SABZ ALI KHAN Versus MST. BIBI NAIK ZADA

WIQAR AHMAD, J .---This order is directed to dispose of the petition filed by petitioners under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred as 'Code'), for setting aside judgment and decree dated 16.09.2016 of the learned Civil Judge/Ilaqa Qazi-I, Swat as well as judgment and decree dated 20.02.2017 of the learned Additional District Judge/Izafi Zilla Qazi-VI, Swat.

2. Respondent No. 1 namely Mst. Bibi Naik Zada brought a suit against the defendants which included the petitioners as defendants Nos.1 and 4 to 10 on the penal of defendants, for declaration, perpetual injunction as well as possession. The plaintiff contended in her plaint that the property in dispute had been owned by common predecessor of the parties namely Gul (deceased) and after his death, same devolved upon his legal heirs according to their entitlement under the Shariah.

3. Defendants were summoned, the present petitioners who were defendants Nos. 1 and 4 to 10 filed their written statement, wherein they raised a preliminary objection i.e. objection No. 14 in respect of ownership of the property in dispute, which is reproduced hereunder for ready reference;

Defendant No. 3 namely Majeedullah who is respondent No. 2 herein filed his separate written statement, wherein he took the defence that his father namely Fazal Wahid was owner and in possession to the extent of 1/4 share in the house in dispute which had been gifted to the extent of 7/8 share in his favour and to the extent of 1/8 share to his mother namely Bakht Seraja vide gift deed dated 23.09.1998 and claimed ownership to the said extent along with his share in the legacy of common predecessor namely Gul (deceased).

4. Issues were framed in the case, whereafter parties were invited to produce their evidence. The plaintiff produced her attorney as PW-1 and another witness namely Alam Zeb, Assistant Incharge Record Room as PW-2 and closed her evidence. Thereafter, defendant No. 3 produced fourteen (14) witnesses while the petitioners produced three (03) witnesses as DW 15 to DW-17. On conclusion of proceedings in the case, suit of the plaintiff was decreed by the learned Civil Judge/ILaqa Qazi-I, Swat vide judgment and decree dated 16.09.2016. Defendant No.3 did not file appeal against the decision of the civil Court. The petitioners however, challenged the said judgment and decree by filing Civil Appeal bearing No. 31/13 of 2016 in the Court of learned District Judge/Zilla Qazi, Swat. Same was later on dismissed vide judgment and decree dated 20.02.2017 of the Court of leaned Additional District Judge/Izafi Zilla Qazi-VI, Swat. The petitioners then filed the instant revision petition challenging both the judgments of the two Courts below.

5. Learned counsel for petitioners invited attention of this Court towards statements of DW-15 & DW-16, beside the document, parts of which were exhibited as Ex DW 15/2, Ex DW 15/3 and Ex DW 15/16 and contended that the petitioners had proved that the suit land had earlier been mortgaged and then sold by the common predecessor of the parties namely Gul (deceased) to Mian Said Wahid and Sardar Ali on 02.04.1952 and 06.05.1953 respectively. He further added that the petitioners had then purchased the suit house from the said vendees vide deed Ex DW 15/16 which was a 30 years old document and should have been accepted in evidence by the learned two Courts below. He further added that evidence of the petitioners was rejected on flimsy grounds like non-mentioning of CNIC numbers and parentage etc and contended that CNIC had not been started to be issued by the Government of Pakistan in the year 1954 and other particulars were not being given in the deeds at the relevant time. To substantiate his stance, he also referred to some of the Standing Orders issued by the Ex-Ruler of Swat and reported in Riwajnama Swat.

6. Both learned counsel for respondents opposed the arguments of learned counsel for petitioners and submitted that they had neither produced primary nor secondary evidence of the deed which was a forged document, an afterthought and therefore, they could not prove exclusive ownership in respect of the property in dispute.

