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Petitioner: AZIZ KHAN VS Respondent: MAIZ MUHAMMAD KHAN AND 6 OTHERS
Court Name: Peshawar High Court Judge(s): Karimullah Khan Durrani Title: AZIZ KHAN vs MAIZ MUHAMMAD KHAN AND 6 OTHERS Case No.: Civil Revision No, 368 of 1974 Regular Second Appeal No, 26 of 1973 Date of Judgment:1980-02-22 Reported As: PLD 1980 Peshawar 227 Result: Order accordingly
JUDGMENT
JUDGMENT ' One Jamdad Khan son of Umar Khan resident of Village Yaqoobi, Tehsil Swabi, District Mardan (now deceased) was the owner of agricultural land comprising Khasra Nos. 1438 etc. (fully described in the heading of the plaint) measuring 133 kanals 5 marlas, situate in Village Yaqoobi, Tehsil Swabi, District Mardan. This Jamdad Khan migrated to Thailand sometimes during 1930s and settled therein. He had a wife by the name of Mst. Halima, two sons Mir Ghawas and Karimdad and two daughters Mst. Salima and Mst. Bakhto, who were with the exception of Mir Ghawas Khan residing with him in Thailand as the Nationals of that country. Karimdad predeceased his father. It has been contended that the said Jamdad Khan returned to Pakistan leaving behind his wife and children in Thailand sometimes in 1958 and died at his village Yaqoobi in 1960. The appellant Aziz Khan son of Samundar Khan of the same village is sister's son of said Jamdad Khan, who had been attending to his property during his absence and was entered in the record of rights as tenant at will in the said land under his maternal uncle the said Jamdad Khan. Sometimes after the demise of Jamdad Khan one Faiz Muhammad (defendant No, 5) son of Rasool Khan of the village Kalu Khan, Tehsil Swabi, District Mardan, who had an uncle in Thailand, on receiving the news of the death of his uncle in that country went to Thailand for taking into possession the estate of his deceased uncle. This Faiz Muhammad on his return to Pakistan on the basis of a power of attorney alleged to have been executed by the heirs of Jamdad Khan deceased executed a sale deed in respect of the whole of the agricultural land of Jamdad Khan mentioned above in favour of his two brothers, Faiz Mohammad and Wall Mohammad and Wisal Muhammad his minor son (hereinafter called the plaintiffs), against a consideration of Rs, 1,30,000, which was received by him before the Registrar on 15-2-1966. This sale was given effect into the revenue record by attestation of
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mutation No, 5631 on 16-3-1966. Prior to attestation of the said mutation the aforementioned Aziz Khan, defendant No, 1 and now appellant before this Court, got a mutation entered on the basis of a gift deed purported to have been executed in his favour by Jamad deceased of the said land. This mutation was entered at serial No, 5628. The Revenue Officer concerned on 16-3-1966, while attesting the former mutation in favour of the plaintiffs rejected the latter one. Being aggrieved of the rejection of the mutation in his favour and of the attestation of the sale mutation in favour of the plaintiffs the defendant No, 1 instituted two separate appeals before the Collector on 20-3-1966. These appeals were dismissed. After the attestation of mutation No, 5631 above, the Deputy Commissioner, Mardan vide his letter dated 20-9-1966, directed that the said mutation be rejected, as he had received an intimation from the Embassy of Pakistan at Tailand to the effect that the power of attorney attested by them in favour of Faiz Mohammad was a bogus document which was not executed by the widow and daughters of the deceased Jamdad Khan. With the rejection of the sale mutation the plaintiffs were directed to seek their remedy in the Civil Court. Later on proceedings on revision and review etc. Before the Revenue Authorities against the aforesaid order failed. 2. It was in consequence of the direction of the Revenue Officer that the plaintiffs, on 11-2-1970, instituted the suit, being 85/1 of 1970, in the Court of the learned Civil Judge, Mardan for obtaining a declaration that the plaintiffs had acquired the lands belonging to Jamdad Khan hereinafter called the suit land) vide valid sale deed executed on 15-2-1966 and that defendants Nos. 2 to 4 the heirs of Jamdad Khan deceased, were left with no right of ownership or possession in the suit land and that the rejection of the sale mutation vide order of the Collector, Mardan dated 20-9-1966. Was ineffective and void on their rights and that the plaintiffs were not bound by the same rejection of mutation, who have become full owners of the suit land by the above-mentioned transaction and that the attorney of the heirs of the deceased, namely Faiz Mohammad was a lawfully constituted attorney of the heirs of deceased Jamdad Khan, who had validly transferred the land in their favour and thus the said sale deed was valid