capital Development Authority on or about 25-11-1991. After
service of legal notice dated 8-12-1991 calling upon the petitioner to transfer
the said property, the suit was instituted before the learned Civil Judge, Islamabad, who vide order,
dated 3-6-1996 dismissed the suit, while ordering forfeiture of the earnest
money amounting to Rs.30,000. The said order was set aside in Civil Appeal
No.205 of 2005 by the Additional District
Judge, Islamabad
vide his judgment and decree, dated 16-12-2006 mainly on the ground that
the time was not the essence of the contract. Revision Application No.323 of
2007 before the High Court was also dismissed through the impugned judgment.
3. We have heard Mr. Ibad-ur-Rehman Lodhi, learned Advocate Supreme
Court for the petitioner and have perused the record.
4. After perusal of the facts, the learned counsel for the
petitioner contended that the time was essence of the contract and failure of
respondent to make payment called for forfeiture of the amount of earnest money
and under the terms of the agreement. There was no case for specific
performance after failure of respondent to make payment of the balance amount
of sale consideration within the stipulated period. In support of his
contention, the learned Advocate Supreme Court has placed reliance on the cases
of Ghulam Nabi and others v. Seth Muhammad Yaqoob and Others PLD 1983 SC 344
and Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494.
5. Indeed the agreement between the parties provided for payment of
balance amount at the time of the registration of the sale-deed and transfer of
property on or before 30-5-1991, however, the said payment was subject to
transfer in the office of C.D.A. Islamabad. In the instant case, obtaining of
N.O.C. was a precondition for such transfer and sale of property. The N.O.C.
was to be issued by an independent agency beyond the control either party
N.O.C. bears the date 23-11-1991 and was issued on or after that date by the
C.D.A., therefore, the respondent could not held liable on account of such
delay by the C.D.A. The question of time being essence of contract has to be
decided with reference to the facts of the each case. By virtue of section 4 of
the Transfer of Property Act, 1882, transactions involving sale of immovable
property are subject to the relevant provisions of the Contract Act, 1872.
Section 55 of the Contract Act, 1872 stipulates the contracts where time is
essence of contract, which is generally not attracted to transactions involving
sale of immovable property. Merely mentioning of a specific date for
performance of the agreement would not make time the essence of the contract
but such intention is to be gathered from the terms agreed amongst the parties
contained in the contract in the light of the facts and circumstances of the
case as held by this Court in the case of Ghulam Nabi (supra). In the instant
case the condition of transfer of property in the office of C.D.A. clearly
stipulated further condition in addition to the date. In the absence of
issuance of N.O.C. such transfer was not possible. The record further shows
that within couple of days after the issuance of N.O.C. on 23-11-1991, the
respondent served legal notice dated 8-12-1991 calling upon the petitioner to
transfer the property in his favour followed by the suit for specific
performance.
6. In the case of Mst. Batul and others v. Mst. Razia Fazal and
others 2005 SCMR 544, this Court has already taken a view where the transfer
was obliged to obtain the clearness certificate as a precondition for valid
execution and registration of sale-deed. The delay in obtaining the same not
attributable to the vendee could not effect the claim for specific performance of contract. The case of
Ghulam Nabi (supra) relied upon by the learned counsel, therefore, does
not support the case as the impugned judgment is in conformity with the
principle laid down by this Court.
In the case of Jamil Akhtar (supra) the question pertained to
registration of transfer of property by an attorney in his own name where
registered general power of attorney did not authorize such a transfer. It is
settled principle of law that whenever a general attorney transfers the
property of his principal in his own name or in the name of his close fiduciary
relations, he has to take special permission from the principal. Therefore, the
case is distinguishable from the present petition.
7. For the foregoing reasons, no ground for indulgence is made out
in the impugned judgment. Accordingly, the instant civil petition is dismissed.
Leave refused.
M.H./M-66/SC Petition
dismissed.
P L D 2010 Lahore
649
Before Mamoon Rashid Sheikh, J
IRSHAD BEGUM---Petitioner
Versus
MUHAMMAD RAFIQUE---Respondent
Civil Revision No.394-D of 2002, decided on 7th October, 2010.
(a) Punjab
Pre-emption Act (IX of 1991)---
----S.17---Civil Procedure Code (V of 1908), O. VI---Pre-emption
suit---Pleadings---Requirements---Date, time and place of the performance of
Talb-i-Muwathibat were "conspicuous" by their "absence" in
the plaint; as a consequence the plaint did not fulfil the requirements of law.
Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and
others PLD 2007 SC 302 fol.
Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal
Heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others
2000 SCMR 329; Alaf Din v. Mst. Parveen Akhtar PLD 1970 SC 75; Maulvi Abdul
Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241; Muhammad Daud v.
Mst. Surriya Iqbal and another PLD 2000 Pesh. 54; Mst. Majidan Khanum v.
District Judge, Vehari 1984 CLC 3270; Blacks Law Dictionary; Haq Nawaz v.
Muhammad Kabir 2009 SCMR 630; Muhammad Iqbal v. Ali Sher 2008 SCMR 1682;
Muhammad Amin and 4 others v. Paira 2010 MLD 261 and Mst. Bashiran Begum v.
Nazar Hussain and another, PLD 2008 SC 559 ref.
(b) Pleadings---
----Party cannot lead evidence beyond its pleadings and in case
such evidence is led, the same is not to be read, nor a party can be allowed to
improve its case through evidence if the case has not been set up in the pleading.
Muhammad Iqbal v. Ali Sher 2008 SCMR 1682 rel.
(c) Revision---
----Revisional jurisdiction partakes of appellate
jurisdiction---Principles.
Maulvi Abdul Qayyum v. Syed Ali
Asghar Shah and 5 others 1992 SCMR 241 fol.
Afrasiab Khan and Imran Hassain
for Petitioner.
Kazim Hussain Kazmi for
Respondent.
Date of hearing: 7th October,
2010.
JUDGMENT
MAMOON RASHID SHEIKH, J.---Through this petition the petitioner has
assailed the judgment and decree dated 14-12-2001 passed by the learned Additional
District Judge, Attock in Civil Appeal No.159 of 2001 entitled Muhammad Rafique
v. Mst. Irhhad Begum, whereby the judgment and decree dated 30-7-2001 of the
learned Civil Judge, Attock decreeing the petitioner's suit for possession
through pre-emption, has been reversed.
2. Brief facts giving rise to the
petition are to the effect that the petitioner filed a suit for possession
through pre-emption regarding land measuring 6 kanal 19 marlas situated in
Village Sabaz Pir, Tehsil Hassan Abdal, District Attock, fully described in the
plaint.
3. The suit arose out of the sale of
the land in dispute through Mutation No.906 dated 9-2-1995. The petitioner
filed the suit on 13-3-1995 the same was however, dismissed through judgment
and decree dated 25-2-1999 by the learned Civil Judge, Attock. As a result of
the petitioner's appeal the suit was remanded for decision afresh by the
learned Additional District Judge, Attock through judgment and decree dated
6-12-2000. Upon remand the suit of the petitioner was decreed in her favour by
the learned Civil Judge, Attock through judgment and decree dated 30-7-2001.
Feeling aggrieved, the respondent filed an appeal, which was accepted through
the impugned judgment and decree dated 14-12-2001 of the learned Additional District
Judge, Attock.
4. The limited question, which
requires adjudication in this petition is whether the petitioner was able to
prove the Talbs as are required under the law in order to entitle her to obtain
a decree for possession through pre-emption. The learned appellate court below
after having gone through the record and appreciating the evidence brought on
the record came to the conclusion that the petitioner had failed to establish
the Talb-i-Muwathibat consequently the Talb-i-Ishhad was also not proved with
the result that the decree in the petitioner's favour was set aside.
5. The learned counsel for the
petitioner contends that the learned appellate court below has misappreciated
the law as also the facts brought on the record. The sale of the land in
question took place through Mutation No.906 dated 9-2-1995 against the total
consideration of Rs.14,000, however, in order to defeat the petitioner's right
of enforcement of pre-emption, the amount has mentioned as Rs.28,000 in the
mutation. The petitioner being a co-sharer in the land in question (Shafi
Sharik) had a prior right of pre-emption, the Talb-i-Muwathibat was made as
soon as the petitioner came to know of the same the Talb-i-Ishhad was made on
22-2-1995 and the suit of Talb-e-Khusumat was made on 13-3-1995. All the
ingredients were brought on the record but the learned appellate court below by
misreading and non-reading of the record had dismissed the petitioner's suit.
6. The respondent's counsel at
the outset has questioned the maintainability of the petition as also the suit
of the petitioner by submitting that the petitioner's plaint as drafted does
not conform to the requirements as laid down by the Hon'ble Supreme Court of
Pakistan in the judgment reported as Mian Pir Muhammad and another v. Faqir
Muhammad through L.Rs. and others (PLD 2007 SC 302). Contends that the plaint
is silent as to the time, date and place in terms of section of the Punjab
Pre-emption Act, 1991, as is envisaged in Mian Pir Muhammad's case (supra). He
submits that without prejudice to any argument that may be available to him
under the law, the suit of the petitioner is even otherwise liable to be
dismissed.
7. The petitioner's counsel in
rebuttal submits that the suit was filed prior to Mian Pir Muhammad's case
(supra) and the same is not hit by the said judgment. Further submits that the
petitioner's suit was in conformity with the law as laid down by the Hon'ble
Supreme Court of Pakistan at the relevant date. He refers to the cases reported
as Altaf Hussain v. Abdul Hameed @
Abdul Majeed through Legal Heirs and another (2000 SCMR 314) and Haji Noor
Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329). Also contends that the
plaint is in conformity with the requirements of Order VI of the Code of Civil
Procedure, 1908, which envisages that only material facts are to be given in
the pleadings and not the evidence the party
intends to rely upon. Further submits that the petitioner through her evidence
was able to establish the time, date and place of performance of
Talb-i-Muwathibat, however, the learned appellate court below failed to
appreciate this fact. Contends that even otherwise Mian Pir Muhammad's case
(supra) is not applicable in the instant case as the petitioner's case does not
fall in the category of a pending case. In this respect submits that a revision
is not a continuation of proceedings/suit. Relies on Alaf Din v. Mst. Parveen
Akhtar (PLD 1970 SC 75), Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5
others (1992 SCMR 241), Muhammad Daud v. Mst. Surriya Iqbal and another (PLD
2000 Peshawar 54), Mst. Majidan Khanum v. District Judge, Vehari (1984 CLC 3270
Lahore).
8. The learned counsel for the
respondent on the other hand submits that the instant petition is part of a lis
and the word "lis" has been defined in the Blacks Law Dictionary as:
"A piece of litigation; a
controversy or dispute."
Further submits that the reliance
placed on the afore-noted judgments by the petitioner is misconceived, the
matter has been finally settled by the Hon'ble Supreme Court of Pakistan.
9. I have considered the
arguments addressed at the bar and find that the objection of the respondent's
counsel has force. The matter has been addressed in the pronouncements of the
Hon'ble Supreme Court of Pakistan reported as Haq Arawaz v. Muhammad Kabir
(2009 SCMR 630), Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 SC
559), Muhammad Iqbal v. Ali Sher (2008 SCMR 1682) and also the judgment
reported as Muhammad Amin and 4 others v. Paira (2010 MLD 261). Whilst
following the ratio laid down in Mian Pir Muhammad's case (supra) the Hon'ble
Supreme Court of Pakistan has held that:--
"As to the next, contention
of the learned counsel for the petitioner regarding applicability of the above
referred case i.e. Mian Pir Muhammad (supra), on the pending cases filed before
the pronouncement of the said judgment, it may be mentioned here that
proposition in hand stands answered by this Court in the case of Mst. Bashiran
Begum v. Nazar Hussain and another, PLD 2008 SC 559, wherein, it was held that
the requirement of mentioning the date, place and time in the plaint is also
essential even in the pending cases. The relevant portion of the said judgment
reads as follows:--
"According to the dictum
laid down by the larger Bench of this Court mentioned above, the requirement of
Talbs with requisite details in the plaint is also essential even in the
pending cases."
In the instant case, in para.2 of
the plaint, the petitioner has only mentioned the date and place but the time
of making the Talb-i-Muwathibat has not been stated therein we are, therefore
of the opinion that the learned Judge in the High Court has rightly declined to
interfere with order of dismissal of the suit by the Additional District Judge,
Jhelum dated 6-3-2006. Resultantly, this appeal is dismissed."
10. I have examined the plaint.
The date, time and place of the performance of Talb-i-Muwathibat are
"conspicuous by" their "absence". As a consequence the
plaint does not fulfil the requirements as laid down by Mian Pir Muhammad's
case (supra). The contention of the learned counsel' for the petitioner to the
effect that the plaint was filed in conformity with the requirements of Order
VI of the Code of Civil Procedure, 1908 also does not have force in view of the
judgments supra of the Hon'ble Supreme Court. Similarly the contention of the
learned counsel for the petitioner that the petitioner was able to prove her
case by leading evidence is devoid of force as it is settled-law that a party
cannot lead evidence beyond its pleadings and in case such evidence is led, the
same is not to be read, nor a party can be allowed to improve its case through
evidence if the case has not been set up in the pleadings. Reliance in this
regard is placed on Muhammad Iqbal's case (supra).
11. As to the learned counsel for
the petitioner's contention that Mian Pir Muhammad's case (supra) is not
attracted to the petitioner's case as the instant petition being a revision
petition is not a continuation of the suit and consequently cannot be termed as
a "pending case", suffice it to say that the contention is
misconceived the reason therefor is two-fold. Firstly, in Maulvi Abdul Qayyum's
case (supra) relied upon by the learned counsel for the petitioner it has been
held that:--
"(7) The distinction between
the remedy by way of appeal and revision is not unknown. The appeal is the
continuation of original proceedings before the higher forum for the purposes
of testing the soundness of the decision of the lower Court. On the other hand,
the remedy of revision is discretionary and the revisional Court has to proceed
under certain limitations in interfering with the judgment and decree of the
lower Court, but both on filing the appeal or revision, as the case may be, the
decree of the lower Court is put in jeopardy. Indeed the correction of error in
the proceedings of the Court below, is common characteristic of both the
-remedies. The concept of acceptance of appeal is that the lower Court has
failed to pass the decree which should have been passed. The same object is
achieved when a revision from the decree of the lower Court is accepted. Thus
in a way revisional jurisdiction partakes of appellate jurisdiction. A case on
this point is the one decided by a Full Bench of Madras High Court in Chappan
v. Moidin Kutti (ILR 1899 Madras 68) where Subramania, J. expressed the view
that appellate jurisdiction includes revisional powers. Again in Nagendra Nath
Dey and others v. Suresh Chandra Dey and others (59 IA 283), the Judicial
Committee regarded an application for revision as an appeal in ordinary
acceptance of the term. That was a matter arising out of an execution petition,
which was opposed by the judgment-debtor as barred by Article 182 of the
Limitation Act. In this regard, the precise observations of their lordships of
the Judicial Committee are:
"…….There is no definition
of appeal in the Code of Civil Procedure but their lordships have no doubt that
any application by a party to an Appellate Court, asking it to set aside or
revise a decision of a subordinate Court, is an appeal within the ordinary
acceptation of the term, and that it is no less an appeal because it is
irregular or incompetent "
Similar was the opinion of a
Division Bench of the erstwhile Dacca High Court in Mymensingh Co-operative
Town Bank Ltd. v. Rajendra Chandra Roy (PLD 1961 Dacca, 312); the Court on the
authority of some precedents from Calcutta High Court, in which it was laid
down that under Article 182 the Limitation Act ran from the date of the order
in revision, maintained that for the purposes of execution of a decree, the appeal included a revision."
Hence, by having filed the
instant petition the petitioner has himself put his case "in
jeopardy" as, "in a way revisional jurisdictional partakes of
appellate jurisdiction". Secondly, the question of applicability of Mian
Pir Muhammad's case (supra) to. pending case has been laid to rest by the
Hon'ble Supreme Court in the precedents cited above including Haq Nawaz's case
(supra).
12. This Court, therefore, does
not find any force in this petition it is accordingly dismissed with no order
as to costs.
M.B.A./I-55/L Petition
dismissed.
P L D 2012 Lahore
240
Before Umar Ata Bandial, J
IMTIAZ AHMED---Petitioner
versus
ADDITIONAL DISTRICT JUDGE
and 14 others---Respondents
Writ Petition No.6833 of 2010, decided on 7th September, 2011.
(a) Constitution of Pakistan---
----Art. 199---Constitutional petition challenging judicial
orders of courts below---Maintainability---High Court would interfere with such
orders ordinarily on ground of jurisdictional defect or commission of
illegality therein.
(b) Civil Procedure Code (V of 1908)---
----S. 12(2)---Constitution of Pakistan, Art. 199---Constitutional
petition---Dismissal of suit for non-prosecution---Non-issuance of notice of
restoration application to defendants and fresh notices after suit
restored---Passing of ex parte decree on
6-4-2009 and getting possession of suit house by plaintiff through its
execution---Application under S.12(2), C.P.C. for setting aside ex parte decree
by legal heirs of a defendant, who died on 14-1-2008 during pendency of
suit---Order of Trial Court allowing application under S.12(2), C.P.C. and
setting aside whole decree upheld by Appellate Court---Plaintiff's plea that
such decree could be set aside partly to the extent of deceased defendant and
not other defendants, who had not participated in proceedings under S. 12(2),
C.P.C.---Validity---Plaintiff had obtained ex parte decree at the back of
defendants and against a dead person, whose signatures appearing on Vakalatnama
did not tally with his signatures on suit agreement---Such ex parte decree
could not enjoy sanctity attached to a judicial order---Ex parte decree had
been set aside on grounds of fraud committed by plaintiff and disclosure of
sufficient cause by defendants for their non-appearance---Fraud would vitiate
most solemn proceedings---Tainted actions would be void ab initio wholly and
not partly---Section 12(2), C.P.C. equated fraud with illegality invalidating a
defective order fully and not by some degree---Such ex parte decree must be set aside wholly and
not partly as there were no degrees of invalidity---Plaintiff had not pointed
out any jurisdictional defect in the impugned orders---High Court dismissed
constitutional petition, in circumstances.
Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd. 2010 SCMR
1097; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and Khadim Hussain
v. Abid Hussian and others PLD 2009 SC 419 rel.
(c) Pleadings---
----Decision of court based on grounds not raised by a party
in his pleadings---Validity---Such objection might have substance, if opposite
party was caught by surprise and suffered prejudice as a result thereof by
showing that material rebutting such findings was prevented from being brought
on record---Illustration.
Ch. Sir Muhammad Zafrullah Khan v. The Custodian of Evacuee
Property, West Pakistan and Karachi
and others PLD 1964 SC 865 rel.
(d) Civil Procedure Code (V of 1908)---
----S. 12(2)---Ex parte decree passed against several defendants, setting
aside of---Scope---Relief of setting aside such decree would be extended to a
party having approached the court---Consenting judgment debtors could seek
re-opening of decree having attained finality---Fraud would vitiate most solemn
proceedings---Tainted actions would be void ab initio wholly and not
partly---Section 12(2), C.P.C. equated fraud with illegality invalidating a
defective order fully and not by some degree.
Mst. Shaukat Ara v. Mst. Banu Begum through legal heirs and others
PLD 2009 SC 437; Lahore Development Authority v. Firdous Steel Mills (Pvt.)
Ltd. 2010 SCMR 1097; Lal Din and another v. Muhammad Ibrahim 1993 SCMR 710 and
Khadim Hussain v. Abid Hussian and others PLD 2009 SC 419 rel.
Mian Abdul Qaddous and Habib Ullah Bukhari for Petitioner.
Ch. Muhammad Arshad for Respondents.
ORDER
UMAR ATA BANDIAL, J.---The petitioner entered into an agreement to
sell dated 9-12-2003 with the legal heirs of Iqbal Ahmad Khan for purchase of a
house No.554/3C-1, Township Lahore measuring 10-marlas for a total
consideration of Rs.1.6 million. He filed a suit for specific performance
of the said
agreement against the
vendors on 21-4-2004. The defendant No.1 Javed Iqbal and defendant No.2,
Nadeem Iqbal (predecessor of the presently contesting respondents Nos.3 to 5)
filed a joint written statement on 15-6-2006. The defendant No.1 died on
20-12-2006 and his legal heirs were impleaded on record. Thereafter, on
20-2-2007, the suit was dismissed for non-appearance by either of the parties;
however, on application by the petitioner-plaintiff it was restored on
31-3-2007. Neither notice of the restoration application nor fresh notices on
the restored suit were issued to the defendants. Accordingly, through
an ex-parte judgment
the suit was
decreed on 6-4-2009. The
execution petition on
the said decree
was filed on 6-5-2009 in which
possession of the suit property was secured by the petitioner/plaintiff on
14-5-2009.
2. One of the legal heirs of Iqbal Ahmad Khan, namely, respondent
No. 10, Nasir Iqbal, had filed a conceding statement in the suit but never
participated in the proceedings. Another legal heir respondent No.11, Mst.
Iffat Masood, filed an application along with affidavit and got recorded her
statement in the executing court admitting claim of the petitioner and prayed
for withdrawal of the amount to the extent of her share. The defendant No.2,
Nadeem Iqbal, died during the pendency of the suit on 14-1-2008. He is
succeeded by his legal heirs respondents Nos.3 to 5 herein. After their
dispossession from the suit property in the above noted execution proceedings
these legal heirs filed an application in the trial court on 22-5-2009 under
section 12(2), C.P.C. challenging the ex parte decree dated 6-4-2009. This
application was allowed by the learned trial court on 3-12-2009. A civil
revision there against by the petitioner-plaintiff was dismissed on 3-4-2010 by
the learned appellate court. The present writ petition is filed to challenge the
afore noted two orders whereby the ex parte decree dated 6-4-2009 has been set
aside.
3. The first objection taken by the learned counsel for the
petitioner is that the learned courts below have based their decisions on
grounds that are not taken in the respondent's application under section 12(2),
C.P.C. He points out that the allegation that Nadeem Iqbal, predecessor of the
contesting respondents Nos.3 to 5, had not signed the power of attorney of the
counsel appearing in the trial court, is not mentioned in the application.
Secondly, he asserts that the application lacks the allegation that consequent
upon the restoration of the suit on 31-3-2007 fresh notice was not issued to
the defendants-respondents. Accordingly, it is submitted that the petitioner has
been condemned on the basis of allegations that were not part of the record.
The learned counsel for the contesting respondents has explained that the
allegations are not based on any extraneous evidence but are derived from the
record, namely, wakalatnamas filed by the defendants and the order sheet of the
learned trial court in the suit. Consequently, neither point can surprise the
petitioner/plaintiff nor can he claim prejudice on account thereof.
4. The next point raised by the learned counsel for the petitioner is
that the decree has been set aside as a whole by the impugned judgments whereas
at best it should be set aside partially in favour of the persons who have
challenged the same, namely, respondents Nos.3 to 5, heirs of Nadeem Iqbal. He
submits that the other defendants have not participated in proceedings under
section 12(2), C.P.C. at all either before the learned trial court or learned
appellate court. Notwithstanding the issuance of notice in the present
proceedings to the said parties they have not participated. He submits that
they accept the decree and do not claim any right in the proceedings under
section 12(2), C.P.C. Learned counsel for the respondents Nos.3 to 5 submits
that there is no precedent whereby
a decree is
set aside partially
in exercise of
power under section 12(2), C.P.C.
He adds that property in question is indivisible and for that reason also
partial relief would be inappropriate in the circumstances.
5. The controversy brought to this Court in the present petition
must satisfy the limitations imposed on the exercise of constitutional
jurisdiction of this Court. This Court ordinarily interferes with judicial
orders passed by the learned lower courts either on account of jurisdictional
defect or the commission of illegality in the impugned orders. In the present
case, no jurisdictional defect has been pointed out in the impugned judgments.
Insofar as decision by the learned lower courts to set aside an ex parte decree
is concerned, it is evident from the record that the parties, including Nadeem
Iqbal deceased, predecessor of the contesting respondents Nos.3 to 5, was never
issued notice of restoration of the suit consequent upon the order dated
31-3-2007. Such an omission constitutes a serious default by the learned trial
court. Secondly, Nadeem Iqbal had passed away on 14-1-2008 whereas the impugned
decree was passed against him, a dead person, on 6-4-2009. It is also correct
that the signatures of Nadeem Iqbal appearing on the agreement to sell do not
tally with his attributed signatures affixed on the wakalatnamas. Consequently,
an ex parte decree, passed against a dead person whose fake signatures appear
on the power of attorney/ wakalatnama, cannot enjoy the sanctity attached to a
judicial order.
6. There is superficial force in the procedural objection that the
section 12(2), C.P.C. application by the respondents does not contain the
grounds of challenge to the ex parte decree that have prevailed with the
learned courts below. The fact of the matter is that both grounds are apparent
on the face of the record. Such an objection may have substance if a party is
caught by surprise and suffers prejudice as a result. Reference may be made to Ch.
Sir Muhammad Zafrullah Khan v. The Custodian of Evacuee Property, West Pakistan
and Karachi and
others (PLD 1964 SC 865). The petitioner cannot take the said plea
because he had two opportunities one before the learned appellate court and
again before this Court to demonstrate the prejudice suffered, inter alia, by
showing that material rebutting the findings was prevented from being brought
on record. Accordingly, this allegation does not disclose a sufficient basis to
interfere with the impugned findings regarding validity of the impugned ex
parte decree dated 6-4-2009.
