Syed SHABBIR HUSSAIN SHAH and others Versus ASGHAR HUSSAIN SHAH

HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against judgment, dated 20-5-2004 in Civil Revision No.62-D of 1992 passed by learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby the said civil revision was dismissed, hence this petition for leave to appeal.

2. Brief facts of the case are that the respondents Ghulam Akhtar Shah son of Nibaho Shah and others filed Civil Suit No.289 of 1976 before the Civil Judge 2nd Class Liaquatpur against Syed Said Ali Shah son of Fateh Muhammad Shah and others for declaration to the effect that they were owners upto 11904/2073 6 share in the disputed property, as a result of inheritance of Nibaho Shah and Mutation No.670 sanctioned on 24-3-1971 along with Mutation No.679 sanctioned on 8-7-1971 was illegal, collusive, fictitious, therefore, ineffective and inoperative on the rights of the respondents/plaintiffs wherein respondents' predecessor-in-interest Ghulam Akhtar Shah also prayed for possession of the suit property. The said suit .was dismissed vide judgment and decree, dated 21-2-1989 passed by Civil Judge 2nd Class, Liaquatpur. Ghulam Akhtar Shah, predecessor-in-interest of present, respondents/plaintiffs preferred Civil Appeal No.361 of 1991 before the District Judge, Rahimyar Khan which was passed on to the Additional District Judge, Rahimyar Khan, which appeal after hearing learned counsel for the parties was accepted and thus, suit of present respondents/plaintiffs was decreed vide judgment and decree dated 18-2-1992. Petitioner Said Ali Shah preferred Civil Revision No.62-D of1992 before the Lahore High Court, Bahawalpur Bench, Bahawalpur which was heard by learned Single Judge of the High Court who dismissed the same vide impugned judgment dated 20-5-2004.

3. We have heard learned counsel for the petitioners and perused the record.

4. Learned counsel for the petitioners has submitted that learned Single Judge has illegally and erroneously affirmed the decision of the Appellate Court setting aside the finding of the learned Civil Judge on wrong assumption by placing onus of proving Issues Nos.1 and 2 upon the petitioners/defendants. He further submitted that the First Appellate Court and the learned Single Judge have misread the evidence of the parties considering that Exh.P.5 (death entry) though exhibited without objection was not reliable. He submitted that the respondents/plaintiffs did not plead specifically in the plaint that Nibaho Shah was not alive at the time of sanctioning of the mutation and also that he had not made any sale to respondent No.19 Said Ali Shah. He further submitted that learned Single Judge and the Appellate Court have only discussed the evidence of the petitioners/defendants ignoring the evidence of the respondents/plaintiffs when the onus of Issues Nos.1 and 2 was on the respondents/plaintiffs. He also submitted that the learned Single Judge and the Appellate Court did not consider Exhs.D.1 to D.9 as such illegally presumed that sale to minor son of Nibaho Shah could not have been made as the said minor could not pay consideration having no source considering that as per statement dated 7-12-1981 of Ghulam Akhtar Shah P.W.3, plaintiff stated that when he went to get the mutation of inheritance entered he was informed by Patwari that area of 12 Bighas was mutated in the name of Said Ali Shah and he filed suit when he was major and that Bhoorey Shah had forcibly taken possession of land about 2-1/2 years back.

5. Learned counsel for the respondent has submitted that the First Appellate Court being a final Court of facts has rightly, correctly and legally appreciated the evidence on record which findings arrived at have rightly been affirmed by the learned Single Judge as there was neither misreading nor non-reading of evidence nor any misconstruction of law was available for his interference in the revisional jurisdiction.

6. We do not find merit and substance in the contentions of the learned counsel for the petitioners.

7. Admittedly as per evidence the respondents (appellants Nos.1 to 3 in appeal before the Appellate Court and their sisters) were minors at the time of death of Nibaho Shah whereas their mother was a Parda Nasheen lady. Mutation No.670 was sanctioned on 24-3-1971 when as per evidence on record Nibaho Shah was not alive and as per evidence on record Nibaho Shah had not sold suit-land to anybody. The onus to prove that Mutation No.670 attested 'on 24-3-1971 of the suit-land was upon the petitioners/defendants being beneficiary of it that it was legal and binding upon the respondents/plaintiffs but the former failed to discharge onus keeping in view the minority of the above said respondents and their mother who Leing Parda Nasheen lady when Nibaho Shah was also not alive on the date of mutation as such he had not executed the said agreement and would have not got the mutation sanctioned in favour of the petitioners/defendants.

8. It is true that P.W.1 Ghulam Akhtar Shah has not given the specific date about the death of Nibaho Shah, however, P.W.2 Manzoor Ahmad has deposed that Nibaho Shah died about 16/17 years before and his statement was recorded on 10-3-1986, so also has been deposed by P.W.3 Jam Malrmood and thus, if calculated Nibaho Shah could be said to have expired around 1969 considering also Exh. P.5 which mentioned the date of death as 2-5-1968 whereas mutation was sanctioned on 24-3-1971 .as such the mutations were not made during 'the life time of Nibaho Shah, hence he cannot be said to have executed agreement Exh. D.2 for the purpose of sale or transfer in favour of the petitioners/ defendants.

