MUHAMMAD HUSSAIN Versus MUHAMMAD IBRAHIM KHAN

Muhammad Hussain petitioner/plaintiff has filed this revision petition against the decree and judgment of the District Judge, Chitral in Case No.5/CA of 1992 dated 21‑4‑1993 whereby accepting the appeal, set aside the decree and judgment of the Senior Civil Judge, Chitral in Civil Suit No.20/1 of 1987, dated 3‑3‑1992 after reversing findings of the trial Court on Issues Nos.2 and 10 to 13. The suit of the petitioner/plaintiff was dismissed.

2. The petitioner/plaintiff filed a declaratory suit against the respondents seeking a declaration to .the effect that the suit land is his ancestral property, the possession whereof was forcibly taken by the father of respondent No.l and predecessor‑in‑interest of rest of the respondents which was subsequently sold to Mohyuddin, respondent 'No. 12 without any lawful authority and ineffective upon the rights of the petitioner/plaintiff. The possession of the suit land, mense profit at the rate of Rs.1,000 per annum since 1974‑ and permanent injunction restraining the respondents from interference in the suit property were also claimed as consequential relief. In the averments of plaint it was alleged that the suit property was purchased by the predecessor‑in‑interest of _ petitioner/plaintiff against the sale consideration of Rs.600 from Abdul Qadir Khan (defendant No. l in the suit subsequently on his death represented by L.Rs.), father of respondent No. l through a deed, copy Exh.P.W.l/1, executed on 8‑11‑1940 duly signed by him as vendor. The suit land remained in ownership's possession of the petitioner's father. till his death‑and thereafter in petitioner's possession till 1974 when Abdul Qadir Khan the vendor and his son Abdul Latif, predecessor‑in‑interest of respondents Nos.2 to 11 forcibly took its possession by using The authority of .the said Abdul Latif as Police Officer. The petitioner approached the Deputy Commissioner; Chitral for iedressal of his grievance through an application, dated 12‑9‑1975 Exh.P.W.I/2. The petitioner/plaintiff was directed to seek his remedy in the Civil Court. The petitioner filed a suit under the FATA Regulation II of 1975 as amended by Regulation IV of 1976. Due to the death of Abdul Latif the interest of minors as his legal heirs involved in the matter, the E.A.C. returned the plaint to the petitioner/plaintiff for want of jurisdiction as required under Regulation noted above vide his order, dated 27‑4‑1987 Exh.P.W.l/3 Thereafter, the suit in hand was filed in the Civil Court.

3. , The suit was contested by the respondents by filing their written statements. The trial Court formulated the following issues arising from the pleadings of the parties:‑‑‑

Issues:

(1) Whether the Court lacks the jurisdiction to entertain the present suit?

(2) Whether the suit land had been purchased by the predecessor‑in interest of the plaintiff in the year 1940 and plaintiff remained in possession of the same as owner after his, death? OPP

(3) Whether the suit is time‑barred? OPD

(4) Whether the suit of the plaintiff is bad on account of non‑joinder and misjoinder of parties? OPD

(5) Whether the plaintiff is estopped by his own'conduct to bring the present suit? OPD . ,

(6) Whether the suit is maintainable in its present form? OPP

(7) Whether the suit land has been incorrectly described by. the plaintiff in his plaint, if so, to what effect? OPD

(8) Whether the suit has been correctly valued for the purpose of court fee and jurisdiction? OPP

(9) Whether defendant No. 12 has made any, improvement over the suit property, if so, to what extent and effect? OPD‑12.

.(10) Whether the plaintiff is entitled to the declaration as .prayed for in relief A? OPP ,

(I1) Whether the plaintiff, is entitled to the decree of possession? OPP

(12) Whether the plaintiff is entitled to the decree for recovery of crops compensation, if so, to what extent? OPP

(13) Whether the plaintiff is entitled to the decree of injunction as prayed for? OPP

(14) Relief.

4. The petitioner/plaintiff produced four witnesses including himself while the respondents produced three witnesses including the Special Attorney of respondents Nos. l to II and respondent No. 12. The trial Court, after appreciating the evidence oral and documentary of the parties, passed a decree in petitioner's favour as prayed for in the plaint with costs.

5.. The respondents preferred an appeal to the Court of the District Judge, Chitral which was accepted vide the impugned decree and judgment, dated 21‑4‑1993. Hence this revision petition.

