MUHAMMAD YOUNIS Versus JAMEELA
1. This application has been moved by the appellant under section 5 of the Limitation Act for condonation of delay.
2. Briefly the facts relevant for the purpose of this application are that the judgment was announced on 4‑2‑1984 by lower appellate Court (Mr. Imdad Ali A. Memon, IVth Additional District Judge, Hyderabad) in Civil Appeal No39 of 1982 whereby the appeal of the present appellant was dismissed. The present appeal was instituted by the appellant on 25‑3‑1984 after having received a certified copy of the judgment on 8‑3‑1984. At the time of filing of the appeal there was an objection raised and this appeal was treated as Civil Revision No.80 of 1984 but again on an application this Revision Application was converted into a Second Appeal vide orders passed on 30‑10‑1984 by my Lord Justice Muhammad Zahoorul Haque (as his Lordship then was). However, on 1‑11‑1990 objection was raised by the respondent to the effect that the appeal has been filed without the copy of the decree and, therefore, this appeal was barred by limitation under Article L56 of the Limitation Act. The appellant then applied for certified copy of decree on 14‑11‑1990 which was delivered on 19‑11‑1990 and, therefore, the present application has been moved by the appellant on 20‑11‑1990 alongwith copy of the decree.
3. I have heard the learned counsel for the parties on this application. Mr. Hassan Mahmood Baig, the learned counsel appearing for the appellant has submitted that in the present case the certified copy of the decree would show that the same has been prepared on 12‑2‑1986 and, therefore, the same could not be filed earlier and it came to the knowledge of the present counsel for the appellant, who filed his Vakalatnama subsequently that the decree was not filed with the Memo. of Appeal; and that his client was out of station and as soon as he came to Hyderabad on 13‑11‑1990 he applied for copy on the next day and has submitted the same. Mr. Hassan Mahmood Baig, Advocate has further submitted that the party will not be non‑suited merely on technical grounds specially as in the present case where even the decree is signed by learned Presiding Judge after about two years of the announcement of the judgment. He has placed reliance on the cases of Mst. Safia Begum v. Tajuddin and 2 others (1991 SCMR 112), Bashir Ahmed Siddiqi v. Shama Feroz (1988 SCMR 892) and Muhammad Hanif v. Muhammad and others (PLD 1990 SC 859).
4. Mr. SA. Jamali, the learned counsel appearing for the respondent on the other hand has submitted that there are two periods of delay in the present case. The first period of delay is ,from 12‑Z‑1986 to 31‑10‑1990 and the second period of delay is from 1‑11‑1990 to 13‑11‑1990. He has submitted that the decree was signed on 13‑2‑1986 and, therefore, it was the duty of the appellant or his counsel to have moved an application for copy of the decree. He has further submitted that even if this period is omitted then also on 1‑11‑1990 it was brought to the knowledge of the appellant that the appeal has been filed without the copy of the decree and, therefore, he should have immediately applied for copy and the delay of 13 days in making application for copy has not been properly explained as the delay of each day is required to be explained. The learned counsel for the appellant has referred to the record of the lower appellate Court containing application made by the appellant for copies on 6‑2‑1984. This application is on record of the lower appellate Court at page 229.
5. 1 have considered the submissions of the learned counsel and have also perused the record of the lower appellate Court. The application at page 229 is one moved by the present appellant which shows that on 6‑2‑1984 the appellant had paid advance of Rs.5 for the grant of certified copies of judgment and decree as by this date both were not prepared. On this date he has also supplied the stamps worth Rs3 for affixation on certified copies of judgment and decree. This application also shows that on 6‑3‑1984 when the certified copy of the judgment was ready the actual cost for copying, comparing and paper for the judgment has been computed to be Rs 33.80 while advance for decree pertaining to above three items amounts to Rs.2.50. Thus the balance cost after deducting the advances comes to Rs.30.81. The certified copy of the judgment filed alongwith the memorandum of the appeal also shows that copy had been applied for by the appellant on 4‑2‑1984 and advance cost was deposited by him on 6‑2‑1984 while the balance was paid on 6‑3‑1984 and copy of judgment was delivered on 8‑3‑1984. Thus it is obvious that the appellant had applied for copies and paid advance cost and supplied stamps even for the certified copy of decree on 6‑2‑1984 and till today the office has not prepared the certified copy of decree in consequence of the said first application but it was on the second application and on payment of fresh cost that the copy of the decree was delivered to the appellant. It may also be observed that according to Sindh Civil Courts Rules, it is incumbent on the Copying Branch that they should display a list on notice board of the copies which are duly prepared and ready for delivery. Rule 331 of the Sindh Civil Courts Rules lays down as under:
6. "331.‑‑(1) A list of copies and translations ready for delivery shall be posted on the notice board of the Record Keeper's Office.