and effective in their favour. In the alternative the possession of the suit land was asked for as a consequential relief in case the plaintiffs were not found in possession of the suit land. In this suit Aziz Khan son of Samundar was arrayed as defendant No, 1, while the heirs of deceased Jamdad Khan, excepting the other daughter, Mst. Bakhto, and the attorney, Faiz Mohammad were arrayed as defendants 2 to 5 in the suit. Faiz Mohammad Khan confessed judgment while Aziz Khan defendant No, 1 hotly contested the suit and placed his own title in the suit land as donee from the owner Jamdad in defence of the suit. The heirs of Jamdad Khan i,e, defendant 2 to 4 were not served directly and substituted service by publication of the notice in the daily Mashriq of Peshawar was ordered against them. On the publication of the notice in the said Newspaper, defendant No, 5 Faiz Mohammad accepted service on their behalf as their general attorney. 3. The learned Civil Judge, Mardan after framing the issues on the points of controversy between the parties and after recording evidence, his judgment, dated 27-2-1971, dismissed the suit, as according to him both the contesting parties could not prove their respective claims and counter- claims as raised in the case. They were left to bear their own costs. The plaintiffs took an appeal to the learned District Judge, Mardan against the judgment and decree of the trial Court and so did defendant No, 1, Aziz Khan, who preferred a separate appeal against the said judgment and decree, in which once again the defendants-respondents 2 to 4, were not directly served but a substituted service was effected on them by publication in daily Mashriq Peshawar. In consequence whereof they were proceeded against ex parte in the hearing of the appeals. The learned District Judge on 17-3-1973, accepted the appeal of the plaintiffs and decreed their suit for the declaration and for possession as prayed for by them against the defendants. The learned District Judge dismissed
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the appeal of respondent No, 1, Aziz Khan Fide the same judgment and left the parties to bear their own costs. 4. There are two Regular Second Appeals filed by defendant No, 1, Aziz Khan (1) against the acceptance of the appeal of the plaintiffs and (2) against the dismissal of his appeal in the first appellate Court. One of the heirs of deceased Jamdad Khan, namely Mir Ghawas his son for the first time appeared in these proceedings by filing the Cross-Objections on 7-5-1979, wherein he alleged his unawareness of the proceedings before the lower Courts as well as of the filing of the appeals in this Court till then. The objector claims in the Cross Objections that he came to Pakistan a few months prior to filing of the Cross-Objections and that Faiz Muhammad (defendant No, 5) was not attorney of the objector. The power of attorney in his favour was alleged as being fictitious and forged and therefore, the sale transaction by him as their agent to the plaintiffs was a void and fraudulent transaction. It was further alleged in the Cross-Objections that defendant- respondent No, 5 had further practised fraud in transferring the property of his alleged principals to his own minor son. The appellant Abdul Aziz Khan was represented in this Court by Khawaja Mushtaq Ahmad, Advocate of Lahore while the plaintiffs were represented by Qazi Abdur Rashid, Advocate. Mr. Abdul Samad Khan, Mr. Fazal Elahi Khan, Advocates represented Mir Ghawas Khan objector. 5, 1 have heard the learned counsel for the parties at great length and have also perused the record. The learned counsel for the plaintiffs-respondents raised the following preliminary objections to the competency of the appeals in this Court :- (i) That the value of the suit being less than Rs, 2,000 a Second appeal under section 100 of the Code of Civil Procedure was not available to the appellant by virtue of section 102 of the said Code. (ii) That the decision of the learned Courts below on Issue No, 5 i,e, the claim of ownership of the appellant on the basis of the gift was a concurrent finding on a question of fact, which was not amenable to the jurisdiction of this Court under section 100, C. P. C. ' The first preliminary objection of the learned counsel for the plaintiffs-respondents is based on the applicability of section 102 of the Code of Civil Procedure as substituted for the original section by Item 3 of the Schedule relating to the Code of Civil Procedure to the Law Reforms Ordinance, 1972, which reads as under :- 102. No second appeal in certain cases:- No second appeal shall lie- (a) in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed five thousand rupees; and (b) in any other suit, when the amount or value of the subject-matter of the original suit does not exceed two thousand