IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil
Revision Application No. 13 of 2010
|
APPLICANT |
: |
Muhammad
Uris throughMr. KalanderBakhsh M. Phulphoto, Advocate |
|
RESPONDENTS |
: |
Zawar
Haji and others through Mr. ManzoorHussain N. Larik, Advocate |
|
DATE OF HEARING |
: |
19.09.2016 |
|
DATE OF JUDGMENT |
: |
07.11.2016 |
JUDGMENT
Muhammad
Humayon Khan, J:
This
civil revisionunder Section 115CPC is filed against the Judgment dated
26.11.2009 and Decree dated 01.12.2009 passed by the learned IInd Additional District
Judge, Khairpur, in Civil Appeal No.112 of 2009, whereby, the learned Additional
District Judge dismissed the appealof the applicant and upheld the Judgment dated
21.10.2009and Decree dated 24.10.2009 passed by the learned IInd Civil Judge, Gambat,
in Suit No. 17 of 2009.
2. The relevant and material facts of the
case for the disposal of this revision applicationare thatthe applicantfiled
suit for declaration, possession and permanent injunction against the respondents.The
case pleaded in the plaint isthat the applicant is a bonafide, rightful and
exclusive owner of residential Sikni House No. 51/B-1, situated at Khuhra,
TalukaGambat (hereinafter referred to as “the suit property”), which is entered
in the name of the applicant in the record of Taluka Municipal Administration
and such property certificate has also been issued in his name by the
TalukaNazim, Taluka Municipal Administration, Gambat. It is further pleaded
that since the date of purchase of the suit property, the applicant has been
paying necessary taxes to TMA Gambat regularly. It is further pleaded that about
twenty-five years back, the applicant restored possession of half portion of
the suit property from his brother Nebahoo towards eastern side to the father of
respondents at his request for temporary dwelling till he arrange for any other
residential accommodation anywhere else, who promised and assured in presence
of witnesses that he will vacate the said 1/4th portion of the suit
property and restore its possession to the applicant on his demand. It is
further pleaded that the applicant had demanded possession from the
respondents, who kept him on hopes and promises while Nikah of applicant’s son
ManzoorHussain alias Mumtaz was performed with respondent No.3 Mst. Noor Jahan
and therefore the applicant was lenient towards the respondents and did not
force them to vacate the portion of the suit property.It is further pleaded
thatthere arose right and disharmony between the applicant and respondents,who
moved false applications against the applicant to harass him and usurp the suit
property. It is further pleaded that one month back, the respondents point
blank refused to deliver vacant possession of the suit property and therefore
the applicant filed the instant suit against the respondents, wherein, the applicant
claimed the following reliefs:-
i)
This Hon’ble Court may be pleased to
declare that plaintiff is bonafide and exclusive owner of the house in suit
being No.51/B-1, situated at KhuhraTalukaGambat, and possession on 1/4th
portion of suit house by the defendants is illegal and unauthorized and they
are liable to dispossession.
ii)
To direct the defendants by decree of
this Hon’ble Court to vacate 1/4th portion of suit house and hand
over its possession to the plaintiff being rightful and exclusive bonafide
owner of the same.
iii)
To grant permanent injunction thereby
restraining the defendants from handing over or transferring the possession of
1/4th portion of suit house to anybody else excepting the plaintiff.
iv)
To awarded cost of the suit.
v)
To awarded any other relief deemed fit
and proper.
3. The respondentsfiled their written
statement, wherein, the respondentsraised legal objections regarding limitation
and maintainability of suit.The respondentsdenied the entire case of the applicantand
pleaded thatthe suit property as well as Plot No. 52/B-1, are actually the
property of the elder PirBux son of Mango Ujjan (father of the applicant and
grand-father of the respondents) and such certificate was also issued in his
name and record of UC Office is also showing the ownership of the said PirBux
over both the plots. It is further pleaded that total area of the suit property
is measuring 7936 square feet which was after the death of said PirBux
distributed in three shares among his three sons namely the applicant, father
of the respondents and Nebahoo (step brother of the applicant and father of
respondents) in the manner that an area of 2368 square feet came in the share
of the applicant, an area of 1600 square feet came in the share of the father
of the respondents and an area of 3968 square feet came in the share of the
said Nebahoo. It is further pleaded that since the said distribution, the
respondents are residing in the said area of only 1600 square feet. It is
further pleaded that the applicant has suppressed the facts of actual ownership
of the suit property. It is further pleaded that the applicant has fabricated
forged documents to show his ownershipover the suit property. It is further
pleaded that the applicant has not come in Court with clean hand as he has not
joined the other co-sharers Nebahoo as party in the instant suit. In the end,
the respondents prayed for the dismissal of the instant suit.
