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Petitioner: Sh. MUHAMMAD SHARIF UPPAL VS Respondent: Sh. AKBAR HUSSAIN and others
Court Name: Lahore High Court Judge(s): Munir A. Sheikh Title: Sh. MUHAMMAD SHARIF UPPAL vs Sh. AKBAR HUSSAIN and others Case No.: Regular Second Appeals Nos. 182 and 143 of 1985 Date of Judgment:1990-01-14 Reported As: PLD 1990 Lahore 229 Result: Order accordingly
JUDGMENT
JUDGMENT This judgment will also dispose of R.SA. No,143 of 1985 which is also directed against the same judgment and decree of the learned lower appellate Court. 2. This is defendant's second appeal directed against the judgment and decree dated 16-12-1984 passed by the learned Additional District Judge, Lahore. The facts forming the background of legation between the parties necessary for disposal of the appeal shortly stated are as under:- Haji Muhammad Hussain predecessor-in-interest of the parties died on 1-7-1969. Respondents No,1 to 5 filed a suit against the present appellant for administration, partition and rendition of accounts etc. Of the properties left by the said Haji Muhammad Hussain deceased. Respondents No,1 to 4 and the present appellant are the sons whereas respondent No,5 is the daughter of Haji Muhammad Hussain deceased. Respondent No,6 namely Bilquis Sultana is the daughter of Mst. Inayat Begum the other pre-deceased daughter of Haji Muhammad Hussain, as such, she having been found to be entitled to inherit the properties of Haji Muhammad Hussain to the extent of share of her deceased mother under the Muslim Family Laws of 1961, was ordered to be impleaded as one of the defendants in the suit by the learned lower appellate Court. According to averments in the plaint the case of respondents No,1 to 5 was that Haji Muhammad Hussain deceased left behind the following properties:- (a) A plot of land measuring 2 kanals 19 marlas bearing khasra No,2124/38 situated at Begum Kot, Lahore. (b) A plot of land measuring 6 kanals 4 marlas bearing khasra No,29/1/1 and 4/2 situated at Mauza Dacca, District Sheikhupura;
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(c) House No,D/753, situated in Lohari Mandi, Phullanwali Gali, Lahore. It was stated that mortgagee rights in the said house were purchased by Haji Muhammad Hussain deceased which had not been redeemed within a period of limitation, therefore, he had become owner thereof. Apart from this it was also averred that Haji Muhammad Hussain owned land measuring 17 marlas situated in village Begum Kot, Lahore. (d) House No,D/13 situated at Chowk Jhanda, Lahore. The suit was contested by the present appellant. He took a number of preliminary objections. Regarding the properties mentioned above he took up the following stand:-- (i) Property measuring 6 kanals 4 marlas bearing Khasra No,29/1/1 and 4/2 did not belong to Haji Muhammad Hussain deceased at the time of his death, therefore, an objection was taken that no question of its administration, partition and rendition of accounts arose at all. It was not, however, specifically stated in sab-para (a) of Para 2 of written statement that this property was owned by the appellant; (ii) About property measuring 2 kanals 19 marlas bearing Khasra No,2124/38 the plea raised by the appellant was that Haji Muhammad Hussain deceased in his lifetime transferred this property in the name of Firm Sharif Sons which was subsequently dissolved as a consequence of which all the assets of the Firm including the said property became the exclusive property of the present appellant, as such, at the time of his death the deceased had no right, title or interest in the said land; (iii) It was admitted by the appellant that House No,D/13 situated in Chowk Jhanda, Lahore, was still a joint property. It was, however, averred that the appellant was only in possession of a small room on the ground floor of the said house and the rest of it was occupied by the plaintiffs and as such they were liable to account for rents received by them in respect of the said property; Regarding house bearing No,D/753 the case of the appellant was that it was still under a mortgage and Haji Muhammad Hussain deceased at the time of his death did not become its full owner. It was averred that the said house was owned by Mst. Wazir Begum and her daughter Irshad Begum the ex-wife of the present appellant which was mortgaged with one Muhammad Hussain whose mortgagee rights were purchased by the appellant in the name of Haji Muhammad Hussain deceased as such Haji Muhammad Hussain was alleged to be a. Benami mortgagee, whereas the actual mortgagee was the present appellant. The appellant also alleged that he had spent a sum of Rs,25,000 on the repairs and maintenance of this house. It was also alleged that Haji Muhammad Hussain in his lifetime acknowledged that the appellant was the real mortgagee and he was really a benamidar. Regarding land measuring 17 marlas situated in village Begurn Kot Lahore, the case pleaded by the appellant was that the same was purchased by him from its previous owner namely Pir Bakhsh son of Taleh Mand through registered sale deed dated 8-5-1941 as such, it was not owned by Haji Muhammad Hussain who had no right, interest or any entitlement in this piece of land. 3. It was admitted position that property bearing No,D/587 was owned by late Mst. Zainab Bibi the mother of the appellant and respondents No,1 to 5 who died in the year 1958. 