6. I heard the learned counsel for the parties and perused the record. The learned counsel for the petitioner/plaintiff contended that the findings of fact on Issues Nos.2 and 10 to 13 recorded by the trial Court were reversed arbitrarily and without any legal justification. The deed Exh.P.W.I/1 was disbelieved being an unregistered deed. having no mention of its scriber or marginal 'witnesses and. that the deed does not contain the sufficient description. He submitted that Exh.P.W.l/1 was executed in the year 1940 more than‑ thirty years back than the institution of the suit to which a presumption is attached under Article 100 of Qanun‑e‑Shahadat. Further submitted that Registration Act was not applicable in the area in 1940 and all such transactions were used to be executed among the parties through an' unstamped plain paper. Also submitted that the petitioner/plaintiff has proved the averments of plaint without any reasonable rebuttal from the opposite side. He prayed for setting aside the decree and judgment of the learned District Judge, Chitral dated 21‑4‑1993 and restoration of the decree and judgment of the trial .Court of Senior Civil Judge, Chitral, dated 3‑3‑1992.

7. In rebuttal the learned counsel for the respondents submitted that the suit for forcible dispossession could be brought within six years but the instant suit was brought .iti the year 1987 wherein forcible dispossession was alleged in 1974 and thus, the suit was miserably time‑barred. Further contended that it was burden of the petitioner/plaintiff to prove his case through cogent evidence but he has miserably been failed to prove the averments made in the plaint particularly in respect of deed Exh.P.W.I/1.

As regards the objection regarding limitation, Issue No.3 was framed by the trial Court in this respect which was decided against the respondents but they did not file any cross‑objection and the findings of the two Courts below are concurrent not only in respect of issue regarding limitation but all other issues except Issues Nos.2 and 10 to 13.. The respondents could not be allowed at this stage to object the concurrent findings of the two Courts below regarding Issue No.3.

8. The controversy between the parties is culminated in Issue No.2 and Issues Nos. 10 to 13 are the off shoot of Issue No.2. Both the lower Courts have thoroughly discussed these issues for recording their respective findings.

9. This is undisputed fact that the suit land was originally owned by Abdul Qadir Khan the nephew of Mehtar‑e‑Joe Dilaram Khan ex‑Prime Minister of Chitral State. The father of petitioner/plaintiff was serving with Mehtar‑e‑Joe Dilaram Khan. This is the case of petitioner/plaintiff that Abdul Qadir Khan bad sold the suit land to petitioner's father for a sale consideration of Rs.600 by executing deed Exh.P.W.I/1 duly signed by Abdul Qadir Khan as vendor and the sale has been verified by making an endorsement on deed Exh.P.W.I/1 by Mehtar‑e‑Joe Dilaram Khan ex‑Prime Minister, Apparently in a State of Monarchy a servant cannot betray his master/the Ruler. The former State of Chitral was run by Mehtar‑e‑Joe Chitral till the taking over of powers by the Government of Pakistan. The deed Exh.P.W.I/1 is scribed in Persian language as it was the then official language at Chitral. The contents of deed Exh.P.W.1/1 translated into Urdu are as follows:‑‑‑

10. The aforesaid contents of the deed Exh.P.W.I/1 were verified by Mehtar‑e‑Joe Dilaram Khan, ex‑Wazir Azam of Chitral in Persian language which is translated in Urdu reads as follows:‑‑

11, The aforesaid contents reveal that the father of the petitioner/plaintiff was serving with Mehtr‑e‑Jao Dilaram Khan who was the maternal uncle of Ghulam Abdul Qadir Khan or Abdul Qadir Khan (as claimed by respondents) the vendor known as Khan of Jandool as then he was sold the suit land at the behest of his maternal uncle the ex‑Prime Minister of Chitral State to the father of the petitioner. Respondents in para. l on facts in their written statement had denied the sale of suit land to the father of petitioner and stated that the suit land was given by the predecessor of the respondents to Mehthr‑e‑Jao Dilaram his maternal uncle which. was taken back in 1974. By stating so the respondents have admitted that their 9` predecessor abandoned the possession of suit land in favour of Mehtar‑e‑Jao Dilaram Khan ex‑Prime Minister and was taken back in 1974. The petitioner/plaintiff has led evidence to the effect that the suit land was not given to Mehtar‑e‑Jao Dilaram Khan but .in fact it was sold to the petitioner's father against sale consideration of Rs.600. The possession of suit land was admittedly taken over by the predecessor of respondents ‑in 1974 and the petitioner/plaintiff have successfully established through evidence that the suit land was in his possession in 1974 when forcibly possessed by the predecessor of respondents. In para.2 of their written statement the service of petitioner's father with‑ Mehtar‑e‑Jao Dilaram Khan and his possession not as owner but on behalf of Mehtar‑e‑Jao Dilaram Khan is admitted by the respondents and stated that in 1974 Dilaram Khan himself returned back the suit land to the predecessor of respondents.