4. The learned Civil Judge framed the following
issues:-
i)
Whether plaintiff is exclusive owner of
residential sikni house No. 51/B-1, situated in Khuhra Town, TalukaGambat?
ii)
Whether defendants have forcibly and
illegally occupied the 1/4th portion of Plaintiff’s property No.
51/B-1?
iii)
What suit is not maintainable?
iv)
Whether plaintiff is entitled for relief
prayed?
v)
What should the decree be?
5. The applicantexamined himself and two
witnesses namely (i) GhulamQadir and (ii) Gulsher, and produced documents. On
the other hand, the respondents examined their attorney PirBux and one witness
Bhalay Dino only.
6. The learned Civil Judge by his Judgment
dated 21.10.2009dismissed the instant suit.
7. Against the aforesaid Judgment,the applicant
filed Civil Appeal No. 112 of 2009, which was dismissed by the learned
Additional District Judge vide Judgment dated 26.11.2009.
8. Against the concurrent findings of both
the Courts below, the applicant has filed this revision application under
Section 115 CPC.
9. I have heard the learned counsel for the parties
and perused the material available on the record.
10. The learned counsel for the applicant
raised the following contentions:-
i)
Sale Deed in favour of the Applicant is
oldest documents of more than 30 years and accordingly there is presumption of
truth is attached. In support of this contention, he reliedupon the case of Mst.
Hameeda Begum and others Vs. Mst. Irshad Begum and others (2007 S C M R 996);
ii)
Registered Sale Deed in favour of the
applicant is a public document and therefore presumption of correctness is
attached to the said document. In support of this contention, he relied upon
the case of Ms.Uzma Masood and another Vs. Orient Communication (Pvt.) Ltd. and
another (2013 YLR (Sindh) 284);
iii)
Oral evidence of the respondents cannot
be given preference over documentary evidence produced by the applicant. In
support of this contention, he relied upon the case ofShamshad Vs. Arif Ashraf
Khan and others (2010SCMR473);
iv)
Revision application is maintainable
against the concurrent findings of both the Courts below and the High Court has
power to re-appraise the evidence and can set-aside the concurrent findings of
both the Courts below. In support of this contention, he relied upon the case
of Iqbal Ahmed Vs. Managing Director Provincial Urban Development Board,
N.W.F.P. Peshawar and others (2015 SCMR 799).
11. On the other hand, the learned counsel for
the respondentsraised the following contentions:-
i)
Neither original sale deed was produced
by the applicant in evidence nor any witness was examined to prove the
genuineness the said sale deed, which on the face of it, is invalid as the age
of the applicant at the relevant time was 9 years only and silent regarding
sale consideration. Accordingly, both the Courts below have rightly dismissed
the instant suit after taking into consideration all the aspects of the instant
case;
ii)
Revision application against the
concurrent findings of both the Courts below is not competent and the High
Court has no power to re-appraise the evidence and cannot set-aside the
concurrent findings of both the Courts below. In support of this contention, he
relied upon the cases of (i) Muhammad Ittayat KhanVs. Mst. RehmatKhatoon and
others(2001MLD (Karachi)1083), (ii)Fayyaz Ali Vs. Syed Islam Ahmed Kalimi (PLD
2001Karachi 403) and (iii) Muhammad Feroze and othersVs. Muhammad Jamaat Ali(2006SCMR1304).
12. The first important point for determination
in this revision application is that whether the applicant is the lawful owner
of the suit property by virtue of sale deed dated 14.04.1940. To resolve this
vital point, it is necessary to discuss relevant facts,which are as follows:-
a)
Admittedly, the applicant filed instant
suit for declaration, possession and injunctionagainst the respondents on the
footing of exclusive ownership. It is pertinent to mention here that neither
the said sale deed dated 14.04.1940 was pleaded in the plaint nor copy of the
same was annexed with the plaint;
b)
In his evidence, the applicant deposed
that the suit property was purchased by him and his brother collectively. It is
pertinent to mention here that the applicant produced photocopy of the said
sale deed dated 14.04.1940 in his evidence;
c)
In his cross-examination, the applicant
admitted that when the suit property was purchased his age was about 9 years.