4. On the pleadings of the parties the learned trial Court framed the following issues:- (1) Whether the suit is bad for non-joinder of necessary parties? OPD (2) Whether the plaint is not properly verified? If so, its effect? OPD (3) Whether the plaint cannot proceed because of non-signing of the plaint? OPD (4) Whether the plaint does not disclose any cause of action? OPD (5) Whether the plaintiffs are entitled to a decree for administration, rendition of accounts and partition of property is prayed for? OPP (6) Who is accounting party? OP Parties
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(7) Whether the details of the disputed properties are incorrect, if so, what are the details of actual property left by the deceased and who are in its possession and control? OPD (8) Relief. In support of their case respondents No,1 to 5/plaintiffs examined Abdur Rashid as PW.1, Akbar Hussain one of the plaintiffs examined himself as PW.2 whereas Mahmood Hussain plaintiff No,2 examined himself as PW.3. Apart from this oral evidence the plaintiffs also produced documents such as copy of Jamabandi regarding land measuring 6 kanals 4 marlas as Ex.P.1 and a copy of Writ Petition No,133 of 1980 as Ex.P.2. Copies of documents attached with the said writ petition were produced as Ex.P.2/1 to Ex.P.2/4 whereas Jamabandi regarding land measuring 2 kanals 19 marlas was produced as Ex.P.3. 5. On the other hand the present appellant examined Kh. Abu Tahir as DW.1 (he was examined twice), Subaktageen Dar as DW.2, Muhammad Anwar as DW.3, Muhammad Yousaf as DW.4 and Muhammad Latif as DW.5 and the appellant examined himself as his own witness as DW.6. After the close of evidence of the present appellant the respondents No,1 to 5/plaintiffs examined S.M.K. Lodhi as PW.4 and Iftikhar Hussain as PW.5. Besides this oral evidence the appellant produced documentary evidence consisting of Ex.D.1, Ex.D.1/1, Ex.D.2, Ex.D.2/1-3, Ex.D.4 and Ex.D.5. Apart from these documents copy of sale-deed dated 18-8-1965 of land measuring 3 kanals 16 marlas was marked as D.1, copy of the registration form dated 9-12-1963 was marked as D.2, and copy of mutation of land measuring 17 marlas dated 23-6-1943 was marked as D.3. 6. Issues No,2, 3 and 4 the onus of which was on the present appellant were not pressed by his learned counsel who made statement to that effect before the learned trial Court on 27-10-1982. These issues were, therefore, decided against the appellant. Under issue No,1 it was held that Mst. Bilquis Sultana daughter of Inayat Begum a pre-deceased daughter of Haji Muhammad Hussain was a necessary party because he had share in the inheritance. She was, however, not ordered to be impleaded whereas it was held that her share shall otherwise be determined. This issue was decided accordingly. Issues No,5, 6 and 7 being interconnected were taken up and decided through consolidated findings. Since the appellant admitted in the written statement that House No,D/13 was owned by Haji Muhammad Hussain deceased, therefore, it was held that the same shall be shared by the parties according to Shariat Law. The learned trial Court held that land measuring 6 kanals 4 marlas bearing khasra No,29/1/1 and 4/2 situated at Mauza Dacca District Sheikhupura was owned by Haji Muhammad Hussain deceased, and the plea of the present appellant that it was owned by him was repelled. 7. Plot bearing Khasra No,2134/95 measuring 17 marlas was held to have been owned by Haji Muhammad Hussain by the learned trial Court and the claim of the present appellant that it belonged to him was rejected. It was also held that House No,D/753 situated in Phullanwali Gali, Lohari Mandi, Lahore, was owned by Haji Muhammad Hussain. Regarding the creation of alleged firm with the name of Sharif Sons it was held by the learned trial Court that the same was a fake transaction as such neither deceased Haji Muhammad Hussain nor Mahmood Hussain one of the plaintiffs and the present appellant were partners in that firm and the documents produced to establish the creation of the said firm were held to be fabricated. As a consequence of this finding it was held that land measuring 2 kanals 19 marlas situated in village Begum Kot, Lahore was owned by Haji Muhammad Hussain. Issue No,5 was found to have been proved by the plaintiffs, therefore, the same was decided in their favour. It was further held that the present appellant failed to prove issue No,7, onus of which was on him, therefore, it was answered against him. The learned trial Court also held that the details of the disputed properties owned by Haji Muhammad Hussain were correctly given in the plaint. The learned trial Court also recorded finding that the plaintiffs succeeded in proving that the defendant/appellant was the accounting party, therefore, issue No,6 was answered against the appellant. In the result the learned trial Court passed preliminary decree