12. The petitioner/plaintiff after his forcible dispossession when approached the Deputy Commissioner, Chitral who .referred the matter to Judicial Council, Chitral, under the prevailing custom. The Judicial .Council conducted an inquiry in the matter wherein apart .from the contesting parties, statement of Mehtar‑e‑Jao Dilaram Khan was also recorded who has stated in his said statement that the sale consideration was not paid by Abdul Qadir, Khan, vendor, the father of the petitioner, but he after paying the sale consideration produced the deed executed by Abdul Qadir Khan to him with a request to sign the same and he has rightly signed and attested the same. In their opinion the Judicial Council remanded that matter back to the Tehsildar suggesting taking oath by Abdul Qadir Khan or in alternative the signature of Abdul Qadir Khan on Exh.P.W.I/1 be verified through expert. As against the assertion of Abdul Qadir Khan that he has not sold the suit land to the father of petitioner but he had given it to Mehtar‑e‑Jao Dilaram Khan but Mehtar‑e‑Jao Dilaram Khan, who happened to be the Prime Minister of ex State Chitral and the maternal‑uncle of Abdul Qadir Khan has said that Abdul Qadir Khan has given the land not to him but to Abdul Qadir Khan and he has just verified its contents.

13, The respondents have not proved through evidence that the suit land remained in possession of the father of petitioner/plaintiff on behalf of Mehtar‑e‑Jao Dileram Khan and that the same was returned back to their predecessor by Dilaram Khan in 1974. In, rebuttal the petitioner/plaintiff has produced sufficient evidence that the suit land was in ownership's possession of his father till his death and thereafter it was developed upon him through inheritance and remained in his possession as owner when forcibly dispossessed by the predecessor of respondents in 1974. .

14. The genuineness of document Exh.P.W.l/1 was questioned on the ground that Abdul Qadir Khan predecessor of respondents used to sign as Khan Abdul Qadir Khan while in the deed Exh.P.W.I/1 is by Ghulam Abdul Qadir Khan. The objection regarding the actual name of vendor is not too much material as the vendor had been using the name of Khan Ghulam Qadir Khan or Khan Abdul Qadir Khan at different occasion. During the course of arguments the learned counsel for the petitioner produced abstract from the History Book of the ex‑State Chitral where at page 365, column 97 has been recorded a short history of the vendor. In the said book he has been named as Khan Ghulam Qadir Khan of Jandool and he has signed the deed Exh.P.W.I/1 as Ghulam Qadir Khan. In the said Book there are photographs of the vendor at one place his name is shown as Khan Abdul Qadir Khan at other place his name is shown as Khan Ghulam Qadir Khan. Yet there is another reason applying to the mind that inferior in rank always used the words like "Khadim" or "Ghulam" when written to his superior and particularly in a State of Monarchy by recording the word "Ghulam" with his name Abdul Qadir Khan he might have used in document Exh.P.W.I/1 as a gesture of respect for his maternal uncle also the Prime Minister of ex‑State of Chitral who was the master of the vendee at whose behest the sale transaction was allegedly made. This fact is evident from the endorsement made by the ex‑Prime Minister that the suit land was sold to his servant for his sake. Thus, the signature of the vendor on the deed Exh.P.W.l/1 as Ghulam Qadir Khan does not make the document fraudulent and fabricated.

15. To appreciate the objection regarding the signature of the vendor appearing on the sale‑deed Exh.P.W.I/1 the trial Court requisitioned File No. 727 of Judicial Council and examined the undisputed signatures of Abdul. Qadir Khan and compared the same with the signature on Exh.P.W.1/l. It was found that the signature of Ghulam Abdul Qadir Khan as appeared on document dated 12‑4‑1949 was identical with the signature on the deed Exh.P.W.l/1. He has also mentioned the word "Ghulam" in his signature on the aforesaid deed requisitioned from the official record of Judicial,Council.

