SABIR HUSSAIN and 6 others Versus EISA and 2 others

I intend to decide the following revision petitions by one consolidated judgment having similar facts and law:‑‑

(i) C.R. No.684‑1998.

(ii) C.R. No.647‑1998.

2. The brief facts out of which the aforesaid revision petitions arise' are that respondents Nos.2 and 3 executed three sale‑deeds (Wasiqa Jaat) in favour of the petitioners on 3‑7‑1965 for a consideration of Rs.99.96 qua the land in question measuring 3 Kanalss. Respondents Nos.2 and 3 also sold the land measuring 5 Kanals 8 Marlas in favour of respondent

No. 1 vide registered sale‑deed dated 15‑7‑1967 including the land sold by respondents Nos.2 and 3 in favour of the petitioners on 3‑7‑1965. The petitioners being aggrieved filed civil suit for declaration on the basis of the aforesaid sale‑deeds (Wasiqa Jaat) before the Civil Judge 3rd Class, Kasur. Respondent No. 1 filed suit for possession allegedly secured the land in question on the basis of the registered sale‑deeds dated 15‑7‑1967, in the Court of Civil Judge 3rd Class, Kasur on 18‑9‑1969. Both the suits were consolidated. Both the parties filed written statements in the respective suits, controverted the allegations levelled in the plaints. The learned trial Court framed the following issues out of the pleadings of the parties:‑‑

(1) Whether the plaintiffs are in possession of the land in dispute by virtue of sale‑deeds dated 3‑7‑1965? OPP

(2) Whether the registered sale‑deed dated 15‑7‑1969 executed by the defendants Nos.2 and 3 in favour of defendant No. 1 in respect of land in dispute is illegal, void, and ineffective on the rights of the plaintiffs? OPP

(3) Whether the alleged sale‑deed in favour of the plaintiffs are fictitious, forged and does not create any right in favour of the plaintiffs? OPD

(4) Whether the defendant No.2 had no authority from the defendant No.3 to enter into any transaction in respect of land in dispute on behalf of defendant No.3, if so, with what effect? OPD

(4A) If Issue No.1 is answered is negative and Issue No.3 in affirmative, then whether the defendant No. 1 is entitled to get the possession of the suit property from the plaintiffs? If so, to what extent and what property? OPD

(5) Relief.

The learned Civil Judge, Kasur dismissed the suit of the petitioners and decreed the suit of respondent No. 1 by consolidated judgment and decree dated 23‑9‑1992. The petitioners being aggrieved preferred two appeals before the Additional District Judge, Kasur, who dismissed the same vide impugned judgment and decree dated 20‑11‑1997, hence, the present revision petitions.

3. The learned counsel of the petitioners submits that both the Courts below erred in law to exclude Exh.P.2 to Exh.P.4 sale‑deeds (Wasiqa Jaat) for consideration on an assumption that these require compulsory registration. Each Wasiqa Jaat is of the value of less than Rupee 100, therefore, did not require compulsory registration under the provisions of the Registration Act and the law laid down by the superior Courts. In support of his contention, he relied upon Bagwan Dass v. Harimal (Punjab Law Report 1903 case No.746), Mool Singh v. Kokirdas (AIR 1959 Rajisthan 15), Haji Nauroze v. Hussain Gill (1980 CLC 79), Pindaran Sangram v. Noormal Daas (AIR 1932 Bombay 571), Raam Daas v. Nadir Shah (Indian Cases 1922 pages 608). He further submits that evidence is required for execution of the aforesaid sale‑deed coming from the scribe of Exh.P.2 to Exh.P.4 and two marginal witnesses P.W.3 and 4 has not been considered on the basis of the aforesaid sale‑deeds (Wasiqa Jaat). He further submits that both the Courts below erred in law that D.W.3 stated in his statement that sale -deeds (Wasiqa Jaat) were not registered in his Register, which is not in consonance with the examination‑in‑chief of P.W.3, Muhammad Sharif therefore, judgments of both the Courts below are result of misreading and non‑reading of the record. He further submits that petitioners are in possession of the land in question since 1949 and respondent No.3 while appearing as D.W.3 also admitted possession of the petitioners over the land in question, therefore, judgments of both the Courts below are result of misreading and non‑reading of the record. He further highlighted the following portion of evidence of witnesses to show that the judgments of both the Courts below are result of misreading and non- reading of the record.

4. Learned counsel of the respondents submit that judgments of both the Courts below are in accordance with the evidence on record as both the Courts below have concurrently given findings of fact against the petitioners after proper appreciation of evidence. He further submits that sale‑deeds (Wasiqa Jaat) allegedly executed in favour of the petitioners by respondents Nos.2 and 3 on 3‑7‑1965 whereas the inheritance mutation was sanctioned in favour of respondents Nos.2 and 3 on 28‑3‑1967, therefore, respondents Nos.2 and 3 have no title qua the, land in question at the time of execution of the sale‑deeds (Wasiqa Jaat) in favour of the petitioners. He further submit that respondent No.1 purchased the land in question from respondents Nos.2 and 3 through a registered sale‑deed on 15‑7‑1969. The petitioners allegedly are in possession of some of the land in question in the capacity of lessee or as a Qabza Group because the original owner was land lady Mst. Zenab Bibi. He further submits that the petitioners failed to prove on record that sale‑deeds (Wasiqa Jaat) were executed in favour of the petitioners as both the Courts below have not non‑suited the petitioners merely on the basis that sale‑deeds (Wasiqa Jaat) were not registered. In fact both the Courts below have decided the case against the petitioners after proper appreciation of the evidence on record keeping in view the circumstances highlighted by both the parties by producing the evidence before the trial Court. The petitioners did not even produce the stamp paper and the Writer of the documents in question did not bring his register alongwith him at the time of recording his evidence before the trial Court. He further submits that sale‑deeds (Wasiqa Jaat) were allegedly executed in favour of father and his two sons for a consideration of Rs.99.96 each sale‑deed so that to keep the possession of the land in question on the basis of the aforesaid sale‑deeds (Wasiqa Jaat) and both the Courts below have rightly drawn conclusion against the petitioners after proper application of mind.

