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Petitioner: Mst. SABAHAT IDREES and anothers VS Respondent: Mst. CLARE BENEDICTA CONVILLE and JUDGMENT
Court Name: Lahore High Court Judge(s): Fazal-e-Miran Chauhan Title:Mst. SABAHAT IDREES and anothers vs Mst. CLARE BENEDICTA CONVILLE and
JUDGMENT
Reported As: 2007 MLD 1732 Result: Case remanded Judgment JUDGMENT ' FAZAL-E-MIRAN CHAUHAN J.---This regular second appeal has arisen from concurrent findings of the two Courts below. Suit for declaration filed by the appellants-plaintiffs was dismissed by the Civil Judge, Sahiwal vide judgment and decree, dated 4-4-1996 and the appeal preferred against the judgment and decree was also dismissed by the learned Additional District Judge, Sahiwal vide its judgment and decreed, dated 21-5-2005. 2. Brief facts of the case are that the suit, filed by the appellants; for declaration with perpetual injunction and for specific performance to the effect that, Colonel L.H.G. Conville was owner of agricultural land measuring 120 squares in Chak No,89/9-L, Tehsil and District, Sahiwal in the year, 1959, 43-squares of land owned by Colonel L.H.G. Conville came under land reforms and he was deprived of the same. In order to avoid any further land reforms, said Colonel L.H.G. Conville in the year, 1966, sold 23 squares of land to the plaintiffs and 14 squares of land to Ch. Shah Muhammad (deceased) grandfather of plaintiffs Nos.1 to 3 and 9 squares of land to someother persons. He also gifted his remaining land to his son, grandson and daughters measuring 65 acre and 8-marlas in Squares Nos. 3, 4 and in Chak No, 88/9-L and 20 acres 2-marlas in Squares No,18 in Chak No,87/9-L, to defendant No,1 his grand-daughter but he remained the actual owner and being actual owner Colonel L.H.G. Conville entered into an agreement to sell with the plaintiffs with regard to the above mentioned land and other land and received Rs,25,00,000 against receipt as sale consideration and possession of the land was delivered under the agreement to sell to the plaintiffs, which was made with the consent of defendants Nos. 1 to 3. After the death of Colonel L.H.G. Conville, the legal heirs on instigation of one Barkat Ali made illegal demands. Plaintiff No, 4, father of plaintiffs Nos. 1
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to 3 in order to end this dispute, obtained the peaceful incorporation of alienation in the' Revenue Record and to avoid litigations, again paid a sum of ,Rs,25,00,000 as over all settlements to the descendants of Colonel L.H.G. Conville and respondents Nos. 2 and 3 about the suit-land and other land. The matter was compromised and the total amount was paid. A sum of Rs, 4,25,000 was deposited in the accounts of defendant No,2, David Henery Conville father of defendant No,1 maintained in the Muslim Commercial Bank, Limited High Street Sahiwal. Accordingly, an entry in the Revenue Record about the land possessed and owned by appellants-plaintiffs Nos.1 to 3 was made 'vide Mutation No,47 attested on 25-3-1982 for land measuring 65 acres, 8-marlas in Squares Nos.3, 4 and 9 situated in the area of Chak No, 88/9-L and a Mutation No, 163 about the land measuring 20-acres, 2-canals situated in the area of Chak No,87/9-L was attested on 25-3- 1982 in favor of sister of plaintiffs Nos. 1 to 3. DefendantsNos.1 to 3 on the instigation of Barkat Ali tried to back out from the agreement to sell executed in favor of Muhammad Idrees, father of appellants Nos. 1 to 3. During this period, defendant No,1, also executed a general attorney in favor of Barkat Ali, which is void illegal, without lawful authority. 