rupees." ' The above-quoted Ordinance came into force on 14-4-1972 and has not been given retrospective effect. As the right of appeal is a substantive right and was available to the parties at the beginning of the action it would only be taken away by the express intendment in the subsequent amendment of law. The plaintiffs as stated above instituted the suit on 11-2-197 when right of second appeal was available to the parties under section 100, C. P. C. This being a substantive right remained intact by virtue of section 6 of the General Clauses Act, 1897. In this view of the matter, I find no force in the contention of the learned counsel for the respondents and hold the instant appeals competent under section 100, C. P. C. In spite of the curtailment of the right of second appeal by section 102 ibid. 6. As regards second preliminary objection the learned counsel has placed reliance on a number of decisions of the superior Courts. The first of these being Supreme Court of Pakistan in Malik Muhammad Hayat Khan v. Sub. Yar Muhammad Khan (1), in which their Lordships distinguished a question of fact from that of law and held :-
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"(1) The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact. (2) Where the question to be decided is one of fact, it does not involve an issue of law merely because documents which were not instruments of title or otherwise the direct foundations of rights, but were really historical materials, have to be construed for the purpose of deciding the question." ' It was argued before the learned Judges on behalf of the respondents in that case that the compromise effected only a family settlement, was a finding of fact, as even though it depended upon the construction of a document, namely, the terms of the compromise, that construction had been made on the basis of the surrounding circumstances. Their Lordships relying on an earlier decision of the Privy Council (45 I A 183/187) resolved the question as under :- "We see no reason to depart from this enunciation of law and applying the tests in the present case we find the question that fell for consideration was as to what was the true intent of the parties to be gathered from the terms of the compromise. In order to ascertain this true intent the surrounding facts and circumstances could legitimately be looked into but this did not, in our view, make it a question of fact, for, the question nevertheless remained as to what was the legal effect of the said compromise decree." ' It does not need any further elaboration to state that this authority rather goes against the respondents in that in the instant case the question which remained for decision is the legal effect of the deed of the gift, which is alleged to have been executed in favour of the appellant by the original owner of the suit land and the legality of the gift itself in the attending circumstances thereof. I need not enter into further discussion on this point by referring to the other authorities cited at the Bar by the learned counsel for the respondents as a careful perusal of them all takes one to the (1) PLD 1966 SC 612 same conclusion that wherever the legal effect of the document in the context of the attending circumstances are to be applied, the question essentially remained of law and would always be amenable to the jurisdiction of this Court under section 100 of the Code of Civil Procedure. 7. The learned counsel for the respondents has also objected to the competency of the Cross- Objection filed on behalf of Mir Ghawas defendant respondent on the ground that the said respondent had not filed an appeal, against the decree. He, therefore, cannot be allowed to challenge the same in Cross-Objection. The Cross-Objections have also been objected to on the ground that the photostats of the judgment annexed to the Memorandum of Cross Objections are of the certified copies obtained by the appellant Aziz Khan, which shows that the Cross-Objections have been filed in collusion with the appellant, 8. It may be taken into consideration at this stage that after the decision of the suit Record Room of the District Mardan was burnt out and all the records stored therein were destroyed. The case-file before the Court at this moment is one which is reconstructed with the help of the parties to the suit. It has been explained on behalf of the Objector that at the time when Cross-Objections were filed the records having been destroyed the certified copies of the judgments could not be obtained. Even on the reconstructed file, the copies of the judgments placed were those which were supplied by the parties to the Court. The photostats appended to the Cross-Objections are the photo copies of those documents and therefore, bear the same particulars of the certified copies as are given on the copies supplied to Aziz Khan appellant. This explanation clears any doubt of collusion, which might have been caused due to these photostats. As regards the competency of the Cross-Objections the learned counsel for the plaintiff-respondent relied on a passage from the "Commentary on Civil Procedure in British India" By Sir Johan George Woodroffe,
