MUHAMMAD ISMAIL Versus Mst. BIBI SAFIA

GUL HASSAN TAREEN, J.--- Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 22 December 2021 passed by the learned Members, Majlis-e-Shoora, Kharan in Civil Appeal 50/2021 ( Appellate Court ) by which the Appellate Court has allowed the said appeal, and has set-aside the judgment and decree dated 31 May 2021 passed by the learned Qazi Kharan ( Trial Court ), dismissing the respondent 1 s civil suit, the present civil revision petition is filed.

2. Brief facts of the case are that on 22 April 2019, the respondent 1 ( the respondent ) instituted a Civil Suit 08/2019 against the petitioners and the respondents 2 to 16 ( the respondents ). The respondent pleaded that she along with the petitioners and the respondents 2 to 15 are the legal heirs of late Muhammad Khan who had purchased a shop (described in para 3 of the plaint) ( the Shop ) from a vendor, Mullah Muhammad Ibrahim for a price of Rs.1400/- through a contract dated 14 October 1965 ( the Contract ). She approached the petitioner 1 to claim her inherited share in the Shop; however, he avoided her, causing the cause of action to accrue.

In the prayer clause, the respondent sought a declaration that she holds a 1/13th share in the Shop, including the right to receive profits, along with a perpetual injunction and any other relief the court deems fit.

3. The petitioners presented a written statement contesting the suit. The respondents supported the respondent s claim. The Trial Court framed issues, both parties adduced oral, and documentary evidence, and thereafter, the Trial Court dismissed the suit; however, the Appellate Court allowed the appeal and decreed the suit.

4. Submissions on behalf of the petitioners:

Learned counsel appearing on behalf of the petitioners submitted that the respondent had instituted a civil suit claiming her right to inheritance in the Shop which she subsequently withdrew on 27 November 2012; therefore, afresh suit instituted on 22nd April, 2019 on the basis of the same cause of action was barred by limitation under Article 120, Schedule-I, the Limitation Act, 1908 read with Order XXIII rule 2, the Code of Civil Procedure, 1908 ( Code ). He placed reliance on the case laws, reported as Saadat Khan v. Shahid-ur-Rehman (PLD 2023 SC 362) , and the Secretary B&R Department, Government of Balochistan v. Sardar Sikandar Hayat Khan Jogezai (PLD 2025 Balochistan 140) . It is submitted that the Contract was not a title deed; furthermore, the respondent failed to prove its execution by the purported executant, Mullah Muhammad Ibrahim, by examining its attesting witnesses. It is submitted that the respondent examined the scribe of the Contract who failed to establish that it was executed by the said vendor. It is further submitted that the patent dissimilarity between the signatures of the purported executant on the contract provided proof that the contract forged by the respondent. It is further submitted that the petitioner 1 is the actual owner of the Shop which he had purchased along with the predecessor of the respondents, and later, he purchased the half share of the respondents predecessor; however, the Appellate Court appears to have overlooked the propositions of law and facts involved in the case, therefore, it committed illegality.

Making the above submissions, it is prayed to, allow the petition and set-aside the impugned judgment and decree.

5. Submissions on behalf of the respondent:

Learned counsel appearing on behalf of the respondent submitted that in inheritance cases, the law of limitation does not apply, even if a fresh suit is instituted a long time after the withdrawal of the former suit. It is submitted that the respondent proved the Contract through the statement of the scribe and PW-2, the Patwari. It is further submitted that, as the document was thirty years old, the Appellate Court rightly referred to Article 100, the Qanun-e-Shahadat Order-X, 1984 (the Q.S.O ). Reliance is placed on the case laws, reported as Mst. Aksar Jan v. Mst. Shamim Akhtar (2025 SCMR 88) and Messrs Sadiq Poultry (Private) Limited v. Federation of Pakistan (PLD 2025 Lahore 57) .

Making the above submissions, it is prayed to dismiss the petition.

6. The learned A.A.G., appearing on behalf of the official respondent, supported the impugned decree.

7. I have heard the learned counsel, perused the record, and considered the provision of law and citations referred to and relied upon by both the sides.

8. The petitioners learned counsel has vehemently submitted that the respondent s suit was barred by limitation. The Trial Court had decided the issue of limitation in favour of the respondent and held that, the suit is not barred by the law of limitation. The petitioners did not challenge the findings of the Trial Court on the issue of limitation by filing an appeal, or cross-objections, before the Appellate Court. The findings of the Trial Court; thus, attained finality. When a party who should have assailed the findings of the Trial Court on the issue of limitation in an appeal or cross-objections fails to do so, that party cannot raise an objection regarding limitation in a civil revision petition. Reliance is placed on the decision of the Supreme Court in Khairati v. Aleemud Din (PLD 1973 Supreme Court 295) . The case law reads as: -

It is no doubt true that a respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross-objection. In the present case, the trial Court had found as a fact that the suit for specific performance was not barred by time. Therefore, by contending that the suit was so barred, the respondent in this case was not seeking to support the decree as it was but rather to attack a finding in the decree; and this he could not do without filing any cross-objection.

The next contention of the learned counsel appearing in support of this review petition is that it is, in any event, the duty of the Court to consider the question of limitation. This is also correct to the extent it goes; but it does not mean that where a trial Court has given a finding on the question of limitation against a particular party, he can still, without filing an appeal or cross-objection, challenge that finding in the higher Court of Appeal.