3. Defendant No,1 challenged Mutations Nos.47 and 43 in appeal before Commissioner, Multan Division, Multan, who vide order, dated 10-6-1984 set aside the mutations. This order of Commissioner was challenged before M.B.R., Punjab (Revenue) by appellants Nos. 1 to 3. This revision was dismissed and order of Commissioner, dated 10-6-1984 was confirmed by M.B.R. Vide its order, dated 9-7-1984. Both these orders were challenged through the suit. During pendency of the suit, said Barkat Ali further gifted the land to one Dr. Abdul Haq Chaudhary-respondent No,5. 4. The appellants-plaintiffs seek declaration that at first instance to declare the order of Commissioner Multan Division, Multan and M.B.R. To be void, illegal ineffective qua the rights of the appellants-plaintiffs and also gift deed executed by Barkat Ali in favor of Dr. Abdul Haq Chaudhary-respondent No,5 to be illegal, without lawful authority and also declaring the same to be ineffective against the rights of the appellants-plaintiffs and the defendants be permanently restrained from interfering in the possession of the appellants-plaintiffs. The respondents- defendants be also restrained from further alienating the property, in dispute, in any manner And in the alternative prayed for a decree for specific performance of agreement to sell, dated 11-11-1976. ' The second suit titled "Sabahat Idrees v. Clarie Benedicta etc." relates to the same facts only difference in the case is that land was transferred in the name of plaintiff by Mutation No,47, Chak No,88/9-L and land measuring 65-acres etc. And Mutation No 163 Chak No,87/9-L measuring 20- acres. 5. The defendants Nos.1 to 5 contested both suits by filing written-statement through their general attorney Barkat Ali; controverted the facts of the plaint and also raised as many as fifteen legal 'objections. Defendant No,1 asserted that facts mentioned in Paras. Nos. 1 to 4 of the plaint are mere allegations and are not backed by any documentary evidence or Revenue Record. No transaction of sale took place between the plaintiffs and Colonel L.H.G., Conville; letter, dated 11-11-1976 is forged document and the plea of payment of Rs,25,00,000 is totally false, as there is no proof of payment by the appellants; Mutation No,47 of Chak No,88-9/-L and 163 of Chak No, 87/9-L are illegal and were got entered in collusion with the Revenue staff; no power of sale was given to the alleged general attorney; Muhammad Idrees by the Col.L.H.G. Conville, hence he was not authorized to alienate the land. The alleged mutations were entered when the power-of-attorney was revoked and he was not authorized to act on behalf of Colonel L.H.G. Conville; thus mutations were rightly set aside by the Commissioner, Multan Division, Multan and the order was rightly upheld by the M.B.R. On 9-7-1984; the gift registered on 17-5-1987 made in favor of defendant No,5 is lawful, legal and effective. Finally prays for dismissal of suit. 6. Both the suits were consolidated and almost 47 consolidated issues were framed from the pleadings of the parties.