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through judgment dated 1-11-1983 in respect of the said properties in favour of the plaintiffs, and Mst. Bilquis Sultana daughter of Mst. Inayat Begum as against the present appellant, the shares of each of them were found to be as under:- (1)Sh. Akbar Hussain Plaintiff No,1 2/12 (2)Sh. Mahmood Hussain Plaintiff No,2 2/12 (3)Sh.Masud Hussain Plaintiff No,3 2/12 (4)Munawar Hussain Plaintiff No,4 2/12 (5)Mst.Mumtaz Begum Plaintiff No,5 1/12 (6)Mst.Balquis Sultana d/o Mst.Lnayat Begum1/12 (7)Sh. Muhammad Sharif Defendant No,1 2/12 8. Feeling aggrieved the present appellant filed appeal against the said judgment and decree of the learned trial Court. The learned lower appellate Court decided the appeal by judgment and decree dated 16-12-1984 impugned in this appeal. The learned lower appellate Court upheld the findings of the learned trial Court on issue No,1. Anyhow on the application of Mst. Bilquis Sultana made under Order 1 Rule 10 C.P.C. She was ordered to be impleaded as one of the defendants in the suit as also respondents in the appeal. The findings of the learned trial Court regarding land measuring 6 kanals 4 marlas situated in Mauza Dacca District Sheikhupura and House No,D/753 situated in Phullanwali Gali, Lohari Mandi, Lahore, were upheld. Likewise, the findings of the learned trial Court respecting plot measuring 17 marlas were also maintained. The learned lower appellate Court recorded a finding that the firm Sharif Sons was proved to have been established and property i.e, land measuring 2 kanals 19 marlas was held to have been invested by Haji Muhammad Hussain in the said firm whereas the investment of property measuring 17 marlas allegedly made by Sh. Muhammad Sharif in the said firm treating it as his property was held to have not taken effect as Sh.Muham mad Sharif was not owner of this land which was owned by Haji Muhammad Hussain as such to this extent it was held that it was not the partnership property. Regarding property measuring 2 kanals 19 marlas which was found to have been invested by Haji Muhammad Hussain in the firm it was further held that the same is still owned by the firm and could not be subject-matter of the present suit as such could be dealt with separately as partnership property. Regarding mortgagee rights of House No,D/753 it was held that Haji Muhammad Hussain continued to be the mortgagee of the said property and had not become its owner. With these modifications the findings of the learned trial Court were upheld. 9. The present appeal has been filed by the defendant/appellant against the said judgment and decree of the learned lower appellate Court whereas the plaintiffs alongwith Mst. Balquis Sultana have also filed connected RSA No,143 of 1985. In this connected appeal the appellants/plaintiffs have prayed that the findings of the learned lower appellate Court regarding land measuring 2 kanals 19 marlas bearing Khasra No,2124/38 situated in Begum Kot Lahore, and firm M/s. Sharif Sons and property No,D/753 may be reversed and the appellant/plaintiff be also granted relief of rendition of accounts as such the preliminary decree dated 1-11-1987 passed by the learned trial Court may be confirmed with the abovementioned modifications. 10. During the hearing of the appeal the grievance of the present appellant that examination of his expert witness was declined unjustifiably I through order dated 21-1-1989 remitted the case to the learned trial Court for recording evidence of the expert witness of the appellant as also evidence in rebuttal of the plaintiffs. The learned trial Court in compliance thereof recorded the said evidence which has been transmitted to this Court. The appellant examined A.G. Pasha, Hand Writing Expert as DW.7. This witness proved his report which was produced as Ex.DW.7/1 whereas photograph
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chart was produced as Ex.DW.7/2. In rebuttal the plaintiffs produced Zaka A. Malik Hand Writing Expert as PW.6 who proved his report which was produced on record as Ex.PW.6/1, Photo Enlargement Chart was produced as Ex.PW.6/2 and another Chart as Ex.PW.6/3. It may be pertinent to note here that the appellant produced the expert evidence in respect of documents Ex.D.5 dated 30-6-1970. And Ex.D.1 and Ex.D.1/1 dated 7-2-1964 and Ex.D/2 dated 5-1-1969. 