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Petitioner: Major INAYATULLAH through Lawful Attorney VS Respondent: Major (Retd) MUHAMMAD NAZIR and 2 others
Court Name: Sindh High Court Judge(s): Khawaja Naveed Ahmed Title:Major INAYATULLAH through Lawful Attorney vs Major (Retd) MUHAMMAD
NAZIR and 2 others Case No.: Second Appeal No,14 of 2007 Date of Judgment:2008-04-10 Reported As: 2008 CLC 1016 Result: Appeal dismissed Judgment ORDER ' KHAWAJA NAVEED AHMED, J.-- This IInd appeal has been filed by the appellant against the judgment, dated 13-12-2006 and decree, dated 23-12-2006, passed by learned VIth Additional District Judge, Karachi (South) in Civil Appeal No,107 of 2006. The appellant had also lost the case in the trial Court vide judgment and decree, dated 5-4-2006 passed by IVth Senior Civil Judge, Karachi (South) in Civil Suit No,171 of 2003 (Old No,872 of 1986). 2. Brief facts of the case are that the present appellant in the original civil jurisdiction of this Court had filed Suit No,872 of 1986 against respondents Nos.1 and 2. The facts disclosed in the plaint of Suit No, 872 of 1986 are that the appellant is the owner of Plot No,15 measuring 2000 square yards, Khayaban-e-Ittehad, situated in Phase VI, D.H.A., Karachi, (hereinafter referred to as the "said property"). The respondent No,1 is an estate broker and carries on his business in Lahore and at Karachi. The respondent No,1 was. Well-known to the appellant being an estate agent. The appellant wanted to sell the said property and as such he assigned this job to respondent No,1, who had offered his service to sell the said property. It is the case of the appellant that looking at the past conduct and inducement of the respondent No,1, the appellant had signed the Transfer Affidavit, Letter, specimen signature (Without attestation) and undertaking as the appellant at that time was on duty at a far off place. However, the case of the appellant is that he had made it clear to the respondent No,1 that the appellant himself will appear before Administrator of respondentNo,2 for verification of his signatures and for receiving the price of the said property after respondent No,1 finds out an intending purchaser. The appellant had further stated in his plaint that he had signed all the transfer documents in the month of September, 1985 at Lahore but
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his signatures were not verified by any authority at Lahore or anyone else as are required under the Rules of respondent No,2. The appellant further mentioned in the plaint that after signing the documents when lie did not hear anything from respondent No,1 for a long time he became suspicious and had written a detailed letter on 9-10-1985 to the respondent No,2 informing them that respondent No,1 had fraudulently acquired the documents of the said property from him and that he should notify all the colonels and authorities above them and Notary Public not to sign any document(s) without the presence of the appellant. The respondent No,2 on 14-10-1986 replied to the appellant that valid documents of the said property have already been received by them and as such the appellant should seek legal remedy in the Court of law. 3. It is further mentioned in the plaint that on 3-11-1986 the appellant had given a letter to respondent No,2 for cancellation of all the documents, submitted in respect of the said property. The appellant had finally come to know that respondent No,1 had applied to respondent No,2 for transfer of the said property in the name of respondent No, 1.Prior to this Suit No,872 of 1986, the appellant had filed Civil Suit No,1530 of 1986 in the Court of VIIIth Civil Judge, Karachi (West), which suit was withdrawn by the appellant before filing Suit No,872 of 1986 in this Court. 4. In Suit No,1530 of 1986 it is stated that status quo order was also passed on 6-11-1986 till next date of hearing i,e, 11-11-1986. It is further alleged in the plaint that service of the said status quo order was effected on 6-11-1986. It is further stated in the plaint that the appellant had received a letter from respondent No,2 on 11-11-1986 that respondent No,2 on 5-11-1986 had already transferred the said property in favour of respondent No, 1. Further, the case of the appellant is that the said transfer is fraudulent and collusive and as such he has sought declaration and injunction as follows:-- "(a) Declaring that the transfer order/letter, dated 5-11-1986 issued by the defendant No,2 is illegal void and has no legal effect and the plaintiff's aforesaid Plot No,15, Khayaban-e-Ittahad, Phase II, Defence Housing Authority, Karachi, continues to be the property of the plaintiff; (b) Cancelling the aforesaid letter of the defendant No,2 calling all the documents purporting to the transfer of the plaintiff's Plot No,15, Khayaban-e-Ittehad, Phase II, Defence Housing Authority, Karachi, and if the said plot has again been transferred by the defendants to any other person/persons the same may also be cancelled and calling all further documents purporting to the subsequent transfer of the plaintiffs abovesaid plot; (b-1) That it be declared