7. However, the other argument that the respondents Nos.3 to 5 are
not entitled to relief that avoid the
entire decree, is appealing. This is because ordinarily relief is extended to
the party that approaches the court. Otherwise, even consenting judgment debtors
could seek the re-opening of a decree that has attained finality. The
application of this principle in relation to ex parte decrees is made in Mst.
Shaukat Ara v. Mst. Banu Begum through legal heirs and others (PLD 2009
SC 437). There is, however, a distinction to be made in the present case. The
ex parte decree dated 6-4-2009 has been set aside not for sufficient cause for
non appearance being shown by the respondents/defendants under Order 9, C.P.C.
but for wrongdoing committed by the plaintiff-petitioner under section 12(2),
C.P.C. The general principle of law is that fraud vitiates the most solemn
proceedings. Therefore, the tainted actions are void ab initio wholly and not
partly. Section 12(2), C.P.C. equates fraud with illegality, invalidating a
defective order fully and not by some degree. Reliance is placed on Lahore
Development Authority v. Firdous Steel Mills (Pvt.) Ltd. (2010 SCMR
1097), Lal Din and another v. Muhammad Ibrahim (1993 SCMR
710), Khadim Hussain v. Abid Hussian and others (PLD 2009 SC
419). Therefore the ex parte judgment and decree dated 6-4-2009 must be set
aside wholly and not partly because there are no degrees of invalidity.
8. Be that as it may, it also transpires now that the respondents
Nos.3 to 5 claim to have purchased the shares of other heirs of Iqbal Ahmad
Khan. This plea is not taken up in the written statement jointly filed by
Nadeem Iqbal (predecessor in interest of respondents Nos.3 to 5) and his
brother Javed Iqbal. Obviously, the plea capitalizes a subsequent development
and the question would arise whether such a development, even if it is
factually true, can have any legal consequence. Insofar as the present
proceedings are concerned the said development has not been asserted as
respondents Nos.3 to 5 have neither filed any authority on behalf of other
heirs of Iqbal Ahmad Khan nor sought the deletion of their names as parties.
9. As the matter is now before the learned trial court for
proceeding from the pre-decretal stage, the petitioner-plaintiff has the right
to dispute any effort, by the defendants to revive, conceded or surrendered
rights whether personal or acquired before the learned trial court.
Accordingly, it is best that such objections are heard and decided by the
learned trial court which may, if necessary, record further evidence in the
matter.
10. In the light of the foregoing observations, the impugned orders
dated 3-12-2009 and 3-4-2010 are not disturbed and this petition is disposed
of.
S.A.K./I-47/L Petition
dismissed.
2006 Y L R 759
[Lahore]
Before Mian Saqib Nisar, J
MUHAMMAD
RAMZAN---Petitioner
Versus
Mst. SATTAN and another---Respondents
Civil Revision No. 53 of 2000. decided on 16th December, 2005.
(a) Limitation Act (IX of
1908)---
----Art.181-Document executed by
practising fraud and misrepresentation on Pardanasltin lady---Limitation to
challenge such document shall commence from the date of attaining the knowledge
of such document by Pardanashin lady.
Khawas Khan through L.Rs.
v. Sabir Hussain Shah and others 2004 SCMR 1259 ref.
(b) Qanun-e-Sliahadat (10 of
1984)---
----Art. 117 & I18---Document
allegedly executed by illiterate Pardanashin lady and illiterate person---Party
placing reliance upon such document would have to prove that the person who had
put his thumb-impressions and signatures in execution of document, was made to understand the contents of
document by reading it over to hint the
contents and true purport of the
instrument---In case of Pardanashin
lady the defendants being the beneficiary of document had to prove that transaction was bona fide, genuine, having no
reflection of any fraud, undue
influence etc., and that ladies had the benefit of the independent advice of ct male member of her fancily---Defendants failed to
discharge the outs and execution of document
in question was thus, not proved.
Ali Muhammad v. Wali Muhammad 1993 MLD 666 ref.
(c) Civil Procedure Code (V of 1908)-
----O.II, R.2-Withdrawal of
suit before filing of fresh suit---Where a suit had been withdrawn before
the filing of a fresh one, the
subsequent suit was not hit by the provisions of O.II, R.2, C.P. C.
Ghulam Nabi and others v.
Seth Muhammad Yaqub and others PLD 1983 SC 344 ref.
(d) Specific Relief Act (I of
1877)---
----S.42---Suit for
declaration---Lack of consequential relief of possession---Effect---Where plaintiffs and defendants were co-sharers
when upon intervening can alleged sale-deed which affected their joint
ownership, the plaintiffs while seeking declaration were not bound to ask for
consequential relief of possession because when the sale-deed in question was
declared to be null and void, the original position of plaintiffs as the
co-sharers stood restored and they were to be considered to he in joint
possession of suit property---1f one party had denied the very execution of
sale-deed and the other party claimed it to be valid then the plea of denial of
such execution and plea of fraud and misrepresentation at the same time taken
by plaintiffs were not inconsistent because the elements of fraud and
misrepresentation necessarily is an in-built issue, which required resolution
by Court---Court of fact has prerogative to appreciate the evidence and such
appreciation cannot be interfered with in the revisional jurisdiction for the
reason that on the basis of same evidence, some other conclusion could have
been drawn---Courts below had committed no error of jurisdiction or material
irregularity in passing the impugned decisions.
Mumtaz and 3 others v.
Mian Khan PLD 1973 Lah 47 ref.
Syed Muhammad Kaleem Ahmad Khurshid for Petitioner.
Ras Tariq Chaudhry for
Respondents.
ORDER
MIAN SAQIB NISAR, J.---The respondents, admittedly are the
sisters of he petitioner. They had inherited the suit-land from their father.
Subsequently, the petitioner, through registered sale-deed dated 10-5-1978, is
alleged to have purchased the land from the respondents and a Mutation No.1138
dated 25-6-1978 is also claimed to have been sanctioned on the basis of the
above. The respondents, on 25-6-1997, brought a suit for declaration, asserting
their ownership of the suit-land and challenging the aforesaid sale-deed and
the mutation on account of fraud and misrepresentation etc. The suit was
contested by the petitioner; issues were framed; parties were put to trial and
the learned Civil Judge, vide judgment and decree dated 7-5-1999, allowed the
same. Appeal of the petitioner has failed on 9-12-1999.
2. Learned counsel for the petitioner contends, that the suit of
the respondents was put of limitation as the sale-deed and the mutation
effected in the year 1978 were challenged through a suit filed in 1997; that
the suit of the respondents was hit by the provisions of Order XXIII, rule 1,
C.P.C., because they earlier had filed a suit against the petitioner with
regard to the same land, but it was subsequently withdrawn; that in another
suit brought by the petitioner against the respondents, the respondents, in
their written statement, have conceded to the claim of the petitioner and had
also made the statement accepting the petitioner as owner of the suit property;
that in the earlier suit, as the relief challenging the sale-deed and the
mutation was not sought, therefore, the subsequent suit in this regard was
barred under Order II, rule 2, C.P.C. It is further submitted that both the
Courts below, though have given the concurrent findings on Issues Nos.1 and 2
against the petitioner, but those are based upon misreading and non-reading of
the material evidence on the record. It is also argued that in the suit, the
respondents have denied the execution of the sale-deed in favour of the
petitioner, however, in their evidence, they have attempted to prove that the
sale-deed is result of fraud, misrepresentation and undue influence and it is
this plea which has been accepted by the two Courts below. According to the
learned counsel, these two pleas are inconsistent and mutually destructive;
reliance in this behalf has been placed upon Mumtaz and 3 others v. Mian Khan
(PLD 1973 Lahore 47). It is further argued that during the course of trial, the
petitioner had moved an application for the comparison of the thumb-impressions
of the respondents upon the sale-deed, but the application has been erroneously
rejected by the learned trial Court on the ground that it is a direction case
and has to be decided within specific period of time, and the comparison
process shall cause delay to the expeditious disposal; but this could hardly be
a reason for the rejection of the application, when it was the duty of the
Court to have sought the comparison. It is stated that the onus to prove about
the non-execution of the document was upon the respondents and if they had
failed to lead evidence in this regard including their failure to obtain the
opinion of the Finger Print Expert that the document does not bear their thumb
impressions, the presumption should .be drawn against them. Reliance has been
placed upon Ali Muhammad v. Wall Muhammad (1993 MLD 666). Lastly, it is argued
that the witnesses produced by the respondents have admitted in their statement
that the petitioner is in possession of the suit property, therefore, having
omitted to ask for the consequential relief of possession, the suit for mere
declaration is hit by proviso to section 42 of the Specific Relief Act.
3. I have heard the learned counsel for the parties. As far as the
question of limitation is concerned, in the plaint the respondents have clearly
stated that they came to know of the disputed sale on 4-5-1997, whereafter the
present suit has been filed. While appearing as P.W. Mst. Bibi has deposed that
the suit was filed when the disputed sale was discovered. The objection about
the limitation was raised by the petitioner in his written statement and the
onus to prove the issue about the bar of limitation was upon the shoulders of the
petitioner which he miserably failed to discharge, by establishing on the
record that the respondents were aware of the sale-deed six years prior to the
filing of the present suit. It may be added that the limitation in such
circumstances, as has been held in the judgment reported as Khawas Khan through
L.Rs. v. Sabir Hussain Shah and others (2004 SCMR 1259), shall commence from
the date of attaining the knowledge of the document by Pardanashin lady, which
she claims to never has executed and attributes fraud etc. to the beneficiary
of the document. It may further be held that the respondents in this case are
illiterate Pardanashin ladies and thus, it was more required from the
petitioner to have proved that the transaction was bona fide, genuine, having no
reflection of any fraud, undue influence etc., and that the ladies had the
benefit of the independent advice of a male member of their family. As per
findings of the two Courts below and also affirmed by this Court, the
petitioner has miserably failed to, discharge the onus upon this part of the
controversy. Resultantly, I do not find that in the facts and circumstances,
the suit was barred by time.
4. As regards the question that the suit was hit by Order II, rule
2, C.P.C. or Order XXIII, rule 1, C.P.C., suffice it to say that according to
the judgment reported as Ghulam Nabi and others v. Seth Muhammad Yaqub and
others (PLD 1983 SC 344), where a suit had been withdrawn before the filing of a fresh one, the subsequent
suit is not hit by the said provisions. For the argument that in the earlier
suit, the validity of the sale-deed was not challenged and, therefore, the
subsequent suit i.e. the present one, was barred by Order II, rule 2, C.P.C.,
it may be held that this is the defect, perhaps to remove which, the earlier
suit was not pursued and the subsequent suit was filed. Thus, in the facts and
circumstances, Order II, rule 2, C.P.C. shall not be attracted.
5. The question about the
maintainability of the suit for the lack of asking the relief of possession is
not very intricate, because the respondents had originally inherited the
property and they were the co-sharers along with the petitioner, when the
intervening sale-deed had affected their joint ownership. Now if the sale-deed
in issue is declared to be null and void, the original position of the
respondents as the co-owners shall stand restored and they shall be considered
to be in the joint possession of the suit property. As has been held by the two
Courts below and is affirmed by this Court as well, that the disputed sale-deed
is not proved to have been validly executed by the respondents and thus, liable
to be declared void, resultantly, as being the co-owners in joint possessions,
the respondents were not bound to ask for the consequential relief of
possession, and thus, their suit is not affected by the provisions of section
42 of the Specific Relief Act.
6. The argument that the case set
out of the respondents in their suit is that they had never executed the
sale-deed, but their subsequent plea is that it is result of fraud,
misrepresentation and undue influence, and these pleas having been accepted by
the two Courts below are inconsistent in nature, resultantly, the decrees
impugned are liable to be set aside. I am afraid that the argument is not
well-conceived for the reason that if the one party has denied the very
execution of the sale-deed, but the other party claims it to be so validly
done, the element of fraud and misrepresentation, necessarily is an in-built
issue, which requires resolution by the Court.
7. The last submission about the
non-comparison of the thumb-impressions, it may be held that primarily it was
the duty of the petitioner as the defendant and the beneficiary of the
sale-deed, to have proved the document through positive and direct evidence.
The sale-deed is purportedly witnessed by Sultan and Allah Bakhsh Khan. Allah
Bakhsh Khan allegedly also identified the two ladies before the Sub-Registrar,
but he has not been examined; the argument that he had died by that time, is
not definitely proved on the record; and even if that was so, some evidence
should have been led by the petitioner to prove his signature on the document
as the attesting witness or the identifier. Abdul Rashid, the scribe of the
document has also not been produced. Only the stamp vendor has been examined as
D.W.2 and this evidence was insufficient and inadequate to prove the valid
execution of a document attributed to illiterate Pardanashin ladies. It is also
not established if the ladies at the relevant point of time, had the
independent advice of any adult male member of the family or the adequate
consideration was passed on to them. According to Sultan D.W.3, the value of
the land at the relevant time was about Rs.8,000/10,000 per Acre,
but unfortunately Rs.10,000 are shown to have been paid and postulated in the
sale-deed for whole chunk of the land, which is about 68-Kanals. It is settled
law that mere appendage of the signatures or thumb-impressions on a document,
particularly in the case of Pardanashin illiterate lady and illiterate person,
cannot be considered to be the valid and due execution of the document until
and unless the person, who is putting his thumb-impressions or the signatures
in execution thereof, is made to understand the contents of the document by
reading it over to him and explaining to him the contents and the true purport
of the instrument. This is the most pivotal and important factor for the valid
execution by such people. In this case, the petitioner has not led any evidence
if the sale-deed, at the time of its alleged execution by the two ladies or
even at the time of its registration, was read over and it was accepted by them
that they are selling their proprietary rights in the property to their brother
for the consideration of Rs. 10,000. From all these factors, the two Courts
below on the basis of appreciation of evidence, have come to a factual
conclusion that the petitioner has failed to prove the sale-deed. I am not
convinced if there is any misreading or non-reading of the evidence on the
record by the Courts below, while reaching to the conclusion. Obviously, it is
the prerogative of the Courts of fact to appreciate the evidence and such
appreciation cannot be interfered in the revisional jurisdiction only for the reason
that on the basis of the same evidence, some other conclusion could have been
drawn. Thus, I am not persuaded to hold that the Courts below have committed an
error of jurisdiction or material irregularity in passing the impugned
decision. Resultantly, I refuse to exercise my revisional jurisdiction with the
consequences that this petition has no force and is hereby dismissed.
F.M./M-1462/L Petition
dismissed.
2007 SCMR 1117
[Supreme Court of Pakistan]
Present: Sardar Muhammad Raza Khan
and Falak Sher, JJ
GHULAM ZOHRA and 8
others----Petitioners
Versus
NAZAR HUSSAIN through Legal Heirs----Respondents
Civil Petition No.3189-L of 2000, decided on 18th December,
2006.
(On appeal from the judgment, dated 19-10-2000 passed by the Lahore
High Court, Lahore in Civil Revision No.867 of 1984).
(a) Punjab Pre-emption Act (IX
of 1991)---
----Ss. 6 & 20---Civil Procedure Code (V of 1908), O.XLI,
R.20(b)---Suit for pre-emption---Plea of vendee that pre-emptor had no superior
right---Dismissal of suit by Trial Court---Application before Appellate Court
for production of copy of Register Haqdaran Zamin showing vendee to be owner in
estate---Dismissal of application by Appellate Court and High Court on the
ground that same was filed to fill in lacuna; and that such plea was not raised
by vendee in written statement---Validity---Trial Court had not examined
Patwari, from whom Revenue Record favouring vendee could have been
demanded---Courts below should have received such copy as additional evidence
in order to do complete justice and avoid passing of a decree in favour of
pre-emptor having no superior right---Passing of impugned decree in favour of
pre-emptor having no superior right was a sheer injustice besides being an
illegality and a bigger irregularity as compared to admission of additional
evidence for which substantial cause was available---Duty of pre-emptor was to
prove superiority of his right and not the equality---Such plea of vendee was
sufficient to meet the requirements of pleadings---Supreme Court accepted
appeal, admitted such copy into additional evidence, declared pre-emptor to be
having no superior right of pre-emption and dismissed his suit subject to
payment of Rs.10,000 by vendee as cost of additional evidence, failing which
decree in favour of pre-emptor would stand revived.
(b) Civil Procedure Code (V of 1908)----
----O. XLI, R.27---Production of additional evidence in Appellate
Court---Scope---Additional evidence would be sought about something which
happened to have been omitted by a party during trial---Appellate Court could
admit additional evidence, if same would promote ends of justice and would be
required for doing complete justice between parties---Question of filing in
lacunae would not be of prime importance---Principles.
S.M. Tayyab, Senior Advocate Supreme Court for Petitioners.
Kh. Muhammad Akram, Advocate Supreme Court for Respondents.
Date of hearing: 18th December, 2006.
JUDGMENT
SARDAR MUHAMMAD RAZA KHAN, J.---The petitioners seek leave
to appeal from the judgment dated 19-10-2000 of a learned Judge in Chambers of
Lahore High Court, whereby, their revision was dismissed, maintaining the
decree for possession through pre-emption in favour of Nazar Hussain respondent
(now dead L.Rs. impleaded).
2. The petitioners had purchased the disputed property in Mauza
Dawana Kanju, Tehsil Shahpur District Sargodha vide Mutation No.222 attested on
22-8-1969. It was pre-empted by two rival pre-emptors named Syed Ghazanfar Ali
Shah, the son of the vendor and another Nazar Hussain the respondent. The
learned trial Court, dismissed the suit of Syed Ghazanfar Ali Shah holding it
to be collusive and decreed that of Nazar Hussain holding him to be an owner in
the estate, which the petitioners/vendees were not. The non-suited pre-emptor
did not file an appeal while the vendees went into appeal where they filed an
application under Order XLI, rule 27, C.P.C. for the production of, Revenue
Record proving them also to be owners in the estate. The Appellate Court as well
as the learned High Court, through the impugned order, came to the conclusion
that the application was filed to fill in the lacunae and that such plea was
never taken by the vendees in their written statement.
3. The successful pre-emptor is held to be an owner in the estate.
If the application of the petitioners had been accepted by the learned
Appellate Court, the vendees also would have been held to be the owners in the
estate, having equal right with that of the pre-emptor. We have scanned the record
wherefrom it appears that no Patwari was examined by the trial Court from whom
the Revenue Record favouring the petitioners could have been demanded. Copy of
Register Haqdaran Zamin for the years 1966-67 and 1970-71 annexed with the
application under Order XLI, rule 27, C.P.C: undoubtedly determines the present
petitioners also to be the owners in the estate.
4. The application if not allowed, would result into the passing of
a decree against a vendee who has equal right of pre-emption with the pre-emptor
and where the pre-emptor would be having no superior right. It would be nothing
but a sheer injustice besides being an illegality. Thus, the learned Appellate
Court under sub-rule(b) of Rule 27 of Order XLI, C.P.C. should have received
the copies of Revenue Record as additional evidence in order to do complete
justice and in order to avoid passing a decree in favour of the pre-emptor
having no superior right. The question of filling in the lacunae is not of
prime importance because no such word is mentioned in the rule itself.
Obviously, additional evidence is always sought about something which happens
to have been omitted by a party during trial. The Appellate Court would have
done justice if it had come to the conclusion that the admittance of additional
evidence would promote the ends of justice and the same was required in order
to do complete justice .between the parties. This must have prevailed as
substantial cause for the Appellate Court to admit evidence as mentioned in
sub-rule (b) Rule 27 of Order XLI, C.P.C. We are of the view that both the
Courts, by not admitting the additional evidence have passed a 'decree in
favour of a pre-emptor having no superior right. This was a bigger irregularity
as compared to the admission of additional evidence for which substantial cause
was available.
5. The second objection that the plea was not taken in the written
statement, is also unfounded. It is sufficient for a defendant in a pre-emption
suit to plead that the pre-emptor had no superior right. Such plea was, of
course, taken by the present petitioners. In a pre-emption suit it is the
pre-emptor who is to prove the superiority of his right not the equality and
hence the plea that the pre-emptor has no superior right is sufficient to meet
the requirements of the pleadings.
6. Consequent upon what has been discussed above, the petition,
after conversion into appeal, is accepted. The impugned judgments of the High
Court as well as the Appellate Court are set aside and, in order to avoid
prolongation of already protracted litigation, the copies of Jamabandi produced
by the petitioners are admitted into additional evidence. The pre-emptor Nazar
Hussain is declared to be having no superior right of pre-emption. His suit for
pre-emption is dismissed subject to payment of Rs.10,000 as caused for
additional evidence to be deposited by the petitioners before the Assistant
Registrar of this Court within one month, failing which, the decree in favour
of Nazar Hussain shall stand revived.
S.A.K./G-16/SC Appeal
accepted.
2011 Y L R 3045
[Peshawar]
Before Syed Sajjad Hassan Shah, J
REHMAN ULLAH---Petitioner
Versus
WAZIR ZADA---Respondent
Civil Revision No.6 of 2009, decided on 10th December, 2010.
(a) North-West
Frontier Province Pre-emption Act (X of 1987)---
----Ss. 13 & 31---Suit for pre-emption---Making of
Talabs---Limitation---Plaintiff had produced
sufficient evidence on record to establish that having gained the knowledge
about sale transaction of suit
property, he immediately declared his intention in the same sitting, to
exercise his right of pre-emption in
respect of said property and that thereafter issued the Talabs in accordance with
law---Mere fact that one vendee/defendant was issued original notice, whereas
the remaining ones were served with photostat copies, by itself, could not be
considered a good ground to dislodge claim of the plaintiff, who was co-sharer in the suit
property---Vendees/defendants, were real brothers and resided in the same
house---Issuance of photostat copies of
the notices, did not appear to have affected
their rights---Suit which was filed after 3 months and 10 days from attestation
of mutation, was within
time---Appellate Court below, in circumstances had rightly set aside judgment
and decree of the Trial Court, whereby
suit by the plaintiff was dismissed---Suit was rightly decreed by the Appellate
Court, in circumstances.
Rooh-ul-Qudus v. Muhammad
Rafiq and 2 others 2002 CLC 379 and Binyameen and 3 others v. Chaudhry Hakim
and another 1996 SCMR 336 rel.
(b) North-West
Frontier Province Pre-emption Act (X of 1987)---
----Ss. 13 & 21---Suit for pre-emption--Improvement
made by vendee on suit land---Vendee/defendant claimed that after sale
transaction made vide sale-deed, he constructed a house over the suit land and that
he was residing in the said house and that after 7 months of the completion of said house, he received the
notice of Talb-e-Ishhad---No
cross-examination in respect of said
statement of the defendant but said
statement was corroborated by witness produced by him---Defendant/vendee,
having fully proved making of improvement over suit land, immediately after
sale transaction in his favour, was entitled to the cost of said improvements and court below was not
justified in not taking into consideration the same---Case was remanded to the
Trial Court for deciding issue in that respect after granting an opportunity to
both the parties to produce fresh evidence, in circumstances.
2009 SCMR 1256; Qurban Hussain
v. Mst. Bashir Begum and others PLD 1986
SC (AJK) 109 and Samrathmal v. Union of India (1959) M (305) rel.
(c) Qanun-e-Shahadat (10 of
1984)---
----Art. 134---Cross-examination---When
a portion of statement or statement of a witness was not
cross-examined, presumption would be
that the other party had admitted such portion of statement or the statement made by witness.
2001 SCMR 1700 ref.
(d) Civil Procedure Code (V of 1908)---
----O. XIV, R.1---Framing of
issues---Trial Court's primary duty
was to frame issues properly and in
accordance with the pleadings of the parties-Non-framing of issues was an illegality amounting to exercise of jurisdiction illegally or with
material irregularity.
Muhammad Bashir v. Muhammad Hussain and 16 others 2009 SCMR 1256;
The Province of East Pakistan v. Muhammad Hussain Mia PLD 1965 SC 1; Abdul
Hameed and others v. Muzamil Haq and others 2005 SCMR 895 and Mst. Rasheeda
Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384 rel.
Nasim Mehmood Khattak for Petitioner.
Jan Muhammad Khan for Respondent.
Date of hearing: 10th December, 2010.
JUDGMENT
SYED SAJJAD HASSAN SHAH, J.---This petition is directed
against the judgment and decree dated 24-10-2008 passed by the learned
Additional District -Judge-IV, Swabi, whereby appeal filed by the respondent
against the judgment and' decree dated 25-10-2007 passed by learned Civil Judge
Swabi, accepted, the impugned judgment and decree was set aside and suit of the
respondent decreed.
2. Precisely stated facts are that Wazir Zada the
plaintiff/respondent (hereinafter called as
the respondent) filed a suit against Rehman Ullah the
defendant/petitioner (hereinafter called as the petitioner) for seeking the
recovery of possession of exercise of right of pre-emption in respect of the
property detailed in the heading of the plaint. He averred in the plaint that
suit property was the ownership of Gul Haleem, transferred through sale
Mutation No.412 attested on 18-12-2004 in sale consideration of Rs.20,000 and
the defendant/petitioner had shown in his plaint, the exaggerated amount to
ward off the right of pre-emption of the respondent. He further asserted that
he acquired the knowledge of sale in his Hujra at 4,-00 p.m. on 12-3-2005
through one Gul Jamal (informer), the respondent then and there declared to
pre-empt the suit land in presence of the witnesses, thereafter a notice
Talb-e-Ishhad through postal registered A.D. sent in the name of the petitioner
as the respondent is the co-sharer contiguous owner and participated in
immunities. The suit was contested by the petitioner by filing his written
statement, refuted the claim of respondent and asserted that the petitioner
purchased the property vide sale-deed dated 20-5-2004 in sale consideration of
Rs.50,000 half of the sale consideration was paid on the same day and the possession
was delivered to the petitioner, on the same day the sale mutation was entered.