11. Learned counsel for the parties have been heard at length. The appellant claimed that land measuring 6 kanals 4 marlas situated in village Dacca Tehsil Ferozepur District Sheikhupura was owned by him in his own right an& Haji Muhammad Hussain was merely a benamidar as the said land was purchased by the appellant in his name as benamidar. In support of this plea, he produced in evidence document Ex.D.4. He also examined Muhammad Anwar son of Karam Elahi as DW.3 and Muhammad Yousaf son of Muhammad Yaqoob as DW.4 to prove the execution of this document by Haji Muhammad Hussain apart from his own evidence as DW.6. Document Ex.D.4 is in the nature of an acknowledgement allegedly made by Haji Muhammad Hussain in which he stated that this land was purchased through registered sale-deed dated 8-5-1941 and all the expenses were borne as also the price was paid by the appellant Muhammad Sharif. The two Courts below held that the execution of this document by Haji Muhammad Hussain was not established and that it was a fake document. This is concurrent finding of fact. The learned lower appellate Court additionally held that this document purported to create rights in immovable property, therefore, it required registration and since it has not been registered, as such, it did not operate to create right in favour of the appellant in the property in dispute. Learned counsel for the appellant took exception to the findings of the learned Additional District Judge regarding the requirement of registration. The argument has considerable force. This document in itself does not operate to create any right in the property but merely contains an acknowledgement that the property was purchased by Muhammad Sharif appellant through registered sale-deed dated 8-5-1941 in the name of Haji Muhammad Hussain as benamidar. The original document of sale dated 8-5-1941 is stated to have been registered. The findings of the learned lower appellate Court that this document required registration is not sustainable and the same is hereby set aside. 12. The next question which falls for consideration is whether the appellant has succeeded in establishing the execution of the said document by Haji Muhammad Hussain. As observed above, the two Courts below have concurrently held that it was not established and that it was a fake document. In order to succeed in this Court to dislodge this concurrent finding of facts, the appellant has to show that this finding suffers from such an illegality as provided in Section 100 C.P.C. Such as misreading, misconstruction or non-reading of evidence as also taking into consideration such evidence which was not admissible. 13. The learned trial Court apart from other evidence also compared the disputed signatures of Haji Muhammad Hussain on Ex.D.4 with his signatures on documents Ex.P.2/1 to Ex.P.2/4. Learned counsel for the appellant argued that these documents were not admissible in evidence about which objection was taken, the decision on which was reserved, to be decided, in the final judgment which has not been disposed of. His precise argument was that Ex.P.2/1 to Ex.P.2/4 were certified copies of documents annexed with Writ Petition No,133 of 1980 which were not original documents but photo copies. According to him these documents could not have been taken into consideration as evidence in the case. Writ Petition No,133 of 1980 was admittedly filed by the appellant. These documents were annexed with the writ petition by the appellant himself to support his case. It is firmly settled law that a document can be used against that party who had produced the same. Learned counsel for the appellant faced with this difficulty attempted to argue that the documents of which Ex.P.2/1 to P.2/4 are the certified copies were not attached by the appellant with the writ petition whereas with the said writ petition some other document was attached which has been got removed and replaced by Iftikhar Hussain son of Sh. Mahmood
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Hussain one of the plaintiffs who was employee of this Court. Learned counsel for the appellant when questioned after consulting his client was not in a position at present to show as to which was the other document allegedly attached with the writ petition which as argued by him was replaced. The defendant examined Mr.S.M.K. Lodhi, Advocate, who admittedly filed the said writ petition on behalf of the appellant as his counsel who was engaged by him. This witness stated that the said documents were provided by the appellant for annexing the same with the writ petition. The plaintiff in these circumstances, cannot be allowed to urge that the said documents could not be used in evidence against him. The argument regarding admissibility of Ex.P.2/1 to Ex.P.2/4, therefore, has no force which is hereby repelled. 