However, he denied that the said sale deed is managed one;
d)
The evidence of applicant’s witness
GhulamQadir is hearsay and thus not admissible in law;
e)
Admittedly, the applicant’s witness
Gulsher, is son of the applicant. However, his evidence is, even otherwise, is
of no relevancy;
f)
Sale deed dated 14.04.1940 does not show
the description of property nor sale consideration;
g)
Neither original sale deed dated
14.04.1940 nor its certified copy was produced by the applicant in evidence;
h)
Neither independent witness nor official
witness was examined to prove the said sale deed;
i)
Neither applicant joined his brother
Nebahoo as plaintiff nor examined him as witness to support his version, who
is, according to the said sale deed, joint owner of the suit property;
j)
It has not been brought on record by the
applicant that his name was mutated in the record of rights by virtue of the
said sale deed.
13. In view of the above position, all the
contentions of the learned counsel for the applicant as mentioned in paragraph
10 hereinabove are misconceived and cannot be acceptedin view of the following
provisions of law and well settled principles of law:-
a)
Order VI Rule 2 CPC provides that every
pleading shall contain a statement in a concise form of the material facts on which the party pleading
relies for his claim. Whereas, Rule 9 of Order VI CPC provides that
wherever the contents of any document
are material, it shall be sufficient in any pleading to state the effect
thereof as briefly as possible;
b)
Order VII Rule 7 CPC provides that every plaint shall state specifically the
relief which the plaintiff claim either simply or in the alternative.
Whereas, Rule 14 of Order VII CPC provides that where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint
is presented, and shall at the same time deliver the document or a copy
thereof to be filed with the plaint. On the other hand, Rule 18 (1) of Order
VII CPC provides that a document which
ought to be produced in Court by the plaintiff when the plaint is presented,
or to be entered in the list to be added or annexed to the plaint, and which is not produced, or entered
accordingly, shall not, without the leave of the Court, be received in evidence
on his behalf at the hearing of the suit;
c)
Article 72 of the Qanun-e-Shahadat
Order, 1984 (hereinafter referred to as “Qanun-e-Shahadat”) provides that the
contents of documents may be proved either by primary or by secondary evidence.
Primary evidence is defined in Article 73 of the Qanun-e-Shahadat as the
document itself produced for the inspection of the Court. Whereas, secondary
evidence is defined in Article 74 of the Qanun-e-Shahadat which means and
includes copies made from or compared with the original;
d)
Article 78 of the Qanun-e-Shahadat
provides that if a document is alleged to be signed or to have been written
wholly or in part by any person, the signature or the hand writing of so much
of the document as is alleged to be in that person’s hand writing must be
proved to be in his hand writing. Whereas, Article 79 of the Qanun-e-Shahadat
provides that 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. On the other hand, Article 80 of the Qanun-e-Shahadat provides
that if no such attesting witness can be found, it must be proved that the witnesses have either died, or cannot be
found and that the document was executed by the person who purports to have
done so;
e)
Article 100 of the Qanun-e-Shahadat
provides that where any document, purporting or proved to be thirty years old, is produced from any custody which the
Court in the particular case considers proper, the Court may presume that the signature and
every other part of such document, which purports to be in the handwriting of
any particular person; is in that person’s handwriting and, in the case of a
document executed or attested, that it was duly executed and attested by the
persons by whom it purports to be executed and attested. Whereas Article 101 of
the Qanun-e-Shahadat provides that the provisions of Article 100 shall apply to
such copy of a document referred to in that Article as is certified in the
manner provided in Article 87 and is not less than thirty years old; and such certified copy may be produced in
proof of the contents of the document or part of the document of which it purports
to be a copy;
f)
Proviso (1) of Article 103 of
Qanun-e-Shahadat provides that any fact
may be proved which would invalidate any document or which would entitle
any person to any decree or order relating thereto; such as fraud,
intimidation, illegality , want of due
execution, want of capacity in any contracting party, want or failure of
consideration, or mistake in fact or law. Whereas, Article 105 of Qanun-e-Shahadat
provides that when language used in a document is plain in itself, but is
unmeaning in reference to existing facts, evidence
may be given to show that it was used in a peculiar sense;
g)
Article 117 of Qanun-e-Shahadat
provides that whoever desires any Court to give Judgment as to any legal right or liability dependent
on the existence of facts which he asserts, must prove that those facts exists. Whereas, Article 118 of
Qanun-e-Shahadat provides that the burden of prove in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side. On the other hand, Article 122
of Qanun-e-Shahadat provides that when
any fact is especially within the knowledge of any person the burden of proving
that fact is upon him;
h)
Article 129 (g) of Qanun-e-Shahadat
provides that the Court may presume that
evidence which could be and is not
produced would, if produced, be unfavorable to the person who withholds it;
i)
Party cannot be allowed to lead evidence
contrary to his pleadings nor could a party be permitted to take a plea
different than the plea which he has taken in his pleadings and any part of
evidence which is beyond the pleadings is ought to be over-looked and ignored.
