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2017 Y L R 794

[Lahore (Multan Bench)]

Before Ch. Muhammad Masood Jahangir, J

MUHAMMAD SHARIF (deceased) through LRs. and others—Petitioners

Versus

PROVINCE OF PUNJAB through District Collector Layyah and 10 others—Respondents

C.R. No.377-D of 2001, heard on 7th October, 2015.

Rana Akhtar Ali and Ch. Abdul Ghani for Petitioners.

Malik Fazal Hussain for Respondents Nos. 7 to 11.

Muhammad Ali Siddiqui for Respondent No.2.

Mubashir Lateef Gill, A.A.G.

Date of hearing: 7th October, 2015.

JUDGMENT

CH. MUHAMMAD MASOOD JAHANGIR, J.—The facts germane for the disposal of instant civil revision are that present petitioners/plaintiffs instituted a suit for declaration regarding property measuring 401 kanals 15 marlas situated in Chak No.291/TDA, Naushera Kallan, Tehsil Karor, District Layyah (hereinafter to be referred as suit land) against the respondents/defendants before the learned trial court on 10.1.1989 with the assertion that originally suit land was owned by Mian Bashir Ahmad, father of Mian Manzar Bashir respondent/defendant No.2, who had transferred the same in lieu of gift to his above referred son respondent/defendant No.2 and it was further alienated by respondent/defendant No.2 to Mrs. Sibghat Ullah respondent/defendant No.3, who vide sale deed No.302 dated 2.10.1961 had further transferred the same to the petitioners/plaintiffs Nos.1 to 4 and respondents/defendants Nos.4 and 5; that respondent/defendant No.4 vide sale deed No.2152 dated 10.10.1974 transferred his share to petitioner/plaintiff No. 5 whereas the respondent/defendant No.5 also transferred his share to petitioners/plaintiffs Nos.6 and 7 through sale deed No.916 dated 2.3.1976. It was further pleaded in the plaint that the above referred sale deeds, could not be incorporated in the revenue record and when revenue hierarchy refused to do the needful, the petitioners/ plaintiffs were constrained to file the instant suit before the learned trial court. The said suit was contested by Mian Manzar Bashir respondent/defendant No.2 with the assertion that he had never transferred the suit property to Mrs. Sibghat Ullah respondent/defendant No.3 and any document/sale deed procured on his behalf being the result of fraud and cheating was ineffective upon his rights.

2. The learned trial court framed the following issues arising out of the divergent pleadings of the parties:–

1. Whether this Court has no jurisdiction to entertain this suit? OPD

2. Whether the plaintiffs have no locus standi and cause of action to bring this suit? OPD

3. Whether the suit is not maintainable in its present form? OPD

4. Whether the suit land is not properly described? OPD

5. Whether the suit is bad for non-joinder of necessary parties? OPD

6. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction and proper Court fee is not paid? OPD

7. Whether the suit is barred by res judicata? OPD

8. Whether the plaintiffs are owners in possession of the suit land on the basis of sale deed No.302 dated 2.10.61, sale deed No.2152 dated 10.10.1974 and sale deed No.916 dated 2.3.1976 and the contrary entries in the revenue record are unlawful and ineffective upon the plaintiffs rights? OPP

8-A. Whether the suit is barred by limitation? OPD

9. Relief.

3. Both the parties produced their respective evidence in support of their respective stances and the learned trial court after appreciating the evidence of both the parties decreed the suit filed by the petitioners/plaintiffs vide judgment and decree dated 23.9.1996, however, in appeal the same was reversed by the learned lower appellate court vide impugned judgment and decree dated 31.3.2001 and the suit was dismissed. Hence the instant civil revision.

4. It is argued by learned counsel for the petitioners that statement of Mian Manzar Bashir DW2 has been misinterpreted by the learned lower appellate court; that the impugned judgment and decree is result of misreading and non-reading of evidence; that the learned lower appellate court also ignored admission on the part of DW2 that letter written by his father was correct and signatures of his father and other relatives were also attested by him therefore, in these circumstances, it was proved that Mian Manzar Bashir (DW2) had sold the suit land to Mrs. Sibghat Ullah respondent/defendant No.3, who had further alienated the same to the petitioners/plaintiffs; that the learned appellate court has not considered Fard Taqseem Exh.P4, which denotes the factual position of suit land that the same was transferred by Mian Bashir Ahmad and ultimately it was alienated to Mrs. Sibghat Ullah by respondent/defendant No.2. He has lastly prayed for acceptance of the instant civil revision, setting aside of the impugned judgment and decree passed by the learned lower appellate as well as restoration of the judgment and decree passed by the learned trial court.