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Kt. M. A. B. C. L. And Frank James Mathew, edition of 1916 on Rule 22 of Order 41 of the Code of Civil Procedure relating to the Cross-Objections. It reads "A respondent, when the decree is against him, cannot (unless he has filed a cross-appeal) be heard except to support the decree, and can only alter it by means of a cross-appeal." ' This passage is based upon Casperz v. Kishori Lal Roy Chowdhury (1). Order XLI, rule 22 of the Code of Civil Procedure is as follows: "(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court see fit to allow. (1) (1896) 23 Cal. 923 ' In Ramasray Singh and others v. Bibhison Sinha and others (1) wherein a similar objection was taken, it was held :- "This right to file a cross objection is not limited in the way suggested by the respondent. If an appeal is filed the respondent to the appeal without filing any appeal can take cross objection to the decree on any ground on which he could have filed an appeal." ' Relying on the above-noted case a Single Bench of this Court in Khawar All Shah and 2 others v. Syed Murtaza Shah, Sub-Inspector, Police and others (2) had held :- "Under Order XLI, rule 22, C. P. C. Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of the service on him or his pleader of notice of the day fixed for hearing the appeal or within such further time as the Appellate Court may see fit to allow." ' While dealing with an almost similar question in Khawaja Muhammad Naeem and others v. Tasleem Jan and others Civil Revision No, 368 of 1974, decided on 15-10-1979, 1, respectfully agreeing with the dictum of law laid down in the above-cited authorities, stated :---:- "I am of the opinion, that the petitioners had a statutory right to challenge the whole of the decree before learned Appellate Court by way of cross objection even on the expiry of the period of limitation for filing an appeal, when other side of the defence did file an appeal before the learned Appellate Court." The above-cited authorities would clearly show that the law on the subject has undergone a substantial change since the decision mentioned by the above learned commentators was cited. The objection taken to the competency of the Cross-Objections on behalf of the respondent, therefore, being of no force has to be overruled. 9. Now coming to the merits of the case the plaintiffs-petitioners have striven to get the sale of the suit property effected in their favour by defendant No, 5, Faiz Muhammad validated by obtaining declaration from the Court. On the other hand, respondent No, 1, the present appellant claims that by virtue of the gift deed (Exh. D. W. 1/1) Jamdad Khan, the original owner, on 9-4-1960, while he was alive, had gifted away the suit land to him and delivered its ownership possession also on the same date to him and as a donee he is still in possession of the land. The plaintiffs claim that the transaction effected in their favour was by way of a registered sale deed (Exh. P. W. 2/3) and because the alleged gift was made under an unregistered deed the deed in their favour would have preference over the latter. In this regard, sections 48 and 50 of Registration Act, 1908 have been pressed into service and reliance has been placed on Messrs Rehman Cotton Factory v. Messrs Nichimen Co. (3) and Pordil Khan v. Sufaid Gul (4), in support of the contention that an
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unregistered deed cannot have preference over a deed which is registered. Now by virtue of section 17 of the Registration or (1) A 1 R 1950 Cal. 372 (2) PLD 1969 Pesh. 203 (3) PLD 1976 SC 781 (4) PLD 1965 Pesh. 259 Act, a gift deed ir-regarding the value of the property gifted, is compulsorily registrable. The effect of the non-registration of the gift deed as per section 49 of the Act, would be that it shall not operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or in the suit land and under section 50 of the Act, a registered document would take effect against sale deed. The position in the instant case is that an unregistered gift deed has been entered into evidence by defendant No, 1 for the collateral purpose of proving the nature of his possession on the suit land, the document in question is admissible in evidence for this purpose and it would be perfectly legal and valid for defendant No, 1 to show in defence as to in what capacity he was holding the possession of the land. In the Supreme Court's decision relied on by the learned