After framing the issues in the light of the pleadings of the parties, the
learned trial court afforded ample opportunities to' both the parties to
produce their evidence, after completion of evidence and hearing of the
parties, the suit of the respondent was dismissed. Being aggrieved of the
judgment and decree, the respondent assailed by filing an appeal, the learned
appellate Court accepted the appeal and set aside the impugned judgment and
decree and suit of the respondent was decreed.
3. The learned counsel appearing on behalf of the petitioner
contended that the respondent was in the knowledge of the sale transaction from
the day one, but he never declared his intention to pre-empt the suit land. The
respondent and his witnesses cooked up a story of Talb-e-Muwathibat and same
was displayed at trial, in view of their contradictory statements of the
witnesses and the petitioner, the learned trial Court was not convinced as to
performance of Talb-e-Muwathibat, therefore the findings made regarding the
issues of Talbs, particularly of Talb-e-Ishhad and returned the findings about
the sale consideration and paid Rs.50,000 and also that the respondent is
co-owner in the suit property and the petitioner had raised the construction
immediately after the sale transaction, entered into between the respondent and
the vendor i.e. 20-5-2004 and it was also held that the suit of the respondent
not filed within time. The learned appellate Court while deciding the appeal
set aside the findings of the learned trial Court and declared that the suit is
within time, the Talb-e-Muwathibat and Talb-e-Ishhad performed in accordance
with law and failed,, to prove that the construction was raised before the
notice of Talb-e-Ishhad or the petitioner took the possession of the suit
property before Talbe-Ishhad, so the findings rendered under Issues Nos.3, 4
set aside. The learned counsel urged that the learned trial Court had not
framed the issues in accordance with the averments made in the written
statement of the petitioner, he had categorically stated in paragraph 4 that
"on 20-5-2004 the possession was delivered to him, a sale-deed No. 718 executed on 20-5-2004, whereafter, he
has constructed a Pakka house and incurred heavy cost in its
construction", in this regard no issue was framed by the learned trial
Court and learned appellate Court had also not adverted to this aspect of the
case. He further argued that the case be remanded and learned trial Court may
be directed to frame the issue in accordance with the said paragraph of the
written statement and after allowing the opportunity of producing evidence,
then to decide the question of improvements. The reliance placed upon 2009 SCMR
1256.
4. The learned counsel for the respondent vehemently contended that
the judgment and decree passed by the learned appellate Court is in accordance
with law, as the learned appellate Court went through the entire evidence and
then arrived to the conclusion that both the Talbs properly performed and the
suit of the respondent was within time and no improvement before the notice
Talb-e-Ishhad made by the petitioner. He further contended that at the
revisional stage, the point of improvement made in the suit property cannot be
agitated and on this point the remand cannot be ordered.
5. Arguments of the learned counsel for the parties considered
record carefully perused.
6. A perusal of the record reveals that the learned appellate
Court, while deciding the appeal returned the findings regarding the
performance of Talbs, after having been considered the entire material
available on record, as the respondent produced the informer P.W.3 Sareer
Zaman, in his presence on his information in the same sitting, on 12-3-2005 at
4-00 p.m. at his Hujra declared the intention to pre-empt the suit land,
whereafter, on 17-3-2005, the respondent got scribed a notice and thumb
impressed the same, while the witnesses of the notice including the present one
signed the same, notice was produced in evidence as Exh.P.W.3/ 1, Gul Jamal was
examined as P.W.4, corroborated the statement of P.W.3 (informer). Another
witness Shahab examined as P.W.5 as attesting witness of notice P.W.3/1, stated
that besides Sareer Zaman as witness of notice, he has also signed the notice
Exh.P.W.3/1 and then the respondent appeared as P.W.6 as his own witness,
testified the same facts and supplemented that the notice was scribed on
17-3-2005, he thumb impressed the sane and
the witnesses namely Sareer Zaman and Shahab signed the notice and the
original notice was sent through registered post and the copy of the notice
retained. All the above mentioned witnesses were cross examined on the question
of Talbs, but none of them was shattered, although a lengthy cross-examination
was conducted on behalf of petitioner, but they remained consistent and no
material contradiction brought on the record.
7. It was agitated on behalf of the respondent that instead of
original notice the photostat copy was sent to the petitioner, according to the
learned counsel, the original brought on the record by the respondent, had the
original sent to the petitioner, how the respondent could have produced the
original on the record. The learned trial Court while deciding the question of
Talb-e-Ishhad returned its findings that the respondent failed to prove
Talb-e-Ishhad as notice had not been signed by one of the witnesses, it is
important to note that the notice was appended with the plaint, the written
statement was filed by the petitioner, this objection was not raised in his
written statement, no issue to this effect was framed, as against that the
witness namely Gul Jamal did appear before the Court as witness and owned the
notice, non-signing of the same is not fatal to the suit of the respondent, the
notice was duly sent under registered covered acknowledgement due, the
pre-emptor/ respondent had confirmed his intention to exercise the right of
pre-emption in the notice, once a pre-paid properly addressed envelope had been
delivered, under the provision of 26 of the West Pakistan General Clauses Act,
1956, the same was presumed to have received the addressee in due course of
mail. The respondent admitted the receipt of notice, the learned appellate
Court rightly decreed the suit to this extent. Reliance placed upon a case
titled Rooh-ul-Quddus v. Muhammad Rafiq and 2 others reported as 2002 CLC 379.
8. In the instant case the respondent has produced sufficient
evidence to establish that having gained the knowledge about the sale
transaction through Aurangzeb he immediately declared his intention in the same
sitting in the presence of Muhammad Ashraf, Aurangzeb to exercise his right of
pre-emption in respect of the demised land and thereafter issued the Talbs in
accordance with law. The mere fact that one of the vendee was issued original
notice, whereas the remaining was served with Photostat copies, by itself,
cannot be considered a good ground to dislodge the petitioner's claim, who is
admittedly co-sharer in the suit property. It may be stated here that the
vendee-defendants are real brothers and they reside in the same house. The
issuance of photocopies of the notices does not appear c to have affected their
rights.
9. When a fact was not pleaded in the pleadings of a party, consequences
laid down in a judgment of the august Supreme Court reported in a case titled
Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336, reproduced
as under:
(c) Pleadings---Practice and procedure---No evidence can be
led or looked in support a plea which had not been taken in pleadings.
10. As far as, the findings recorded by the learned appellate Court
under Issue No.2 are concerned, the learned appellate Court has not expressly
given findings regarding the period of limitation as was returned by the
learned trial Court under Issue No.2 in its judgment, however, the learned
appellate Court after setting aside the judgment and decree, passed by learned
trial Court decreed the suit of the respondent, thus, in view of the learned
appellate Court, the suit was filed within the period of limitation. The view
is also in accordance with law contained in section 31 of the N.-W.F.P.
Pre-emption Act, which provides 120 days for filing the suit for pre-emption
from the date:
(a) of the registration of sale-deed; or
(b) from the attestation of mutation, if the same
is made otherwise than through the registered sale-deed; or
(c) on which the vendee
takes the physical possession of the property, if the same is made, otherwise,
than through the registered sale-deed or the mutation; or
(d) of knowledge by the
preemptor, if the sale is not covered under paragraph (a) or paragraph (b) or
paragraph (c).
11. Since, the mutation was attested on 18-12-2004 and suit filed'
on 7-4-2005, same was within time. The learned trial Court, while deciding the
issue of limitation misdirected itself as the unregistered sale agreement was
scribed on 20-5-2004, when the sale transaction was effected in between the
vendor and the respondent, but subsequently the sale mutation was attested, the
agreement made earlier was also culminated into sale mutation, time will be
considered to be reckoned from the date of attestation of mutation, therefore,
the suit of the respondent was instituted well within time.
12. The learned appellate Court, while recording the findings under
Issues Nos.3 and 4 held that the petitioner
failed to prove the execution of sale-deed brought on record as
Exh.DW.1/1, as one of the marginal witnesses of the sale-deed has not been
produced, moreso, the defendant did not
produce stamp vendor, deed writer. The learned appellate court, while
deciding the said issue legally erred in law that agreement to sell was not
required to be proved by two attesting witnesses, if any one of the witnesses
produced, it is sufficient compliance of law, therefore, the execution of deed
on 20-5-2004 and entry of mutation on the same day, therefore, its execution
cannot be doubted and be considered that he entered into possession of the suit
property from the date of execution of the sale-deed as well as the date of
entry of mutation i.e. 20-5-2004, thereafter, the petitioner has raised the
construction in the suit property, the respondent has produced Azam Khan
Patwari Halqa as P.W.1, he categorically stated that in the suit property a
pakka house is situated, it consists of four rooms. The plaintiff/respondent
was examined as P.W.6, he has said in the following words:--
12A. Since, the respondent had not denied that when construction
work started by the petitioner was completed and his further reply that when the petitioner was raising the
construction, he had not visited the suit land as he was not in the knowledge
of construction, he admitted as correct that the residential house of the
defendant/ petitioner situated in the suit property and he further stated that
he has no knowledge, who is residing in the said house. It is in evidence that
the distance in between the suit property and house of the respondent is one
km. The above mentioned statement vividly amounts admission in the eye of law,
as the witness has not denied the fact of construction of house, stated that he
is not in the knowledge of the factum of construction, although in later part
of his statement admitted the existing of house in the suit property. In this
regard, reliance placed upon the judgment titled Qurban Hussain v. Mst. Bashir
Begum and others reported in PLD 1986 SC (AJK) 109 the relevant para-10 at
page-6 reproduced as follows:--
"The law is also now well set that denial of knowledge of a
particular fact is not a denial of the fact, and has not the effect of putting
the fact in issue. We are fortified in our view in Sarnrathmal v. Union of
India (1959) M (305) ".
13. Rehman Ullah, petitioner examined as DW.1, stated that after
the sale transaction made on 20-5-2004 vide sale-deed No.718, over the suit
property a house was constructed and residing therein and he further stated
that after 7 months of the completion of house he had received the notice of
Talb-e-Ishhad and there is no cross-examination in respect of the said
statement of the petitioner, even in cross-examination, he stated that after
purchase of the suit property within 10 days the foundations laid down. When a
portion of statement or statement of a witness not cross-examined, such portion
of statement or the statement made by witness, the presumption would be that
the other party has admitted the same. However, in a judgment reported as 2001
SCMR 1700, the dictum laid down that when a statement not cross-examined, it
amounts to an admission in terms of Article-31 of Qanun-e-Shahadat. The
statement of respondent corroborated by Khanan Khan DW.2, foregoing aspect of
the case had not been considered by the learned appellate Court and rendered
the findings without there being valid and solid ground to reject the plea of
construction of the house over the suit property prior to issuing the notice
Talb-e-Ishhad, in such circumstances the petitioner in terms of section 21 of
the N.-W.F.P. Pre-emption Act, 1987 entitled for the improvements made as
stated above, the same section is reproduced for convenience sake as under:--
S.21---Improvements made by the vendee---Where a vendee has
made any improvements in the immovable property before Talb-e-Ishhad is made by
the pre-emptor under subsection (3) of section 13, the vendee shall be entitled
to the cost of such improvements.
14. The petitioner had claimed in paragraphs 4 and 7 of the written
statement in the following words:--
15. It is quite clear in the above statement that the petitioner had
made the improvements on the suit property and in case of decree entitled for
the same, but on account of non-framing of issues neither any evidence was
produced nor the value of the improvements assessed by the learned trial Court.
Although, Issue No.4 framed as "whether the defendant had raised
construction on the suit property". As per the grounds agitated in written
statement by the petitioner, the learned trial Court was required under the law
to recast the issue as below:
"whether the defendant had raised construction on the suit
property, if so, how much expenses incurred by the defendant in making the
improvements and to what extent the defendant is entitled for."
16. It was the prime duty of the learned trial Court to frame the
issue properly and in accordance with the pleadings of the parties, non-framing
of issues is an illegality amounting to exercise of jurisdiction illegally, or
with material irregularity. Reliance placed to a case titled Muhammad Bashir v.
Muhammad Hussain and 16 others, reported as 2009 SCMR 1256, the relevant
paragraphs 8 and 9 reproduced as under:--
"We have gone through the law cited above and find that land
vesting in the Provincial Government was not pre-emptable in view of notification number 74 dated
12-6-1944, relating to Bahawalpur
State. Learned counsel for the respondents argued that this
question was though raised before this Court. In reply, learned counsel for the
appellant referred to The Province of East Pakistan v. Muhammad Hussain Mia PLD
1965 SC 1, wherein it was held "on the filing of an appeal the entire
matter becomes re-open and sub-judice and has to be decided in accordance with
law prevalent ". In this view of the matter even if a ground raised and
not pressed which relates to fundamental question can be considered by the
Court. Reference can conveniently be made to Abdul Hameed and others v. Muzamil
Haq and others 2005 SCMR 895".
"The objection raised by the appellant-defendant in the
written statement regarding exemption from pre-emption of the suit-land was not
put to an issue. Appellant was seriously prejudiced in not being able to
produce evidence to G prove the assertion ".
17. The failure to comply with the Provisions of Order XIV Rule 1,
C.P.C. amounts to material illegality and irregularity and illegal exercise of
jurisdiction, the relevant portion of the ruling ibid reproduced as under:--
"The controversy was not put into an issue. Learned
appellant's counsel has rightly referred to Mst. Rasheeda. Bibi and. others v.
Mukhtar Ahmad and others 2008 SCMR 1384, wherein it was held that non framing
of an issue is an illegality amounting to exercise of jurisdiction illegally or
with material irregularity and the case was remitted back for framing of issue
and recording of fresh evidence by the trial Court".
18. In' view of the above discussion, this petition is allowed and set
aside the findings under Issue No.4 made by the learned appellate Court, and
remit the case back to the learned trial Court for deciding on newly framed
issue, after granting an opportunity to both the parties to produce fresh
evidence, as required in view of the framing of issue, if so desire, finding of
the rest of issues made by the appellate court will remain intact.
H.B.T./209/P Case
remanded.
2009 S C M R 1256
[Supreme Court of Pakistan]
Present: Ch. Ejaz Yousaf and
Sardar Muhammad Aslam, JJ
MUHAMMAD
BASHIR----Appellant
Versus
MUHAMMAD HUSSAIN and 16
others----Respondents
Civil Appeal No.771 of 2002, decided on 16th June, 2009.
(On appeal from the judgment, dated 5-3-2002 passed by a learned
Judge-in-Chamber of Lahore High Court, Bahawalpur Bench, in R.S.A. No.49 of
1997).
(a) Civil Procedure Code (V of 1908)---
---O. XIV, R.1---Non-framing of issues is' an illegality amounting
to exercise of jurisdiction illegally or with material irregularities.
Mst. Rasheeda Bibi and others v.
Mukhtar Ahmad and others 2008 SCMR 1384 fol.
(b) Punjab Pre-emption Act (IX
of 1991)---
----S. 5---Bahawalpur State Notification No.74, dated
12-6-1944---Civil Procedure Code (V of 1908), O.XIV, R.1---Constitution of
Pakistan (1973), Art.185---Appeal to Supreme Court---Pre-emption right
of---Exemption---Non-framing of issue with regard to assertion on exemption---Effect---Land vesting in the
Provincial Government was not pre-emptible in view of Notification
No.74, dated 12-6-1944 relating to Bahawalpur
State---Where the objection raised in the written statement of appellant regarding exemption from pre-emption of
the suit-land was not put to an issue, appellant who raised the
objection, was seriously prejudiced in not being able to produce evidence to
prove the assertion---Supreme Court, in circumstances, framed the issue,
remitted the case to Trial Court for decision afresh, after granting an
opportunity to produce evidence on the issue.
Muhammad Aslam and others v. Shabbir Ahmad and others PLD2003 SC
588; Abdullah v. Muhammad Hayat and 2 others 1994 SCMR 90; Noor Muhammad
through his Legal Heirs v. Muhammad Tufail & others 1991 SCMR 512; Ahmad
and others v. Ghulam Haider 1972 SCMR 357 and Mst. Rehmat Bibi v. Nathe Khan
and others PLD 1969 SC 197 ref.
(c) Appeal (Civil)---
----On filing of an appeal the entire matter reopens and becomes
sub judice and has to be decided in accordance with law prevalent---If a ground
is raised but not pressed, which relates to fundamental-question, same can be
considered by the Court in appeal.
The Province of East Pakistan v. Muhammad Hussain Mia PLD 1965 SC 1
and Abdul Hameed and others v. Muzamil Haq and others 2005 SCMR 895 fol.
Gul Zarin Kiyani, Senior Advocate Supreme Court for Appellant.
Abdul Rashid Awan, Advocate Supreme Court for Respondents Nos.1 to
3.
Respondents Nos.4 to 7: Ex parte.
Date of hearing: 16th June, 2009.
JUDGMENT
SARDAR MUHAMMAD ASLAM, J.---This direct appeal assails the
judgment of learned Judge-in-Chamber of Lahore High Court, Bahawalpur Bench,
allowing R.S.A. of respondents Nos.1 to 3 by reversing judgment of the learned
District Judge and restoring that of the trial Court decreeing the suit of the pre-emptors.
2. Precisely respondents Nos.1 to 3 filed a suit for possession
through pre-emption of land measuring 100 Kanals located in Chak No.87, Tehsil
Hasilpur transferred through registered sale-deed dated 19-11-1975 in favour of
appellant-vendee, claiming superior right on ground of being a co-sharer in
joint Khata and owner in estate. The appellant and vendors-respondents
contested the suit. Issues were framed; evidence was produced by the parties.
Trial Court decreed the suit vide its judgment dated 30-7-1985. Appellant
preferred an appeal, which came up for hearing before the learned District
Judge, who allowed the same on 20-3-1987, and dismissed the suit of the
pre-emptors, which was challenged through RSA, before the Lahore High Court,
Bahawalpur Bench. A learned Judge-in-Chamber allowed the same giving rise to
this direct Appeal.
3. Learned counsel for the appellant raised following
contentions:--
(i) that the land in dispute was not pre-emptible under
Colonization of Government Lands Act, 1912;
(ii) that no evidence worth the name has been produced to establish
payment of full sale price to the Government by the pre-emptor, in respect of
land on the basis of which superior right is claimed;
(iii) that consent declaratory decree passed in the absence of
provincial Government will not help
pre-emptors; and
(iv) that the learned Courts below failed to frame the fundamental
issue regarding pre-emptibility of the suit land, in view of assertion made in
para.8 of the written statement.
4. On the other hand, learned counsel for respondents Nos.1 to 3
submitted that land in dispute was pre-emptible on deposit of full sale price
in favour of Government; that he has become co-sharer in the suit Khata on
deposit of sale price in favour of the government, notwithstanding the
registration of sale deed and that non-framing of an issue as to
pre-emptibility of the suit cannot be urged at this stage when no serious
objection was raised before courts below.
5. We have heard the learned counsel for the parties at length and
perused the record.
6. We would purposely avoid detailed discussion on the contentions
raised by the parties, lest it prejudice the case of either side before the
trial Court, in view of our intention to remit back the case to trial Court for
recording fresh decision. Appellant-defendant specifically pleaded in para.8 of his written statement that suit
land is not pre-emptible, in the following narrative:-
7. The controversy was not put into an issue. Learned appellant's counsel has rightly referred to Mst.
Rasheeda Bibi and others v. Mukhtar Ahmad and others 2008 SCMR 1384, wherein it
was held that non-framing of an issue is an illegality amounting to exercise of
jurisdiction illegally or with material irregularity and the case was remitted
back for framing of issue and recording of fresh evidence by the trial Court.
Reference was also made to revenue record Exh.P.18, Exp.D.19 and Exh.D.20 to
show that the land vested in the
Provincial Government, hence was not pre-emptible. Support was sought from the
pronouncements made in Muhammad Aslam and others v. Shabbir Ahmad and others
PLD 2003 SC 588, Abdullah v. Muhammad Hayat and 2 others 1994 SCMR 90, Noor
Muhammad through his Legal Heirs v. Muhammad Tufail and others 1991 SCMR 512,
Ahmad and others v. Ghulam Haider 1972 SCMR 357 and Mst. Rehmat Bibi v. Nathe
Khan and others PLD 1969 SC 197.
8. We have gone through the law cited above and find that land
vesting in the Provincial Government was not pre-emptable in view of
notification number 74 dated 12-6-1944, relating to Bahawalpur State.
Learned counsel for the respondents argued that this question was though urged
before the learned Courts but was not argued, hence cannot be raised before
this Court. In reply, learned counsel for the appellant referred to The
Province of East Pakistan v. Muhammad Hussain Mia PLD 1965 SC 1, wherein it was
held on the filing of an appeal the entire matter becomes re-open and sub
judice and has to be decided in accordance with law prevalent". In this
view of the matter even if, a ground raised and not pressed which relates to
fundamental question can be considered by the Court. Reference can conveniently
be made to Abdul Hameed and others v. Muzamil Haq and others 2005 SCMR 895.
9. The objection raised by the appellant-defendant in the written
statement regarding exemption from pre-emption of the suit-land was not put to
an issue. Appellant was seriously prejudiced in not being able to produce
evidence to prove the assertion. The irresistible conclusion, therefore, is to
remit the case back for on the issue framed below:
(i) Whether the suit-land is exempted from pre-emption, in view of
notification number 74 dated 12-6-1944, issued from the department of the Prime
Minister of Bahawalpur? OPD
10. For what has been discussed above, we allow this appeal, set
aside judgments of all the Courts below and remit the case back to the trial
Court for decision afresh on issue No.5 and newly framed issue, after granting
an opportunity to both the parties to produce fresh evidence, if they so
desire, on evidence already available on record and to be produced, if any.
Findings on rest of the issues will remain intact.
M.B.A./M-71/SC Case
remanded.
P L D 1994 Supreme Court 462
Present: Saad
Saood Jan, Ajmal Mian
and Sajjad Ali Shah, JJ
MOOLCHAND and
9 others‑‑‑Appellants
versus
MUHAMMAD
YOUSUF (UDHAMDAS) and 3 others‑‑‑Respondents
Civil
Appeals Nos. 48 and 49 of 1992, decided on 15 January, 1994.
(On appeal from the common judgment of
the High Court of Sindh at Karachi
dated 7‑11‑1991 passed in Civil Revisions Nos.111/85 and 144/85 respectively).
(a) Limitation Act (IX of 1908)‑‑‑
‑‑‑‑S. 8‑‑‑Constitution
of Pakistan
(1973), Art. 185(3)‑‑‑Leave to appeal was granted to examine the question as to
whether in view of S.8, Limitation Act, 1908, High Court was not justified in
holding that suit of respondent for the reliefs, other than declaration was not
barred by time as admittedly respondent attained the age of majority on 5‑12‑1974
and the suit was filed on 5‑11‑1979 i.e. after the expiry of more than three
years provided in S. 8 and that on no principle a decree in favour of one of
the respondents could have been passed by the High Court.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.
185‑‑‑Appeal before Supreme Court‑‑‑Findings of three Courts below were
concurrent and in favour of plaintiff in the suit‑‑‑Supreme Court declined to
go into those issues which had attained finality, particularly leave to appeal
was also not granted in respect of those questions.
(c) Hindu Law‑‑‑
‑‑‑‑Partition‑‑‑Widow
cannot demand partition but if partition takes place can have share equal to
son. [p. 475] T
Hindu Law, S.315 ref.
(d) Mutation‑‑‑
‑‑‑‑
Knowledge ‑of mother with regard to mutation cannot be imputed to son who was
minor at the relevant time as ‑she could be termed as guardian of person of
minor but not of his property.
(e) Hindu Law‑‑‑
‑‑‑‑Devolution‑‑‑After
the death of owner, devolution under Hindu Law connotes perception of joint
property in which all legal heirs inherit equal shares.
(1) Co‑sharer‑‑‑
....Adverse
possession, plea of ..If property is joint, possession of one co‑heir is
sufficient to be considered as possession of all co‑heirs‑‑‑Some co‑heirs on
the ground of exclusive possession cannot defeat the claim of other co‑heirs by
taking plea of adverse possession‑‑‑Persons taking such plea have to produce
positive evidence to show exclusive and ouster of other co‑heirs.‑‑[Adverse
possession].,x
If property is joint, possession of one
co‑heir is sufficient to be considered as possession of all co‑heirs. Some co‑heirs
on the ground of exclusive possession cannot defeat the claim of other co‑heirs
by taking plea of adverse possession. Persons taking such plea have to produce
positive evidence to show exclusion and ouster of other co‑heirs.
When property is inherited by co‑heirs
of deceased, then possession of one co‑heir is in law possession of all the co‑heirs
and mere non‑participation in profits or property by one co‑heir and exclusive
possession by others would not be sufficient to constitute adverse possession.
Persons making such claim have to show that they were in hostile possession of
the property in dispute to the exclusion and ouster of others.