9. Articles 78 and 79 and sub-Article 2(a) of Article 17 of the Qanun-e-Shahadat, Order, 1984 provide the mode of proof of the execution of document which read as under:--

"78. Proof of signature and handwriting of person alleged to have signed or written document produced .--- If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. "

"79. Proof of execution of document required by law to be attested .--- If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence. "

"17 .

(2) .

(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly."

Agreement Exh.D.2 in respect of sale of land is alleged to have been thumb-marked by Nibaho Shah the contents of which would indicate that deceased was owner of 115 Kanals, 6 Marlas of land out of which it is alleged that he had already gifted part of land in the name of his son whereas remaining 48 Kanals of land was sold to respondent No.19 Said Ali Shah for a sum of Rs. twelve thousand and handed over the possession to him which agreement also mentioned that the deceased had sold land, out of Khata No.7 only. A copy of disputed Mutation Exh.P.3 would show entry in Column No.12 was sanctioned on the basis of agreement Exh. D.2 whereas Exh. D.2 mentioned that land was sold out, from Khata No.7 only, whereas in Exh.P.3, land out of Khatas Nos.4 and 5 was also included. Exh.D.2 mentioned consideration of Rs. twelve thousand for 48 Kanals whereas as per Exh.P.3, 116 Kanals, 7 Marlas of land was shown to have been sold for Rs. fourteen thousand only. According to Exh.D.2 executant had gifted his land to his son whereas Exh.P.3 mentioned land to have been sold to his son. In the circumstances it could be conveniently said that the mutation in question was not sanctioned as per contents of agreement Exh.D.2, and that minor son of late Nibaho Shah could not have paid consideration of land as such Exh.D.2 was doubtful and suspicious document, therefore, the mutation being also based on Exh. D.2 would also be not beyond doubt and suspicion, hence cannot be relied upon. D.W.2 Javed Iqbal is a cashier in treasury who has deposed that stamp paper of Exh. D.2 was sold by Shaikh Ghulam Muhammad Stamp Vendor. D.W.3 Faiz Muhammad was scribe of Exh.D.2 who deposed that it was written by him at the instance of Nibaho Shah. He also stated that he has not made identification of Nibaho Shah who was not personally known to him and that thumb-impression of Exh. D.2 was dim/dull. He deposed that the person who came disclosed to be Nibaho Shah. He also stated that he did not remember if any amount of compensation was paid in his presence or not. He also stated that he did not remember that as to whether Nibaho Shah in fact had come before him or not. He also stated that he did not remember the vendees whose favour document was written had come before him or not. He also deposed that he could not say if amount of consideration was paid in his presence or not. In case the scribe D.W.3 Faiz Muhammad was not personally knowing Nibaho Shah how could he say that Exh. D.2 was thumb-marked by him so also over Exh.D.3. Consideration amount was also not said to be paid in his presence. It may also be observed that only one marginal witness Jam Muhammad Sadiq was examined though other marginal witness namely Muhammad Murad was alive as stated by D. W.8 Jam Muhammad Sadiq. No sufficient cause has been shown for non-production/examination of marginal witness Muhammad Murad so also Khuda Bakhsh who attested the mutation was also riot exatined by the petitioner, therefore, adverse presumption is to be drawn that said witnesses would have been examined would have not supported the petitioners' case. It may also be observed that Exh. P.3 being a photocopy cannot be admitted as secondary evidence admissible unless under the law conditions provided under Article 76 of Qanun-e-Shahadat are fulfilled. D.W.6 Saif-ur-Rehman Patwari did not know the parties, therefore, he would not be in a position to say if the agreement was thumb-marked by Nibaho Shah who also admitted that alleged statement made by Nibaho Shah before the Tehsildar did not appear to be thumb-marked by Nibaho Shah. It is surprising that when the alleged vendor had not put the thumb-impression or signature over it, how it could be said that Nibaho Shah had sold the land. The evidence adduced by the petitioners/defendants was not sufficient to discharge the onus with regard to proof of execution of alleged agreement to sell suit-land. According to Article 78 of the Qanun-e-Shahadat, 1984, execution of a document is to be proved to be in the handwriting or signature or thumb-mark of the alleged executant, which would mean signing or putting thumb-mark over a document as consenting party thereto. Execution of document would not only mean mere signing or putting thumb-impression but something more than mere signing or putting thumb-impression by the executant. It must be proved that thumb-mark was made in the presence of witness in whose presence the document was written and read over and it was understood by the vendor and would not only be limited to merely signing a name or placing thumb-impression upon a blank sheet of paper so as to prove the document to have been executed whose identification should also be proved by reliable and authentic evidence that a person who has affixed thumb-mark or signature was the same person who owned the land and sold the same to the vendee. Execution would mean series of acts; which would complete the execution. Mere signing or putting thumb-mark would not amount to execution in terms of Article 78 of Qanun-e-Shahadat, 1984. A document which is not proved is inadmissible in evidence, unless strict proof of it is waived. In the instant case the petitioners/defendants being beneficiary were bound to prove due execution of the sale agreement by the vendor in accordance with law. All this would lead to a conclusion that Mutations Nos.670 and 679 were sanctioned fraudulently. It also cannot be imagined that land measuring 48 Kanals could be sold for the sum of Rs.twelve thousand on 13-3-1971 while 46 Kanals and 12 Marlas from the land for a lesser sum of Rs.nine thousand only on 15-7-1971 vide Exh.P.4.