Even no relief could be granted beyond pleadings and Judgment cannot be based
upon on un-pleaded case. Reliance can be placed upon the cases of (i)
ZahidaMahmood Vs. Muhammad Sabir Khan and 5 others (2000 YLR (Supreme Court
(AJ&K)) 1011), (ii) Muhammad Naib Vs. Amirullah and 39 others (2002 MLD
(Supreme Court (AJ&K)) 1243), (iii) Ehteshamuddin Qureshi Vs. Pakistan
Steel Mills Corporation Ltd. and another (2004 MLD (Karachi) 361), (iv)
EhtezazAsgher and another Vs. Ch. Muhammad Sajawal and 2 others (PLJ 2012
(Supreme Court (AJ&K)) 132), (v) Muhammad Iqbal Vs. MehboobAlam(2015 SCMR
21), (vi) Sardar Muhammad Naseem Khan Vs. Returning Officer, PP-12 and others
(2015 SCMR 1698) and (vii) Hafiz Muhammad Abid Vs. Azad Government of the State
of Jammu and Kashmir through Chief Secretary and 4 others (2015 PLC (C.S.)
(Supreme Court (AJ&K)) 232);
j)
If transaction itself is invalid,
evidence can be led to establish its real nature which will not be hit by
Article 103 of Qanun-e-Shahadat, but covered by the first proviso which is an
exception to the rule. Rule of evidence does not fetter the powers of the Court
to unveil the real transaction where the validity of the document itself is
challenged and to ascertain the real nature of transaction. Reliance can be
placed upon the cases of (i) Muhammad Shafi and others Vs. Allah Dad Khan (PLD
1986 (Supreme Court) 519) and (ii) Fakhar-ud-Din through L.Rs. Vs. Muhammad
Iqbal and others (2015 CLC (Lahore) 994);
k)
Admissibility of document is to be distinguished
from proof required by law for determining the execution and genuineness of
document. A registered sale deed by itself, without proof, would not confer any
right. If neither original sale deed is produced nor permission was obtained
for production of secondary evidence nor any witness was examined then the sale
deed is not proved. Reliance can be placed upon the case of Abdul Majeed and 6
others Vs. Muhammad Subhan and 2 others (1999 SCMR 1245);
l)
No steps were taken to prove the
contents of document by leading primary or secondary evidence in terms of
Articles 75 and 76 of Qanun-e-Shahadat, therefore, such document cannot be
taken into consideration as mere tendering a document in evidence gets no evidentiary
value unless its contents are proved according to law. Reliance can be placed
upon the case of Hyderabad Development
Authority through M.D., Civil Centre, Hyderabad Vs. Abdul Majeed and others
(PLD 2002 Supreme Court 84);
m)
Court is competent to look into the
document and to command upon its true nature or otherwise, as, such power is
inherent in every Court, much less the High Court. Non-production of witness to
prove document is fetal to the case of the party with the legal consequence
that the recitals of document cannot be said to have been proved in terms of
Article 78 of Qanun-e-Shahadat and simply because no objection was raised to
the production of document would not render the document as proved. Reliance
can be placed upon the case of Anwar Ahmad Vs. Mst. NafisBano through Legal
Heirs (2005 SCMR 152);
n)
There is no cavil with the proposition
that a presumption of truth is attached to registered document but if its
contents are challenged then the onus shifts on the beneficiary to prove its contents
by examining attesting witnesses. Reliance can be placed upon the case ofAbdul
Ghafoor and others Vs. Mukhtar Ahmad Khan and others (2006 SCMR 1144);
o)
Evidentiary value of the certified copy
of the sale deed without seeking prior permission from the Court loses its
importance and such a copy would not sufficient to prove the same and therefore
no presumption of correctness could be attached to the certified copy of the
sale deed, which was not admissible in evidence as the condition precedent to
the admission of the secondary evidence had not been fulfilled.Reliance can be
placed upon the case ofMst. Akbar Jan through L.Rs. and 9 others Vs. Mst.