(g) Mutation‑‑‑
‑‑‑‑Proceedings‑‑‑Limitation‑‑‑Mutation
proceedings are not judicial in that sense and do not provide starting point of
limitation.
(h) Mutation‑‑‑
‑‑‑‑Possession‑‑‑Mutation
proceedings are not evidence that the successful applicant was in possession
and sole legal owner in a proprietary sense to the exclusion of other members
of the family as revenue authorities have no jurisdiction to pronounce upon the
validity of such a claim.
Thakur Nirman Singh and others v.
Thakur Lal Rudra Partab Narain Singh and others AIR 1926 PC 100 ref.
(i)
Mutation‑‑
‑‑‑‑
Plea of adverse possession‑‑‑Against co‑heirs, mutation is not enough and to
justify inference of adverse possession some definite act of ouster from
disputed property has to be established.
Noor Ahmad v. Mst. Hubab Jan and others
PLD 1974 SC 78 ref.
(j) Co‑sharer‑‑‑
‑‑‑‑Adverse
possession‑‑‑Held, there could be n question of adverse possession
amongst the co‑sharers and submission based on technicality could not be
allowed to prevail to defeat the ends of justice:--[Adverse possession].
Mst. Aftaba and another v. Raza Khan
and others 1984 SCMR 906 ref. '
(k)
Adverse possession‑‑.
‑‑‑‑Plea of ouster‑‑‑Adverse entry and
non‑participation in the profits of the property would not amount to an ouster.
Ghulam Ali and others v. Mst. Ghulam
Sarwar Naqvi PLD 1990 SC 1 and Haji v. Khuda Yar PLD 1987 SC 453 ref.
(1) Mutation‑‑‑
‑‑‑‑
Wrong mutation‑‑‑Suit for declaration‑‑‑Limitation‑‑‑Wrong mutation confers no
right in property ‑‑‑Co‑sharers and co‑owners are not obliged to file suit to
seek declaration to the effect that a mutation had wrongly been sanctioned‑‑‑Suit
filed due to denial of rights of the co‑sharer for declaration would be within time and the
Revenue Authorities on success of such suit would be required by law to correct
the wrong mutation.
Haji v. Khuda Yar PLD 1987 SC 453 ref.
(m) Adverse possession‑‑‑
‑‑‑‑ Co‑sharer‑‑‑Plea
of adverse possession cannot be raised against co‑heirs unless there is express
repudiation of title by such co‑heirs.‑‑[Co‑sharer].
Shamsur Rehman v. Mst. Sher Bano and
others 1974 SCMR 427 ref.
(n) Co‑sharer‑‑‑
‑‑‑‑Joint
possession‑‑‑Limitation‑‑‑Question of limitation does not arise in the case of
joint possession as co‑sharers.‑‑[Limitation.
Mst.
Daulan and another v. Noora and another 1987 SCMR 54 ref.
(o) Mutation‑‑‑
‑‑‑‑
Exclusion of Hindu co‑sharer‑‑‑Plea of adverse possession ‑‑‑Limitation‑‑Starting
point of limitation is not when mutation took place with alleged exclusion of
co‑sharers‑‑‑All legal heirs of a Hindu deceased became cosharers‑‑‑Mere
omission of name in the mutation of one or two co‑sharers is not enough to
prove exclusion‑‑‑Even non‑participation in the taking of profits is not
adequate to prove adverse possession.‑‑[Adverse possession].
(p) Limitation Act (IX of 1908)‑‑‑
‑‑‑‑Art.
127‑‑‑Joint family property‑‑‑Had defendants succeeded to show that plaintiff
and his mother had been excluded from the joint property to their full
knowledge, Art. 127 of the Limitation Act, 1908, would have been applicable and
period of 12 years would have been allowed as limitation to file the suit.
(q)
Limitation Act (IX of 1908)‑‑‑
‑‑‑‑S. 6‑‑‑Minor
plaintiff can claim the benefit and concession of S. 6, Limitation Act.
Minor plaintiff can claim the benefit
and concession of section 6 of the Limitation Act which is to the effect that
he may file suit after cessation of legal disability within the same period as
is allowed under the provisions of the Limitation Act as prescribed in the
First Schedule or in section 48, C.P.C. Section 8 of the Limitation Act
envisages that nothing in section 6 or in section 7 applies to suits to enforce
rights of pre‑emption or shall be deemed to extend, for more than three years
from the cessation of the disability or the death of the person affected thereby;
the period within which any suit must be instituted or application made.
(r) Limitation Act (IX of 1908)‑‑‑
‑‑‑‑Ss.
6 & 8‑‑‑Combined effect of Ss. 6 & 8, Limitation Act, 1908 is to enable
a person who has been dispossessed during the minority to file a suit within
three years of his attaining majority or within usual period of time ordinarily
allowable to a major, which is longer‑‑‑If minor attains majority after three
years of cause of action he can sue within nine years from the date of
attaining majority if period of limitation is 12 years‑‑‑Such a question cannot
be decided when the defendants have failed to establish. ouster against the
plaintiff or substantiate plea of adverse possession.
Combined effect of sections 6 and 8,
Limitation Act, 1908 is to enable a person who has been dispossessed during his
minority to file a suit within three years of his attaining majority or within
usual period of time ordinarily allowable to a major, which is Ionizer. If
minor attains majority after three years of cause of action he can sue within
nine years from the date of attaining majority if period of limitation is 12
years. In the present case this question cannot be decided for the reason that
defendants have failed to prove that plaintiff and his mother were excluded
from joint property and dispossessed from the date of mutation or any other
date thereafter. In other words they have not been able to establish ouster
against the plaintiff and his mother or substantiate plea of adverse
possession.
(s) Hindu Law‑‑‑
‑‑‑‑
Limitation Act (IX of 1908), Arts. 127 & 144‑‑‑Conversion of member of
joint Hindu Family to any other religion‑‑‑Effect‑‑‑Convert ceases to be
coparcener from the moment of his conversion and is entitled to receive his
share in the joint family property as it stood at the date of his conversion‑ ‑Articles
127 & 144 of the Limitation Act, 1908 would be attracted and in each of
these provisions period of limitation allowed would be 12 years.
On
conversion of a member of joint Hindu Family to Islam or any other religion there takes place automatic
break‑up of status of joint Hindu Family which extinguishes the rights of
survivorship as between the convert and co‑parceners. Such convert ceases to be
co-parceners from the moment of hi! conversion and is entitled to receive his
share in the joint family property as i~ stood at the date of his conversion.
In such circumstances on account of change of religion Article 127 and 144 of
the Limitation Act would be attracted and it each of these provisions period of
limitation allowed is 12 years.
Hindu Law, 12th Edn. by D.F. Mulla, S.
334 quoted.
(t) Inheritance‑‑‑
‑‑‑‑ If pro forma
defendant is found entitled to inherit property alongwith plaintiff then such
relief can be granted notwithstanding the fact that pro form; defendant was not
joined as plaintiff‑‑‑Such relief can be granted by Tria Court and any other higher forum
including Supreme Court.
Mst.
Omai and others v. Hakeem Khan and others 1970 SCMR 49! ref.
Abdul Hafeez Pirzada, Senior Advocate
Supreme Court am Naraindas C: Motiani, Advocate‑on‑Record for Appellants
Respondent No.l in person.
Date of
hearing: 24th November, 1993.
JUDGMENT
SAJJAD
ALI SHAH, J.‑‑‑Abovementioned two appeals with leave c the Court are directed
against judgment of the High Court of Sindh dated 7‑11‑1991, whereby two civil
revisions have been disposed of dismiss in the one filed by defendants in the
suit and allowing the other filed by plaintiff in the suit and that suit was
filed in the background of the facts which are stated as under:‑‑‑
2. Assandas son of Khetaram died in the
year 1957 leaving behind property described in the schedule of the plaint and
two widows and children from them. His first wife is Sharimati (hereafter to be
referred as Shr.) Bhoji Bai having three sons Ganeshdas, Moolchand and
Bhagwandas and two daughters Shr. Sarsati Bai and Shr. Bhori Bai. His second
wife is Shr. Pathani Bai having one son Udhamdas and both of them later
embraced Islam and adopted names of Mst. Amna and Muhammad Yousuf respectively.
It is claimed by Muhammad Yousuf that at the time of death of his father, he
was about one year old and because his mother was second wife, his stepbrothers
from the first wife excluded him and his mother from having, rights of
inheritance in the property and got the records mutated in their names in four
shares claiming 4 Annas each as per Hindu law. Thereafter Ganeshdas died and
was succeeded by his son Krishanchand. Muhammad Yousuf (Udhamdas) filed F.C.
Suit No.405/79 on 5‑11‑1979 in the Court of Senior Civil Judge, Mirpurkhas for
declaration, partition and possession. It is mentioned by him in paragraph 7 of
the plaint that he and his moth j (latter impleaded in the suit as defendant
No.7) are lawful heirs of deceased Assandas and are entitled to their lawful
share in the ‑ property left. by deceased as co‑sharers alongwith the remaining
defendants and exclusion of their names from the record of rights would not
affect their rights of inheritance and their status as co‑sharers in the said
property.
3. It is further mentioned in the
plaint by the plaintiff that when he was in the High School he was attracted by
Islamic religion and embraced Islam on 27‑9‑1972 and likewise his mother also
became Muslim. Prayer in the plaint is that the 'Court may declare that
plaintiff is son of deceased Assandas and is entitled to his full share in the
properties mentioned in the schedules and order that share of plaintiff be
partitioned by metes and bounds and separate possession be given to him. Costs
and any other relief deemed fit and proper have also been demanded in the
plaint.
4. Moolchand and others as defendants
Nos. 1 to 6 in the suit filed written statement and denied the claim of the
plaintiff that late Assandas had two wives and Shr. Pathani Bai was second wife
of Assandas and Udhamdas is son of late Assandas. It is averred in that written
statement that property in the suit, after the death of Assandas, had devolved
upon his three sons with life interest to their mother Shr. Bhoji Bai according
to Hindu law and further defendants Nos.4 and 5 being daughters of late
Assandas had no share in the suit property. It is stated in paragraph 6 of the
written statement that after the death of Ganeshdas his share hid been
inherited by his son Krishan and three others. It is further averred in the
written statement that Shr. Pathani Bai, against mutation in the record, filed
appeal which was dismissed by the Deputy Collector, Naravalley in 1958 after
which she filed revision which was dismissed by Additional Commissioner, Hyderabad in August 1959.
5. The trial Court framed as many as 9
issues keeping in view the pleadings of the parties.. In the issues are
included whether Assandas had two wives and whether plaintiff is son of
Assandas and has right of inheritance in the suit property? Issue No.7 is
whether suit is time‑barred? Muhammad Yousuf as plaintiff examined himself and
produced documents Exhs. 48 to 65 including school identity card, receipt of
Union Council, Matric Certificate and other correspondence in support of his.
claim that he is son of Assandas. He also produced copy of the Sindh Government
Gazette dated 5th May, 1975 according approval to the change of name from
Udhamdas s/o Assandas Khatri to Muhammad Yousuf s/o Assandas Khatri. On the
other hand Moolchand examined himself as attorney of defendants Nos. 1 to 6. He
denied claim of the plaintiff that he is son of Assandas and his mother Shr.
Pathani Bai was' wife of Assandas. Defendant No.7 namely Mst. Amna alias Shr.
Pathani examined herself as defence witness and claimed to be wife of Assandas
and further that plaintiff is their son. She deposed that before her marriage
with Assandas she was widow and Assandas gave her Nath and clothes. From
marriage with Assandas she gave birth to two daughters, who died and after a
long time gave birth to plaintiff.
6. After evaluation of evidence
produced by the parties the trial Court held that since remarriage of Hindu
widow is legalised by Hindu Widows Remarriage Act, 1856 and for such marriage
no particular ceremony is necessary, hence on the basis of evidence positive
finding was given that Shr. Pathani Bai was wife of late Assandas and plaintiff
was his son. On the issue whether suit was time‑barred, trial Court has held
that the suit was not time barred for the reason that it was filed by the
plaintiff after attaining the age of majority and as being a co‑sharer, he is
to be deemed to be in possession unless clear ouster to his knowledge is shown
within 12 years. Vide judgment dated 25‑11‑1984, the trial Court has decreed
the suit as prayed with costs.
7. Two appeals were filed against the
judgment and decree of the trial Court. Civil Appeal No.19/84 was filed by
Gauri Shankar and others, who are sons and widow of Ganeshdas, who was son of
late Assandas and they claimed that they were also necessary parties and were
not joined. This appeal was heard alongwith Civil Appeal No.84/84 which was
filed by Moolchand and others. By common judgment both appeals were disposed of
and Civil Appeal No.19/84 was dismissed on the ground that Hindu law permitted
plaintiff in partition suit to implead only those defendants who are heads of
all the branches and since Krishan, who is son of Ganeshdas, was impleaded it
was not necessary to join other heirs of Ganeshdas in the suit proceedings.
Civil Appeal No.84/84 filed by Moolchand and others was partly allowed. Finding
that Muhammad Yousuf is legitimate son of late Assandas was affirmed. Suit was
dismissed to the extent of award of share of plaintiff through the process of
the Court for the reason that it was time‑barred and to that extent appeal was
allowed. It was held that there was open and outright denial of the rights
claimed by the plaintiff is the suit and his mother and against the mutation
appeal filed by mother of the plaintiff in the suit was dismissed vide order
dated 17‑10‑1958 Exh.73 passed by the Deputy Controller Naravalley. Knowledge
of guardian was imputable to the minor. Plaintiff was minor at the time of
opening of succession after the death of his father but he became major on 5‑12‑1974
and the suit was filed on 15‑11‑1979. In the circumstances suit was time‑barred
as not filed within a period of limitation as prescribed in the First Schedule
or within 3 years after cessation of disability of minority as contemplated
under section 8 of the Limitation Act.
8. Moolchand and others defendants in
the suit, filed Civil Revision No.lll/85 in the High Court feeling aggrieved
against the finding of the first appellate Court that plaintiff is son of late
Assandas and judgment of the trial Court did not suffer from non‑joinder of
necessary parties. Muhammad Yousuf (plaintiff in the suit) filed Civil Revision
No.144/85 in the High Court feeling aggrieved against the decision of the first
appellate Court to the extent of allowing the appeal and setting aside judgment
and decree of the trial Court on the ground that the suit was time‑barred.
After a very detailed hearing the High Court has disposed of both revision
applications vide impugned judgment by dismissing Civil Revision No.ill/85
filed by Moolchand and others and allowing Civil Revision No.144/85 filed by
Muhammad Yousuf by modifying the decree of the trial Court to include rights
and entitlement of Mst. Amna (defendant No.7) as widow of late Assandas to be shared
equally with Shr. Bhoji Bai. It is held by the High Court that it is beyond
dispute that mother of Muhammad Yousuf was widow when she started living with
late Assandas. According to Hindu law for remarriage of widow no ceremony is
required and it was enough that Assandas gave `Nath and clothes' to the mother
of Muhammad Yousuf. There is no challenge to the fact that Muhammad Yousuf and
his mother had been living continuously after the death of Assandas in his
bungalow in Village Bandi. On the question of limitation, High Court has
concluded that the suit was in time inter alia, on the ground that it was filed
within 12 yeas from the date of change of religion as envisaged in Articles 127
and 144 of the Limitation Act.
9. This Court has granted leave to examine
the following two questions:‑‑‑
"(i) That in view of section 8 of
the Limitation Act, the High Court was . not justified in holding that the suit
of respondent No. 1 for the reliefs, other than declaration, was not barred by
time, as admittedly respondent No. 1 attained the age of majority on 5‑12‑1974
and the suit was filed on 5‑i1‑1979 i.e. after the expiry of more than three
years provided in above section 8.
(ii) That on no legal principle a decree in favour
of respondent No. 2 could have been
passed by the High Court."
10.
On the issues relating to paternity of plaintiff in the suit and marriage .f
his mother with late Assandas, findings of three Courts below are on current
and in favour of plaintiff in the suit, hence we need not go into hose issues
which have attained finality, particularly when leave is also not 1 ranted by
this Court in respect of those questions. Scope of the leave is permitted and
has been narrowed down as confining to two questions reproduced above.
11. Before we go into the questions
mentioned in the leave granting order would be necessary to turn back and see
pleadings of the parties which gave rise to Issue No.7 framed by the trial
Court to the effect whether the suit was me‑barred. Heading of the plaint shows
that suit was filed for declaration, partition and separate possession with
positive assertion in paragraph 7 that plaintiff and his mother defendant No.7
are lawful heirs of deceased Assandas and became entitled to their lawful share
as co‑sharers alongwith other heirs in the property left by the deceased.
Written statement contains denial of claim pat plaintiff is son and his mother
is widow of Assandas. Second plea in the written statement is that after death
of Assandas in 1957, property devolved upon defendants Nos. 1 to 3 with life
interest to defendant No. 6 (Shr. Bhoji ai). Third plea in the written
statement is that against mutation in favour of defendants Nos.l to 4, mother
of plaintiff filed appeal and revision before .revenue Authorities claiming share
which were dismissed.
12. In the evidence plaintiff examined himself and produced a large umber
of documents showing his parentage as son of Assandas and address of sience in
the house of Assandas in Village Bandi. Mother of plaintiff as defendant No. 7
examined herself in the trial Court and supported the claim of plaintiff. Moolchand examined himself as
attorney of other defendants excepting defendant No. 7) and denied claim of the
plaintiff but in the cross examination stated that he did not know whether
plaintiff and his mother lived i the bungalow of deceased in Village Bandi.
Ownership of this bungalow of deceased was not denied and disputed in the
written statement and no claim as made that plaintiff and his mother did not
live in that bungalow or the tine was in possession of defendants minus
defendant No. 7, to the exclusion f plaintiff and his mother. There is no
dispute about the facts that plaintiff was born in 1956, Assandas died in 1957,
record‑of‑rights was mutated in 1958, plaintiff became major in 1974 and the
suit was filed on 5‑11‑1979. On the issue f limitation, trial Court has held
that suit was not barred as it was filed after plaintiff became major and
limitation would not run against plaintiff, who aimed to be co‑sharer.
13. The first appellate Court held that
relief of declaration was not barred limitation and is dependent upon recurring
cause of action but the other saver with regard to the award of share from
property by metes and hounds could not be granted as the same was hopelessly
time‑barred. The main reason assigned for such conclusion is that there was
complete ouster of plaintiff and his mother from the joint property of late
Assandas.
14. Mr. Abdul Hafeez Pirzada learned
ASC for defendants in the suit except defendant No. 7 submitted before us that
the suit was patently time barred and should have been dismissed under section
3 of the Limitation Act straightway as having been filed in 1979 which was
after 12 years from mutation which took place in 1958 when mother of plaintiff
failed in her appeal and revision before the Revenue Authorities which were
dismissed in 1958/1959. He has also referred us to paragraph 2 of written
statement filed by mother of plaintiff as defendant No. 1 in the suit
proceedings (page 124 of paper book in CA. No. 48/92). It is stated in that
paragraph that she being illiterate and domestic lady was confined to the house
and was given assurance by deceased Ganeshdas son of Assandas that she has a
share in the property of her deceased husband. In her evidence also she has
admitted that she approached the Revenue Authorities. In our view this fact
alone is not sufficient to conclude that suit is barred by limitation for the
reasons firstly, that mother of plaintiff has not filed the suit as under section
315 of Hindu Law, a widow cannot demand partition but if partition takes place
can have share equal to son. Secondly,
knowledge of mother with regard to mutation
cannot be imputed to son who was minor at the relevant time as she could
be IC termed as guardian of person of minor but not of his property. Thirdly,
after the death of owner, devolution under Hindu Law connotes perception of
joint property in which all legal heirs inherit equal shares.
15.
Mr. Pirzada also contended that suit is barred against the plaintiff, who filed
it after attaining the majority. According to learned counsel after mutation in
1958 there was complete ouster and plaintiff had taken inconsistent pleas in
the plaint with regard to the knowledge of ouster. In paragraph 8 of the plaint
he stated that he passed his Matric Examination in June 1972 and embraced Islam
on 27‑9‑1972 and simultaneously his mother also embraced Islam. In paragraph 9
of the plaint it is stated that plaintiff after passing Matric Examination and
acquiring understanding became aware of his rights of inheritance in the
properties left by deceased Assandas and approached defendants Nos.l to 6 and
deceased Ganeshdas for portion of his share but they did not listen to him. He
made inquiries and learnt that mutation of ‑record had taken place in favour of
defendants. He sent application to the Governor of Sindh who forwarded the same
to the Commissioner, Hyderabad Division for disposal, which was kept in cold
storage and later notice was issued by the Commissioner but in the name of his
mother. Mr. Pirzada also defended vehemently judgment and decree, of first
appellate Court which gave finding that suit was time‑barred on the ground that
there was complete ouster of plaintiff and his mother from disputed property
and suit was filed beyond time as allowed under the provisions of the
Limitation Act.
16.
After the death of Assandas, plaintiff and his mother became cosharers in the
property of deceased alongwith other legal heirs. There is no cavil with
proposition that if property is joint, possession of one co‑heir is sufficient
to be considered as possession of all co‑heirs. Some co‑heirs on the ground of
exclusive possession cannot defeat the claim of other co‑heirs by taking plea
of adverse possession. Persons taking such plea have to produce positive
evidence to show exclusion and ouster of other co‑heirs. This question came up
for consideration in the case of Mst. Omai and others v. Hakeem Khan and others
1970 SCMR 499 and this Court has held that when property is inherited by co‑heirs
of deceased, then possession of one co‑heir is in law possession of all the co‑heirs
and mere non‑participation in profits of property by one co‑heir and exclusive
possession by others would not be sufficient to F constitute adverse
possession. Persons making such claim have to show that they were in hostile
possession of the property in dispute to the exclusion and ouster of others.
17. It has become well known by now
that mutation proceedings are not judicial in that sense and do not provide
starting point of limitation. It is held in
the case of Thakur Nirman Singh and others v. Thakur Lal Rudra Partab
Narain Singh and others AIR 1926 Privy Council 100 that orders in mutation
proceedings are not evidence that the successful applicant was in possession as
sole legal owner in a proprietary sense to the exclusion of other members of H
the family as Revenue Authorities have no jurisdiction to pronounce upon the
validity of such a claim. In the case of Noor Ahmad v. Mst. Hubab Jan and
others PLD 1974 SC 78 this Court has held that against co‑heir, mutation is not
enough and to justify inference of adverse possession some definite act of I
ouster from disputed property has to be established. In the case of Mst. Aftaba
and another v. Raza Khan and others 1984 SCMR 906, mutation of inheritance was
obtained on the basis of Will of deceased which was challenged on the ground
that it was contrary to the Shariat. Such objection was rejected by the Revenue
Officer and appeal was dismissed by the Collector. No further steps were taken
giving touch of finality to the decision of Collector. After 15 years suit was
filed for declaration and in the context of Article 144 of the Limitation Act
it was held by the Court that there could be no question of adverse possession
amongst the co‑sharers and submission based on technicality could not be
allowed to prevail to defeat the ends of justice.
18.
Plea of adverse possession as contemplated under Article 144 of Limitation Act
came up for consideration in the case of Ghulam Ali and others v. Mst. Ghulam
Sarwar Naqvi PLD 1990 SC 1. In the said case three sons of deceased in order to
deprive their sister of her Islamic share in the property got the mutation
changed with omission of her name in the Pedigree‑table with the result that
she was not treated as heir of the deceased. Act of omission was sought to be
explained by three brothers that they had spent a large sum of money on two
marriages with divorce in between of their sister and a murder case connected
therewith. It was averred that in such circumstances their sister had
relinquished her share. Suit filed by the sister was dismissed, inter alia, on
the ground of relinquishment. Appeal was allowed against which revision filed
was dismissed. In this Court it was contended on behalf of brothers, who were
petitioners that evidence had been misread and their sister could not succeed
on the ground of co‑heir ship in the face of successful ouster and adverse
possession. Main argument raised was that mutation was sanctioned in 1963
against their sister which was not challenged by her for a very long time and
her such conduct would render the possession adverse to her. It was observed by
this Court that adverse entry and non‑participation in the profits of the
property would not amount to an ouster as the controversy is finally settled
by recent judgment of this Court in the
case of Haji v. Khuda Yar PLD 1987
SC 453. It was further observed that wrong mutation confers no right in
property as Revenue Record is maintained only for the purposes of ensuring
realization of land revenue. Co‑sharers and co‑owners are not obliged to file
suit to seek declaration to the affect
that a mutation had wrongly been sanctioned. Suit filed due to denial of rights
of the co‑sharer for declaration would be within time and the Revenue
Authorities on success of such suit would be required by law to correct the
wrong mutation.
19. In the instant case plaintiff has
proved the title which is claimed by him
by showing that he is son of deceased
Assandas and his mother was his widow. He has produced documents to show
his parentage. He has also shown that he and his mother had been living in the
house of Assandas in Village Bandi which was his residential address as shown
in the documents. According to the objections filed by the plaintiff in this
Court, bungalow in Village Bandi was given by them in permissive possession of
Muslims when they shifted to Hyderabad
in the year 1972‑73. Defendants in the suit have not raised the plea that
plaintiff and his mother were ousted from the bungalow at Bandi or the same
remained in their possession at any point of time. Defendants in the suit have
failed to prove adverse possession as contemplated under Article 144 of the
Limitation Act. It is held by this Court in the case of Shamsur Rehman v. Mst.