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7. In order to prove the case, the appellants-plaintiffs produced as many as 17 witnesses:-- ' Syed Ghulam Ghaus, Sherazi Manager, United P.W.1 Bank Ltd. ' Muhammad Naeem, Manager, M.C.B., High P.W.2 Street, Shaiwal. ' Raza Akbar, Manager Foreign Exchange Deptt. P.W.3 Allied Bank Sahiwal ' Mazhar Akbar SofiP.W.3/A ' Muhammad Asif, Assistant Board of Revenue, P.W.4 Lahore ' Muhammad Sarwar, Assistant District Nazar, P.W.5 Sahiwal, ' Muhammad Siddique, Naib Aslah Clerk D.C. P.W.6 Office, Sahiwal ' Liaqat Ali Sheikh, Officer Allied Bank of P.W.7 Pakistan, Lahore. ' Muhammad Siddique Khan Manager, HBL, Sadar P.W.8 Bazar, Sahiwal ' Syed Muhammad Ahmed Gillani, Officer UBL, P.W.9 Main Bazar Branch, Sahiwal. ' Muhammad Nasim Officer, twice MCB. High Street, Sahiwal examined ' Khadim Husain, Patwari Halqa, 90/9-L P. W.10 ' Muhammad Idrees, one of the Plaintiffs. P.W.11 ' Zahoor Ahmad, Halqa Patwari, Chak No,90/9-L P.W.12 ' Khadim Hussain, Halqa Patwari, Chak P.W.13 No,55/G.D. ' Sarfraz Ali Shah, Office Qanugo Tehsil Sahiwal. P.W.14 ' Shafique Hassan, Ahmad, HVC Branch, D.C. P.W.15 Office, Sahiwal. ' Muhammad Yousaf son of Nawab Din. P.W. 16 ' Asghar Ali son of Niaz Ahmad. P. W . 17 8. - The documentary evidence produced by both the parties is as under: -- Exh. P-1/A is Jamanbandi of Mouza 87/9-L for the year, 1983-84, Exh.P-1 and P-2 are Account opening forms about Current Account No, 1988, Exh.P-2/A is jamanbandi of Mouza 88/9-L, Exh. P-2 is Specimen signatures of Conville, Exh.P-3 is Register Dakhil Kharij Mahal No,88/9-L, Exh.P-3/A is Cheque of Rs,1,00,000 (ABL), Exh.P-3A is Savings Account MCB No, 255071, Exh.P-3/1 is Draft Purchase Rs, 2,50,000, Exh.P-3/B is cross cheque issued by M. Idrees of David Henry, Exh.P-3 is letter to HBL, Exh. P-4 is register Dakhil Kharij Mahal No,87/9-L, Exh.P-4 is savings account of MCB, Exh.P-4/B is credit voucher, Exh.P-5 is order of Collector Sahiwal, Exh.P-5 is receipt by L.H.G. Conville for consideration of Land Rs,25,000,00, Exh.P,-6 is letter by O.G. Foster to Governor of Punjab, Exh.P-6 is order of AC/Collector, Exh.P-7 is application to review of Mutation No,47, Exh.P-7/11 is summary of Governor and orders on it Exh. P8 is observation of Governor and order of DC, Sahiwal and application to review of Mutation No,163, Exh.P-9 is report by MBR and order of Commissioner Multan, Exh.P-10 is information report of DC and order of Member 130R, Exh.P11 is Order of Chief Land Commissioner, Exh. P-12 is Memorandum from DC Sahiwal, Exh.P-13 is Demand Draft, Exh.P-14 is statement of account, Exh.P-15 and Exhs.P-16, 17 are Card S.F. And account, Exh.P-18 is RQznamcha waqiati, Exh. P- 19 is sale-deed, Exh,P-20 is letter in handwriting of D.W. 1, Exhs.P-21 and 22 are letter in handwriting of D-W.1, Exh.P-23 is Rapat, No,228, Exh.P-24, 25-26 and 27 are Register Haqdaran Khata No,3,1,2 Exh.P- 28 is order by DLC, Exh.P.29 to P-42 are Mutations Nos.19 to 31, Exh.P-43 is Order of Member FLC, Exhs.P-44, 45, 46, 47, 48 are order of DLC, Exhs.P-49 and 50 are Mutations No,47 and 163, Exh.P-51 is Dhal Bash for the years, 1982-1989, Exh.P-52, is order of Additional District Judge, Exh.P-53 is amended written statement, Exh.P-54 is order of Civil Judge, Exh.P-55 is petition under Order VI Rule 17, C.P.C. Exh.P-56 is amended writtenstatement, Exh6 P-57 is order of Civil Judge, Exh.P-58 is petition under Order VI Rule 17, C.P.C. Exh.P-59 is amended written statement Exh.P-60 is order of Civil Judge, Exh.P-61 is Application under Order VI Rule 17, C.P.C. Exh.P-62 is amended written statement, Exh.P-63 is order of Civil Judge, Exh.-64 is application under Order VI, Rule 17, C.P.C. Exhs. P-65 and 66 are General Power of Attorney by Comile and Mark A,B,C,D, are General Power of Attorney.