counsel for the respondents their Lordships of the Supreme Court after reiterating the legal position that unregistered instrument requiring compulsory registration but not registered does not create right, title etc. In the immovable property have clearly declared that such instrument can be received in evidence for collateral purposes. Similarly in the Peshawar case quoted on behalf of the respondents, which was of an unregistered deed which was prior in time to the registered one but was without possession it was held that unregistered deed cannot have precedence over subsequent registered deed. In this case, section 53-A of the Transfer of Property Act was taken into consideration. In the instant case, admittedly the possession of the suit land is with defendant No, 1 and has never passed on to the plaintiff-respondents. In case the. Said defendant is not in a position to establish the legality of the donation in his favour section 53-A of the Transfer of Property Act, even if applicable, as alleged, would not come to his aid. 10. The plaintiff-respondents have claimed protection for the transaction in their favour under section 41 of the Transfer of Property Act, on the plea that although the possession of land was with respondent No, 1 but because it had commenced as a tenant at will and had not shown to have changed its character of being as of an owner by Hiba, the respondents could not be held to be aware of the change. This argument would have been available to the plaintiffs-respondents had transaction in their favour been free of the stigma of doubt on its genuineness. 11. Faiz Muhammad, defendant-respondent No, 5, purported to have acted under a power of attorney given to him on behalf of the heirs of Jamdad Khan deceased. This power of attorney a copy of which has been placed on record as Exh. D. W. 2/1 was admittedly scribed at Peshawar in Urdu language on which according to the said Faiz Muhammad, defendant the heirs of Jamdad Khan put their signatures in Bangkok and got it attested from the Official concerned of the Pakistan Embassy in Thailand. The date of execution is given as 24-12-1965, when the execution were admittedly in Peshawar. It was presented to the Embassay for attestation at Bangkok allegedly by Mir Ghawas defendant, one of the heirs of Jamadad Khan for attestation. At the time of attestation no other heir of Jamdad Khan was present. It was attested by the Embassy on 18-1-1%6 and Faiz Muhammad got it registered with the Sub-Registrar, Swabi on the basis of the said attestation on 12-2-1966. It is also in evidence that the said Faiz Muhammad got another power of attorney drawn and attested by a lawyer at Bangkok and English translation whereof has been placed on record. 1 his power of attorney was also got attested by an Officer of the Pakistan Embassy at Thailand. Thus armed with two powers of attorney Faiz Muhammad respondent on his return to Pakistan acted upon that which is exhibited as Exh. P. W. 2/1. This power of attorney purports to have been executed by Mir Ghawas son, Mst. Halima widow and Mst. Salima daughter of Jamdad Khan deceased. The existence of the second daughter of the deceased namely Mst. Bakhto as alleged by her mother Mst. Halima has neither been denied nor admitted by the contesting parties to the suit. It is also admitted that a little after the attestation of the power of attorney the Embassy of Pakistan at
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Bangkok in Thailand had addressed a communication marking it as most immediate and sent by Diplomatic Bag under their No, P. C. 3/5/63 dated 4-3-1966 to the Deputy Commissioner, Mardan, informing the latter that power of attorney in Urdu, a copy whereof was enclosed with the letter, was got attested by one Faiz Muhammad from the Embassy on the plea that it was executed on behalf of Mir Ghawas son, Mst. Halima, widow and Mst. Salima, daughter of Jamdad Khan and that a person by name of Mir Ghawas had presented the same to the Embassy for attestation. The power of attorney was returned to the said Mir Ghawas after having been attested. The Embassy added that :- "After a few days of the departure of Mr. Faiz Muhammad Khan the mother of Mir Ghawas Khan alongwith her two daughters (Mrs. Saleema and Mrs. Bakhto) turned up to this Embassy and stated that her thumb-impression and that of Mrs. Saleema were not genuine. The thumb-impressions, she alleged were those of the wife and daughter of Mir Ghawas. Mir Ghawas Khan did not also consult his other sister Mrs. Bakhto in the matter at all, who is also among the heirs of the property and visited this Embassy alongwith Mrs. Saleema." ' The Embassy further stated that on receipt of this information from the widow of the deceased the Embassy called upon Mir Ghawas several times to…
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