7. I have heard arguments of learned counsel for the parties and perused the record.

8. Perusal of record reveals that the defendants in their written statements while replying to Para-4 of the plaint, have not denied the execution and existence of sale deed bearing No. 539 dated 16.07.1937, whereby the suit house had been purchased by the common predecessor-in-interest of the parties namely Gul (deceased). Throughout the evidence, the said deed had been running admitted between the parties. This is also admitted that the plaintiff/ respondent No. 1 was the daughter of the said predecessor. The case of the petitioners was that Gul (deceased) had mortgaged the property i.e. house in dispute on 02.04.1952 vide deed Ex DW 15/2 and that later on sold the same on 06.05.1953 to the mortgagees vide inscription on the said deed which was separately exhibited as Ex DW 15/3. The property in dispute was claimed by the petitioners to have been purchased from the vendees later, on 09.04.1954 vide inscription given overleaf the deed of mortgage which was separately exhibited as Ex DW 15/16. This deed and the oral evidence produced in support of the deed as well as the transaction of sale in shape of DW-15 and DW-16 have not been believed by the two Courts below and rightly so, because the petitioners could neither prove the execution of the three deeds nor could they produce confidence inspiring evidence of the transactions incorporated in the three deeds. The stamp paper was shown to have been issued from the concerned office of the then State of Swat on 02.01.1952, wherein number 11 had been given to it but no register or other proof of its purchase could be produced in evidence. This was a common ground among the learned counsel for the parties that vide order dated 06.04.1948, the then Ruler of Swat had ordered all the citizens to purchase stamp papers for inscribing all the transactions thereon which had also been published at page 91 of the Riwajnama of Swat. The said order being relevant and relied upon by learned counsel for both the parties is hereby reproduced for ready reference;

9. It is important to be noted that when the transaction of sale took place according to the claim of petitioners on 09.04.1954, same was an independent transaction and was not related to the transaction of mortgage in any manner. It was incumbent as per the legal regime existing at the relevant time that it should have been inscribed on a separate stamp paper. No such stamp paper has ever been procured nor has it been scribed on the same. No witness of the transaction was produced. It is understandable that the witnesses and people directly involved in the transaction were dead by then but no secondary evidence in support of their thumb impressions or signatures or other facts have been produced in the evidence by the petitioners. Their witnesses i.e. DW-15 to DW-17 have never witnessed any of the said transactions or part thereof. Beside the deed, the other evidence of transaction of sale could not be produced also. The factum of possession has great significance in the case in hand. The witnesses of the petitioners i.e. DW-15 to DW-17 had themselves admitted in cross examination that the house in dispute had been possessed jointly by the parties and they could not establish exclusive possession of the house in dispute at any point of time after 1954 i.e. the year of alleged transaction of sale. DW-15 on the 4th page of his cross-examination has given the following narration;

10. The petitioners were not only lacking direct evidence but also in supporting evidence. Neither could the execution of the deed Ex.DW.15/16 be proved by the petitioners nor could they prove the transaction of sale or exclusive possession of the house in dispute. The petitioners cannot get benefit of Article 100 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as 'Order'), wherein presumption of correctness is provided to be attached to a thirty (30) years old document. The said benefit can only be claimed when a deed is admitted or proved in evidence. When a deed is alleged by the other party to be forged and fabricated and the party relying on the same fails in proving the execution of the deed, benefit of Article 100 of the Order may not be given to such a deed or the party relying thereupon. Reliance in this respect is placed on the judgment of the Hon'ble Apex Court rendered in the case of Nazir Ahmad deceased through LRs v. Karim Bakhsh (Late) through LRs reported as 2017 SCMR 1934.

11. The learned two Courts below have therefore rightly discarded the sale deed relied upon by the petitioners. No exception can be taken to the findings of the two Courts below in this respect. Even otherwise, the concurrent findings of the two Courts below on a question of fact cannot be lightly interfered with, in revisional jurisdiction of this Court as held by the Hon'ble Supreme Court of Pakistan in the case of Noor Muhammad and others v. Mst. Asmat-e-Bibi reported as 2012 SCMR 1373. Reliance in this respect is also placed on the case of Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others reported as 2016 SCMR 24.

12. In light of what has been discussed above, the revision petition in hand is found meritless and same is accordingly dismissed.

ZC/45/P Revision dismissed.