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' Exh.D-1 is copy of specimen signature of D.H. Conville, Exh.D-1/A is Mutation No,62, Exh.D-2/A is Mutation No, 199, Exh.D-2 is copy of application for.Opening account, Exh.D-3 is letter to Manager MCB, Exh.D-3AB, 5A, 6A, 7A, 8A, 9A, 10A, 11A, 12, 13, 14, 15, 16, 17, 18, 19, 20 are different plaints, amended written statements, orders and khasra gardawari Kharif, Exhs.P 21 and 22 are mutations, Exh.P-23 is appeal, Exh.P-24 is order in appeal, Exhs.P-25 and 26 are judgments of Additional District Judge, Exhs.P-27 and 28 are order in revision, Exhs. P-29 and 30 are applications, Exhs.P-31,32,33 are copy of Roznamcha Waqiati, Exh.D-34 is Mutation No,29, Exh.D-35 is sale-deed, Exh.D-36 is Mutation No,32,, Exh.D-37 is sale-deed, Exh.D-38 is Mutation No,40, Exh. D-39 is sale-deed, Exh.D-40 is Mutation No,41, Exh.D-42 is Mutation No,42, Exh.D-43 is sale-deed, Exh.D-44 is Mutation No,131, Exh.D- 45 is sale-deed, Exhs.D-46 and 47 are Mutations, Exh. D-48 is sale-deed, Exhs. D-49 and 50 Mutations, Exh.D-51 is sale-deed, Eh.D-52 is Mutation No, 146, Exh.D-53 is sale-deed, Exh.D-54 is Mutation No,147, Exh.D-55 is sale-deed, Exh.D-56 and 57 are Mutations, Exh. 59 is copy of suit, certificate issued by Peter Henry Notary Public, and Power of Attorney, Exh.D-60 is Power of Attorney, Exh.D-61 is suit for D&PI, Exh.D-62 is Power of Attorney, Exh.D-63 is certificate, Exh.D-64 is Power of Attorney, Exh.D-65 is suit for D & PI, Exhs.D-66, 67, 68 are Mutations, Exhs.D-69-70 and 71 are Tarnleek Nama, Exh.D-72 to Exh.D-75 are Power of Attorney, Exh. D-76 is Gift deed, Exh.D-77 is order of Civil Judge, Exh.D-78 is decree sheet, Exh.D-79 is judgment, Exh. D-80 is decree sheet, Exh.D-81 is deed of settlement, Exh.D-82 is order sheet, Exh. D-83 is C.C. Order sheet, Exh. D-84 is deed of settlement Exhs.D-85 and 86 are C.C. Order sheets, Exh.D-87 is deed of settlement and Exhs.D-88 to 95 are C.C. Order sheets and Deed of settlement. 9. The learned. Civil Judge vide judgment and decree, dated 4-4-1996 dismissed the suit with costs; appeal filed by the appellants plaintiffs" was also dismissed by the learned Additional District Judge,vide judgment and decree, dated 21-5-2005, confirming the judgment and decree of the trial Court. 10. Learned counsel for the appellants submits that; the judgment delivered by the Courts below is not a judgment as defined in Clause 9 of section 2 and Rules 4 and 5 of Order XX, C.P.C. The learned trial Court instead of recording its own judgment on the issue has reproduced the verbatim working of the written arguments, submitted by learned counsel for the respondents in the trial Court, which is also made part of the record of the trial Court. The judgment and decree against the provisions of section 44-A of General Clauses Act, which requires the learned Judge to give finding and apply his judicious mind, while recording any findings on the facts as well as on the law of the case. Further submits that; since the judgment of the trial Court is only an outcome of reproduction of written arguments, submitted by learned counsel for the respondents/defendants. The appellate Court under the law was required to remand the case to the trial Court with the direction to record its own findings on all issues, after discussing the fact and evidence led by the parties. The learned lower Appellate Court failed to apply the correct law by not remanding the case and also erred at law, while dismissing the appeal by not recording its own findings as required by Rule 31, Order XLI, C.P.C. The learned Additional District Judge dismissed the appeal by simply reproducing the findings of the trial Court and also some portions of the written arguments of counsel for the respondents without giving its findings on the issues by upholding the decision of the trial Court on all the issues. The practice of adoption of judgment of trial Court and written arguments is not approved, but is rather depreciated by the Superior Courts and such judgment of both the Courts below are liable to the set aside on this ground only and case be remanded to the trial Court to re-write the judgments by recording its own decision by examining the evidence of parties on the record. Reference in this respect is made to Ghulam Molli-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and others (PLD 1964 SC 829), Balwant Singh v. Baldev Singh and others (AIR 1921 Lahore 119), (Mennem) Venkayya and others v. Emperor (AIR 1928 Madras 1130) and Muhammad Nawaz Shah v. Imam Bukhsh and 4 others (2000 YLR 1456 (Lahore). Also submits that;