that the agreement to sell dated 14-9-1986, receipt for Rs,5,00,000 transfer affidavit dated 14-9-1986, transfer letter, undertaking, authority letter and specimen signatures purported to have been executed by the plaintiff in favour of the defendant No,1 transferring/selling him the plot of land bearing No,15 situated in Phase VI of Khayaban-e-Ittehad, Defence Housing Authority, Karachi, admeasuring 2,000 sq. Yards were obtained from the plaintiff by the defendant No,1 fraudulently and by misrepresentation and that the same are illegal, made up, forged as to their contents without consideration, void and are liable to be delivered up and cancelled; (b-2) To adjudge all documents/instruments/receipts including the documents/receipts stated above in clause (b-1) in possession of the defendant No,2 alleged to have been executed by the plaintiff in favour of the defendant No,1 creating any right, title or interest in Plot No,15, situated in Phase VI of Khayaban-eIttehad, Defence Housing Authority, Karachi, admeasuring 2000 square yards are illegal, made up, void, without consideration, forged as to their contents and are liable to be delivered up and cancelled; (b-3) A perpetual injunction restraining the defendant No,1, his heirs/representatives, executors, administrators, attorneys, assigns or any other person or persons claiming through for, or under him from acting upon the said documents/instruments/ receipts mentioned in clause (b-1) above thereby claiming any right title or interest of the plaintiff in plot in suit;
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(b-4) A mandatory injunction be granted directing the defendant No,2 to deliver to this Honourable Court all those instruments/receipt/ documents in its possession mentioned in clause (b-1) above purporting to have been executed by the plaintiff effecting in any manner, right, title or interest of the plaintiff in the plot in suit so as to adjudge the same void and cancelled; (c) The defendants be permanently restrained from transferring the suit plot to any other person in any manner of whatsoever nature; (d) Cost of suit; (e) any other relief this Honourable Court deems fit under the circumstances of the case." 5. The respondent No,1 was served and he has taken following legal objections in his written statement:- (1) That the suit is not maintainable as framed under the law. (2) That the plaint does not disclose any cause of action. (3) That the plaintiff has no legal character and locus standi to file this suit against the defendant No, 1. (4) That the suit is incompetent under the Specific Relief Act. (5) That the suit is undervalued. 6. The respondent No,2 was served but never appeared and as such was made ex parte on 5-4- 1987. The respondent No,1 in his written statement has stated that respondent No,1 is the legal and lawful owner of the said property. The respondent No,1 has taken the stand that the said property had been validly transferred in the name of respondent No,1 by respondentNp.2 vide Transfer Order bearing No,DHA/I/A-10769 dated 5-11-1996 after completing all the legal formalities. 7. The respondent No,1 had stated that factual position is that the appellant and respondent No,1 had entered into an agreement of sale, dated 14-9-1986 for sale of the said property for the total sale consideration amounting to Rs,5,00,000. The appellant after receiving the payment had issued valid receipt and had signed following documents:-- (1) Transfer affidavit, dated 14-9-1986; (2) Mutation/transfer application to the Administrator, Pakistan Defence Officers Housing Authority, Karachi, with the attesting signature of the plaintiff by Col. Mr. Ghulam Abbas, Col. Staff II Division; (3) Undertaking signed by plaintiff in favour of defendant No,1; (4) Authority letter signed by the plaintiff in favour of defendant No,1 to submit the transfer documents on his behalf; (5) Latest specimen signatures of plaintiff duly attested by Col. Mr. Ghulam Abbas, Col. Staff II Division. . 8. The respondent No,1 had further stated that the requisite documents have been duly attested by the competent authority. The Court upon pleadings of the parties had framed the following issues:- "41) Whether plaintiff delivered to the defendant No,1 blank signed transfer papers without receiving sale consideration in respect of the plot in question? (2) Whether the defendant No,1 taking undue advantage utilized the blank, signed transfer papers of the plot in dispute and obtained transfer of the plot in dispute in his favour and committed fraud upon the plaintiff? (3) Whether the defendant No,2 aided and assisted the defendant No,1 in committing fraud and transferred the plot in dispute in favour of the defendant No,1 despite service of order of status quo passed in Suit No,1530 of 1986 by the learned VIII Civil Judge, Karachi (East)? (4) Whether the transfer papers referred to in the plaint are without consideration, forged/made up, void and are liable to be delivered up and cancelled? (5) Whether the plaintiff had entered into an agreement of sale dated 14-9-1986 whereby he agreed to sell the plot in suit for Rs,5,00,000 and received the same amount?