KalsoomBibi and 6 others (2015 CLC (Lahore) 549);
p)
The beneficiary of a sale deed is bound
to examine marginal witnesses, identifier and sub-registrar to prove valid
execution of the disputed sale deed and in absence of such best evidence, it
cannot be assumed that the beneficiary had succeeded to prove his case and the
principle of presumption of truth attached to the registered document is not
applicable in such circumstances in as much as where the execution of
registered document is disputed, no such presumption attaches to it and its
valid execution has to be proved by production of relevant and material
evidence. If the best evidence was withheld by the beneficiary, the inference
under Article 129 (g) of the Qanun-e-Shahadat has to be drawn against the
beneficiary. Reliance can be placed upon the case ofFarzand Ali and others Vs.
Bashir Ahmad (2016 YLR (Lahore) 1233).
14. In view of the above referred provisions of
law and settled principles of law, the cases of (i) Mst. Hameeda Begum and
others Vs. Mst. Irshad Begum and others (2007 S C M R 996) and (ii) Ms. Uzma
Masood and another Vs. Orient Communication (Pvt.) Ltd. and another (2013 YLR
(Sindh) 284) relied upon by the learned counsel for the applicant are
distinguishable and not applicable to the facts and circumstances of the
instant case.
15. I have very carefully gone through the
pleadings and evidence of the parties and came to the conclusion that the
entire case of the applicant was bases upon the said sale deed but the
applicant neither pleaded the said sale deed in his plaint nor produced the
same with his plaint nor claimed any specific relief on the footing of the said
sale deed and therefore his evidence on un-pleaded case cannot be looked into
and should be ignored. Apart from this, the original sale deed was neither
produced nor certified copy of the same was tendered in evidence nor any
relevant and material witness was examined to prove the said sale deed, which
remained unproved. Even otherwise, the said sale deed on the face of it appears
to be doubtful and managed one and hence no presumption of its truth can be
taken.
16.Apart
from this, to attract the provisions of Section 115 CPC, the applicant has to
satisfy this Court that the sub-ordinate Courts have:
a)
exercised a jurisdiction not vested in
them by law, or
b)
failed to exercise a jurisdiction so
vested, or
c)
acted in the exercise of the
jurisdiction illegally or with material irregularity.
The
learned counsel for the applicant has not been able to point out any illegality
or irregularity committed by both the Courts below. However, I have carefully
gone through both the Judgments of the Courts below and I came to the
conclusion that both the Courts below have exercised jurisdictionvested in them
on sound reasons, which is neither perverse nor arbitrary nor inequitable. In
these circumstances, both the Courts below have exercised their jurisdiction in
accordance with law and have not committed any illegality and irregularity in
deciding the instant suit and accordingly my considered view is that this
revision application under Section 115 CPC is not competent against the concurrent
findings. My this considered view finds support from the cases of (i) Muhammad
Bux Vs. Muhammad Ali (1984 SCMR 504),
(ii) Haji Muhammad Zaman Vs. Zafar Ali Khan and others (PLD 1986 Supreme
Court 88), (iii) Muhammad Nawaz and others Vs. Muhammad Sadiq and another (1995
SCMR 105), (iv) Abdul Hakeem Vs. Habibullahand 11 others (1997 SCMR 1139), (v) Muhammad
Feroze and others Vs. Muhammad Jamaat Ali (2006 SCMR 1304) and (vi) Ahmad Nawaz
Khan Vs.Muhammad Jaffar Khan and others
(2010SCMR 984).
17. In view of the above discussion, thisrevision
application alongwith listed application is dismissed with costs.
J U D G E