5. Conversely, the learned counsel for the respondents/defendants have supported the impugned judgment and decree passed by the learned lower appellate court and contended that petitioners/plaintiffs failed to produce any iota of evidence through which it could be gathered that Mian Manzar Bashir respondent/defendant No.2 had alienated the suit land to Mrs. Sibghat Ullah, respondent/defendant No.3 and in absence of any proof of said alienation the sale deed attested in favour of the petitioners/plaintiffs had no value in the eye of law. It is further argued that being beneficiary of the alleged sale deed No.302 dated 02.10.1961 by virtue of which suit land was transferred to the petitioners/ plaintiffs, they were bound to prove the transaction embodied therein as well as its valid execution, but they failed to bring any relevant witness into the witness-box for proving the same. They have lastly prayed for dismissal of the instant civil revision.

6. Heard learned counsel for the parties and perused the record.

7. The basic bone of contention between the parties is whether the suit land had been transferred in favour of Mrs. Sibghat Ullah respondent/defendant No.3 or not and whether the same was validly transferred by her to the petitioners/ plaintiffs by means of sale deed Exh.P1 to Exh.P3. To prove their stance petitioners/plaintiffs produced Ahmad Ali as PW1 and Laskhar Ali as PW2. Both these witnesses are not signatory of any of the sale deed/mutation duly attested in favour of either of the parties regarding the suit property. Few lines of cross-examination of PW1 are reproduced hereunder:–

The perusal of same reveals that he is not only an interested witness rather resident of a different revenue estate and most importantly ignorant of the disputed transaction. He did not depose that any transaction of sale was settled in his presence. Statement of Laskhar Ali PW2 is also on the same lines. No detail like time, date, venue and names of the witnesses is also provided by him to prove that when, where and before whom the alleged transactions were settled. He is also not the marginal witness of any of the instruments executed/attested qua the suit land, so his statement is also not helpful to the petitioners/plaintiffs. Muhammad Sharif one of the plaintiffs also appeared PW3, who could not depose that when and through which instrument the transaction in favour of Mrs. Sibghat Ullah respondent/defendant No.3 was attested. No other witness was produced by the petitioners/plaintiffs in oral evidence. The petitioners/plaintiffs produced as many as eight documents on file. Exh.Pl is sale deed No.302, Exh.P2 is sale deed No.2152, Exh.P3 is sale deed No.916. The perusal of said documents reveals that through these sale deeds the suit land was transferred in favour of petitioners/plaintiffs. Exh.P4 is the copy of Fard Taqseem and entries of above sale deeds are also reflected therein, but no sale deed or copy of any mutation has been produced by the petitioners/plaintiffs to prove that suit land had ever been alienated to Mrs. Sibghat Ullah. Even no copy of revenue record such as Register Haqdaran Zamin is available on record showing ownership of Mrs. Sibghat Ullah respondent/defendant No.3, on the basis of which, sale deed could be executed in favour of petitioners/plaintiffs. The learned counsel for the petitioners have failed to produce or refer to any title document from the record through which it could be established that the ownership of the suit land had ever been transferred by respondent/defendant No.2 in favour of Mrs. Sibghat Ullah, respondent/defendant No.3.

8. The petitioners/plaintiffs even being beneficiaries of sale deeds (Exh.PI, Exh.P2 and Exh.P3) never produced their attesting witnesses, identifiers and the attesting officers. The stamp vendors and scribes were also not produced by them to prove their due execution and attestation. These were the best persons to prove the transaction embodied in the said sale deeds as well as their execution. No doubt, sale deeds are registered documents, but when their execution was specifically denied by the adversary then the petitioners/plaintiffs were under legal obligation to prove the same by producing affirmative evidence, which was withheld without any justification and adverse inference under Article I29(g) of the Qanun-e-Shahadat Order, 1984 has to be drawn against them. In arriving at this view, I am fortified by the dictum laid down in the judgments reported as Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245) and Abdul Ghafoor and others v. Mukhtar Ahmed Khan and others (2006 SCMR 1144). In the former case it is observed as under:–

“….This is a sweeping and very wide argument and it is not so that every thing which finds mention in the registered deed or Revenue Record must invariably be accepted without proof of their execution, genuineness and authenticity. It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction to which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document….”