16. The petitioner has also brought on record a letter by Mehtar‑e‑Jao Dilaram Khan to Tehsildar, Chitral, dated 1‑1‑1975 Exh.P.W.l/14 (not objected to by the respondents at the time of its production by P.W.1) in the said letter Dilaram Khan, the ex‑Prime Minister of Chitral State has affirmed the sale of suit property by the predecessor of respondents to the father of petitioner/plaintiff.

17. The petitioner/plaintiff has successfully established by producing Muhammadullah P.W.2, Haji Hussain P.W.3 and Mehrab Nabi P.W.4.who had cultivated the suit‑land on behalf of father of petitioner. The deposition of the aforesaid witnesses in respect of cultivation on behalf of the father of the petitioner could not be shattered in the cross‑examination.

18. The learned District Judge while reversing the findings of the trial Court on Issues Nos.2 and 10 to 13 has disbelieved the sale‑deed Exh. P. W.1 / 1 for the reason that the same was neither registered nor presumption of truth was attached with it. Furthermore, the scriber of the deed or any marginal witness was not produced at the trial and description of D the property has not been given in the deed.

19. As regards the objection in respect of registration of the deed the learned District Judge was not properly assisted at the Bar. The Registration Act, 1908 was applied to the‑,FATA including Chitral through Regulation No‑II of 1974 promulgated. on 20‑5‑1974 under Article 247 of the Constitution. Before the extension of Registration Act to the area the deeds were used to be executed under the prevailing local custom of the area commonly known "Destoor‑ul‑Amal, Chitral" wherein there was no formal procedure for the execution of the sale‑deed but the sale‑deeds were to be executed to the satisfaction of the parties thereto showing the detail of transaction, even it was not required that such a deed would be attested by marginal witnesses or disclosing the name of scriber. Under section 7 of the Regulation (ibid) the local custom was ceased in the following words:‑‑

(1) If, immediately before the commencement of this Regulation, there was in force in the said Areas any law, instrument, custom or usage having the force of law corresponding to the provisions of any of the laws applied to those Areas by this Regulation, such law, instrument, custom or usage shall, upon such commencement, cease to have effect in those Areas."

The deed Exh.P.W.I/1 could not be brushed aside for want of registration or production of its scriber or marginal witnesses who were not in fact appearing on the deed.

20. The objection regarding non‑mentioning of description of the property in the deed is also not correct, because in the deed the land has been described as 3 Chakoram situated in "Hoon" which was fully described in the list attached with the plaint to the following effect:‑‑‑

"Land measuring about 3 Chakoram bounded towards East land of Dada, towards West common water channel, towards North land of one Ahmad Khan and towards south land of defendant No. 12. "

The respondents were also definite about the subject‑matter of dispute measuring 3 Chakoram as stated in Exh.P.W.I/1, the boundaries whereof was sufficiently described in the list attached with plaint. The respondents only objected to the boundaries of said 3 Chakoram of land by saying that towards East is land of respondent No. 12 while towards the North is the land of Abdul Qadir Khan. In these circumstances there was no ambiguity between the parties regarding the description of the property mentioned in ERh.P.W.I/1.

21. The learned District Judge has also objected on the comparison on the signature purportedly made by Abdul Qadir Khan on deed Exh.P.W.1/1 and document Exh.P.W.I/16 requisitioned from the Judicial Council but the objection is not sustainable in view of Article 84 of Qanun‑e‑Shahadat which reads as under:‑‑

(1) In order to ascertain‑ whether a signature; writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved, to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose;

(2)The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."

22. Article 84 of Qanun‑e‑Shahdat is the substitution of section 47 of the Evidence Act (I of 1872) which was examined in case titled Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others 1985 SCMR~ 214 and the following conclusion was drawn:‑‑‑

"On the legal plane we find that the latest decision of this Court is contained in Ali Ahmad alias Ali Ahmed Mian v. The State PLD 1962 SC 102 that a Court is entitled to compare that handwriting even if there be an opinion of an expert on the subject. In S.M. Zahir v. Fazal Ali Ajmeri 1974 SCMR 490 it was held that there is no rule of law which requires examination by an expert in every case. The Court itself was held entitled to compare the handwriting and to come to its conclusion."

