Syed FIDA-UR-RAHMAN SHAH Versus Syed MOTI-UR-RAHMAN SHAH

SYED MUHAMMAD ATTIQUE SHAH, J .----Through the instant revision petition the petitioners/defendants Nos.1 to 4 have challenged the validity and legality of the judgment and decree dated 21.3.2015, passed by learned Additional District Judge-IV, D.I.Khan, whereby the appeal filed by respondents Nos.1 to 10/plaintiffs against the judgment and decree dated 22.12.2012 of learned Civil Judge-IX, D.I. Khan was accepted.

2. Briefly stated facts of the case are that respondents Nos.1 to 10 filed a suit against the present petitioners Nos.1 to 4 and respondents Nos.11 to 17 for declaration to the effect that Mst. Hajia Bano Bibi was owner in possession of the suit property, fully detailed in the head note of the plaint and upon her death, her LRs Syed Nazar Rahman Shah (predecessor of respondents Nos.1 to 12) Fida-ur-Rahman Shah petitioner No.1, Mst. Hussan Ara Bibi and Mst. Kaneez Maryam Bibi (respondents Nos.16 and 17) became the owners. Syed Nazar Rahman Shah in his lifetime used to receive rents of the property in question through petitioner No.l. However, after his death, the petitioner No.1 had neither paid any rent to the respondents nor separated their shares in their favour. The petitioner No.1 was abroad and after his return, he wanted to dispose of the property in dispute on the strength of Wasiqa No.8 dated 11.01.1974; that respondents Nos.16 and 17 are also claiming ownership of the property situated in Ghas Mandi and Lakar Mandi through Wasiqa No.991 dated 14.01.1984; that both the Wasiqas coupled with subsequent transitions are false, fictitious and thus ineffective upon their rights. The respondents also sought permanent mandatory injunction against the petitioners from alienating the property to the extent of their shares and prayed for partition of their shares coupled with the recovery of income with respect to their shares in the property from 20 Moharram 2004 till the actual partition of the same.

3. The defendants contested the suit by filing their written statement. From the pleadings of the parties issues were framed, their respective evidence was recorded and after hearing the arguments, the learned Civil Judge-IX, D.I. Khan dismissed the suit of the plaintiffs vide judgment and decree dated 22.12.2012.

4. Not contented with the judgment and decree dated 22.12.2012, the respondents Nos.1 to 10 filed an appeal, which was accepted by the learned Appeal Court vide its judgment dated 21.3.2015, hence, this revision petition.

5. Learned counsel for the petitioners vehemently argued that the impugned findings of the learned appeal Court are illegal and against the evidence available on record of the case; that the respondents miserably failed to establish their stance through confidence inspiring evidence; that the predecessor of the respondents in his lifetime executed a relinquishment deed No.8 dated 11.01.1974 (E-PW-5/3) along with respondents Nos.16 and 17 in favour of respondent No.1; that the petitioner No.1, after the ibid relinquishment deed, applied to the Municipal Committee for approval of the site plan, which was accordingly approved, whereafter, he raised construction on the disputed property and subsequently, rented out the shops to various tenants. The petitioner also produced record of Excise and Taxation, PESCO, and Income Tax departments in support of his stance; that though both the Wasiqas were challenged by the respondents in their plaint, however, while recording statement, the attorney of the respondents PW-8 confined himself to the extent of Wasiqa No.8 EX-PW-5/3, whereas, he did not challenge the validity of Wasiqa No.991 in his statement, rather impliedly admitted its factum that property in Ghas Mandi and Lakar Mandi was given to the respondents Nos.16 and 17; that learned appeal Court had wrongly shifted the burden of proof towards the petitioners, as initial burden is always upon the plaintiff to prove his case on the strength of his own evidence; that though the respondents alleged fraud, however, failed to substantiate the same through evidence. The learned counsel for the petitioners finally prayed for setting aside the impugned findings of the learned appeal Court on acceptance of the instant revision petition.