In the recent era the apex Court in another authoritative judgment reported as Khan Muhammad v. Muhammad Din through LRs. (2010 SCMR 1351) has clinched the proposition in the following words:–

“… It is settled principle of law that who lodges a fact must prove it on the well known maxim of Secundum allegata et probata. It is also settled principle of law that the appellant is a beneficiary of the aforesaid documents, therefore, it is the duty and obligation of the appellant to prove the documents as pointed out by the learned counsel in accordance with the provisions of Qanun-e-Shahadat Order, 1984. See 1979 SCMR 549 (Akhter Ali v. University of the Punjab), 1992 SCMR 2439 (Haji Muhammad Khan and others v. Islamic Republic of Pakistan). It is well settled principle of law that initial burden to prove execution of documents is on party which is relying on documents. Once this onus is discharged, burden to prove factum of fraud or undue influence or genuineness of documents shifts to party which alleges fraud. The appellant, as mentioned above, had failed to discharge its initial onus to prove the documents mentioned hereinabove by the appellant “

The mandate of law as well as dicta of the above referred judgments left no room that initial onus to prove the execution of the instrument was upon the petitioners/ plaintiffs who failed to discharge the same by producing any iota of evidence.

9. Moreover, the attestation of alleged sale deed was a subsequent event, but the transaction embodied therein must have been effected between the parties at some prior point of time and the petitioners/beneficiaries were under legal obligation to prove the same by producing cogent and convincing evidence. Ahmad Ali PW1 did not depose a single word in his statement-in-chief that transaction of sale had been settled in his presence between respondent/defendant No.3 and petitioners/plaintiffs against such and such consideration and specific token amount was paid by the petitioners/plaintiffs to the vendor. He also did not depose that when, where and before whom the alleged bargain was settled. Same is the position of the statement of Laskhar Ali PW2. Even Muhammad Sharif PW3, one of the petitioners/plaintiffs, did not depose that against what consideration, the petitioners had purchased the suit land. He also failed to point out exact date of settlement of alleged bargain as well as execution of the sale deed Exh.P1. In the absence of such elements, the transaction embodied in the disputed sale deed cannot be claimed to have been proved. It is settled principle of law that if any of the ingredients of the sale is missing, then the beneficiary has to suffer as it was his duty to plead and prove the same. In arriving at this conclusion, I am fortified by the dicta laid by the apex Court in the judgments reported as Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996) and Rab Nawaz and others v. Ghulam Rasool (2014 SCMR 1181).

10. When the evidence of the parties is put in juxtaposition the petitioners/plaintiffs miserably failed to prove the settlement of sale bargain as well as execution/attestation of sale deed Exh.P1 by producing relevant, cogent and convincing evidence and the statements of PW1 and PW2 as observed supra are nothing but hearsay as they were neither the attesting witnesses of Exh.P1 nor its signatory. So, the petitioners/plaintiffs failed to prove the transaction embodied in the alleged sale deed as well as its execution.

11. The other limb of the case is that the perusal of Exh.P1 reveals that it was scribed on 29.9.1961 and same was attested through local commission on the same day, who conducted the proceedings as per his endorsement at Lahore. The said local commission was also not brought into the witness-box by the petitioners/beneficiaries. There is not an iota of evidence available on record regarding the filing of any application by the executant of the disputed sale deed to the Sub-Registrar for appointment of local commission and even no order for appointment of local commission was produced by the petitioners/plaintiffs on the suit file to prove that local commission had been duly appointed by the concerned authority while assigning any reason for attestation of disputed sale deed. The Registering Officer should have passed a speaking order for the issuance of local commission on a separate application, which would have been filed before him. If actually due to physical infirmity or on account of any other inability, the executant was not in a position to appear in person before the Registering Officer, then it was obligatory on the petitioners/vendees to bring the circumstances due to which the vendor could not appear personally by filing an application before the Registrar, who after due inquiry could issue commission and delegate his powers for attestation of an instrument.

12. As observed supra the petitioners/beneficiaries failed to prove that any such application was moved before the Registering Authority and he passed any detailed order in this regard. Even in the absence of statement of local commission as well as Sub-Registrar, it cannot be assumed that the powers of attestation were duly delegated to the local commission by the Sub-Registrar. In routine, the Registrar was not authorized to further delegate his powers to a local commission for the attestation of an instrument without assigning any justification. So, the attestation of the disputed sale deed through Commission has also damaged the case of petitioners/plaintiffs.