10. It may also be observed that evidence has brought on record to show that Said Ali Shah and Nibaho Shah were not on speaking terms because of the matrimonial dispute as Nawab Shah brother of Said Ali Shah had divorced his wife and. contracted second marriage when his first wife was daughter of Nibaho Shah which fact was admitted by Bhoorey Shah D.W.10. All these facts and circumstances would lead to a conclusion that there being strained relations between the vendee and vendor, the transaction in respect of the land in dispute could not have been arrived at Transaction with regard to transfer of land through mutations on .the basis of alleged sale agreement in view of above discussion was a fraudulent transaction and as such would not affect the legal rights of respondents/plaintiffs.

11. The evidence showed that there being joint Khata and in absence of any mention of specific Khasra numbers how the physical possession of land in dispute admeasuring 48 Kanals could have been passed to the petitioners/defendants when the property was joint and not partitioned, therefore, the question of delivery of possession as alleged to be in the exclusive possession of the petitioners/defendants cannot be believed, considering that every co-owner/co-sharer would be considered to be in possession of each inch of un-partitioned land according to his share. Exhs.D.8 and D.9 copies of Jamabandies stated possession is said to be with the owners whereas Exhs.D.4 and D.5 copies of Khasra Girdawari for 1984 to 1987 some land has been shown in possession of tenants while the remaining has been shown in the possession of sons of Nibaho Shah as such no exclusive possession of petitioners/defendants has been shown in the above said documents. P.Ws. Nos.1 to 3 have also deposed that Bhooray Shah during .the pendency of suit forcibly occupied the land. In case a party is dispossessed during the pendency of suit, he under the law could be granted decree for declaration and possession subject to payment of the court-fee under the law. Learned Single Judge in paras.5 to 7 of the impugned judgment has observed:--

"(5) Undeniably, the respondents are legal .heirs of deceased Nibaho Shah who were minors at the time of his death except their mother who was a Parda Nashin lady. In the presence of allegation that said Nibaho Shah was not alive at the time of attestation of the impugned Mutation No.670 on 26-3-1971, onus of proving the valid execution of same (Issue No.2) was heavily on the petitioners particularly when they were also the beneficiaries of the same respondents tendered in evidence Exh. P.5, a certificate showing the death entry of said Nibaho Shah as 2-5-1968 which was incorporated in the Register at Serial No.20 on 25-5-1968. It is not clear from the record as to what objection was raised by the petitioners when this document was exhibited. This being a public document prepared in the normal routine cannot be lightly ignored particularly when D.W.1 Ahmad Bakhsh Secretary of the relevant Union Council appeared and admitted in cross-examination that:--

Statement of this witness was also scanned by the learned Additional District Judge in para.6 of his impugned judgment. This aspect, obviously is fatal to the case of the petitioners.

(6) In order to prove the sale by late Nibaho Shah in favour of the petitioners, an agreement to sell the suit-land (Exh. D.2) and receipt (Exh.D.3) were brought in evidence. These documents appeared to have been written on 13-3-1971. and the attesting witnesses were Muhammad Murad and Jam Muhammad Siddique and the scribe was Faiz Muhammad petition Writer. Faiz Muhammad, appeared as D. W.3 who did not categorically affirm the payment of the sale price of Rs.12,000. he stated that:--

Jam Muhammad Siddique the alleged marginal witness appeared as D.W.8 and stated that;--

This Murad Shah was not produced in the witness-box.

(7) On a Court question, as to when the entire sale price was allegedly paid and possession of the suit-land was also allegedly delivered, then what for the attestation of mutation was deferred: No satisfactory answer was given by the learned counsel for the petitioner. I have also noticed that in the impugned mutation (Exh.P.3), sale price was shown to be Rs.14,000 whereas in the impugned agreement, the same was shown to be Rs.12,000. In Exh.P.3 there is no .mention of Tamleek from Nibaho Shah in favour of his minor sons/contesting respondents whereas such an assertion finds mentioned in the impugned agreement (Exh.D.2). In the impugned mutation (Exh.P.3), a part to the suit-land was shown to be sold in favour of his sons (now the respondents) by Nibaho Shah but how it could be that the minors purchased a part of the suit-land, what was their source of income. These factors were specially lime-lighted by the learned Additional District Judge in para.? of his impugned judgment."

12. We do not find any legal or factual infirmity with the impugned judgment, considering that no misreading or non-reading of evidence has been pointed out for our interference in the constitutional jurisdiction of this Court. In view of aforesaid reasons and discussions we find no case of grant of leave to appeal is made out which is declined and the petition is dismissed.

S.A.K./S-33/SC Leave refused.