(2) If a copy or translation is not claimed by the applicant within six months from the date of posting the aforesaid list the copy shall be destroyed and the fact shall be noted in the remarks column of the Register of Applications for copies and translation.
(3) Where the applicant has applied that a copy should be sent to him by post, the copy shall be sent accordingly."
7. In view of the above facts and rule 331, it appears that Copying Branch also not fulfilled their obligation. It is settled law that a party is not to suffer for any fault on the part of the office.
8. In view of above discussion, I am of the view that there is good and sufficient cause to condone the delay, if any, in the present case. Accordingly, I accept this application and hold that the present appeal is within time.
2. In view of above order, this application has become infructuous and is accordingly dismissed.
9. Now I take up the matter on merits. The facts giving rise to this appeal are that Shop No.D‑55/683 Juman Shah Ka Pir, Hyderabad being an evacuee property was transferred to one Amir Hassan by the Settlement Department. This Amir Hassan expired on 24‑3‑1957 leaving behind one widow Fatima Jan and one daughter Mst. Jameela, the present respondent. The said descendants of deceased Amir Hassan instituted Second Class Suit No.280 of 1977 against the present appellant and one Muhammad Shafi, the tenant of the present appellant for possession, mesne profits and damages with regard to said shop, hereinafter referred to as the suit property.
10. The case of the present respondent and her mother Fatima Jan who also expired subsequently on 23‑6‑1980 during the pendency of the litigation is that the said shop was inherited by them from their deceased ancestor Amir Hassan; and chat the present appellant illegally got the said shop transferred in his name, firstly, showing himself as the sole surviving heir of deceased Amir Hassan in .January, 1970 by making an application to Settlement Authorities which application was also supported with an affidavit. Subsequently, however, in June, 1972 the present appellant is said to have moved another application before Settlement Authorities wherein he disclosed that the present respondent and her deceased mother are the heirs of the deceased Amir Hassan but the said Amir Hassan had mortgaged the suit property with him in the year 1961; and that thus he is entitled for issuance of P.T.D. in his favour. The Settlement Authorities, however, did not accept this plea of the appellant and P.T.D. was directed to be issued in favour of the two ladies. However, the present appellant on the strength of the alleged document of mortgage approached the City Surveyor's Office and got the record mutated in his favour. The two ladies having acquired the knowledge of the mutation of City Surveyor record in favour of the present appellant had preferred the above suit. The present appellant contested the suit. His case is that the suit property was mortgaged with the appellant by the said Amir Hassan vide the Deed of Mortgage executed on 18‑2‑1961; and that on the same day, he also executed an Agreement of Sale with the appellant whereby he sold the suit property to him and also executed a receipt for the sum of Rs.5,000 shown as sale price in the Agreement of Sale and also as mortgage amount in the Deed of Mortgage. He further pleaded that he had given the said documents to one Munshi for drafting an application for him to be presented to the Settlement Authorities; and that application is dated 24‑1‑1970. However, the Munshi instead of writing the correct facts prepared the application showing the appellant as the sole heir of deceased but when the appellant learnt about this he moved another application before Settlement Authorities on 22‑6‑1972 wherein correct facts were given. It is also pleaded by the appellant that during the proceedings before Settlement Authorities the two ladies had appeared and executed Surrender Deed on 13‑10‑1972. He has also pleaded. that a joint statement was also given by the ladies before the Settlement Authorities wherein they conceded the claim of the appellant. The appellant had taken legal pleas of estoppel etc.
11. On these pleadings of the parties, the trial Court was pleased to settle the following issues:
(1) Whether the suit is not maintainable, not in proper form and misconceived. If so, what is its effect?
(2) Whether the suit is time‑barred?
(3) Whether the suit is undervalued and improperly stamped?
(4) Whether the respondent/plaintiff is estopped from asking the relief claimed by her?
(5) Whether deceased Amir Hassan mortgaged the suit property with appellant/defendant No.l and received RsS,000?
(6) Whether respondent/plaintiff surrendered the suit property in favour of the appellant/defendant No.l?