23. Article 84 of Qanun‑e‑Shahadat (10 of 1984) was, examined in Hafiz Muhammad Ramzan and others v. Muhammad Khalique 991 CLC 417, and the following observations were recorded:‑‑

"15. Article 84 of the Qanoon‑e‑Shahadat Order, 1984, lays down an additional mode of proving signature and the Court can compare the disputed signature with the admitted signatures. The following observations made in the case of Faizul Haque and others v. Noor Meah and another, reported in PLD 1960 Dacca 835 are self explanatory:‑‑

'In the present case also since the Evidence Act permits such examination by the Court itself, it cannot be said that by launching upon such an examination the Court had committed an error in the procedure of law or that it had made any material mistaken assumption in so launching upon a comparison of the signatures and thumb‑impressions on Exh.3. There is no doubt that such inexpert comparison has repeatedly been discouraged by this Court. But nevertheless it cannot be said that it is an illegality in procedure whatever might be the value of such examination'."

24. In the instant case D.W.2 the attorney of respondents Nos. l to 11 has admitted the signature of Abdul Qadir Khan on page 20 of the record of Judicial Council with whom the learned Judge of the trial Court has made a comparison with the disputed signature on Exh.P.W.I/1. In view of the aforesaid judgments it was within the competency of the Judge, trial Court, to compare the signature of Abdul Qadir Khan vendor with his admitted signature appearing on page 20 of the record of Judicial Council.

25. In such circumstances, in the case of Ghulam Rasool and others v. Sardar‑ul‑Hassan and another 1997 SCMR 976 their Lordships of the Supreme Court found the contention of the learned counsel regarding making comparison of the disputed signature by the trial Court with undisputed signature himself without referring the matter to the handwriting expert was found untenable in the following words:‑‑

2. In support of the above petition Malik Noor Muhammad Awan, learned A.S.C. for the petitioners, has contended that the learned trial Court was not justified in recording its finding on the question of signature by comparing the signature in dispute with the admitted signature as it was 'required to refer the matter to the handwriting expert.

The above contention is untenable as it is within the power of a Court to compare the disputed signature with the admitted signature and to form its view though it is advisable to refer the matter to the handwriting expert. However, the fact that the same was not referred would not render the order/judgment legally infirm as to warrant interference."

26. It was within the legal competency of the trial Court for ascertaining whether the signature on Exh.P.W.l/1 was of the‑ person by whom it purports to have been made, to summon the undisputed signature available in the record of Judicial Council as the person whose signature was questioned was not alive.

27. The findings of the District Judge in his impugned judgment that presumption of truth was not attached to the document Exh.P.W.I/1 is also b against the provisions contained in‑ section 100 of Qanun‑e‑Shahadat which reads as under:

"Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that , person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. "

28. The document produced by the petitioner was supposed to be in his custody in his capacity as vendee and he produced the same which production was not objected by the respondents, the contents and signature was rightly presumed to be genuine being more than 30 years old.

29 The ‑learned District Judge has also committed mistake by holding that forcible dispossession of the petitioner/plaintiff in the year 1974 was not proved. In fact it is an admitted position that the suit land remained not in possession of the respondents till 1974 when its possession was forcibly taken by Abdul Latif and his father using his official status in the Police Department. The respondents have admitted in their evidence that the suit land was given in possession of Mehtar‑e‑Jao Dilaram Khan somewhere in 1943‑44 and was taken back in 1973‑74 and the suit‑land after giving it to Mehtar‑e‑Jao Dilaram Khan remained in cultivating possession of father of the petitioner as servant of Mehtar‑e‑Jao Dilaram Khan. The evidence led by the petitioner in respect of his forcible dispossession coupled with the statement of D.W.2 in respect of possession of Mehtar‑e‑Jao Dilaram Khan through the father of the petitioner till 1974 and the letter of Mehtar‑e‑Jao Dilaram Khan to Tehsildar Exh.P.W.l/.14 would establish that the petitioner was forcibly dispossessed by using the official status of the predecessor of respondents Nos.2 to 11.

30. In view of the discussion made above, I am clear in my mind, that the petitioner/plaintiff has successfully proved the averments made in the plaint and the learned Senior Civil Judge, Chitral has properly appreciated. the evidence led by the parties and granted decree to the petitioner/plaintiff as prayed for, conversely the impugned judgment of the District Judge, Chitral dated 21‑4‑1993 suffers from misinterpretation of law and facts for lack of proper assistance at the bar. I, therefore, accept this revision petition, set aside the impugned judgment and decree of the Appellate Court, dated 21‑4‑1993 and restore the decree and judgment of the trial Court dated I 3‑3‑1992 with no order as to costs.

H.B.T./102/P Revision accepted.