6. Learned counsel representing the respondents strongly controverted the submissions of the learned counsel for the petitioners and argued that initially Mst. Hajia Bano was owner of the property in question and upon her death, the same devolved upon her legal heirs; that the subsequent relinquishment deed Ex-PW-5/3 is the result of fraud and thus ineffective upon the rights of the respondents; that as the entire case had been built up on the strength of the alleged deed Ex-PW-5/3, therefore, the petitioners, being beneficiary of the said deed, were under bounden duty to establish the same through confidence inspiring evidence, however, they could not prove the same; that DW-22, who identified Nazar-ur-Rahman Shah, Mst. Hussan Ara and Mst. Kaniz Fatima, stated that Wasiqa No.8 was written in the house of Nazar-ur-Rahman Shah, however, Petition Writer when appeared as PW-3, stated that the same had not been written in the house of Nazar-ur-Rahman Shah; that after the death of Mst. Hajia Bano, the entire management of the property in question was handed over to the petitioner, who used to collect the rents and accordingly distribute the same amongst the legal heirs of Mst. Hajia Bano and this fact had also been admitted by the petitioner No.1, when he appeared before the Court; that the factum of Ex-PW-5/3, had been concealed from the predecessor of the respondents till his death; that DW-26 had stated that the signature of his brother Ghulam Abbas is doubtful; that at the time of purchase of the property, Fida-ur-Rahman Shah was having no means, which fact had been admitted by him while appearing as DW-23; that the findings rendered by the learned appeal Court are based on proper appreciation of evidence and material available on the record of the case and no illegality or any irregularity has been committed by the learned appeal Court by reversing the findings of the learned trial Court; that the instant revision petition is liable to dismissal, being meritless.

7. Mr. Muhammad Ghazanfar Ali Advocate, representing respondent No.15, argued that the impugned findings of the learned appeal Court are illegal, being based on non-reading and misreading of the evidence available on record of the case; that the rights of the respondent No.15 are protected under Section 41 of the Transfer of Property Act, 1882, being bona fide purchaser and he fully established his stance through confidence inspiring evidence, however, the same could not be properly appreciated by the learned appeal Court, therefore, the impugned findings of the learned appeal court are liable to be set aside.

8. Arguments heard and record perused.

9. The case of the parties revolves around the property in question, which was initially the ownership of Mst. Hajia Bano Bibi and after her death, the same devolved upon her LRs, the petitioner No.1, predecessor of respondents Nos.1 to 12 and respondents Nos.16 and 17. Subsequently, vide Wasiqa No.8 dated 11.1.1974 (EX-PW- 5/3), the property in question was relinquished in favour of the of the petitioner No.1 by the predecessor of the respondents Nos.1 to 12 and respondents Nos.16 and 17 thereafter, the petitioner No.1 and predecessor of respondents Nos.1 to 12 vide wasiqa No.991 dated 14.01.1984, relinquished property situated in Ghas Mandi and Lakar Mandi in favour of respondents Nos.16 and 17. The respondents after the death of their predecessor challenged the validity of both the Wasiqas on the ground of being false, fabricated and fraudulent. Whereas, the petitioner No.1 and respondents Nos.16 and 17 had taken the stance that the relinquishment deed EX-PW-5/3 was validly executed in their favour.

10. The respondents in support of their stance produced Nazir Ali Record Clerk of the Office of TMA, who produced service record of the predecessor of the respondents as Ex.PW-1/1 and Ex.PW-1/2. PW-2 Abdur Rauf Registry Moharrir, brought on record documents as Ex.PW-2/1 to Ex.PW-2/8. Inayatullah Petition Writer recorded his statement as PW-3, he admitted in his cross-examination that the Ex.PW-1/1 is in his handwriting. Syed Ghulam Muhammad Shah recorded his statement as PW-4, he was a witness of Wasiqa No.653 dated 02.11.1968 vide which the property in question was purchased by Mst. Hajia Bano. PW-5 Allah Nawaz Registry Moharrir of Sub Registrar Office D.I. Khan, produced the record as Ex.PW-5/1 to Ex.PW-5/6. Syed Jamshed Qasim Shah and Najmul Hassah Shah recorded their statements as PW-6 and PW-7 respectively. The attorney of the respondents appeared as PW-8, he in his examination in chief stated that out of the legacy of Mst Hajia Bano two houses at Multan were disposed of by the petitioner No 1, the property at Ghas Mandi and Lakar Mandi were given to the respondents Nos.16 and 17, whereas a house situated in Mohala Mohaniawala is under their possession, which fell into their share and they are residing therein, whereas, the property in question remained joint one. The ibid portion of his statement shows that in fact the legacy of Mst. Hajia Bano was distributed in lifetime of their predecessor, except the disputed property, which is beyond comprehension, as on one hand, the respondents had challenged the validity and genuineness of both the Wasiqas in question, whereas, on the other hand, he impliedly admitted the distribution of the legacy of Mst Hajia Bano, except the property mentioned in EX-PW-5/3, which amounts to departure from their pleadings, which is not permissible under the law, as the respondents cannot blow hot and cold in the same breath. Here a question also arises that when the entire legacy of Mst. Hajia Bano was distributed amongst her LRs, then why the property in question was left over as joint one? The ibid question remained unanswered. Relevant portion of the statement of PW-8 is reproduced below;

PW-8 further stated that the property in question is on rent with various tenants, being rented out by his father and petitioner No.1, whereas, in cross-examination, he clearly stated that he is not in possession of the rent deeds, as his uncle used to manage the affairs of the property in question. He further stated that he is not aware that who is paying the income tax and property tax of the property in question. He also stated that he cannot produce anything in support of his plea that management of the property was given to his uncle by his father.