5. Learned counsel of the petitioners in rebuttal submits that the inheritance mutation was sanctioned in favour of respondents Nos.2 and 3 on 28‑3‑1967 vide Exh.P.6, which clearly reveals that original owner has since been died for the last ten years before sanctioning of the mutation in favour of respondents Nos.2 and 3. He further submits that the petitioners do not claim land of respondent No.3 on the basis of the aforesaid sale‑deeds (Wasiqa Jaat) as respondent No.2 is the owner of 2 Kanals and 14 Marlas and has no authority to sell land measuring 6 Marlas of respondent No.3 to the petitioners.

6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

7. It is admitted fact that both the Courts below have given concurrent finding of fact against the petitioners not merely on the ground that sale‑deeds (Wasiqa Jaat) were not registered but both the Courts below have also considered the evidence on record and have given definite findings against the petitioners that sale‑deeds (Wasiqa Jaat) were not proved by the petitioners in terms of the Evidence Act or Qanun‑e‑Shahadat Order, 1984, which is in accordance with law laid down in Muhammad Sharif Uppal's case (PLD 1990 Lah. 229). There is no doubt that the First Appellate Court mentioned that sale‑deeds (Wasiqa Jaat) were not entered in the Register of the Scribe/Writer. It is settled principle of law that evidence of P.W.3 be read as a whole and does not decide the case merely relying upon one sentence. In case the whole evidence of P.W.3 is read as a whole, then it is clear that sale- deeds (Wasiqa Jaat) were not proved by the petitioners in terms of Evidence Act or Qanun‑e‑Shahadat, 1984 Mere possession over the land in, question does not create any title in favour of the petitioners as the law laid down by the Honourable Supreme Court in Maqbool Ahmad v. Government of Pakistan (1991 SCMR 2063). In case, as mentioned above, the evidence bf P.W.3 is read as a whole then petitioners failed to prove on record that sale‑deeds (Wasiqa Jaat) were registered in favour of the petitioners by respondents Nos.2 and 3 coupled with the fact that inheritance mutation was attested in favour of respondent No.3 on 28‑3‑1967 whereas sale‑deeds (Wasiqa Jaat) were allegedly executed in favour of the petitioners on 3‑7‑1965 Both the Courts below after proper appreciation of the evidence on record have given conclusion that the same were not entered in the Register of the Petition‑writer and D.W.3 did not bring the register alongwith him at the time of appearance before the trial Court. Both the Courts below have given concurrent findings of fact against the petitioners that entry in the register of Petition‑writer regarding execution of document was not proved, therefore, both the Courts below were justified to non‑suit the petitioners. It is also admitted fact that respondent No. 1 purchased the land in question from respondents Nos.2 and 3 through a registered sale -deed. It is settled principle of law that registered document has sanctity attached to it and stronger evidence was required to cause expulsion on its genuineness as the law laid down by the Honourable Supreme Court C in Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others (1993 SCMR 462). Both the Courts below have given concurrent finding of fact against the petitioners. It is pertinent to mention here that respondent No.2 was not authorized for the sale of the share of respondent No.3 coupled with the fact that both the Courts below have noted the discrepancies among the witnesses of the petitioners in the impugned judgments, therefore, conclusion of both the Courts below is in accordance with the evidence on record and the learned counsel of the petitioners by reading few lines from here and there to highlight that both the Courts below have misread the evidence on record is not in consonance with the finding of the Courts ‑below as both the Courts below have given concurrent finding of fact against the petitioners after proper appreciation of evidence after noting discrepancies in their statements. This Court has very limited jurisdiction to reverse the findings arrived at by both the Courts below after proper appreciation of evidence until and unless the judgments of both the Courts below are result of misreading and non‑reading of the evidence on record. As the learned counsel of the petitioners failed to bring any piece of evidence which was misread and non‑read by both the Courts below, in view of the aforesaid circumstances, or decided the case in violation of the principle laid down by the superior Court. The Privy Council has also laid down parameters to interfere in the findings of the Courts below while exercising power under section 115 of C.P.C. in "ICS. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras" (PLD 1949 PC 26). The relevant observation is as follows:‑‑

"This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Courts is within its jurisdiction, (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is in breach of some provision of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."

The judgment of the Privy Council was followed by this Court in "Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood (1985 CLC 657). It is pertinent to mention here that the judgment of this Court was upheld by the Honourable Supreme Court. The learned counsel of the petitioners failed to bring the case in view of the principle prescribed by Privy Council in the aforesaid' judgment, therefore, I do not find any infirmity and illegality in the judgments of both the Courts below.

In view of what has been discussed above, these revision petitions have no merits and the same are dismissed.

M.A.W./S‑53/L Revision petitions dismissed.