Sher Bano and others 1974 SCMR 427 that plea of adverse possession cannot be
raised against co‑heir unless there is express repudiation of title by N such
co‑sharer. In the case of Mst. Daulan and another v. Noora and another 1987
SCMR 54 no interference was made and leave was refused on the ground that
question of limitation does not arise in the case of joint possession as co‑
sharers.
20. Keeping in view the guidelines
enunciated in the case‑law mentioned above and after careful consideration of
the facts of this case, we have come to the conclusion that defendants in the
suit (minus defendant No.7) have failed in their attempt to prove that they
hold possession of the disputed property to the exclusion of plaintiff and his
mother with open assertion of hostile title which is in the knowledge of
plaintiff and his mother. Starting point of limitation is not 1958 when
mutation took place with alleged exclusion of 0 plaintiff and his mother for
the reason that according to Hindu Law after death of Assandas, all his legal
heirs become co‑sharers. Mere omission of name in the mutation. of one or two
co‑sharers is not enough to prove exclusion. Even non‑participation in the
taking of profits is not adequate to prove adverse possession. In this case
there is evidence to the effect as mentioned above, that plaintiff and his
mother after the death of Assandas lived in his bungalow in Village Bandi which
never remained in possession of defendants minus defendant No.7. Knowledge of
mother of plaintiff and dismissal of her appeal and revision before the Revenue
Authorities cannot be imputed to the plaintiff who was at the relevant time
minor.
21. Since this is a case of joint
family property, in the ordinary course Article
127 of the Limitation Act would have applied if defendants minus defendant No.7 had succeeded to show that
plaintiff and his mother had been P excluded from the joint property to
their full knowledge and in that case period of 12 years is allowed as
limitation to file the suit. This suit is filed by the ~' plaintiff who was
minor at the time when, according to the claim of defendants, m 1958 plaintiff
and his mother were deprived of joint ownership in the disputed property. Under
the law minor plaintiff can claim the benefit and concession of section 6 of
the Limitation Act which is to the effect that he may file suit after cessation
of legal disability within the same period as is allowed under the provisions
of the Limitation. Act as prescribed in the First Schedule or in section 48,
C.P.C. Section 8 of the Limitation Act a envisages that nothing in section 6 or
in section 7 applies to suits to enforce rights of pre‑emption or shall be
deemed to extend, for more than three years from the cessation of the
disability or the death of the person affected thereby, the period within which
any suit must be instituted or ,application made.
22. Mr. Pirzada has submitted that
sections 6, 7 and 8 of. the Limitation Act are to be read together and if it is
done then it would appear clearly that section 8 controls section 6 which means
that after attaining majority plaintiff can file suit within three years and if
limitation had started running against him and remainder of the limitation is
less than three years, then also, suit could be filed within three years
without any further extension of time. In support of the contention reliance is
placed by him on the cases of Kolandavel Gounder and another v. Chinnappan and
others AIR 1965 Mad. 541, Sk. Md. Zafir v. Sk. Amiruddin and others AIR 1963
Pat. 108, Allah Ditta and another v. Muhammad Azeem PLD 1953 BJ 1, Lal Bano
etc. v. Hasseen Akhtar etc. NLR 1980 AC 134, Mst. Hanifa Begum v. Muhammad
Afzal Khan and others 1981 CLC 1156 and Batuk Prasad Bhagat and another v.
Rudra Das Chakravarty and others AIR 1950 Pat. 206.
23.
After reading the case‑law mentioned in the preceding paragraph and language
used in sections 6 and 8 of the Limitation Act, we feel inclined to form the
view that combined .effect of sections 6 and 8 is to enable a person ~R who has
been dispossessed during his of his
attaining majority or within usual period of time ordinarily allowable to a
major, which is longer. If minor attains majority after three years of cause of
action he can sue within nine years from the date of attaining majority if
period of limitation is 12 years. In the instant case this question cannot be
decided for the reason that defendants
have failed to prove that plaintiff and his mother were excluded from joint
property and dispossessed from the date of the mutation in 1958 or any other
date thereafter. In other words they have not been able to establish:, ouster
against the plaintiff and his mother or substantiate plea of adverse
possession.
24. However, there is one other notable
feature of this case, which is to the effect that plaintiff embraced Islam and
became Muslim on 27‑9‑1972 and about the same time his mother also accepted
Islam. Prior to that both of them belonged to Hindu religion. Section 334 of
Hindu Law (by D.F. Mulla, 12th Edition) envisages that on conversion
of a member of joint Hindu family to Islam or any other religion there takes
place automatic break‑up of status of joint Hindu Family which extinguishes the
rights of survivorship as between the convert and co‑parceners. Such convert
ceases to be co‑parcener from the moment of his conversion and is entitled to
receive his share in the joint family property as it stood at the date of his
conversion. In such circumstances on account of change of religion Articles 127
and 144 of the Limitation Act would be attracted
and in each of these provisions period of limitation allowed is 12 years.
25.
Going back to leave granting order, it appears that the second point mentioned therein is whether
on no legal principle a decree in favour of respondent No.2 (mother of
plaintiff) could have been passed by the High Court. There is no dispute about
the fact that under section 315 of Hindu Law, widow cannot demand partition as
a matter of right but if and when partition takes place, she becomes entitled
to share equal to son. Mst. Amna (Shr. T Pabhani), who is mother of plaintiff,
has not filed suit and was impleaded as defendant No.7 in the suit filed by
Muhammad Yousuf (Udhamdas). High Court has directed that decree in the suit
filed by Muhammad Yousuf be modified to include grant of rights and entitlement
to defendant No.7 as widow of late Assandas to be shared'equally with Shr.
Bhoji Bai. Muhammad Yousuf appearing in person in support of the action of the
High Court has relied upon the case of Muhammad Oasim.Khan and others v. Mst.
Mehbooba and others 1991 SCMR 515. In that case it is held by this Court that
if pro forma defendant is found entitled to inherit property alongwith
plaintiff then such relief can be granted notwithstanding the fact that pro
forma defendant was not joined as plaintiff. Such relief can be granted by the
trial U Court
and any other higher forum including Supreme Court. For these reasons we do not
take exception to the grant of relief to Mst. Amna by the High Court.
26. For facts and reasons stated
above, impugned judgment and decree are hereby upheld and both appeals are
dismissed.
M.BA./M‑2004/S
Appeals
dismissed
2007 S C M R 262
[Supreme Court of Pakistan]
Present: Mian Shakirullah Jan
and Ch. Ijaz Ahmed, JJ
Civil Appeals Nos.2037
and 2038 of 2001
EVACUEE TRUST PROPERTY BOARD and others----Appellants
Versus
Mst. SAKINA BIBI and others----Respondents
(On appeal from the judgment/order, dated 10-11-1999 passed by the
Lahore High Court, Lahore in Civil Revision No.662/D of 1984).
Civil Appeal No.1530 of 2001
EVACUEE TRUST PROPERTY BOARD and another---Appellants
Versus
GHULAM HAIDER and others---Respondents
(On appeal from the judgment/order, dated 13-4-2000 passed by the
High Court of Sindh, Circuit Court, Larkana, in Civil Revision No.24 of 1999).
Civil Appeals Nos.2037, 2038 and 1530 of 2001, decided on 27th
September, 2006, decided on 27th September, 2006.
(a) Evacuee Trust Properties (Management and Disposal) Act (XIII
of 1975)---
----Ss. 8 & 14---Civil Procedure Code (V of 1908),
S.9---Declaration of property as evacuee trust property---Jurisdiction of Civil
Court---Scope---Decision of Custodian on status of property would have binding
effect over Civil Court---Civil Court had no jurisdiction to take cognizance of
such matter.
Mst. Zakia Begum's case 1992 SCMR 1313; 1995 SCMR 1740 and
Iftikhar-ud-Din's case 2000 SCMR 1 ref.
Ahmad's case 2004 SCMR 440; Muhammad Jamil Asghar's ease PLD 1965
SC 698; S. Muhammad Hashim's case PLD 1970 SC 326; Begun Darab Sultana's case
1982 Pak. SC Cases 907; Nazir Ahmad's case 1988 SCMR 824; Shaukat Hayat
Jumani's case 1991 SCMR 580; Falak Sher's case 1987 SCMR 231; Muhammad Ramzan's
case NLR 1995 UC 43 and Abdul Aziz Khan's case 2000 SCMR 1371 rel.
(b) Constitution of Pakistan (1973)---
----Art. 185---Appeal to Supreme Court---Subsequent
events---Supreme Court had ample jurisdiction to take notice of such events.
Mst. Amina Begun and others v. Mehar Ghulam Dastagir PLD 1978 SC
220 rel.
(c) Evacuee Trust Properties (Management and Disposal) Act (XIII
of 1975)---
----Ss. 8 & 14---Civil Procedure Code (V of 1908),
S.9---Declaration as to status of' property---Pendency of reference before
Chairman--Jurisdiction of Civil Court---Scope---Civil Court could not assume
jurisdiction and proceed in such matter---Chairman had ample power to decide
whether property had a character of evacuee or not while exercising power under
S.8 of Evacuee Trust Properties (Management and Disposal) Act, 1975.
Khurshid Zaman's case 1999 SCMR 1007 rel.
(d) Evacuee Trust Properties (Management and Disposal) Act (XIII
of 1975)---
----Ss. 8 & 14---Civil Procedure Code (V of 1908),
S.9---Notification of Evacuee Trust Property Board for taking over control of
property---Jurisdiction of Civil Court---Scope---Such notification could not be
challenged before Civil Court.
(e) Evacuee Trust Properties (Management and Disposal) Act (XIII
of 1975)---
---Ss. 8 & 14---Constitution of Pakistan (1973),
Art.199---Constitution jurisdiction of High Court---Scope---Order of Custodian
regarding status of property---Such order could not be interfered in
constitutional jurisdiction, unless same was passed without application of mind
and without perusing record or in violation of law.
Muhammad Munir's case 1993 CLC 478 and Mst. Safia Begum's case 1994
MLD 213 rel.
(f) Civil Procedure Code (V of 1908)---
----S. 9---Civil Court
assuming jurisdiction in spite of exclusive bar contained under provisions of
special law---Effect---Order and judgment of Civil Court would be without lawful
authority or void.
(g) Limitation----
---Void order---No limitation would run against such order.
(h) Constitution of Pakistan (1973)---
----Art. 185(3)---Supreme Court Rules, 1980, O.XIII, R.1---Petition
for leave to appeal---Void orders under challenge---Condonation of delay of one
day---No limitation would run against void order---Supreme Court condoned such
delay in circumstances.
(i) Jurisdiction---
---Pure question of law could be raised at any stage of
proceedings.
Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD
1965 SC 690 and Almas Ahmad Faiz's case 2006 SCMR 783 rel.
(j) Pleadings---
---Pleadings of parties would not control or govern application of
proper law to establish or prove against a claim or assertion.
Abdul Sattar's case NLR 1992 SC Judgment 279 ref.
(k) Constitution of Pakistan (1973)---
---Arts. 4 & 185(3)---Civil Procedure Code (V of 1908),
S.9---Observation of Supreme Court while disposing of civil petition not
debarring petitioner from recourse to Civil Court to establish his claimed
right---Effect---Such observation would not mean that permission was granted by
Supreme Court in violation of exclusive bar contained under a special
law---Duty of Civil Court to decide matter in accordance with law in view of
Art.4 of the Constitution.
Muhammad Sadiq's case 1978 SCMR 130 ref.
Utility Stores Corporation's case PLD 1987 SC 447 rel.
Mian Qamar-uz-Zaman, Advocate Supreme Court for Appellants (in
Civil Appeals Nos. 2037 and 1530 of 2001).
Mirza Naseer Ahmed, Advocate Supreme Court for Appellants (in Civil
Appeal No.2038 of 2001).
Rafiq Javed Butt, Advocate Supreme Court for Respondents Nos.7-9,
11 and 12 (in Civil Appeal No.2037 of 2001).
Respondents Nos.2-5: Ex parte (in Civil Appeal No.2037 of 2001).
Mirza Naseer Ahmed, Advocate Supreme Court for Respondents
Nos.13(I-x), 14(I-iv), 15, 16(I-ix) (in Civil Appeal No.2037 of 2001).
Rafiq Javed Butt, Advocate Supreme Court for Respondents Nos.3, 5,
6, 7 and 8 (in Civil Appeal No.2038 of 2001).
Respondents Nos.2(i), 2(ii), 2(iii), 2(iv) (in Civil Appeal No.2038
of 2001): Ex parte.
Nemo for Respondents Nos.1(i), 2 and 3 (in Civil Appeal No.1530 of
2001).
Nemo for Respondent No.4 (in Civil Appeal No.1530 of 2001).
Date of hearing: 27th September, 2006.
JUDGMENT
CH. IJAZ AHMED, J.--- We intend to decide the captioned
appeals by one consolidated judgment having similar questions of law. Brief
facts out of which the 'first two appeals (Civil Appeals. Nos.2037 and 2038 of
2001) mentioned above are that property in question is situated in Khasra
Nos.5427 and 5428 at Abbot Road,
Lahore. This property was shown
in the Revenue Record as being owned by Muhammad Yousif predecessor-in-interest
of respondents Nos.1 to 12 and Dyal Singh Trust Library in equal shares in the
Jamah Bandi for the year 1938-39. The aforesaid Khasra Nos. were shown as being
owned by the Dyal Singh Trust Library and the Tribune Trust in equal shares in
the Jamah Bandi for the year 1941-42. Predecessor-in-interest of the aforesaid
respondents Nos.l to 12 filed application before the Deputy Custodian seeking
declaration that he was entitled to one and a half share in the property in
dispute and the same was not Evacuee Property. The Deputy Custodian rejected
the application vide order dated 8-12-1960. Predecessor-in-interest of the
respondents Nos.1 to 12 preferred appeal before the Additional Custodian who
also dismissed the same vide order dated 24-4-1962. Thereafter revision was
filed before the Custodian which was also dismissed vide order dated 10th
September, 1962. Thereafter Constitutional Petition No.558 of 1963 was filed
before the High Court of West Pakistan Lahore. The Division Bench of the
learned High Court dismissed the same vide order, dated 12-6-1963. Thereafter
Civil Petition No.212 of 1963 was filed before this Court in which leave was
refused vide order, dated 1-5-1964 with the following observation:--
"We do not debar the petitioner from recourse to the Civil Court and the
petitioner can file a suit to establish the right that he ,claims."
2. Predecessor-in-interest of aforesaid respondents filed suit for
declaration along with permanent injunction against the present appellants on
2-9-1964 in the Court of Civil Judge, Lahore.
During the pendency of the suit, suit property was transferred to respondents
Nos. 14 to 16 under the scheme for disposal of available urban properties. They
were later on impleaded in the suit. The appellants filed written statement
controverting the allegations levelled in the plaint including the preliminary
objection to the effect "that property in dispute being evacuee trust
property is exempted from the processes of this Honourable Court. Instant suit
is thus not maintainable. Jurisdiction of this Honourable Court is also barred
by law". Respondents Nos.14 to 16 also filed written statement,
controverted the allegations leyclled in the plaint and raised a number of
preliminary objections including that the suit was barred by limitation and the
principle of res judicata. The learned trial Court had framed the following
preliminary objections:
(i) Whether the suit is barred by limitation? OPD
(ii) Whether the suit is barred by res judicata? OPP
3. The learned trial Court vide its judgment, dated 31-3-1984 held
that the suit was barred by time and not by res judicata. Respondents Nos.1 to
12 being aggrieved filed appeal before the District Judge, Lahore who dismissed the same vide judgment
and decree, dated 4-4-1984. The learned First Appellate Court upheld the
finding of the trial Court that suit was barred by time and also held that suit
was barred by res judicata. Respondents Nos.1 to 12 being aggrieved filed Civil
Revision No.662 of 1984 before the Lahore High Court, Lahore who accepted vide
impugned judgment, dated 10-11-1999 and remanded the case to the learned trial
Court with the direction that parties be allowed to lead evidence on Issue No.1
and thereafter the said issue shall be determined afresh in accordance with law
without being influenced by any observation made in the impugned judgment.
Evacuee Trust Board being aggrieved filed Civil Petition No.96/L of 2000
whereas respondents Nos.13 to 16 in Civil Petition No.96/L of 2000 also filed
Civil Petition No.184/L of 2000 against the impugned judgment of the Lahore
High Court. The aforesaid petitions were fixed before this Court on 23-10-2001
and the leave was granted in the following terms:--
"This Court has already granted leave to appeal in Civil
Petition No.957 of 2000 to consider the following point:--
"Whether in view of the judgments of this Court reported in
1992 SCMR 1313 and 1995 SCMR 1740, Civil
Court has jurisdiction in respect of the property
vested in Evacuee Trust Property Board."
As identical question of law is involved in these cases, therefore, leave
to appeal is also granted in these petitions. Office is directed to club these
cases with the appeal arising out of Civil Petition No.957 of 2000."
4. Brief facts out of which the civil appeal mentioned at Serial
No.3 are that respondents Nos.1 to 3 filed a suit for declaration with
permanent injunction against the appellants in the Court of Senior Civil Judge,
Larkana. The contents of plaint reveal that property in question is not evacuee
property which was purchased by them from owner through registered deed dated
25-10-1986. The appellants filed written statement, controverted the
allegations levelled in the plaint including number of preliminary objections
along with objection that jurisdiction of Civil Court was barred by law. Out of the
pleadings of the parties, the trial Court framed the issues including the issue
of jurisdiction in the following terms:
"Whether this Court has no jurisdiction?"
5. The learned trial Court decreed the suit vide judgment and
decree, dated 31-3-1998. The appellants being aggrieved filed appeal in the
Court of Additional District Judge, Larkana who dismissed the appeal vide
judgment dated 26-8-1999. The appellant being aggrieved filed revision petition
in the High Court of Sindh Circuit Court Larkana which was also dismissed
through the impugned order dated 13-4-2000. The appellants being aggrieved
filed Civil Petition No.957 of 2000 and leave was granted on 13-7-2001 in the
following term:--
"Leave to appeal is granted subject to limitation to consider
inter alia following point:--
Whether in view of the judgment of this Court reported in 1992 SCMR
1313 and 1995 SCMR 1740, Civil
Court had jurisdiction in respect of the property
vested in Evacuee Trust Property Board."
6. The learned counsel for the appellants submitted that all the
Courts below had erred in law to entertain the suit of the respondents in view
of bar of jurisdiction under the law by the virtue of section 14 of Evacuee
Trust Properties (Management and Disposal Act) Act (XIII of 1975). The
character and status of the property in question in the first two appeals was
determined as Evacuee Property by the orders of the Deputy Custodian,
Additional Custodian and Custodian which orders were upheld by the Division
Bench of the learned High Court and this Court had not disturbed the finding of
the Courts below in the earlier round of litigation with regard to the status
and character of the property in dispute. They further submitted that learned
Courts below had erred in 'law to decide the cases against the appellants in
violation of law laid down by this Court in various pronouncements. In support
of their contention, they relied upon the following judgments:
(i) Mst. Zakia Begum's case 1992 SCMR 1313; (ii) Iftikhar-ud-Din's
case 2000 SCMR 1 and (iii) Ahmad's case 2004 SCMR 440.
7. They further urged that Deputy Administrator Evacuee Trust
Property Lahore filed a petition under section 8 of the Evacuee Trust Property
(Management and Disposal) Act, (XIII of 1975) for a declaration that property
in question is an Evacuee Trust Property and for an order to take over its
possession and assume administrative control of the same. Respondents Nos.1 to
12 had also filed written statement including the preliminary objections. The
same is pending adjudication.
8. Learned counsel for the appellants submitted that property in
question in appeal at serial No.3 was notified as evacuee property vide
notification dated 16-1-1979, therefore, learned Courts below erred in law to
entertain the suit of the respondents. He further submits that Administrator,
Evacuee Trust Property Southern Zone Property had also taken its administrator
control management and maintenance as evident from the aforesaid notification,
dated 16-1-1979.
9. The learned counsel for the respondents submit that in the first
two appeals, the matter was not finally decided by this Court as is evident
from the order, dated 1-5-1964 wherein this Court did not grant leave to appeal
holding that this was not a proper case for the exercise of writ jurisdiction.
Respondents were not debarred to approach the civil Court for redressal of
their grievance. All the Courts below had not decided the question of bar of
jurisdiction as is evident from the judgment of the Courts below. The trial
Court as well as the first Appellate Court had non-suited the respondents on
the principle of res judicata and barred by time which was not found good by
the learned High Court in the impugned judgment and the case was remanded to the
trial Court to decide the case afresh after recording the evidence on Issue
No.1, therefore, appellants are not well within' their right to raise
preliminary objection that civil Court had no jurisdiction to take the
cognizance of the matter in view of the provisions of Act XIII of 1975. He
further submits that the present suit was filed by the respondents on 9-2-1964
whereas the Act No.XIII of 1975 came into force on 1st July, 1974. He further
submits that Chairman, Evacuee Trust Board has no jurisdiction to determine the
status of the property in question. He has only jurisdiction to take the
cognizance of the matter in case the property in question having a evacuee
character as evident from section 8 of the Act XIII of 1975. He further submits
that appellants are debarred to raise objection of bar of jurisdiction of the
civil Court in view of the observation of this Court in the earlier round of
litigation vide order, dated 1-5-1964 wherein respondents were allowed to file
civil suit and also objection of jurisdiction was raised before the trial Court
which was rejected by the trial Court as depicted from order, dated 8-5-1979
which order was not challenged by the appellants before any higher forum on the
principle of res judicata.
10. We have considered the submissions made by learned counsel for
the parties and have perused the record. It is better and appropriate to
reproduce the legislative history of the laws of the country dealing with the
evacuee properties along with relevant provisions:---
(i) Pakistan
Administration of Evacuee Property Ordinance, 1949. Section 2(2) defines
evacuee and jurisdiction of civil Court was barred by section 34.
(ii) The Pakistan Rehabilitation Ordinance, 1956.
(iii) The Pakistan Rehabilitation Act, 1956 (Act XLII of 1956).
This Act repealed the aforesaid Ordinance vide section 24. Section 18
specifically barred the jurisdiction of the civil Court.
(iv) The Pakistan
Administrator of Eyacuee Trust Property (Act 1957) Act 12 of 1957. This Act
repealed the aforesaid Act vide section 59. Jurisdiction of civil Court was
also barred by virtue of section 41.
(v) The Displaced Persons (Compensation and Rehabilitation) Act, 28
of 1958. By virtue of section 16-A, the Chief Settlement Commissioner has power
to prepare and frame one or more schemes for the administration, maintenance,
management and disposal of property including in the trust pool qua property of
trust etc. Section 25 barred the jurisdiction of the Civil Court. Under section 16-A scheme
was prepared and issued by the Chief Settlement Commissioner Scheme of 1960.
Scheme was also prepared and issued on 20th July, 1971 under section 16-A(I)
under the name and style Scheme for the Management and Disposal of Evacuee
Trust Properties, 1971.
(vi) Evacuee Trust Property and Displaced Persons Laws (repealed
Act) 1975 (Act 14 of 1975) came into force on 1st July, 1974. The aforesaid
laws including other laws were repealed. The Evacuee Trust Properties
Management and Disposal Act (XVIII of 1975) came into force on 1st July, 1974.
Relevant provisions are as follows:
"8. Declaration of property as evacuee trust property.--- (1)
If a question arises whether an evacuee property is attached to a charitable,
religious or educational trust or institution or not, it shall be decided by
the Chairman whose decision shall be final and shall not be called in question
in any Court.
(2) If the decision of the Chairman under subsection (1) is that an
evacuee property is evacuee trust property, he shall, by notification in the
official Gazette, declare such property to be evacuee trust property.
(3) If a property is declared to be evacuee trust property under
subsection (2), the Chairman may pass an order cancelling the allotment or
alienation, as the case may be, taken possession and assume administrative
control, management and maintenance thereof:
Provided that no declaration under subsection (2) or under
subsection (3) shall be made or passed in respect of any property without
giving the person having interest in that property a reasonable opportunity of
being heard.
14. Bar of jurisdiction.--- Save as otherwise provided in this Act,
no Civil Court shall have jurisdiction in respect of any matter which the
Federal Government or an officer appointed under this Act is empowered under
this Act shall be granted or issued by any Court or other authority in respect
of any action taken or to be taken in exercise of any power conferred by or
under this Act."
11. In case the aforesaid provisions of law are put in a
juxtaposition along with the date of filing of the suit by the respondents on
9-2-1964 clearly shows that in view of aforesaid provisions of law the civil
Court has no jurisdiction to take the cognizance of the matter in view of the
exclusive bar in view of provisions of the special laws mentioned above. It is
pertinent to mention here that in the earlier round of litigation in the first
two appeals, the Deputy Custodian, Additional Custodian and Custodian had
determined the status of the property in question as evacuee property which was
upheld by the Division Bench of the Lahore High Court and finding of the
Tribunals below and the High Court were not disturbed by this Court. It is a
settled law decision of Custodian on the status of the property in question
having binding effect over the civil Court and the civil Court has no
jurisdiction to take the A cognizance of the matter as the law the laid down by
this Court in various pronouncement. Reference can be made to the following
judgments:
(i) Muhammad Jamil Asghar's case PLD 1965 SC 698; (ii) S. Muhammad
Hashim's case PLD 1970 SC 326; (iii) Begum Darab Sultana's case 1982 Pak. SC
Cases 907; (iv) Nazir Ahmad's case 1988 SCMR 824; (v) Shaukat Hayat Jumani's
case 1991 SCMR 580; (vi) Falak Sher's case 1987 SCMR 231; (vii) Muhammad
Ramzan's case NLR 1995 UC 43 and (viii) Abdul Aziz Khan's case 2000 SCMR 1371.