11. Apart from the above, the attorney of the respondents (PW-8) on one hand stated that the management of the property in question was given to the petitioner No.1, whereas, on other hand, the respondents in Para-3 of their plaint stated that petitioner No.1 was residing abroad and upon his return, we demanded our share, which he refused. Here again a question arises that when the petitioner No.1 was residing abroad, then how the management of the property in question was given to him by the predecessor of the respondents Nos. 1 to 12, which question remained unanswered.

12. Petitioners, on the other hand produced DW-1 who brought on record Ex.DW-1/1 to Ex.DW-1/29 pertaining to income tax of the property in question. DW-2 who produced Ex.DW-2/1 to Ex.DW-2/7, documents pertaining to the approval of the site plan of the property in question. DW-3 produced documents as Ex.DW-3/1 to Ex.DW-3/9 pertaining to the property tax. DW-4 produced Ex.DW-4/1 to Ex.DW-4/12. DW-5 to DW-8 are the tenants in the property in question, who deposed in favour of the petitioners. DW-9, Petition Writer produced Ex.DW-9/1 and Ex.DW-9/2. DW-10 and DW-11, brought on record documents pertaining to the electricity connections of the property in question, as Ex.DW-11/1 to Ex.DW-11/3. DW-12 to DW-18 are petition writers, who scribed rent deeds between the tenants and petitioner No.1. DW-19 produced Ex.DW-19/1 to Ex.DW-19/10. DW-20 verified the signature of his father on Ex.PW-5/3. DW-21 supported the stance of the petitioners. DW-22, one of the witnesses of Wasiqa No.8 dated 11.01.1974 appeared and endorsed his signature thereupon. DW-23, respondent No.16 appeared and supported the stance of the petitioners. Syed Farhat Abbas Shah recorded his statement as DW-24, while petitioner No.1 recorded his statement as DW-25. DW-26, stated that the signature of his brother, one the attesting witness of EX-DW 5/3, is doubtful. DW-27 to DW-30 also supported the stance of the petitioners and respondents Nos. 16 and 17.

13. DW-23 is the paternal aunt of both the parties and one of the signatories of the EX-PW5/3 is an old lady of 80/82 years, who had been cross examined at length, but nothing favorable could be extracted from her mouth in favour of the respondents. She had also stated that she lived for 15/16 years in the house of the predecessor of the respondents, but despite that fact she had not supported their stance, rather she fully endorsed and supported the execution of EX-PW-5/3. Relevant portion of her statement is reproduced below;

She also stated in her cross-examination that:--

She also stated that:--

Attorney of respondent No. 17 (DW-24) also supported the stance of the petitioners.

14. The petitioners also brought on record documentary evidence from Income Tax, Excise and Taxation and PESCO departments in their support. The tenants also recorded their statements in support of the petitioners. The deed writers, who scribed the rent deeds between the petitioner No.1 and the tenants, also supported the stance of the petitioners in their statements, which fully establishes their continuous and uninterrupted possession over the suit property since the year 1974.

15. So far as, the legal status of Ex-PW-5/3 is concerned, suffice it to say that the same is a registered document pertaining to the year 1974, which had also been fully acted upon, therefore, the same had gained the status of a public document and mere denial of the respondents is not sufficient for its setting aside, rather they were supposed to prove their stance through confidence inspiring evidence, which they failed to prove. "Amanullah v. Inamullah" 2017 MLD 1699, "Zardad v. Ali Akbar" 1989 CLC 2028, "Ghulam Haider v. Elahi Bakhsh" 2016 YLR Note 132.

16. Apart from the above, Ex-PW-5/3 is thirty years old registered document and presumption of correctness and due execution is attached to it. "Mst. Hameeda Begum and others v. Mst. Irshad Begum" 2007 SCMR 996, "Farzand Bibi v. Arshad Mehmood alias Arshad" 2019 CLC Note 14, "Mohabat Khan v. Muhammad Fareed" 2016 MLD 1139.

17. The respondents had also alleged fraud. It is by now settled that he, who alleges fraud is under legal obligation to establish the same through convincing evidence, however, the entire evidence of the respondents is silent on the question of ibid fraud, therefore this court has no hesitation in holding that the respondents miserably failed to prove the alleged plea of fraud. "Muhammad Ishfaque v. Ch. Muhammad Nawaz" 2008 SCMR 1095.