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the findings on issues Nos.23 to 25 are perverse, passed in violation of principle laid down by the Superior Courts and result of misappreciation of fact on the record and miscarriage of justice took place. As per law laid down by the Superior Court, the first Appellate Court is required to apply its own independent mind to the facts and law of the case and should not countersign the findings of the trial Court. Reference is made to Lahore Development. Authority Lahore and others v. Saima Riaza and another (2003 YLR 1579). Further submits that; the judgment pronounced by the trial Courtas well as the learned lower Appellate Court is not in accordance with law, as it does not contain statement of grounds for decision. Both the Courts below had failed to discuss the facts, evidence, given their expression of conclusion arrived at after due consideration of evidence and the arguments submitted by the counsel. The judgment of the learned lower Appellate Court, under appeal, is nothing but reproduction of judgment of the trial Court, which is not proper and in accordance with law. Reliance has been placed on Muhammad Akhtar v. The State (PLD 1957 SC 297). On merits, it is submitted that oral gift made by Colonel Conville to his grand-daughter on two pieces of land in March, 1969, evidenced by Exh.P.40 and Exh.P.42 was violative of provisions of section 123 of the Contract Act. Both the Courts below erred in law and did not take note of the facts and circumstances of the case and in a slipshod manner decided the matter; further submits that the judgment and decree of the learned trial Court is against the provisions of section 24-A of General Clauses Act and the learned Judge did not apply his judicious mind; submits that the learned Additional District Judge did not take note of the illegalities and irregularities committed by the learned trial Court; the judgment of the trial Court was a nullity in the eye of law. In this respect reliance is placed upon the judgment reported PLD 1964 SC 829, AIR 1921 Lahore 119 and AIR 1928 Mad 1130 (supra). Further submits that the findings on Issues Nos.32-35 are perverse having been passed in violative of the principles and law and are result of misappreciation of the facts on record; further submits that if the appellate Court's judgment forming reproduction of trial Court's judgment without considering material facts; it had been held by the superior courts that the same were treated to be improper and of doubtful validity. Reliance is placed upon the reported judgment PLD 1957 SC 297 (Supra). Further submits that the oral gift of land by Colonel Conville to his grand-daughter of the two pieces of land in March, 1969 evidence by Exhs.P/40 and P/42 was violative of provisions of section 123 of the Contract Act which compulsorily required it to be through a registered deed. Although the provisions of the said section were not then extended to Punjab in the year, 1969, yet the case-law consistently held that despite its non-application, the principles contained herein would still apply. Further submits that the gift favoring grand-daughter of Colonel Conville had to be regularized by the Land Reform Authorities in view of the provision of the Land Reform Enactments. The mutations were declared to be void by the Land Commissioner, Chief Land Commissioner and the Federal Land Commissioner vide Exhs. P/11-A P/53 and P/59 respectively which attained finality; further submits that admittedly P.W.11 was the General Attorney of Col. H.G. Conville by deed of Attorney, dated 21-10-1974 and having paid the full consideration of total ownership to the principal (proved through Exhs.P/,5 and P/19, dated 11-11-1976) and his authority as attorney hadbecome irrevocable in accordance with the provisions of section 202 of the Contract Act and resultantly the deed of attorney survived even after the death of the principal. Further submits that all these factual things were brought to the notice of the learned lower Appellate Court who did not appreciate the things and even did not frame any issue and misread the entire things without applying proper principle of law. Further submits that the General Power of Attorney to P.W.11 by Clair Benedicta, respondent No,1 through guardian on 17-12-1976 i,e, just after the date of sale by Col. Conville was also an irrevocable attorney as the consideration had already been received by the original owner further submits that even the provisions contained in section 202 of the Contract Act the Benami's power of attorney favoring P.W.11 even through her guardian survived despite attainment of majority by her majority; hence the findings on issues 32-35 cannot