12. It is pertinent to mention here that the aforesaid judgments
were rendered by this Court while interpreting section 41 of the Pakistan
Administration of Evacuee Properties Act, 1957, relevant provisions of
Displaced Persons Compensation and Rehabilitation Act, 1958 and relevant
provisions of Evacuee Property and Displaced Persons Laws Repealed Act, 1975.
It is admitted fact that during the pendency of the litigation between the parties
Deputy Administrator (U) Evacuee Property, Lahore has filed references under
section 8 of the Evacuee Trust Property Management and Disposal Act XIII of
1975 for a declaration that property in question is an evacuee trust property
and for an order to take over its possession and assume administrative control
of the same and the respondents Nos.1 to 12 have also filed reply,
controverting the allegations levelled in the petition along with preliminary
objections. It is settled law that this Court has ample' jurisdiction to take
notice of subsequent events as the law laid down by B this Court in Mst. Amina
Begum and others v. Mehar Ghulam Dastagir PLD 1978 SC 220. In view of the
pendency of the reference before the Chairman, the civil Court cannot proceed in
the matter and assume the c jurisdiction in view the section 14 of the Act,
1975 as the law laid down by this Court in the aforesaid judgments relied upon
by the counsel for the appellants. It is an admitted fact that the property in
question in case at Serial No.3 was taken over by the appellants vide
Government Gazette Notification dated 16-1-1979. This notification cannot be
challenged by the respondents before the civil Court in view of the aforesaid
provisions of section 14 and the law laid down by this Court mentioned
hereinabove. It is a settled law that order of Custodian cannot be interfered
in constitutional jurisdiction unless it was passed without application of mind
and without perusing the record or in violation of law. See Muhammad Munir's case
1993 CLC 478 and Mst. Safia Begum's case 1994 MLD 213. The Chairman Evacuee
Trust Board has ample power to decide whether the property has a character of
evacuee or not while exercising power under section 8 of the Act, 1975 as the
law laid down by this Court in Khurshid Zaman's case 1999 SCMR 1007.
13. As the Courts below had wrongly assumed the jurisdiction in
spite of the exclusive bar contained under the provisions of the special G
laws, therefore, orders and judgments of the Courts below are without lawful
authority or void. It is a settled law that no limitation runs against the void
orders. In this view of the matter we condone the delay of one day. It is also
a settled maxim that pure question of law can be raised at any stage of the'
proceedings as the law laid down by this Court in Hajill Abdullah Khan and
others v. Nisar Muhammad Khan and others PLD J 1965 SC 690, Almas Ahmad Faiz's
case 2006 SCMR 783. It is also a settled law that pleadings of the parties do
not control or govern application of proper law to establish or prove against
as law laid down by this Court in Abdul Sattar's case NLR 1992 SC Judgment 279.
The learned counsel for the respondents in the first two appeals have given lot
of emphasis that civil suit was competent in view of observation of this Court.
Mere reading the observation of this Court in order dated 1-5-1964 reproduced
in para. 2 hereinabove clearly shows that this Court L did not debar the
appellants from recourse to the civil Court. This does not mean that permission
was granted by this Court in violation of exclusive bar contained under a
special law. It is the duty of the civil Court to decide the matter in
accordance with the law in view of Article 4 of the Constitution as law laid
down by this Court in Utility Stores Corporation's case PLD 1987 SC 447. The
other submission of learned counsel for the respondents in the first two
appeals that question of jurisdiction was finally decided by the trial Court
vide order, dated 8-5-1979 and the appellants had not challenged the same
before any higher forum, therefore, order, dated 8-5-1979 had attained
finality. It is pertinent to mention here that respondents had not attacked
order of rejection of objection raised by the appellants qua the jurisdiction
of the civil Court as evident from order, dated 8-5-1979 which clearly shows
that objection was repelled by a separate order. The said order was not
available even in the record of the lower Court, therefore, principle of res
judicata is not attracted as law laid down by this Court in Muhammad Sadiq's
case 1978 SCMR 130. Appellants filed written statement before the trial Court
on 3-3-1984 raising preliminary objection that the jurisdiction of the civil
Court was barred by law. Amended plaint was filed by the respondents on
9-12-2000. Written statement was also filed by the appellants by raising
preliminary objections that the jurisdiction of this Honourable Court is barred
by section 14 of Ordinance No.XVI of 1974 and that the plaintiff has remedy
available to him under sections 16 and 17 of Ordinance by way of an appeal
before the Administrator and revision before the Chairman. Appellants in Civil
Appeal No.2038 of 2001 filed application under Order VII, rule 11 of C.P.C.
that suit was liable to be dismissed on the well-known principle of res
judicata. The respondents had not filed any rejoinder before the trial Court
that the issue of bar of jurisdiction was finally decided by the trial Court on
8-5-1979. The aforesaid facts clearly show that no final order was passed against
the appellants on the question of jurisdiction in view of bar exclusively by a
special law. Even otherwise in the facts and circumstances of this case we are
not convinced that order, dated 8-5-1979 had attained finality in any canon of
justice.
14. For what has been discussed above, the aforesaid appeals are
accepted and judgment of High Court in first two cases and judgments of all the
Courts below in case mentioned at Serial No.3 are set aside. As mentioned
above, it is an admitted fact that reference in the first two cases has already
pending adjudication before the Chairman Evacuee Trust Board who is directed to
decide the same without being influenced by the observation by this Court
strictly in accordance with law as expeditiously as possible. It is pertinent
to mention here that no reference is pending adjudication at Serial No.3,
therefore, respondents Nos. 1 to 3 are well within their right to file petition
under section 8 of the aforesaid Act before the Chairman, Evacuee Trust Board
who shall decide the same strictly in accordance with law as expeditiously as
possible without being influenced by the observation of this Court.
S.A.K./E-4/SC Appeals
accepted.
P L D 2005 Supreme
Court 658
Present: Mian
Shakirullah Jan, M. Javed Buttar and Saiyed Saeed Ashhad, JJ
Ch. MUNEER HUSSAIN---Appellant
Versus
Mst. WAZEERAN
MAI alias Mst. WAZIR MAI- Respondent
Civil Appeal
No.1461 of 1999, decided on 6th April, 2005.
(On appeal from the
judgment dated 6-11-1997 of the Lahore High Court, Multan Bench, Multan passed
in R.F.A. No.83 of 1990).
(a) Contract Act
(IX of 1872)‑---
--S. 16---Specific
Relief Act (I of 1877), Ss. 12 & 42— Qanun-e-Shahadat (10 of 1984), Art.
78---Suit for specific performance of agreement to sell and declaration---Beneficiaries
of the documents executed by ignorant/illiterate/Parda-observing ladies, have
to prove by overwhelming evidence, the execution of such documents by such
ladies and they have to further prove that such transactions and such documents
were explained to the executants who had independent advice at the relevant
time---Semi-illiterate Parda-observing females are entitled to the protection
of law governing such ladies---Court has to be very careful in recording
findings as to the execution of any agreement by such ladies and it would not
be sufficient to show that the document was read over to the Parda-observing
lady but it must further be proved that she understood its nature and
effect---Where the evidence had not established that the documents in question
were executed by such a lady or that they were executed by her voluntarily out
of her own free-will and that at the time of execution of the documents she had
an independent advice of her close relatives and that the contents of the
documents were read over to her and nature of the transaction was explained to
her, onus was on the beneficiary of the document which he failed to discharge
in the present case---Beneficiary of the document had not been able to point
out any non-reading of evidence or illegality in the impugned judgment of the
High Court wherein execution of documents by the lady was disbelieved---Lady
was being continuously victimized and was out of possession of her landed
property for the last 26 years and was suffering because the beneficiaries of
the document thought that she being a helpless lady, he could grab her
property---Supreme Court declined interference.
Moonshee Buzloor Ruheem v. Shumsoonnissa Begum
and Jodonath Bose v. Shumsoonisa Begum (Moore's Indian Appeals 1863-65 Vol-II
551); Farid-un-Nisa v. Mukhtar.Ahmad and another (1925 Indian
Appeals-342); Sudisht Lal v. Mussamut Sheobarat Kore PC Vol.VII Cal. 245); Tara
Kumari v. Chandra Mauleshwar AIR 1931 PC 303; Sm. Karunamoyee Debi v. Sm. Maya
Moyi Novi Debi and others AIR 1948 Cal. 84; Crown v. Bahadar Khan PLD 1954
Pesh. 39; Mst. Hawa v. Muhammad Yousaf and others PLD 1969 Kar. 324; Suratan
Nessa Bibi v. Muhammad Naeemuddin Mondal and others PLD 1965 Dacca 531; Sree
Sree Gopal Jeo Bigraha and others; v. Mst. Mahmuda Begum and others PLD 1968
Dacca 265; Ayana Dasi v. Arena Bala Dasi and others PLD 1961 Dacca 140;
National Bank of Pakistan v. Hijra Bai and others PLD 1985 Kar. 431; Wali
Muhammad v. Muhammad Ibrahim and others PLD 1989 Lah. 440; Syed Mansoor Ahmad
v. Mst. Maqbool Begum & others 1990 SCMR 1259; Janat Bibi v. Sikandar Ali
PLD 1990 SC 642; Mst. Hafiza Bibi v. Ali Hussain and others 1994 SCMR 1194;
Amirzada Khan and another v. Itbar Khan and others 2001 SCMR 609; Ghulam
Muhammad v. Farooq Ahmed and others 2002 SCMR 1801; Khawas Khan through Legal
heirs v. Sabir Hussain Shah and others 2004 SCMR 1259 and Muhammad Tufail and 4
others v.Akbar Ali and 4 others 2004 SCMR 1370 ref.
(b) Qanun-e-Shahadat
(10 of 1984)--‑
----Art. 78---If a
document is alleged to be signed or to have been written by any person, the
signature or writing must be proved in that person's handwriting---Article 78,
Qanun-e-Shahadat, 1984 places emphasis on the proof of identity of author of
questioned documents and said Article does not say that mere proof of
handwriting/signatures/thumb-impressions of executant will prove truth of the
said document.
Madhu Lal v. Asian Assurance Company AIR 1954
Bom. 305; Bank of Poona v. N.C. Housing Society Ltd. Poona and others AIR 1968
Born. 106; Hamid Qayyum and others v. Muhammad Azeem and another PLD 1995 SC
381 and Sanaullah and another v. Muhammad Manzoor and another PLD 1996 SC 256
ref.
Zafar Iqbal Khan,
Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellant.
Zafar Iqbal Ch.,
Advocate Supreme Court for Respondent.
Date of hearing: 6th
April, 2005.
JUDGMENT
M. JAVED BUTTAR,
J.---This direct appeal (converted
from C.P. No.261-L of 1998 vide this Court's order dated 8-11-1999), under
Article 184 (3) of the Constitution of the Islamic Republic of Pakistan, 1973,
is directed against the judgment and decree dated 6-11-1997 of the Lahore High
Court, Multan Bench, whereby R.F.A. No.83 of 1990, instituted by the
respondent/defendant, against the judgment and decree dated 8-12-1990 passed by
Civil Judge, 1st Class, Multan decreeing the appellant's suit for
Specific Performance, was allowed the judgment and decree passed by trial Court
was set aside and the appellant's suit was dismissed holding the appellant
responsible to bear costs of the proceedings throughout.
2. The facts of the
case are, that the appellant instituted a suit on 21-8-1983, for seeking
declaration to the effect that he was owner in possession of the suit-land,
detailed in the plaint under agreement of sale dated 12-7-1979 (Exh.P-1)
receipts dated 16-10-1979 (Exh.P-2) and dated 1-7-1981 (Exh.P-3) and in the
alternate prayed for grant of decree for Specific Performance by way of
direction to the respondent-Mst. Wazeeran Mai alias Mst. Wazir Mai to get the
sale deed completed. It was alleged in the plaint, that respondent being owner
of the suit-land had executed the above-said agreement to sell (Exh.P-1) in
favour of the appellant/plaintiff for a consideration of Rs.5,20,000 and
received Rs.3,00,000 at the time of execution of the above-said agreement and
subsequently received amounts of Rs.200,000 and Rs.20,000 through the
above-said two receipts (Exh.P2 & P3), that the appellant was in possession
of the suit-land since 12-7-1979 as an owner and as the defendant was neither
acknowledging his title nor willing to convey the title, hence the suit.. The
suit was resisted by the respondent. The execution of Exh.P-1 & Exh.P-3 was
denied. The respondent's case is that these documents were forged and
fabricated, she had neither signed the said documents nor had put her
thumb-impressions on them. It was further stated that the appellant was
step-brother of her husband Fida Hussain, she was residing in Satellite Town,
Gujranwala, the relations between her and her husband became strained which led
to the institution of a Suit for dissolution of marriage by her, at Gujranwala,
which was ultimately consigned to the record due to non-prosecution, that one
Mst. Jameela Khatoon, sister of her husband, lodged a report (F.I.R. No.220) in
Police Station Kotwali,, Multan on 16-4-1978, against Fida Hussain,
the husband of respondent, to the effect that respondent had'
strained relations with her husband Fida Hussain, for which reason she had
taken up her residence for the last three years in Gujranwala as she was
permanent resident of Gujranwala, that on 15-4-1978 when she (respondent) was
in Multan to contest the cases (the suit for Restitution of Conjugal Rights
etc.), she was abducted by the appellant/plaintiff, her husband Fida Hussain
and accomplices, that she was recovered by bailiff of the High Court (Multan
Bench), her statement was recorded on 3-12-1979, where after she was set at
liberty, she was also examined by the Ilaqa Magistrate, under section 164,
Cr.P.C., that during the period of her illegal confinement by the plaintiff,
the plaintiff took her photograph and coerced her to sign some blank papers
which might have been converted into afore-said alleged agreement of sale. The
trial Court, from the pleadings of the parties, framing as many as eight issues
out of which learned counsel for the parties at the appeal stage concentrated
on issues Nos.6 and 7, which are as follows:-----
"(6) Whether
the defendant has agreed to sell the suit-land in favour
of the plaintiff vide agreement to sell dated 12-7-1979? OPP.
(7) Whether the
defendant has received the total sale price of Rs.5,20,000 vide receipts dated
16-10-1979 and 1-7-1981? OPP."
3. The appellant
examined Khalid Hussain as P.W.1, Allah Bakhsh P.W.2 Hussain Bakhsh P.W.3
besides himself as P.W.4. He tendered in evidence seven documents, namely,
agreement to sell dated 12-7-1979 (Exh.P-1), receipt of Rs.2,00,000 dated
16-10-1979 (Exh.P-2), Receipt of Rs.20,000 dated 1-7-1981 (Exh.P-3), certified
copy of the Record of Rights relating to the year 1979-80 Exh.P-4) certified
copy of the Jamabandi pertaining to the years 1976-80 (Exh.P-5), copy of Khasra
Girdawari of Mauza Rehem Ali pertaining to years 1980-83 (Exh.P-6) and copy of
statement (under Objection) (Exh.P-7).
4. The respondent
appeared as DW-1 and produced following documentary evidence, namely copy of
F.I.R No.220 dated 16-4-1978, Police Station Old Kotwali Multan (Exh.D-1), copy
of order passed by the High Court dated 3-12-1979 (Exh.D-2), copy of the
statement of defendant dated 3-12-1979 (Exh.D-3), copy of the report of bailiff
dated 3-12-1979 (Exh.D-4), copy of the habeas corpus petition dated 24-11-1979
(Exh.D-5), copy of the plaint dated 14-6-1982 (Exh.D-6), copy of the
application under Order XXXIX, rules 1 and 2, C.P.C (Exh.D-7), copy of the
order passed by the Senior Civil Judge, Multan dated 24-5-1983 (Exh.D-8), copy
of the memo. of appeal dated 5-6-1983 (Exh.D-9), copy of the order passed by
the Additional District Judge, Multan dated 5-9-1983 (Exh.D-10), copy of the
order of Senior Civil Judge, Multan dated 21-11-1983 (Exh.D-11), copy of the
order of the Special Court Banking Multan dated 1-8-1988 (Exh.D-12) and copy of
the decree sheet dated 1-8-1988 (Exh.D-13):
5. The trial Court
decided issues No.1 to 5 against the respondent, in regard to issues Nos.6 and
7, it was held that the appellant successfully proved the execution of
documents Exhs.P1, P2 & P3, which were executed validly and voluntarily by
the respondent, in the following manner:
"…………. At the
best it can be presumed that on 29-11-1979 the defendant was in the house of
the plaintiff. There is nothing on the file to suggest that she remained in the
hands of the plaintiff from 15-4-1978 to 29-11-1979. The case of abduction has
admittedly been cancelled. The defendant did not lodge any private complaint
against the plaintiff and others. There is no evidence on the file to see that
at the time of execution of documents Exh.P-1 to Exh.P-3 the defendant was in
the custody of the plaintiff.
18. P.W.1 to P.W.3
have categorically stated about the execution of documents Exh.P-1 to Exh.P-3
and payment of consideration except certain minor discrepancies, which are
bound to occur because their statements were recorded after about 5/6 years of
the execution of the documents in question. P.W. is relative of the plaintiff
but P.W.2 and P.W.3, are not his relatives. They are independent
witnesses. Even otherwise, the statement of P.W. cannot be thrown out because
of his relationship with the plaintiff unless some other reason is involved. He
is not a beneficiary of the disputed property. No doubt none of the relatives
of the defendant were present at the time of execution of documents Exh.P-1 to
Exh.P-3 but she could at least have produced them at trial but she was failed
to do so".
6.
It has already been stated above, that the appellant's suit was decreed by the
trial Court but the High Court reversed the findings, in appeal filed by the
respondent/defendant and dismissed the suit.
7. The learned
Judges of the High Court, after hearing learned counsel for the parties, while
referring to section 16 of the Contract Act No.IX of 1872, held that the
beneficiaries of the documents executed by ignorant/illiterate/Parda-observing
ladies, have to prove by overwhelming evidence, execution of such documents by
such ladies and they have to further prove that such transactions and such
documents were explained to the executants who had independent advice at the
relevant time. The learned Judges in this regard, referred to the following
case-law and also quoted extensively from the said judgments:‑
(1) Moonshee
Buzloor Ruheem v. Shumsoonnissaa Begum and Jodonath Bose v. Shumsoonisa Begum
(Moore's Indian Appeals 1863-65 Vol-II 551),
(2) Farid-un-Nisa
v. Mukhtar Ahmad and another (1925 Indian Appeals-342),
(3) Sudisht Lal v.
Mussamut Sheobarat Kore Privy Council Vol:VII Calcutta 245),
(4) Tara Kumari v.
Chandra Mauleshwar (AIR 1931 P.C.303),
(5) Sm. Karunamoyee
Debi v. Sm. Maya Moyi Novi Debi and others (AIR 1948 Cal. 84),
(6) Crown v.
Bahadar Khan (PLD 1954 Pesh. 39).
(7) Mst. Hawa v.
Muhammad Yousaf and others (PLD 1969 Kar. 324),
(8) Suratan Nessa
Bibi v. Muhammad Naeemuddin Mondal and others (PLD 1965 Dacca 531),
(9) Sree Sree Gopal
Jeo Bigraha and others; v. Mst. Mahmuda Begum and others (PLD 1968 Dacca 265),
(10) Ayana Dasi v.
Arena Bala Dasi and others (PLD 1961 Dacca 140),
(11) National Bank
of Pakistan
v. Hijra Bai and others (PLD 1985 Kar. 431),
(12) Wali Muhammad
v. Muhammad Ibrahim and others (PLD 1989 Lahore 440),
(13) Syed Mansoor
Ahmad v. Mst. Maqbool Begum and others (1990 SCMR 1259),
(14) Janat Bibi v.
Sikandar Ali (PLD 1990 SC. 642),
(15) Mst. Hafiza
Bibi v. Ali Hussain and others (1994 SCMR 1194).
8. The learned
Judges of the High Court after stating the principle of law stated above, on
the basis of evidence produced by the parties, held as follows:-‑
" ...7.
Applying these principles to the facts and circumstances of the case in hand,
it is quite clear that the appellant is a semi-literate Pardahnashin
lady. She was clearly entitled to the above protections. The perusal of Exhs.
P-1 to P-3, clearly shows that these documents were executed on plain papers;
that these were not scribed by any petition-writer; that no place of their
writing was mentioned; that these documents were neither read to the appellant
nor any independent advice was available to her at the relevant time. These
documents, therefore, were not proved within the term of section 16 of the
Contract Act. We have, therefore, no doubt in our mind that the respondent had
miserably failed to prove that at the relevant time the contents of aforesaid
documents were read over to the appellant; that these were explained to her;
that she had access to independent advice at that time. As already shown, these
documents carry a cloak of surreptitiousness. These are written on a plain
paper; that their scribe had not been produced in witness-box to face the test
of cross-examination. It is true that P.W. Khalid Hussain/M/O of Exh.P-1 stated
that this document was read over to the appellant and was explained to her.
However, his worth was totally demolished in cross-examination. He admitted
that respondent was his brother-in-law; that he made an effort to conceal the
real relationship between appellant and her husband. He sated that he did not
know that appellant had filed a suit for dissolution of marriage against her
husband and that she had been living in Gujranwala;
that Fida Hussain had filed a suit for restitution of conjugal rights against
her in Multan
in year 1978. He admitted that Exh.P-1 had been written in Kotla Rahim Ali in
the house of respondent where the scribe had been called; that no stamp was
purchased and no petition-writer was summoned. On the survey of the above
features of his evidence, it could be safely concluded that no reliance can be
placed upon this witness who is positively the man of respondent and carried
bias towards the appellant. On this state of affairs, we are led to
irresistible conclusion that execution of Exh.P-1 proved by respondent within
the requirement of section 16 of the Contract Act."
9. Therefore, with
reference to Article 78 of Qanoon-e-Shahadat, 1984, it was 'held that if a
document is alleged to be signed or to have been written by any person, the
signature or writing must be proved in that person's handwriting, the said
Article places emphasis on the proof of identity of author of questioned
documents and this Article does not say that mere proof of
handwriting/signatures/thumb-impressions of executant will prove truth of the
said document. Reliance in this regard was placed on Madhu Lal v. Asian
Assurance Company (AIR 1954 Born. 305), Bank of Poona v. N.C. Housing Society
Ltd. Poona and others (AIR 1968 Born. 106), Hamid Qayyum and others v. Muhammad
Azeem and another (PLD 1995 SC 381) Sanaullah and another v. Muhammad Manzoor
and another (PLD 1996 SC 256).
10. The learned
Judges after stating above principles of law, held that the appellant had
failed to prove both signatures and thumb-impressions of the respondent on documents
Exhs. P1, P2 and P3, accepted the appeal of respondent, set aside the judgment
and decree passed by the trial Court and dismissed the appellant's suit, in the
following manner:
"8. Guided by
the above rules, we herein proceed to assess the evidence of the parties
Exh.P1, which is the bed-rock of respondent's claim, was executed on 12-7-1979
and was scribed by Muhammad Azam son of Haji Mahmood Bakhsh resident of
Gopalpur, Tehsil and District Multan. Two witnesses namely Khalid Hussain
resident of Kotla Rahim Ali and Sufi Ghulam Rasool resident of the same village
were its witnesses. Amazingly enough, the respondent did not dare to put the
above mentioned witnesses in the witness box and face the test of
cross-examination. Muhammad Azam was scribe. He was to (sic) resident of
Revenue estate Gopalpur; admittedly, he was/is not the petition-writer. In the
context of above circumstances, he ought to have been put in the witness-box
and prove Exh.P1. As regards the testimony of Khalid Hussain (P.W.1), it is sufficient
to say, he is close relative of the respondent. He tried to conceal the
circumstances of bitterness between the appellant and her husband and then
between the appellant and the respondent. The tilt of this witness towards
respondent is evident. He stated that he did not know that Fida Hussain had
filed a suit for restitution of conjugal rights against Mst. Wazir Begum; that
he was not aware whether the appellant was resident of Gujranwala. Those aspects render his
testimony to be without any credit and doubtful and no reliance can be placed
on him. The testimony of P.W.4 respondent himself does not improve his case
without any supportive evidence in the context of the circumstances noted
above. We cannot place much credence on his evidence. Exh.P/2 and P/3 are
receipts. Exh.P-2 was written on 16-10-1979. It was scribed by one Allah Wasaya
son of Allah Bakhsh resident of Kotla Rahim Ali and was witnessed by Khalid
Hussain and Allah Bakhsh. While Exh.P-3 was written by Muhammad Bakhsh resident
of Kotla Rahim Ali. It was witnessed by Malik Hussain Bakhsh and Haji Nazar
Muhammad. It is highly painful to note that the scribe and one marginal witness
of two receipts were withheld and were not produced before the Court. We have
seen Exh.P-2. It carries thumb-impressions of Mst. Wazir Begum which is very
dim and not decipherable. Similarly the thumb-impression of Mst. Wazir Begum on
Exh.P1 does not tally with her thumb-impression on Exh.P-3. Even the learned
counsel for the respondent was not able to contend that thumb impression of
appellant on Exh.P1 tallied with her thumb impression on Exh.P3. On this
analysis we have no hesitation to say that respondent had failed to prove both
signatures and thumb-impression of appellant on Exh.Pl, P2 and P3. This is not
end of all. All the three documents were executed in the house of Munir Hussain
in Revenue estate Rahim Ali; that they were scribed on plain papers; that no
petition-writer was called to write these documents; no stamp was affixed upon
them; neither the scribe nor one marginal witness of each document was
produced. On these circumstances, we have no option to uphold that these
documents were framed in surreptitiousness and had not been proved within the
terms of Article 78 of Qanoon-e-Shahadat, 1984.