18. Moreover, the predecessor of the respondents never challenged the validity of Ex-PW-5/3 during his lifetime, who died in the year 2004 after thirty long years of the registration of Ex-PW-5/3. The respondents also failed to establish through evidence that they ever received the rents of the property in question through petitioner No.1. It is also not appealable to a prudent mind that the predecessor of the respondents 1 to 12, being an educated person, who retired as a Chief Sanitary Officer from service in the year 1978 would remain silent and indifferent towards the affairs of the property in question for thirty long years till his death in the year 2004. Thus, in view of the above, the suit of the respondents is badly hit by the principle of acquiescence, estoppel and limitation.

19. Granted, that beneficiary of a document is to prove its validity, however, the said principle would only come into operation when the plaintiff successfully discharges the initial burden of proof. In the instant case, the initial burden of proof was on the respondents to prove their stance through convincing evidence, however, as discussed earlier, they failed to discharge the said onus in accordance with law, therefore, they cannot get any benefit from the shortcomings of the case of petitioners, if any. As of now, it is well settled that plaintiff is to prove his case on the strength of his own evidence and he could not get any advantage from the lacunae in the defendant's case.

20. Learned counsel appearing on behalf of the respondents at the time of arguments, upon the query of the court, candidly admitted that the plea of the respondents regarding handing over management of the disputed property to the petitioner No.1 is not supported by evidence. He also admitted that the respondents could not substantiate their plea of receiving rents of the property in question through petitioner No.1.

21. Learned counsel also contended, during the course of arguments that it was settled between the parties that rents of the properties in question shall be received by both the brothers, however, he admitted that no evidence is available on record in support of his this stance.

22. During the course of arguments learned counsel representing the respondents vehemently argued that Ex-PW-5/3 is not established, as it had been stated by DW-22 that the same is written in the house of Nazar-ur-Rahman Shah, whereas, Inayatullah Petition Writer (PW-3) when appeared, he stated that the same had not been written in the house of Nazar-ur-Rahman Shah. He also referred to the statement of DW-26, wherein he stated that the signature of his brother on Ex-PW-5/3 is doubtful and urged that the ibid discrepancies are fatal and thus, the execution of Ex-PW-5/3 had not been established, however, this Court is of the view that the alleged discrepancies, being minor in nature, are not sufficient for setting at naught a 30 years old registered deed coupled with continuous and uninterrupted possession.

23. Now coming to his next argument that the predecessor of the petitioners failed to establish his stance regarding the purchase of the property in question through his money/source, in this respect, the statement of respondent No.16, the paternal aunt of both the parties and one of the signatory of the Ex-PW-5/3, is of much significance, as she fully supported the stance of the petitioners regarding the purchase of the property in question through the amount provided by the petitioner No.1. She also admitted the presence of all the parties, witnesses and the deed writer at the time of execution of Ex-PW-5/3 and subsequently its registration before the Registrar. She also admitted that houses in Multan were disposed of by the petitioner No.1 and the sale amount was distributed amongst all the LRs of Mst. Hajia Bano as per their shares. In this view of the matter, the stance of the petitioners stood fully established.

24. The claim of the respondents revolves around oral evidence and even the same is against their own pleadings, whereas, on the other hand, the petitioners produced oral as well as documentary evidence in support of their stance. When the evidence of the parties is assessed and evaluated, the preponderance of evidence clearly tilts towards the petitioners.

25. Now coming to the stance of the respondent No.15 the vendee/purchaser, who recorded his statement through his attorney before the Court as DW-31, who simply stated that respondent No.15 had purchased the property in question from the predecessor of the petitioner No 1, which is not sufficient for getting protection of Section 41 of the Transfer of Property Act, 1882, as the same does not fulfill the requirements of the ibid provision of law, as of now, it is settled that a person seeking protection of Section 41 has to fulfill the following requirements.

(i) The transferor is the ostensible owner;

(ii) He is so by the consent, express or implied, of the real owner;

(iii) The transfer is for consideration;

(iv) The transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

When the statement of DW-31 is seen in light of the above referred conditions, this Court finds that evidence of the respondent No.15 does not fulfill the requirements for attraction of the provisions of the ibid Section and thus, the same is not applicable to the case of respondent No.15.

26. In view of the above, this revision petition is accepted, the impugned judgment and decree dated 21.3.2015, passed by learned Additional District Judge-IV, D.I. Khan is set aside, resultantly, the judgment and decree dated 22.12.2012 of learned Civil Judge-IX, D.I. Khan is restored.

ZC/273/P Revision allowed.