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be allowed to remain on case file for lack of application of conscious mind; as the same has been deprecated by the superior Courts; further submits that proper issues were not framed and there was an element of repetition while framing issues out of 47 issues approximately 10 issues were the exercise of repetition and just nothing. Further submits that the learned appellate Court without applying its mind and jurisdiction did not take heed of the final decisions of he Land Reforms Authorities on the question of the validity of the said gift and erroneously substituted the said final decision with its findings which is not permissible under the law, hence the findings require to be set aside being perverse and ultra vires of law. Further submits that the Courts below had committed a grave error of law while coming to conclusion that the appellant/plaintiffs could not prove the documents in accordance with the manner as laid' down in Qanoon-e-Shahadat Order 1984, whereas the reasons for such an ambiguous view are not well-settled and are against the record and contrary to law; further submits that the title of defendant/respondent No,1, to the suit property having been declared void by he competent Land Reforms Authorities who never remained owner in possession of the disputed land and was not competent to alienate the suit- land to any-one; further submits that the subsequent alienation in favor of defendant/respondent No,5 by respondent No,1 also could not be held to be immune from challenge by the appellants who derived their title to the suit-land from the original owner; hence the impugned judgments and decree passed by the Courts below may very kindly be set aside and the instant appeals may be allowed to meet the ends of justice. 11. Conversely, learned counsel for the respondents submits that the judgments and decree passed by the Courts below are in accordance with law and the Courts below rightly dismissed the plaint as well as appeal of the appellants; further submits that accordance to the Bankcr's Books Evidence Act, 1891 section 2(3)(8) that in all the case it is only acertified copy from a Banker's Book which is relevant; hence the documents produced by the plaintiffs in this case were not from any book of the bank neither its certified in the manner as prescribed by law by the bank officers. Further submits the power of attorney does not contain any clause that the same was executed for consideration; hence the contention put forth by the learned counsel for the appellant had no force keeping in view section 202 of Contract Act, 1872; further submits that where a talukdar makes a deed of gift in favor of his minor son of the whole of his estate reciting in it that the estate is heavily indebted and that he desires to put it under the superintendence of the Court of Wards to liquidate.Those debts, such recital is not considered to be inconsistent with the genuineness of the gift and cannot make the-deed of gift a fictitious one; further submits that when statement of a witness which was material to the controversy of the case particularly stating this case when not challenged in cross-examination then such unchallenged statement would be given full credit and usually accepted as true, unless and until displaced by reliable, sound and cogent evidence. In this respect reliance is placed upon the reported judgment Ram Bharose and others v. Diwan Rameshwar Prasad Sindh (AIR 1938 Oudh 26); further submits that the plaintiffs have to prove that Col. .L.H.G. Conville in order to protect his land from land reforms purported to make a gift of same agricultural land in favor of his sons and grand-children but in spite of this he actually remained in possession and continued to manage it; further submits that there is nothing in section 122 of Transfer of Property Act to limit acceptance of a gift to an express acceptance. The acceptance of gift may be express or implied. In this respect reliance is placed upon judgment reported titled Mt. Anandi Devi v. Mohan Lai and others (AIR 1932 All. 444); further submits that in Muhammadan Gift the objection as to delivery of possession is one which can be taken either by the donor himself or by his heirs and in cases where the donor is himself supporting the gift no effect can be given to an objection by a third party who is in possession and claims adversely to both donor and the donee. In this respect reliance is placed upon the reported judgment titled Fazal Ahmad v. Mst. Rakhi (PLD 1958 (W.P.) Lahore 218); further submits that where execution of document had been denied by its
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alleged executant by disowning his/her signature/thumb-impressions, it would become duty of beneficiary under the document to at once apply to the Court for getting thumb-impressions compared from Handwriting Expert. In this respect reliance'is based on the reported judgment titled Khushi Muhammad and others v. Noor Bibi and others (2005 YLR 2645); further submits that material produced by plaintiffs did not indicate that execution of Tamleeknama (alleged Sale P5 + P19 of this case) was effected during lifetime of alleged donor; it is settled law that any person acquiring by gift, inheritance, purchase or otherwise any right in any estate as 'a landowner, would within three months from dateof such acquisition, report his…
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