9. As against this evidence, Mst. Wazir
Begum herself appeared in the witness-box. She unequivocally stated that she
was resident of Gujranwala; that she had acrimonious relationship with her
husband who was step-brother of the respondent; that she had come to Multan to
pursue her cases; that she was abducted and kept in illegal confinement by the
respondent; that she was set at liberty by the High Court in pursuance of the
habeas corpus petition filed by her sister Mst. Jamila; that she had not
executed Exh.P1, P2 and P3 and had not received any consideration at all. The
statement rings true. The respondent had failed to controvert the above version
of the appellant and had miserably failed to prove Exh.Pl to P3. We are so not
persuaded to sustain the findings of the Court below on issues Nos.5 & 6
and are hereby set aside. The issues are decided in favour of the
appellant".
11. We have heard
learned counsel for the parties and have also seen record.
12. It is contended
by the learned counsel for the appellant that the findings of the trial Court
on issues Nos.6 and 7 were correct, that the agreement to sell was executed in
the year 1979, the respondent remained silent for more than four years, there
is a contradiction in her stand in the
written statement and in her statement as DW-1, at one place she stated that
`she was forced to sign on plain papers which might have been converted into
Exhs.P1 to P3' and at the other place she stated that she had not signed the
above documents, she allegedly remained in an illegal confinement for about one
and half year but still did not file any complaint before the police
authorities, the allegations with regard to her illegal detention were merely
an afterthoughts just to avoid the effect of Exh.P1 and that the provisions of
Article 17(2) of the Qanoon-e-Shahadat, 1984 were not applicable to the
documents in question.
13. The learned
counsel for the respondent, on the other hand argued that the respondent was a
semi-illiterate Parda-observing lady, she was therefore, entitled to the
protection under section 16 of the Contract Act, bare reading of Exh.P1 to P3
shows---that they do not indicate that the afore-said documents were read over
and explained to her and that she was in possession of independent advice at
the time of execution of the said documents, that the agreement to sell
(Exh.P1) was on a plain paper, it was scribed by Muhammad Azam and was
witnessed by two marginal witnesses namely, Soofi Ghulam Rasool and Khalid
Hussain, that neither Muhammad Azam (the scribe) nor Soofi Ghulam Rasool
marginal witness, entered the witness-box, Khalid Hussain was close relative of
the respondent, he was an interested witness, that Exh.P2 (Receipt dated
16-10-1979) was scribed by Allah Wasaya and was witnessed by Khalid Hussain and
Allah Bakhsh, neither Allah Wasaya (the scribe) nor Allah Bakhsh (the witness)
were produced, that Exh.P3 (Receipt dated 1-7-1981) was scribed by one Muhammad
Bakhsh and witnessed by Malik Hussain Bakhsh and Haji Nazar Muhammad, neither
Muhammad Bakhsh (the scribe) nor Haji Nazar Muhammad (the witness) were put in
the witness-box, therefore, the execution of documents of Exhs.P1; P2 and P3
were not proved within the terms of Article 17(2) read with Article 79 of the
Qanoon-e-Shahadat, 1984, P.W.1'Khalid Hussain, P.W.2 Allah Bakhsh and P.W.3
Malik Hussain Bakhsh were manifestly interested witnesses and were not
reliable, that the documents Exhs. D-1 to D-9 clearly demonstrate that
respondent had been kept in illegal confinement for a period of more than one year
and during this period instruments Exh.P1 and P2 were fabricated with a clear
intention to grab the suit-land which was inherited by the respondent from her
father, she is helpless semi-literate Pardanasheen lady and the appellant was
in league with her husband with whom the respondent had strained relations,
that the so-called last receipt (Exh.P3) of the receipt of Rs.20,000 towards
the balance of the sale price, was allegedly executed by the respondent on
1-7-1981, when she was no more in the confinement of the appellant and had been
set at liberty, this clearly demonstrates that this document is also a mere
fabrication because it is not believable that with so much previous litigation
with the appellant and her husband, the respondent would execute the said
receipt, that the controversy in-hand is merely factual in nature, no law point
is involved and that the learned Judges of the High Court after going through
the entire record and after discussing the entire evidence produced by the
parties, vide a detailed judgment, have correctly concluded that the execution
of documents Exhs.P1, P2 and P3 have not been proved by the appellant and the
appellant's suit has been correctly dismissed.
14. After having
heard the learned counsel for the parties at length, it is our firm opinion
that the arguments of the learned counsel for the appellant have no force and
this appeal has no merit. It has been established on record through evidence
and through the entire facts and C circumstances taken as a whole that the
respondent is a semi-literate Parda-observing female and is entitled to the
protection of law governing such ladies, which is by now settled, as discussed
by the High Court (mentioned above) and need not be reiterated.
We may, with
convenience, also refer to some of the later judgments of this Court.
In Amirzada Khan
and another v. Itbar Khan and others (2001 SCMR 609), this Court held as
follows:-‑
"…………… It is
by now well-established requirement of law that
burden of proof in respect of a genuineness of a transaction with a
`Pardahnasheen' lady and a document allegedly executed by such a lady lies on
the person• who claims benefit from the transaction or under the documents:
Such a person is legally obliged to prove and satisfy the Court; firstly, that
the document was executed by `pardahnasheen' lady and secondly, that she had
complete knowledge and full understanding about the contents of the document
and thirdly, that she had independent and disinterested advice in the matter
before entering into the transaction and executing the document. The evidence
on record as discussed by the Appellate Court and the High Court does not
satisfy the above standard. The plaintiff failed to prove that at any stage
during the proceedings in the mutation any close relation of the vendor-lady
was associated.
3. It is also settled principle of law that
mere reliance on mutation for certain transaction would not be sufficient for
proof of the transaction as covered by the mutation unless some cogent evidence
proving the transaction itself irrespective of the mutation is examined in
the Court. As the above requirements laid
down from time to time for a transaction
with Pardahnasheen lady have not been satisfied in this case, therefore, the
Appellate and the High Court were correct to refuse to enforce such a
transaction and that rightly concurred in the dismissal of the suit".
In Ghulam Muhammad
v. Farooq Ahmed and others (2002 SCMR 1801), it was reiterated, by
this Court that in the case of illiterate Pardahnasheen lady, Court should be
very careful in recording findings as to the execution of any agreement by her.
Similarly in Khawas
Khan through Legal Heirs v. Sabir Hussain Shah and others (2004 SCMR 1259),
this Court in regard to a document alleged to have been executed by a
Pardahnasheen lady, held:-‑
"………….that in
case of Pardanasheen lady, the party placing
reliance upon the document would have to prove execution of said document that
the Pardanasheen lady understood the terms of the deed and the deed was read
over and explained to her. This Court has also time and again held that in case
of illiterate Pardanasheen lady, it must be shown that deed was read over to
her and the terms of the same were adequately explained to her and Court has to
be cautious to see that the burden is satisfactorily discharged by the party in
whose favour the deed was allegedly executed. It was necessary for the
petitioners/defendants to bring on record that Pardanasheen lady/executant was
free and intelligent to execute the deed and Court has to come to definite
conclusion that transaction through the deed was understood by her not only
from the evidence in the case but also from the facts and circumstances of the
case."
It was also held
that it would not be sufficient to show that the document was read over to the
Pardanasheen lady but it must further be proved that she understood its nature
and effect. In Muhammad Tufail and 4 others v. Akbar Ali and 4 others (2004
SCMR 1370), one Mst. Maryam Bibi, the predecessor of respondents, filed a suit
challenging the legality of the gift on the ground that she had never made the
gift of her share in the land to the sons of her brother and the gift mutation
was the result of fraud and misrepresentation. The trial Court came to the
conclusion that the factum of valid gift had been proved and dismissed the
suit. The First Appellate Court dismissed her appeal. Her revision was,
however, accepted by the High Court and the gift was declared to be invalid.
This Court dismissed the petition for leave to appeal by holding that the
findings recorded by the High Court were in accordance with the law laid down
by the superior Courts in respect of the disposal of property by an old
illiterate Pardanasheen lady and was also held that: "It has been consistently
held that strong proof should be given that she had the advice of her relatives
in such-like cases such as husband and sons but the petitioners had failed to
prove the same."It has not been established through evidence that the
above-said documents were executed by her or that they were executed by her
voluntarily out of her own free-will and that at the time of execution of said
documents she had an independent advice of her close male relatives and that
the contents of the said documents were read over to her and nature of the
transaction was explained to her. The bare perusal of the said documents shows
that in this regard, the needful was not done. The onus was on the appellant
and he miserably failed to discharge the same. The learned counsel for the appellant
has not been able to point out any non-reading of evidence or illegality, in
the impugned judgment. We are of the view, that the High Court has drawn
correct conclusions from facts found and we are not inclined to interfere
merely because the learned counsel for the appellant is of the view that
another inference is also possible. The respondent is being continuously
victimized and is out of possession of her landed property measuring about 50
acres, inherited by her from her father, for the last 26 years and is suffering
because the appellant thought that since she is a helpless female, he can grab
her property. In view of the above-mentioned, this appeal is dismissed
with costs throughout.
M.B.A./M-278/S Appeal
dismissed.
2007 M L D 54
[Karachi]
Before Faisal Arab, J
MUHAMMAD ALI RAZI
KHAN---Plaintiff
Versus
MUHAMMAD ALI ZAKI KHAN and others---Defendants
Suit No. 554 of 1987, decided on 29th May, 2006.
(a) Powers of Attorney Act (VII of 1882)---
----S. 2---Specific Relief Act (I of 1877),
S.39---Power-of-Attorney---Cancellation of---Law did not require cancellation
of Power-of-Attorney through a formal legal document, such as deed of
cancellation on stamp paper---Power-of-Attorney would stand cancelled, the
moment it was communicated to the attorney through any mode---It was only when
a document had been admittedly executed and for certain legitimate reasons a
party which was going to be affected by its existence would seek its
cancellation---Such party was required to file suit for cancellation of
document---However, when a document was claimed to a product of fraud or
forgery then mere declaration that it was product of such fraud or forgery, was
sufficient to nullify the legal effect of such document and there would be no
need to seek its cancellation.
(b) Special Relief Act (I of 1877)---
----S. 42---Form of legal proceedings could not take precedence
over legitimate considerations of substance of a case---When the parties were
aware of the controversy involved in case and had been given opportunity to
lead evidence on their respective stands, then it matters Y. not
whether specific relief was sought in the plaint or whether specific plea was
raised in the proceedings---If a relief or a plea was covered by necessary
implication, then omission to expressly take such plea or seek such relief
would not disentitle a party to seek requisite relief provided he
satisfactorily established his case in evidence---Where a matter was even
obscurely touched in the issues involved and evidence had been led on it, then
any objection to it would only be technical and had to be rejected---All that a
Court was required to examine, was whether the parties were aware of the
questions involved in a controversy and they had led evidence and on examining
so, it could either grant or reject the requisite relief depending upon the
merits of the case---When a party would fail in establishing its claim, but if
one of the opposing parties had admitted such claim, then the party admitting
the claim, had to honour its admission to the extent of his share in the
property.
(c) Partition Act (IV of 1893)---
----S. 4---Limitation Act (IX of 1908), Art.127---Suit for
partition---Limitation---Suit house being joint family property, Art.127 of
Limitation Act, 1908 providing 12 years limitation period, would be
attracted---In exclusion of plaintiff in the present case took place in 1982
and present suit filed in 1987, was well within limitation period.
1981 CLC 503 ref.
(d) Transfer of Property Act (IV of 1882)---
----S. 54---Powers of Attorney Act (VII of 1882), S.2---Sale of
property---Where members of a family held property in common and any member of
such family was in occupation or management of joint family property, then such
person would stand in active confidence of other co-owners---Any exercise of
power either in his own favour or in favour of his close fiduciary relation;
whereby joint property was claimed to have been sold with the consent of all
other members, then onus to prove such consent as well as good faith of
transaction would be on him---Unless consent as well as good faith, were
established, any transfer of property had to be regarded as nullity---In such
cases even where Power-of-Attorney was executed by family members in favour of
one of them, what needed to be examined was whether such power was exercised as
a shield to cover-up fraudulent nature of transaction---Where a person held a
subsisting power of attorney, which had not been revoked on the date of alleged
sale transaction entered into by the attorney in his own favour or in favour of
his near or dear one, such sale transaction could be successfully questioned in
a Court of law, if it was established that it was a product of fraud and
deceit---Sale transaction could always be nullified if it was proved that it
was sham and based on dishonest intention of a person who stood in active
confidence of the owner of property.
Maqsood Ahmed v. Salman Ali PLD 2003 SC 31; Fida Hussain v. Pir
Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341;
Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and others PLD
2002 SC 71; Jamil Akhtar v. Las Baba PLD 2003 SC 494; 1993 SCMR 428; 1999 SCMR
382; 1976 SCMR 379; 1992 SCMR 1265; 1994 SCMR 2209; 1985 SCMR 1335; PLD 1988
22; 1968 PLD 505; PLD 1981 175; PLD 1964 SC 456; PLD 1984 SC 424; PLD 1999 194;
PLD 2003 439; 1992 MLD 11792(sic); 1986 MLD 1335; 2001 MLD 963; 2003 MLD 293,
294; 1985 CLC 2263; 1991 CLC 2078; 2004 CLC 360 and 1999 YLR 676 rel.
Plaintiff in Person.
Haleem Siddique for Defendant No.1
S. Saeeduddin Nasir for Defendants Nos.3 to 5.
Date of hearing: 14th March, 2006.
JUDGMENT
FAISAL ARAB, J.---Suit No.554 of 1987 was filed by M.A. Razi
Khan claiming to be one of the four co-owners of the suit property and seeking
its partition. Suit No.696 of 1987 was filed by Mrs. Kishwar Iqbal claiming
that she purchased the suit property from one of the co-owners M.A. Zaki Khan
under sale agreement, dated 20-9-1982 on the basis of power of attorney
executed by the rest of the three co-owners in favour of M.A Zaki Khan.
Vide order, dated 24-11-1998 both the suits were consolidated and
it was ordered that common evidence be led in both the suits and Suit No.696 of
1987 filed by Mrs. Kishwar Iqbal be treated as the leading suit.
The facts of the case are that in 1967 residential Property No.
33-B, Block 6, P.E.C.H. Society, off Shahrahe Faisal, Karachi measuring 2000
square yards was gifted by its owner late M.A. Naqi Khan to his four sons i.e.
M.A. Zaki Khan, M.A. Razi Khan, M.A. Rafi Khan and M.A. Ansari Khan in equal
shares. M.A. Naqi Khan died in 1976. In 1977 the four brothers executed two
separate General Power of Attorney instruments on the same day. One was
executed in favour of M.A. Zaki Khan, the eldest of them all, and the other was
executed in favour of the M.A. Razi Khan. On the strength of the power of
attorney in his favour M.A. Razi Khan rented out the house to Interhom in 1977
and had been distributing its rents amongst his brother according to their shares.
Some time in 1982, Interhom Limited, the tenant of the house left
and handed over its vacant possession back to the brothers. The brothers then
decided to sell the house and distribute its sale proceeds among themselves. In
this regard offers were invited through estate brokers and property was
advertised for sale in the newspapers. In the same year i.e. 1982 M.A. Zaki
Khan, the eldest of all, went to live in the house along with his family. Later
M.A. Ansari Khan also started living in the house, who lived there until his
death on 28-10-1984 and after his death his widow Nusrat lived in the house
until she remarried in 1985. The third brother M.A. Rafi Khan though was living
abroad, he too whenever came to Karachi
used to live in the house. Only M.A. Razi Khan continued to live in his own
separate house in which he was living at the time when the house was vacated by
its tenant Interhom Limited in early, 1982.
It is an admitted position that relations between the two attorneys
i.e. M.A. Zaki Khan and M.A. Razi Khan had never been cordial. Each has shown
mistrust against the other and has blamed the other for fraud and deceit.
In 1987 controversy between the parties surfaced when according to
M.A. Razi Khan, M.A. Zaki Khan attempted to fraudulently sell the house. This
led to filing of Suit No.544 of 1987 for partition in this Court by M.A. Razi
Khan in September, 1987. On the other hand in November, 1987 Mrs. Kishwar
Iqbal, who also happed to be sister-in-law of M.A. Zaki Khan filed Suit No.696
of 1987 i.e. two months after filing of the partition Suit No.544 of 1987. In
her suit she claimed that she purchased the house from his brother-in-law i.e.
M.A. Zaki Khan way back on 20-9-1982 for a total sale consideration of
Rs.1,275,000 and in this regard she claimed that his brother-in-law executed
sale agreement in her favour on the strength of the General Power of Attorney
given to him in 1977 by his three brothers. Thus basing her claim on the sale
agreement, dated 20-9-1982 Mrs. Kishwar in her Suit No.696 of 1987 Iqbal sought
decree for specific performance of the contract.
M.A. Razi Khan and M.A. Rafi Khan in their written statements filed
in Suit No.696 of 1987 have totally denied that any sale transaction has taken
place on 20-9-1982 and termed Mrs. Kishwar Iqbal's claim to be a produce of
fraud and deceit between her and M.A. Zaki Khan. It is an admitted position
that Mrs. Kishawar Iqbal, apart from being sister-in-law of M.A. Zaki Khan, is
also mother-in-law of Zaki Khan's son. By the time of filing of the two suits
M.A. Ansari Khan, the fourth brother was already dead as he died in 1984 and
therefore, his version could not come on record. However his widow Nusrat has
supported the claim of M.A. Zaki Khan.
Both M.A. Razi Khan and M.A. Rafi Khan in their pleadings have
claimed that on 4-8-1982 they along with their brother late M.A. Ansari Khan
had cancelled the power of attorney given to M.A. Zaki Khan and therefore, M.A.
Zaki Khan was not even competent to enter into any sale transaction. M.A. Razi Khan
and M.A. Rafi Khan have further pleaded that in 1982 when it was decided by all
brothers to sell the house and an offer of Rs.3,200,000 was received from a
prospective buyer. M.A. Zaki Khan went to live in the house in order to prolong
his occupation on the ground that the house would fateh Rs.40,00,000.
The case of M.A. Zaki Khan on the other hand was that all four
brothers in 1982 decided to sell the house but the offer which was received
from a prospective buyer was only Rs.12,00,000 and that his sister-in-law, Mrs.
Kishwar Iqbal showed her interest to buy the house for Rs.12,75,000, and
therefore it was sold to her with the consent of all his three brothers.
The above discussed conflicting claims are to be resolved in the
present two suits.
On 19-3-1989 this Court framed issues in Suit No.696 of 1987 and on
16-4-1989 issues were framed in the connected Suit No. 554 of 1987. On
24-11-1998 both the suits were consolidated and it was ordered that common
evidence is to be led in both the suits with suits No.696 of 1987 to be treated
as the leading suit. On 27-9-2000 another order was passed in Suit No.696 of
2000 whereby all issues previously settled were curtailed down to three issues
by this Court which were reframed as follows : --
(1) Whether the property was sold and if so whether the defendant
No.1 has authority to do so?
(2) Whether the defendant No.1 had a valid and
subsisting power to sell the property?
(3) Whether the Power of Attorney was cancelled after the sale or
prior to the sale?
Issue No.1:
The main controversy which needs to be decided first is whether any
sale transaction has taken place on 20-8-1982 between Mrs. Kishwar Iqbal and
his brother-in-law Zaki Khan or that the alleged sale transaction was a
fraudulent attempt on the part of Zaki Khan in collusion with his sister-in-law
Mrs. Kishwar Iqbal with the sole intent to deprive the other brothers of their
legitimate share in the house. The second question which needs to be decided is
whether Zaki Khan lawfully and validly exercised power under the General Power
of Attorney given to him by the rest of his three brothers. The determination
of the remaining issues would depend upon determination of these questions
first which are of vital importance for resolution of the controversy.
Mr. Saeeduddin Nasir, learned counsel for Mrs. Kishwar Iqbal has
argued that sale agreement, dated 20-9-1982 was executed by Zaki Khan at a time
when he continued to act as attorney of all the remaining three brothers on the
basis of Power of Attorney executed in his favour on 26-5-1977. He further
argued that the claim of Razi Khan that power of attorney was cancelled vide
letter, dated 4-8-1982 produced as Exhibit X-9 is not true. In support of this
plea Mr. Saeeduddin Nasir argued that all correspondence between Zaki Khan and
Razi Khan has taken place through registered letters whereas letter of
cancellation of power, dated 4-8-1982 is said to have been dispatched under
Postal Certificate. He maintained that dispatch of letter of cancellation,
dated 4-8-19.82 as well its receipt and acknowledgment are managed and
fabricated documents.
Mr. Saeeduddin Nasir further argued that a power of Attorney cannot
be revoked through a letter but it has to be revoked through a deed of
cancellation written on stamp paper. He then argued that in any case power of
attorney through letter was cancelled on 20-10-1982 by which time a binding
contract had already come into existence.
Law does not require cancellation of Power of Attorney through a
formal legal documents such as deed of cancellation on stamp paper. The power
stands revoked the moment it is communicated to the attorney through any mode.
Mr. Saeeduddin Nasir also argued that suit filed in 1987 for
seeking specific performance in contract executed in 1982 cannot be declared as
time-barred when Mrs. Kishwar Iqbal was handed over the possession of the house
and section 53-A of the Transfer of Property Act preserves and protects the
right of a purchaser who is given possession of the property as well.
This argument needs to be examined only if the answer to the first
part of issue No.1 is in the affirmative.
Mr. Saeeduddin Nasir Next argued that Zaki Khan, Nusrat, who is
widow of Anseri Khan and Umer. Khan, the son of Answeri Khan have all filed
common written statement supporting the case of Mrs. Kishwar Iqbal.
I have seen the written statement. It is signed by Zaki Khan as
attorney of Nusrat and Umer Khan but as Umer Khan was minor at the time of
filing of the suit, being born on 10-8-1983 and that no power of attorney could
be executed by him and therefore the power of attorney, dated 8-6-1984 executed
only by Nusrat, Zaki Khan had no legal authority to plead the case on behalf of
Umer Khan. Even the suit property has not been mentioned in the Power of
Attorney, dated 8-6-1984. Therefore no adverse orders can be passed with regard
to Umer Khan's share in the estate of M.A. Ansari Khan.
Mr. Saeeduddin Nasir next argued that Razi Khan and Rafi Khan ought to
have filed suit for cancellation of sale agreement which has admittedly not
been done. This argument is misconceived. It is only when a document has been
admittedly executed and for certain legitimate reasons a party which is going
to be effected by its existence seeks its cancellation that it is required to
file suit for cancellation of document. However, when a document is claimed to
be a product of fraud or forgery then mere declaration that it is product of
such fraud or forgery is sufficient to nullify the legal effect of such
document and there is no need to seek its cancellation. In any case, what
should not be lost sight of its that form of legal proceedings cannot take
precedence over legitimate considerations of substance of a case. When the
parties are aware of the controversy involved in as case and have been given
opportunity to lead evidence on their respective stands then it matters not
whether specific relief was sought in the plaint or not or whether specific
plea was raised in the proceedings. If a relief or a plea is covered by
necessary implication then omission to expressly take such plea or seek such
relief would not disentitle a party to seek the requisite relief provided he
satisfactorily establishes his case is evidence. Where a matter is even
obscurely touched in the issues involved and evidence has been led on it then
any objection to it would only be technical and has to be rejected. All that a
Court is required to examine is whether the parties were aware of the questions
involved in a controversy and have they lead evidence and on examining so it
can either grant or reject the requisite relief depending upon the merits of
the case.
Mr. Saeeduddin Nasir lastly argued in the alternative that this
Court can pass decree to the extent of the shares held in the suit property by
Zaki Khan and Nusrat as both of than have not contested Mrs. Kishwar Iqbal's
claim. Mr. Saeeduddin is absolutely right. When a party fails in establishing
its claim but if one of the opposing parties has admitted such claim then the
party admitting the claim has to honour its admission to the extent of his
share in the property. In the present case as both Zaki Khan and Nusrat have
not contested the claim of Mrs. Kishwar Iqbal, therefore, Mrs. Kishwar Iqbal
would become entitle to claim their shares in the house on the basis of their
admission only to the extent of the shares which Zaki Khan and Nusrat held in
the house. Zaki Khan held 25% share in the house and Nusrat inherited 1/8th
share in the 25% share owned by late Ansari Khan. Therefore Mrs. Kishwar Iqbal
is to get the entire 25% share of Zaki Khan along with 1/8th share of Nusrat in
the 25% share owned by late Ansari Khan in the house irrespective of the fact
whether she succeeds in establishing her claim raised in Suit No. 696 of 1987.