14. From a bare perusal of Ex.D.4 it is demonstrably clear that this document is of doubtful character. The opening part of the document consisting of about 15 lines shows that the space in between these lines is very narrow as they have been very closely written whereas the space in between the lines in the middle portion of the document is comparatively wider and the space in between the lines, in the closing part thereof has again been narrowed. It appears that the effort was made to adjust the document in one page in the given space as if the signatures of the alleged witnesses and the executant were already present on blank paper. The alleged signatures of Muhammad Yousaf a marginal witness are placed in the extreme end of the document leaving a considerable space between the signatures of other marginal witnesses namely Ghias-ud-Din Sheikh and the signatures of Muhammad Anwar. These circumstances also detract from the genuineness of this document. The land was admittedly purchased as stated in this document itself through registered sale-deed on 8-5-1941. This document was written on 1-8-1967 i.e, after about a period of almost 26 years. If the appellant was the real owner, then as a man of ordinary prudence he would not have kept silent for such a long time. Had he been the real owner he would have got the matter of his title cleared earlier. No independent evidence either has been produced to prove that in fact the appellant purchased the land with his own resources and that he bore all the expenses and that Haji Muhammad Hussain was merely a benamidar. There is no evidence as to the existence of circumstances that he could not purchase the land in his own name and was compelled to purchase the same in the name of his father. The evidence of Muhammad Anwar DW.3 and Muhammad Yousaf DW.4 when considered in conjunction with the other evidence and other circumstances, the same do not inspire confidence. Muhammad Yousaf DW.4 stated that he was servant of Haji Muhammad Hussain deceased since 1955 upto 1971. Haji Muhammad Hussain deceased admittedly died in the year 1969. The statements of Muhammad Anwar and Muhammad Yousaf are general in nature and it is not safe to rely upon them in view of the observations made above. In this document, it has been stated that Haji Muhammad Hussain as a matter of fact wanted to transfer the land to the appellant through registered sale deed so as to put the matter regarding title of the appellant in the land beyond any doubt but he could not do. So for compelling reasons. He died about two years after the execution of this document but no such document was executed by him though in this document he allegedly stated that he would so at proper time. If Haji Muhammad Hussain deceased was really a benamidar and he wanted to acknowledge the title of the appellant in the land as real owner to put the matter beyond doubt, he would have asked the plaintiffs to witness the document or could have at least got the mutation entered in the name of the appellant by appearing before the Revenue Authorities. The concurrent findings of the two Courts below that Ex.D.4 is a fake document do not suffer from any illegality on account of misreading, misconstruction or for taking into consideration inadmissible evidence as such the same are upheld. This document also contains an alleged acknowledgement by Haji Muhammad Hussain that mortgagee rights in House No,D/753 Phullanwali Gall owned by Mst. Irshad Begum and Mst. Wazir Begum were purchased by the appellant in his name as benamidar which is also
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repelled for the same reasons and the concurrent findings of the two Courts below regarding this property are also unexceptionable and do not require any interference. 15. The learned trial Court held that since the mortgager had not redeemed the mortgage regarding House No,D/753, as such, Haji Muhammad Hussain the purchaser of mortgagee rights had become full owner of the said house, therefore, it was held that it devolved on his heirs as full owners. The learned lower appellate Court on the other hand, held that the house was still under mortgage and only the mortgagee rights in the said house vested in Haji Muhammad Hussain and the same shall be inherited by his heirs subject to mortgage. There is no evidence on the record that the mortgager ever redeemed the said house. The findings of the learned trial Court were, therefore, perfectly in accordance with law and the said house vested in Haji Muhammad Hussain absolutely. This finding inter se between the parties in this suit could be dislodged if the appellant who was claiming that the house was still under mortgage had brought any evidence that the same was redeemed within the period of limitation. It may be observed that this finding is for the purposes of this suit and if at any point of time the mortgager or any of his successors brings the suit for redemption of property, this finding would not be binding on them and if it was ultimately held that the property was still subject to mortgage and any decree is granted to the mortgagor for redemption, the parties shall be bound by the same. In this view of the matter for the purpose of this suit Haji Muhammad Hussain deceased shall be deemed to have become full owner of the house. The findings of the learned lower appellate Court are, therefore, set aside. 16. The appellant claimed that the land comprising Khasra No,2134/95 measuring 17 marlas situated in village Begum Kot was owned by him and not by Haji Muhammad Hussain deceased. In the written statement the appellant pleaded that he purchased this land from its previous owner namely Pir Bakhsh through registered…
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