(7) Whether the appellant/defendant No.l got the suit property demolished mala fidely and took away the debris and is liable to pay damages to the extent of Rs.2,000?
(8) Whether the possession of appellant/defendant No.l over the property in suit is unauthorised?
(9) Whether appellant/defendant No.l got mutation of said property in his name without notice to respondent/plaintiff by fraud. If so, what is the effect?
(10) Whether the possession of appellant/defendant No.l is that of a trespasser?
(11) Whether the respondent/plaintiffs are the just owners of the suit property?
(12) Whether respondent/plaintiffs Bite entitled to mesne profits. If so, at what rate and for what period?
(13) What should the decree be?
12. The respondent and her mother examined the City Surveyor Fazalullah Exh.18, Syed Akhtar Din, the Settlement Inspector Exh.24, and the respondent herself Exh35. They also produced several documents. As against this the appellant examined himself as Exh.63, Qamaruddin from Settlement Department as Exh.78, Baboo Khan Exh.80 and late Mr.Jibreel Siddiqi Exh.
81. The other defendant Muhammad Shafi also examined himself as Exh.
85. The trial Court after hearing the arguments of the learned counsel for the parties decreed the suit on 23‑12‑1982. Being aggrieved the present appellant preferred Civil Appeal No.39 of 1982 which was also dismissed by IVth Additional District Judge, Hyderabad on 4‑2‑1984. The present appellant has, therefore, preferred this Second Appeal.
13. I have heard the learned counsel for the parties. Mr. Hassan Mahmood Baig, the learned counsel appearing for the appellant has based his arguments on Issues Nos.5 and 6 only. The main contention raised by the learned counsel as is also reflected in the order of admission of this appeal is that the two Courts below have not considered the documents placed on record and their evidentiary value. The other point pleaded by the learned counsel is that the present respondent and her deceased mother were estopped from challenging the title of the present appellant in view of their surrender document and the joint statement given by them before Settlement Authorities. On the first point dealing with the documents I have perused the record and submissions of the learned counsel. The following are the documents in order according to dates on which the learned counsel for the appellant has placed his emphasis;
(i) Exh.71 Mortgage Deed dated 18‑2=1961.
(ii) Exh.72 Agreement of Sale dated 18‑2‑1961.
(iii) Exh.73 Receipt for Rs.5,000 dated 18‑2‑1961.
(iv) Exh.25 application of appellant dated 24‑1‑1970.
(v) Exh.26 affidavit of applicant in support of above application.
(vi) Exh.28 application, dated 22‑6‑1972 by applicant.
(vii) Exh.22 Surrender Deed by two ladies dated 13‑10‑1972.
(viii) Exh.30 joint statement of ladies with no date.
14. Now I will take up each document. The first document is said to be the Deed of Mortgage. This document shows that the deceased Amir Hassan had mortgaged the suit property with the present appellant in the sum of Rs.5,000. The contents of the Deed are not in accordance with the provisions of Transfer of Property Act as the same do not contain any clause for redemption, rather it provides that the mortgagor shall execute the Sale Deed in favour of the mortgagee. Moreover the Deed shows the consideration to be Rs.5,000 and, therefore, it had to be registered under section 17 of the Registration Act but this being an unregistered document it would not create any rights in favour of the mortgagee. In view of the provisions of section 49 of the Registration Act, similarly, the other document Exh. 72 which is an Agreement of Sale is also an unregistered document and would not create any right under section 49 of the Registration Act. The contents of this document also show that it was a complete sale. The third document Exh.73 is the receipt of above said amount of Rs.5,000. The learned counsel for the appellant has submitted that he has examined the attesting witness Baboo Khan Exh.80. According to the learned counsel this witness has fully supported his case. This witness has stated that deceased Amir Hassan had put his thumb‑impression in the presence of this witness but this witness does not confirm the contents of the documents nor does he say that he had read these documents before signing as attesting witness, hence he cannot be said to be a witness of the contents of the documents but at the most he can be a marginal witness. Even otherwise these facts are disputed facts which had to be proved as the ladies have denied the same. Mr. Hassan Mahmood Baig, Advocate has submitted that even if these documents cannot be received in evidence by virtue of section 49 yet the same have collateral value and can be used for the purpose of proving certain facts, such as the transaction between the parties and the payment of the consideration. There is no cavil about the abovesaid proposition. However, the point is whether the said documents are proved to be genuine documents. The ladies have denied the said transaction or any knowledge thereof. In order to further support the contention, the