13. The arguments of learned counsel for the petitioners/plaintiffs that statement of defendant No.2, DW-2 is also full of contradictions and on such grounds the learned trial court justifiably decreed the suit is ill founded. It is settled by now that a party cannot take benefit of the weaknesses of his adversary and he has to prove his case on his own strength. In this respect reference may be made to the judgments reported as Sudhangshu Bimal Biswas v. MD. Mustafa Chowdhury (1968 SCMR 213) and MD. Anwarullah Mazumdar v. Tamina Bibi and others (1971 SCMR 94).

14. The next submission of learned counsel for the petitioners/plaintiffs that copy of letter written by Mian Bashir Ahmad father of respondent/defendant No.2 is also a sufficient proof that the property had changed hands, is also not tenable on the grounds that the alleged letter is nowhere found mentioned in the contents of plaint and any evidence beyond the scope of pleading if led on the record of the suit file, same has to be ignored. Reliance can be placed upon the judgment reported as Muhammad Wali Khan and another v. Gul Sarwar Khan and another (PLD 2010 SC 965). Neither the said letter was duly tendered in evidence nor proved by summoning its author or the signatory.

15. The other argument of learned counsel for the petitioners that by producing copy of Fard Taqseem (Ex:P4), the petitioners/plaintiffs fully proved that the disputed property had been transferred to them through sale deed (Ex:P 1) is also misconceived as the basic document/sale deed allegedly executed in favour of defendant No.3 is missing and no evidence was led by the plaintiffs regarding the factum of proof of transfer of property in favour of defendant No.3. The entries of Fard Taqseem (Ex:P4) cannot be made basis for proof of transfer of disputed property by Mian Manzar Bashir in favour of Mrs. Sibghat Ullah defendant No.3 and the contents of “Khana Kafiat” thereof were required to be proved by production of relevant revenue officials, who endorsed the same, but neither the said officials were got summoned nor the original record was produced before the learned trial court by the petitioners/plaintiffs. As Fard Taqseem (Ex:P4) was not duly proved by the petitioners/plaintiffs, the learned lower appellate court has rightly ignored the same while passing the impugned judgment and decree.

16. It is also pertinent to mention that the disputed sale deeds were attested on 2.10.1961, 10.10.1974 and 2.3.1976 whereas the suit in hand was filed on 10.1.1989, which was badly time barred as the limitation for filing such a suit was only six years as provided under Article 120 of the Limitation Act, 1908. The limitation provided by the Statute to perform any action or agitate the remedy within the specified period is not a mere technicality, but it is a mandatory statutory provision and treating it as a formality would tantamount to declare the entire Limitation Act, 1908 redundant the object whereof is to help the vigilant and not the indolent. The availing of remedy by the aggrieved party beyond the period of limitation prescribed, therefore, by the Statute creates a valuable right in favour of the opposite party. In such an eventuality delay of each and every day has to be explained by the defaulting party to the satisfaction of the Court, which cannot be condoned as a matter of right in routine, but arbitrary exercise of discretion would cause serious prejudice to the opposite party. In Manzoor Afzal Pasha and another v. DHA, Karachi and another (2008 SCMR 877) the suit was filed after the lapse of more than thirteen years and the plaint was rejected by invoking the provisions of Order VII, Rule 11 of the Civil Procedure Code, 1908.

17. On the touchstone of above discussion, the findings recorded by the learned lower appellate court are unexceptional which are maintained. The learned counsel for the petitioners is unable to point out any infirmity or perversity in the impugned judgment and decree passed by the learned lower appellate court, who has discussed all aspects of the case and no good ground is found to warrant interference by this Court in the exercise of revisional jurisdiction. Resultantly, the instant civil revision having no force is dismissed.

18. Before parting with this judgment, it is pertinent to observe that the revenue hierarchy often fails to perform their duty for the attestation of deeds/instruments and delegate their powers to the Local Commission for attestation thereof without assigning any reason, which creates doubts about the veracity of such instrument and the parties are constrained to knock the door of Court of law for the determination of their legal rights. The Registrar of this Court is directed to circulate a copy of this judgment to all the District Registrars, working in Punjab through the Inspector General of Registration Punjab, Lahore for observing the criteria pointed out by this Court in paragraphs Nos. 12 and 13 of this judgment for attestation of deeds/ instruments through Local Commissions so that the valuable rights of the parties can be secured while saving them from further endless litigation.

ZC/M-336/L Revision dismissed.

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