Mr. Haleem Siddiqui more or less argued on the same lines as was
argued by Mr. Saeeduddin Nasir. In addition to the arguments of Mr. Saeeduddin
Nasir, he maintained that though Razi Khan claimed that power of attorney was
cancelled vide letter, dated 4-8-1982 but his letter was not filed with his
written statement. This argument would become relevant only if the findings on
the first part of issue No.1 is in the affirmative.
Mr. Haleem Siddiqui while referring to the cross-examination of
Mrs. Kishwar Iqbal held on 28-10-1999 then argued that in fact as offer of only
Rs.4,20,000 was received and Mrs. Kishwar Iqbal purchased the house for
12,75,000 and therefore the house was sold for three times more than what was
offered.
The offers for the house were received by the brothers and not by
Mrs. Kishwar Iqbal and none of the brothers have maintained that in 1982 an
offer of only 4,20,000 for a house on 2000 square yards off Shahrea Faisal was
received. Therefore, the argument of Mr. Haleem Siddiqui that offer of
Rs.4,20,000 was received is misconceived.
Mr. Haleem Siddiqui next contended that Razi Khan in paragraph 42
of his Affidavit in Evidence has stated that Zaki Khan has forcibly took over
possession of the house in mid 1982 hence on such pleadings suit filed after
five years is barred by time.
Mr. Haleem Siddiqui has not referred to any Article of Limitation
Act to support his argument that suit filed for partition was time-barred. As
the house in question is joint family property Article 127 of the Limitation
Act is attracted to the case in hand. In the case reported in 1981 CLC 503 this
Court held as follows:
"Even if I presumed that the two mines were joint family
property and that the deceased plaintiff was entitled to a share in it as an
heir, even then the period of limitation will be 12 years under Articles 127 of
the Limitation Act from the date when the exclusion became known to the
plaintiff. The plaintiff has not been able to show that the deceased plaintiff
became aware of her exclusion from the joint property only within 12 years of
the filing of her suit."
In the present case admittedly exclusion took place in 1982 and the
present suit was filed in 1987, therefore it is well within the 12 years period
provided in Article 127 of the Limitation Act.
Mr. Haleem Siddiqui next argued that all documents except letter,
dated 4-8-1982 purported to be cancellation of power attorney were sent by
registered A.D. which proves that it was fabrication. He maintained that Power
of Attorney was actually cancelled on 20-10-1982 as according to Razi Khan's
own pleadings in paragraph 11 of his memo. of Appeal to the Supreme Court the
date of cancellation of Power of Attorney is shown as 20-10-1982.
Even if it is assumed that power of Attorney was cancelled on
20-10-1982 this Court has to first examine the genuineness of the transaction
which Zaki Khan claimed to have taken place with Mrs. Kishwar Iqbal. In case
this Court comes to the conclusion that the sale transaction, dated 20-9-1982
itself is not genuine then the question whether the power of attorney was
cancelled before or after the alleged sale transaction would be of no legal
consequence.
In order to examine the genuineness of the transaction it is
necessary to examine the documents produced in evidence by Mrs. Kishwar Iqbal.
The first of such documents is Exhibit 5/4 claiming to be the agreement to
sell, dated 20-9-1982. It is witnessed by one Mr. Fazal Rabi and Mr. Hashmat
Ali Habib. Documents which are said to be receipts of payment were produced as.
Exhibit 5/6 and 5/9 and the alleged acknowledgment of possession ere produced
as Exhibit 5/7, 5/10 and 5/11. Exhibit 5/6 to 5/11 are witnessed by Sheikh
Muhammad Suleman and Fazal Rabi. It has come in Mrs. Kishwar Iqbal's
cross-examination that witness Sheikh Muhammad Suleman was her maternal uncle
having permanent residence in Lahore
and witness Fazal Rabi was friend of Sheikh Muhammad Sulaman having permanent
residence in Gujrat. From Exhibits 5/17 to 5/20 it has come on record that the
third witness Mr. Hashmat Ali Habib was counsel of Mrs. Kishwar Iqbal. Thus
none of these documents have been witnessed either by any of the other
co-owners or by their friend or relation or by a person who was from their
neighbourhood or locality. Furthermore, none of the three marginal witnesses to
the documents Exhibits 5/4 to 5/11 were examined as witnesses in support of
Mrs. Kishwar Iqbal's case.
According to Mrs. Kishwar's own statement in her cross-examination
both Sheikh Muhammad Suleman and Fazal Rabi died in 1982. In spite of this
statement surprisingly the title of Suit No.544 of 1987 shows that Sheikh
Muhammad Suleman had filed this suit in his capacity as attorney of Mrs.
Kishwar Iqbal. If Sheikh Muhammad Suleman was dead in 1982 then it means that
plaint in suit No.696 of 1987 was signed by some other person posing himself to
be Sheikh Muhammad Suleman and therefore Suit No.696 of 1987 itself was filed
by an incompetent person. Mrs, Kishwar Iqbal in her cross-examination has
stated that Sheikh Muhammad Suleman's place of residence was Lahore whereas the title of the plaint in
Suit No.696 of 1987 shows that the place of residence of Sheikh Muhammad
Suleman is Gujrat. All this shows that very presence of Sheikh Muhammad Suleman
at the time of execution of documents of sale or filing of the suit is shrouded
in mystery.
It is also noticeable that of the three persons who appeared as
witnesses in support of the plea that sale transaction of the disputed house
has taken place in 1982, two of them were the party to the transaction itself
i.e. Mrs. Kishwar Iqbal and Zaki Khan and were obviously interested to prove
their own case. The third witness was Mrs. Nusrat who was widow of late Ansari
Khan. Now Mrs. Nusrat who remarried in 1985 and left the house inherited only
12.5% share in the estate of deceased Ansari Khan. Therefore, the share of
Nusrat in the house comes to about only 3.12% No independent person from the
neighbourhood or friend or relation of Khan's family appeared as witness in
support of the plea that the sale transaction has taken place. Therefore, the
statement of Mrs. Nusrat, would at best amounts to relinquishment of her own
share which she inherited from Answari Khan but it would certainly not
prejudice the claim of the rest of the co-owners of the house.
There is another aspect of the alleged sale transaction. In
pursuance of the alleged sale transaction, dated 20-9-1982, Zaki Khan did not
physically handed over the vacant possession of the entire house to Mrs.
Kishwar Iqbal but claimed that barring one room the entire house was rented out
by her to him on 13-11-1982 at a monthly rent of Rs.1,000. Such a claim is also
not believable as admittedly when the house was rented out to Interhom Limited
way back on 15-6-1977 it fetched monthly rent at the rate of Rs.4,000 as is
evident from Exh.Pl/2, and therefore to rent out the same house after five
years for just one forth of the rent which the property fetched five years ago
creates serious doubts about the entire transaction. Not only this, after the
alleged agreement to sell, dated 20-9-1982, open spaces of the house have been
rented out to tenants exclusively by Zaki Khan himself who has also been
dealings with them exclusively. It has also come in evidence that Mrs. Kishwar
Iqbal who claims to have purchased the house, continued to live in London where she was
permanently settled since, 1972.
It is also to be examined whether sale consideration as claimed has
actually changed hands. Mrs. Kishwar Iqbal who is permanent resident of England has stated that in 1982 when she came to
Pakistan
she brought only Pound Sterling 7,000, which amount at the exchange rate
prevalent at that time was equivalent to Rs.1,50,000 only. No documentary
evidence was produced to show that Rs. 11,75,000 which she claims to have paid
to Zaki Khan in 1982 were withdrawn by her from any bank considering that such
amount was quite hefty at that time and normally ,people do not keep such big
amount at a place where they do not live permanently. Similarly, Zaki Khan has
also not produced any document to show that he after receiving Rs.11,75,000
kept this amount or any part thereof in any bank. With regard to distribution
of' shares also Zaki Khan in his cross-examination has admitted that he does
not possess any proof of payment when he states "I have no written proof for
payment of the share to plaintiff in Suit No.544/87."
There is also contradiction even
as to the manner in which Zaki Khan claimed to have made payment of Rs.2,50,000
to Razi Khan. Exhibit 10/1 described as "Office Order" and said to
have been issued on 20-11-1982 from the office of Zaki Khan forewarns the staff
of Zaki Khan not to allow entry of Razi Khan in the office as Razi Khan has
taken away from the-office the receipt of Rs.2,50,000 which Razi Khan executed
upon receipt of his share. The purpose of producing "Office Order",
dated 20-11-1982 thus was to demonstrate that Razi Khan has himself
acknowledged receipt of the amount of Rs.2,50,000. However, this plea of
executing receipt is belied by Zaki Khan's himself when he claims that Razi
Khan's share was paid to Ansari Khan and not to him directly. If Razi Khan's
share was paid to Ansari, Khan then where is the question of Razi Khan
executing receipt as has been claimed on the basis of "Office Order",
dated 20-11-1982. It is also to be noted that had the contents of "Office
Order", dated 20-11-1982 been true then what is narrated in it ought to
have been addressed to Razi Khan directly and not just to Zaki Khan's own
office staff. The version of executing receipt as contained in "Office
Order" is clearly belied by another statement of Zaki Khan when he is
paragraph 3 of his written statement filed in Suit No.544 of 1987 states that
he did not take any receipt for Rs.2,50,000 from Razi Khan. Thus none of the
pleas with regard to payment of Rs.2,50,000 to Razi Khan has been established
through cogent evidence. When a person takes a false plea then there is every
possibility that at different stages of pleadings he makes contradictory
statements of a particular situation. This is exactly what has happened to.
Zaki Khan's plea of distribution of the alleged sale consideration. In fact it
establishes the fact that there was no sale consideration available for
distribution in first place as the sale transaction itself did not exist.
Though late Anseri Khan's version has not come on record as he died
in 1984 and suits were filed in 1987, however reading Exhs. X/21 and X/22 which
are letters, dated 9-4-1983 and 3-4-1983 sent by Razi Khan to Anseri Khan and
Exhibit P-1/41 and P-1/45 which are Anseri Khan's replies, dated 25-4-1983 and
18-5-1983 to Razi Khan, it appears that in response to Razi Khan's claim to the
house, late Anseri Khan has not responded by asserting that Razi Khan had no
right to claim any share in the house as it was sold with his consent in 1982
and he had taken his share through him. This further shows that even late
Anseri Khan never maintained in his lifetime that sale transaction with regard
to the house has taken place in 1982 between Mrs. Kishwar Iqbal and Zaki Khan.
In paragraph 6 of the Affidavit-in-Evidence filed by Zaki Khan, he
has narrated the bitter relation between him and Razi Khan. When the
relationship between Zaki Khan and Razi Khan were never cordial, then why Zaki
Khan did not even care to get the agreement of sale signed by Razi Khan. He did
not even obtain receipt from him to establish that he paid Razi Khan's share to
him. In paragraph 5(7) of the written statement filed in Suit No. 544 of 1987
Zaki Khan that said that all brothers agreed to sell the house to Mrs. Kishwar
Iqbal and therefore, sale agreement was executed on 20-9-1982. If that was so
and all brothers were available, then why their signatures were not obtained on
the sale agreement or any other document evincing the alleged sale transaction
and why such was completed on the basis of Power of Attorney when admittedly
attorney was exercising power in favour of a person who was his close relation.
It is also surprising that when Razi Khan examined himself and denied the sale
transaction, only one question was put to him in his cross-examination by Zaki
Khan's Advocate which was answered "Stamp paper was purchased in my name
but not by me." No question was put to Razi Khan in his cross-examination
on any of his assertions made in paragraphs 25 and 88 of the affidavit-in-evidence
filed by him either, wherein Razi Khan has narrated material facts of his case.
All this create serious doubts with regard to the very existence of the sale
transaction. In this background what emerges is that no sale transaction has
taken place in 1982 as has been claimed by Mrs. Kishwar Iqbal and Zaki Khan and
the plea of such transaction was fabrication and afterthought in order to
deprive other co-owners of their legitimate share and defeat the suit for
partition.
The existence of a genuine sale transaction also becomes doubtful
for the reason that total sale consideration is shown to be Rs.12,75,000 when
the property was worth much more. It has been pleaded by Razi Khan that an
offer of Rs.32,00,000 was received which was rejected by Zaki Khan for the
reason that property was worth Rs.40,00,000 and subsequently another offer of
Rs.40,00,000 was in fact received. This seems to be correct as in his
cross-examination held on 11-10-2000 Razi Khan has stated as follows:--
"...I have advertised three times. I received the offer of
Rs.32,00,000. This offer was before the advertisement and after advertisement
it was Rs.40,00,000...."
No question was put to Razi Khan either by Mrs. Kishwar's Advocate
or by Zaki Khan's Advocate to deny that an offer of Rs.40,00,000 was received
after the advertisement. Thus Razi Khan's claim that the value of the house at
that time was Rs. 40,00,000 remained un-rebutted in his cross-examination. The
only question on the value of property was put to Razi Khan was by Advocate for
Rafi Khan and that too was as follows:--
Question: What was the market value of the said property in the
year, 1982?
Answer: I have received a last offer of Rs.40,00,000 for this
property.
The above evidence on the value of the house establishes the fact
that price of Rs.12,75,000 at which Zaki Khan allegedly sold the house was not
even near to the actual value of the house, which was Rs.40,00,000. Offer of
Al-Rehman and Co. vide its letter, dated 25-7-1982 was produced as Exhibit
P-1/37. In the facts and circumstances of the case the fact that transaction in
question did not represent the actual price offered at that time further
establishes fraudulent attempt on the part of Zaki Khan in favour of his close
fiduciary relation i.e. Mrs. Kishwar Iqbal who was not only Zaki Khan's
sister-in-law but also mother-in-law of his son.
In paragraph 1 of the paint filed in Suit No.696 of 1987 Mrs.
Kishwar Iqbal says: 1. That the Defendant No.1 (Zaki Khan) is married with the
elder sister of the plaintiff thus they enjoyed good in-law relations. While
enjoying good relations legal notices are claimed to have been exchanged
between Mrs. Kishwar Iqbal and Zaki Khan. These have been produced as Exhibits
5/17 to 5/20. It is also surprising to note that legal notices are said to have
been exchanged in the year, 1987 when admittedly in 1987 atleast Zaki Khan was
not an attorney of Razi Khan and Rafi Khan and had no power to respond on their
behalf. Furthermore, legal notices are normally exchanged through post or
courier service but in the case in hand the same are said to have been
exchanged by hand through messengers. The plea of sending legal notices through
messengers and not through post or courier service creates doubts about the
very existence of such an exchange having taken place. It seems utter
fabrication just to demonstrate existence of valid and subsisting sale
transaction which in reality did not exist. Thus there was no genuine sale
transaction and all has been fabricated in order to defeat the suit for
partition.
In the present case Razi Khan and Rafi Khan have claimed that power
of attorney executed in favour of Zaki Khan was cancelled as far back as
4-8-1982 i.e. much prior to the alleged sale transaction, whereas, Zaki Khan
claims that cancellation of power of attorney was communicated to him on
20-10-1982 when the sale transaction with Mrs. Kishwar Iqbal has already been
entered into.
Where members of a family hold property in common and any member of
such family is in occupation or management of the joint family property then
such person stands in active confidence of other co-owners. Any exercise of
power either in his own favour or in favour of his close fiduciary relation,
whereby the joint property is claimed to have been sold with the consent of all
other members, then the onus to prove such consent as well as good faith of the
transaction is upon him. Unless consent as well as good faith, both are
established, any transfer of property as to be regarded as nullity. In such
cases even where Power of Attorney is executed by family members in favour of
one of them, what needs to be examined is whether such power was exercised as a
shield to cover-up fraudulent nature of the transaction.
In cases where a person holds a subsisting power of attorney which
has not been revoked on the date of the alleged sale transaction entered into
by the attorney in favour of his own or in favour of his near or dear one, even
then such a sale transaction can be successfully questioned in a Court of law
if it is established that it was a product of fraud and deceit. Thus a sale
transaction can always be nullified if it is proved that it was sham and based
on dishonest intentions of a person who stood in active confidence of the owner
of a property.
Mr. Zaki Khan has claimed that he obtained consent of all the
brothers and admittedly all were living in Karachi when the alleged sale transaction is
said to have taken place and yet surprisingly they were not made party to the
transaction. This coupled with the fact that the other contracting party was
sister-in-law of Zaki Khan and mother-in-law of Zaki Khan's son, it becomes all
the more necessary to examine the bona fide or otherwise of the transaction
particularly when co-owners were admittedly not enjoying good relations among
themselves.
In the case of Maqsood Ahmed v. Salman Ali reported in PLD 2003
Supreme Court 31 it was held as under:--
"(17). Now adverting towards an important aspect of the case
namely that when attorney holder intends to transfer the property of his
principal in favour of one of his does relative he is required to take the
consent of the latter. In this behalf reference may be made to the judgment
reported in the case of Fida Hussain v. Pir Muhammad Khan (deceased) through
Legal Heirs and others PLD 1985 SC 341 and Muhammad Yasin and another v. Dost
Muhammad through Legal Heirs and others PLD 2002 SC 71. In view of the law laid
down in the cited judgments there is no need to discuss this aspect of the case
in detail except observing that in such-like cases where it is alleged that
attorney holder has committed a fraud in transferring the property of the
principal on the name of his close relative the Court must construe the power
of attorney strictly and examine. The matter thoroughly following the principle
of administration of justice to ensure that the person who has executed power
of attorney in favour of his agent is not deprived from his rights including
the financial matters arising out of the transaction which are carried out by
the attorney on his behalf and also to examine whether the attorney holder has
fulfilled his future obligations towards his principal or not."
The above principle was reiterated in the case of Jamil Akhtar v.
Las Baba reported in PLD 2003 Supreme Court 494 in which it has held as under:
"(8) It is a settled principle of law that whenever a general
attorney transfers the property for his principle in his own name or in the
name of his close fiduciary relations, he has to take special permission from
the principal. The plaintiff never resorted to any such permission and the
registered power of attorney is silent about this fact in specific that the
principal has allowed the agent to get the property transferred in his own
name."
There is another aspect which needs to be examined i.e. the conduct
of Zaki Khan during and prior to the present proceedings. His whole conduct
brings to the force his credibility. Zaki Khan has signed written statement in
Suit No.696 of 1987 by posing himself as attorney of Rafi Khan though even
according to his own pleadings power of attorney in his favour was cancelled on
20-10-1982. Secondly he signed written statement on behalf on Umer Khan who was
defendant No.5 in Suit No.696 and 1987 and was only 4 years old at that time.
The dishonesty on the part of Zaki Khan is to such an extent that he even
alleged misappropriation of his share of rents collected by Razi Khan from the
tenant, though his share of rent was distributed by Razi Khan to Zaki Khan
through cheques, receipts whereof were also acknowledged by Zaki Khan in his
cross-examination. Zaki Khan in his cross had admitted as follows: "I see
six cheques Exhs. X-29 to X-34. The same were encashed by me. Voluntarily says
that I had returned the proceeds to Muhammad Razi Khan."
Zaki Khan in paragraph 5(3) of written statement filed in Suit 554
of 1987 and in paragraph 9 of his A/E says that disputed house was mortgaged
with the bank for a loan of Rs.50,000 which amount was utilized by Razi Khan
but he failed to repay the same and therefore I paid the loan. Whereas in his
cross-examination he says "I have no knowledge if Muhammad Razi Khan has
ever obtained loan over the suit property.
In view of the above discussion, the issue No.1 is answered in the
negative. No real sale transaction has taken place between Mrs. Kishwar Iqbal
and his brother-in-law M.A. Zaki Khan. The sale agreement, dated 20-9-1987 and
all documents said to have been executed in pursuance of such agreement are
product of fraud, deceit and abuse of the authority by A. Zaki Khan who was a
person standing in active confidence of the remaining three brothers.
In support of his arguments Mr. Saeeduddin Nasir has relied upon
cases reported as 1993 SCMR 428, 1999 SCMR 382 C, 1976 SCMR 379; 1992 SCMR
1265, 1994 SCMR 2209, 2210 and 2212, 1985 SCMR 1335, PLD 1988 22A; PLD 1968
505b, PLD 1981 175, EF, PLD 1964, SC 456, PLD 1984 SC 424, PLD 1999 199 E &
H, PLD 2003 439 F, 1992 MLD 11792 and 1793, 1986 MLD 1335, 2001 MLD 963 G, 2003
MLD 293 A, 294B, 1985 CLC 2263, 1991 CLC 2078, ABD, 2004 CLC 360 and 319 and
1999 YLR , 676A. However, in view of my findings on issue No.1 that the sale
transaction, dated 20-9-1982 itself was sham and fraudulent, the case-law cited
by Zaki Khan's Advocate becomes irrelevant.
Issues Nos. 2 and 3.
As I have held, while discussing issue No.1, that no real sale
transaction has taken place and that the sale agreement, dated 20-9-1987 was a
product of fraud and deceit, there is no occasion to give any findings on
issues Nos.2 and 3 as even an affirmative finding on issue No.2 or any finding
on issue No.3 would not save the sale transaction, dated 20-9-1987 from being
declared as fraudulent.
The fact that even after the alleged sale transaction, dated
20-9-1982 M.A. Zaki Khan, late, M.A. Ansari Khan and M.A. Rafi Khan continued
to live in the house shows that house was treated as family house. No evidence
was led to establish that M.A. Zaki Khan obtained consent of all the brothers
to sell the house to his sister-in-law for Rs.12,75,000. No evidence was led to
rebut the claim that the value of the house in 1982 was Rs.40,00,000. None of
the three marginal witnesses to the documents of sale transaction produced in
evidence as Exhibits No.5/4 to 5/11 were examined nor any independent person
from the neighbourhood or friend or relation of Khan's family was examined to
establish that real and fair sale transaction has taken place between M.A. Zaki
Khan and his sister-in-law Mrs. Kishwar Iqbal. In fact Mrs. Kishwar Iqbal and
M.A. Zaki Khan miserably failed to establish that any consideration changed
hands. Even the pleas with regard to distribution of sale consideration were
riddled with contradictions. All this goes to show that the transaction, dated
20-9-1987 with regard to the sale of the house by M.A. Zaki Khan to Mrs.
Kishwar Iqbal in reality never took place what to speak of lawful exercise of
power under power of attorney executed in favour of M.A. Zaki Khan.
In view of the findings on the issues involved in the case, I
partly decree Suit No.696 of 1987 in favour of the plaintiff Mrs. Kishwar Iqbal
and declare that on the basis of admissions on the part of M.A. Zaki Khan and
Mrs. Nusrat both, Mrs. Kishwar Iqbal has become co-owner in the suit property
only to the extent of 25% share held by M.A. Zaki Khan and 1/8th share held by
Mrs. Nusrat which she inherited from the 25% share of late M.A. Ansari Khan.
Mrs. Kishwar Iqbal shall hold such shares in the suit property to the extent
stated above jointly with Razi Khan who owns 25% share, Rafi Khan who owns 25%
share and Umer Khan who owns 7/8th share out of late Ansari Khan's 25% share.
The Suit No.554 of 1987 for partition and mesne profits is also
decreed. Zaki Khan is liable to pay mesne profits to Razi Khan for depriving
Razi Khan the use and occupation of his share in the house at the rate of
Rs.5,000 per month with effect from September, 1984 i.e. three years prior to
the filing of Suit No.544 of 1987, till the disposal of the suit shall further
pay mesne profits at the same rate till the suit property is partitioned or
alternatively sold.
Nazir of Court is appointed commissioner who shall take possession
of the suit property. Mrs. Kishwar Iqbal and M.A. Zaki Khan are directed to
hand over all title and other necessary documents pertaining to suit property
to the Nazir within 30 days. Nazir shall first examine the possibility of
dividing the property in proportion to the shares of the respective parties and
handover divided portion to the respective shareholders. If Nazir comes to the
conclusion that no permission would be accorded by the Society to divide the
suit property in four portions then he shall sell the same and distribute the
sale proceeds among the co-sharers according to their respective shares. The
parties shall be free to place before the Nazir for his consideration any offer
which they may be able to procure privately. Any of the co-sharers shall also
be entitled to match the highest offer received by the Nazir and get the
property transferred in his name. Nazir shall be fully empowered to execute the
sale-deed in favour of successful purchaser.
To sum up. Suit No. 696 is partly decreed in favour of Mrs. Kishwar
Iqbal to the extent of the 25 per cent share held by M.A. Zaki Khan and 1/8h
share of the Mst. Nusrat which she inherited from in 25% share of late Ansari
Khan. The remaining shares in the suit property are jointly owned by M.A. Razi
Khan to the extent of 25% share, M.A. Rafi Khan to the extent of 25% share and
Umer Khan son of M.A. Ansari Khan to the extent of 7/8th share in the 25% owned
by late Ansari Khan.
Suit No.554 of 1987 for partition and mesne profits is also
decreed. Zaki Khan is liable to pay mesne profits to Razi Khan for depriving
Razi Khan the use and occupation of his share in the house at the rate of
Rs.5,000 per month with effect from September, 1984 i.e. three years prior to
the filing of Suit No. 554 of 1987, till the disposal of the suit and shall
further pay mesne profits at the same rate till the suit property is
partitioned or alternatively sold. Office is directed to prepare preliminary
decree for partition.
H.B.T./M-148/K Suit
decreed.
