NOOR BEGUM vs ABDUL GHAFFAR

For the order I propose to pass in these cases (i.e. C.Rs. Nos.469 to 472 of 2002) I will not be referring in much detail to the pleaded facts of the cases. Suffice it to say that the petitioner being daughter of Karim Bakhsh filed four suits challenging the transfer allegedly made by the said father of the petitioner regarding his property in favour of the respondents. The cancellation of the said sales/transfers were sought in the four cases. The suits were consolidated and as many as 12 issues including relief were framed. Later an additional Issue No.11-A was also added. Both the parties produced evidence. The learned trial Court dismissed the suits vide consolidated judgment and decree dated 14-2-2000. Feeling aggrieved the petitioner filed first appeals which were heard together by a learned Additional District Judge, Rawalpindi, who dismissed the same on 21-5-2002.

2. Learned counsel for the petitioner contends that the impugned judgment of the learned Additional District Judge is no judgment in the eye of law and the judgment is absolutely silent as to why the judgment and decree of the learned trial Court has been upheld. Learned counsel for the respondents on the other hand has not much to say in support of the impugned judgment. He, however, wants to support the judgment with his arguments.

3. I have gone through the records. As stated by me above, the lady had challenged four registered transactions allegedly made by her father. Her case being that he had not validly executed the said documents and transferred his property. Evidence both oral and documentary was led.

Learned trial Court considered the evidence and dismissed the. Suits. Now while dealing with the appeals of the petitioner, learned Additional District Judge has reproduced pleaded facts in the first three paras. In paras.4 and 5 he has reproduced the issues. In paras.6 and 7 he has mentioned the evidence that was produced. In para.8 he has stated that the suit was dismissed. In para.9 he has noted contentions of the learned counsel for the petitioner. In para. 10 he has noted contention of the learned counsel for the respondents. Paras. 11 and 12 referred to filing cross-objections.

Para.13 states that the learned Judge has heard the parties and seen the record. It is in para.14 he has disposed of all four appeals. He has not stated a single reason as to why he is agreeing with learned trial Court. There is no mention at all of any of the contention raised on behalf of the petitioner and as to how the same have been dealt with and same is case with the contentions of the respondents. He has, however, observed that the presumption of truth is attached to a registered document. This statement on the face of it is wrong. Where the execution of registered document is disputed no presumption attaches to it and its execution has to be proved as fact.

Reference be made to the case of Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCM R 1245).

4. Having thus examined the judgment I do agree with the learned counsel for the petitioner that it decides nothing and certainly not the appeals and contention raised therein by the appellant/petitioner and the same cannot be sustained. I may add here that a Court of first appeal happens to be last Court of fact or for that matter law as well as no second appeal is provided for in these cases. Learned Judge hearing first appeals should always keep the said position in mind while hearing first appeals, as while hearing the same their powers are akin with that of trial Court and particularly they should endeavour to read the entire evidence in the light of submissions made by the parties and then to try to, reach the truth of the matter.

5. All the civil revisions are accordingly allowed. The judgments and decrees of the learned Additional District Judge, Rawalpindi, are set aside. The result would be that all four appeals filed by the petitioner shall be deemed to be pending before the learned District Judge, Rawalpindi, where the parties shall appear on 19-12-2002. The learned District Judge shall requisition the record and thereafter either proceed himself or entrust the matters to a learned Additional District Judge who shall hear the appeals and decide the same on their merits by a speaking judgment with reasons preferably within six months of the said date.

A copy of this judgment be immediately remitted to the learned District Judge, Rawalpindi.