Thus, in view of the law settled by the Apex Court in the afore discussed case law, the submission of the petitioners learned counsel regarding limitation is not correct.

9. Now so far as the submission on behalf of the petitioners that the Contract was not a title deed, and the respondent did not prove its execution is concerned, at the outset, it is required to be noted that the Contract was executed on 14 October 1965. The proof of execution of the Contract was governed by the Evidence Act, 1872 (since repealed and substituted by, the Q.S.O). Section 68,the Act, 1872 provided that, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence . The Contract was attested by Muhammad Khan and Ghulam Mehmood. Undeniably, the attesting witnesses were not alive when the suit was instituted. Section 69, the Act, 1872 provided an exception to the section 68. It provided that, if no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person .

10. The respondent examined the scribe of the Contract as PW-1. He testified that, I am acquainted with the buyer and seller. The Shop was sold to Muhammad Khan for Rs.1400/-. The Shop was also handed over after receiving the total amount. Further, on the date the said sale deed (produced) was prepared, an application was prepared for its registration. I recognize my signature and seal on the application and the produced sale deed; both the produced application and sale deed were issued with my seal, signature and writing . The PW-1 produced the Contract and application as Exh./PW-1/(A) and Exh./PW-1(B), respectively. Responding to the question 1, he stated that, he was issued the license of the deed writer in 1957 . He stated that, he is well conversant with the vendor, vendee and the witnesses, who have passed away. (Q.4). Responding to the question 6, he stated that, Muhammad Ibrahim had signed in front of him . Therefore, the respondent proved that the Contract was written and signed by the PW-1 under Section 67, the Act, 1872. The executant had signed the Contract and received the price in his presence; therefore, as a scribe, he was also an attesting witness to the Contract. The respondent proved the execution of the Contract by examining its attesting witness in view of section 68. The Contract was taken to the Court of Tehsildar. The Tehsildar affixed his official seal to the Contract. The Court is bound to take judicial notice of the seals of all the Courts in Pakistan under Article 112(d), the Q.S.O. The respondent proved the Contract in view of afore discussed provisions of law.

11. Besides section 68, the Article 100, the Q.S.O was relevant. When the petitioner 1, in his written statement, pleaded the Contract as a forged one, it was a thirty years old document. Before any presumption under Article 100 is drawn, it must be proved that the document in question has been produced from a proper custody. It may be proved by showing that the person who produced it was the depository of the document in question. Respondent is the daughter of late Muhammad Khan, therefore, its custody with her was quite natural and she also produced the original. The Contract was also acted upon because the petitioner 1, in his written statement and in his statement on oath, stated that he is in the longstanding possession of the Shop. When a document more than 30 years old comes from proper custody, it must be presumed to have been executed and attested by the persons by whom it purports to be executed and attested. The Trial Court framed issue 4 on this material proposition of fact and decided it against the respondent without discussing the statement of PW-1, Sections 67, 68 and 69, the Act, 1872 and Article 100, the Q.S.O; thus, it committed the errors of law of Sections 67 to 69, the Act, 1872 and Article 100, the Q.S.O. The Appellate Court has rightly referred to and relied upon, the Article 100. Therefore, the findings of the Appellate Court are legally and factually correct. I am satisfied that the discretion was properly exercised. It is a settled law that when the Court has exercised discretion, the Revisional Court ought not to interfere with the discretion.

Although, the presumption under Article 100 is rebuttable, however, the petitioners failed to dislodge the presumption by proving that he along with the respondents predecessor had purchased the Shop.

Thus, the findings of the Appellate Court on the issue 4 are correct.

12. The petitioners learned counsel stated that being an unregistered document, the Contract was not a title deed. The respondent had instituted suit on the strength of possessory title. The Kharan City is still unsettled. In his cross-examination, the PW-2 stated that, according to their records, documents have been registered with them since 1999. Responding to the question 6, he admitted that, Kharan City is unsettled. The question of title would have been relevant had it arisen between the executants of the Contract. There was no rival claimant of the Shop whereas the petitioner 1 could not prove any independent title to the Shop. Thus, petitioners counsel contention is not correct.

13. The findings of the Trial Court on the issue 4 and issue 6 were contradictory. The Trial Court held that the petitioners failed to prove that the petitioner 1 and the respondents predecessor had jointly purchased the Shop; thus, decided the issue 6 against the petitioners whereas decided issue 4 in their favour by holding that the Shop was not purchased by their predecessor through the Contract.

14. So far as the rest of the submissions of the petitioners learned counsel are concerned, it is important to note that the Trial Court framed issue 6 on the pleading of the petitioners, whether the Shop was purchased by the petitioner 1 and the respondents predecessor jointly? The Trial Court deiced this issue in the negative, yet, the petitioners did not challenge the findings of the Trial Court on this issue by filing an appeal or cross-objections before the Appellate Court. The factual unchallenged findings attained finality. Thus, the petitioners counsel contention that petitioner 1 is the owner of the Shop is not well-founded. The signatures of the executant on the Contract cannot be compared at this stage, for neither the executant nor any of his legal heirs have disputed these signatures.

In view of the above and for the reasons stated above, the impugned judgment suffers from no illegality. I dismiss this civil revision petition. The parties shall, however, bear their own costs.

UN/27/Bal. Revision dismissed.