learned counsel has placed reliance on the surrender documents of the ladies which are Exhs.22 and 30. He has submitted that the respondent Mst. Jameela in her deposition has admitted the fact that the two ladies had given certain statements before the Settlement Authorities. The deposition of respondent is Exh.35. It is pertinent to point out that in. her examination‑in‑chief, she states that when she came to know about issuance of P.T.D. in favour of the present appellant, she approached the Settlement Authorities and moved an application before them and in continuation she says in her examination‑in chief that at the instance of the present appellant she and her mother had given statements before Settlement Authorities. Obviously these statements which are referred in her evidence are not the statements given by the ladies in the proceedings initiated by respondent who had made application to Settlement Authorities. These proceedings thus would be different than the proceedings which are initiated on the applications moved by the present appellant. However, this contention of the respondent has not been challenged by the appellant in cross‑examination of Mst. Jameela and, therefore, would stand admitted. This fact finds further support when the reference is made to Surrender Documents dated 13‑10‑1972 which is Exh. 22 on the record. This document is shown to have been executed on 13‑10‑1972 and is attested by late Mr. Jibrecl Siddiqi, Advocate and Notary Public of Hyderabad. Mr. Jibreel Siddiqi in his evidence has stated that the parties and witnesses have signed in his presence. However, in cross‑examination he states that he did not know the ladies personally; and that these ladies were brought before him by the present appellant and were identified by him. In cross‑examination he further stated that he cannot say if the said document Exh.22 bears the thumb‑impression of the two‑ ladies as he did not know them. It may also be pointed out that Mst. Jameela who has been examined as Exh. 35 when confronted with this document Exh. 22 has denied the same. Similarly, the other document alleged to be the joint statement of the ladies before the Settlement Authorities which is placed on record as Exh. 30 does not stand proved as the same has not been admitted by Mst. Jameela in her cross‑examination. She has not been read over the contents of Exhs. 22 and 30 in her cross‑examination.
15. Now the first question arises that if the Surrender Document was " executed by the two ladies on 13‑10‑1972 (Exh. 22) how could the said Surrender Document find the reference in the second application of the appellant made on 22‑6‑1972 (Exh. 28). This application is earlier in time than the Surrender Document. Again in this application it has been said that the first application moved by the appellant dated 24‑1‑1970 (Exh. 25) was prepared by some Munshi and it was that Munshi who had wrongly shown the present appellant to be sole heir of deceased Amir Hassan. This Munshi was the material witness but very conveniently the appellant has neither disclosed his name nor examined him in evidence. All these inconsistencies go to show that the appellant had made an attempt in the first instance to grab the suit property by posing to be the sole surviving heir of deceased Amir Hassan but when he was confronted by his own brother Muhammad Ishaq, he thought it to be more practicable to get the land transferred to the ladies who are the real heirs of the deceased and then have the same surrendered in his own favour. This is nothing but blatant attempt to usurp the property of two helpless, Pardahnasheen and ignorant ladies. Even otherwise in case of Pardahnasheen ladies the burden to prove the facts against them or execution of document would lie on the adversary. Reliance is placed on the case of Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642. Also a similar view has been held in the case of National Bank of Pakistan v. Dawood Yousuf Methani (PLD 1978 Karachi 42). In this view of the matter even the question of estoppel would not arise. Mr. Hassan Mahmood Baig, Advocate has placed reliance on the following cases in support of his contention that in view of the two statements
16. Exh.22 and Exh.30, the respondent and her mother are estopped from challenging the transaction of suit property in favour of the appellant:
(1) 1991 SCMR 2300.
(2) PLD 1981 SC 376.
(3) PLD 1973 Karachi 309.
(4) PLD 1969 Lahore 418.
(5) 1989 CLC 1819.
17. (6). 1986 CLC 770.
18. I have read the above‑cited cases. In view of the facts that the ladies were neither read out their statements in cross‑examination and the fact that Surrender Document Exh. 22 is subsequent to the appellant's application Exh.28 and yet mentioned therein the same do not stand proved. In these circumstances since the statements do not stand proved the case‑law cited by the learned counsel for the appellant would not be applicable. In these circumstances, I do not find any ground to interfere with the findings of fact given by the two Courts below. Accordingly, the appeal is dismissed with no order as to costs.
19. AA./M‑1878/K Appeal dismissed.