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(6) Whether plaintiff handed over the documents mentioned in paras.4 and 5 of written statement to defendant No,1? What is the effect? (7) Whether the suit is undervalued? (8) Whether the suit is not maintainable in law? (9) Whether any cause of action has accrued to the plaintiff?" 9. The trial Court had decided all the issues in negative and consequently had dismissed the suit. The trial Court has given cogent reasons in support of its order which were challenged by the appellant before the Sessions Court in Civil Appeal No,107 of 2006. This appeal was heard and decided by learned VIIth Additional District Judge, Karachi (South), who vide impugned order, dated 13-12-2006 was pleased to dismiss the appeal, hence this IInd appeal. . 10. I have heard learned counsel for the respective parties at length and with their assistance have gone through the material available on record. 11. Learned counsel for the appellant had taken the legal objection that findings of the Courts below are based on misreading of evidence, surmises and assumptions. He has further stated that the trial Court has based its findings on erroneous reasoning and incorrect exposition of law by ignoring the material evidence, which was available on record. Learned counsel for the appellant at the outset had taken legal objection stating that the trial Court has not given its findings on each issue separately as required by Order XX, rule 5, C.P.C. And Order XLI, rule 31, C.P.C. In support of his contention, he has relied upon the cases of Ali Muhammad v. Muhammad Hayat reported 1982 SCMR 816 and Qamaruddin v. Province of Sindh reported as 2002 CLC 825. ' In the case of Ali Muhammad (supra) the Honourable Supreme Court has observed that:-- "The learned Additional District Judge dismissed the appeal preferred against the judgment and decree of the trial Court. The matter, therefore, was brought before the Lahore High Court and was taken up by a learned Single Judge of the said Court at Multan. The learned Judge held that the judgment of the trial Court was not properly written because while deciding Issues Nos.1-5 he failed to give reasons upon each separate issue and that the learned Additional District Judge, in his appellate judgment, also did not attend to these issues in a legal and proper manner. Attention in this connection was drawn to the provisions of Order XX, rule 5 of the C.P.C., which provided that "in suits in which issues have been framed, the Court shall state its findings or decision, with the reasons therefor, upon each separate issue, unless the finding upon anyone or more of the issues is sufficient for the decision of the suit" and it was observed that the trial Judge was bound to give reasons for his decision on each separate issue and the disposal of Issues Nos.1-5 by simply observing that "all these issues have no substantive force in view of findings given under Issues Nos.6" was not a proper decision in accordance with law. He, therefore, accepted the revision petition, set aside the impugned judgment sand decrees of the trial Court and that of the learned Additional District Judge and remanded the case to the trial Court for rewriting the judgment after hearing the parties with the direction that the trial Court should decide the case within two months. This petition for leave to appeal is directed against the foresaid judgment of the High Court. (2) ................................................. (3) We do not agree. The learned trial Court had disregarded the mandatory provisions of Order XX, rule 5, C.P.C. And, therefore, had acted in exercise of his jurisdiction with material irregularity. The High Court in exercise of its revisional jurisdiction was competent to make such order in the case as it thought fit." ' In the case of Qamaruddin (supra) a learned single Judge of this Court has followed the guideline laid down by the Honourable Supreme Court in the case of Ali Muhammad v. Muhammad Hayat reported in 1982 SCMR 816, the relevant portion whereof has been quoted hereinabove. 12. The second objection of learned counsel for the appellant is that the trial Court as well as the Appellate Court has wrongly placed the burden of proof upon the appellant. Learned counsel has
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vehemently argued that in this case the burden of proof was not on the appellant as he had denied the transaction/execution of sale agreement. He has further stated that where execution of the agreement is denied by a party the burden of proof shifts on the person who asserts it or it shifts on the person who is beneficiary of the documents. He states that Article 17(2) of Qanun-e- Shahadat Order, 1984 has not been complied with. In support of his arguments he has placed reliance on judgment of Division Bench of this Court in the case of Shakil Ahmad v. Hamid Hassan reported in PLD 1968 Kar.365. The relevant portion of which is reproduced hereinbelow:-- "(6) Now with regard to the execution of the promissory note, the learned District Judge has misapprehended the evidence when he has said that the plaintiff's version did not amount to a denial of the defendant's version that the pro note was already type written and was presented to him at the Arambagh Police Station where he was called by the S.H.O." ' It has further been observed in the same judgment that:- ' The further circumstance is that the defendant having taken a disclaimer with regard to the alleged balance of the claim of the plaintiff and having taken in writing acknowledgment of full settlement did not move his little finger in the matter so as to suggest that he had executed promissory note under pressure." ' The learned Division Bench in this judgment has further observed as under:-- "... The learned District Judge committed an error of law by placing on the plaintiff the burden of proving consideration in the first instance." ' Yet, on another place, in the same judgment, the learned Division Bench has observed that:-- ".... With respect to learned District Judge this approach was wrong. There was a presumption in law with regard to the receipt of consideration by the defendant." ' This case-law, cited by the learned counsel for the appellant in fact supports the case of the respondent. 13. It is next argued by the learned counsel for the appellant that the learned trial Court as well as Appellate Court have not appreciated the fact that financial documents must be attested by the two witnesses. In this case the documents have been attested by one Imtiaz, brother of respondent No,1, who is the interested witness while the other witness had disowned the documents. He has placed reliance on the case of Muhammad Yaqoob v. Naseer Hussain reported in PLD 1995 Lah. 395. In this authority the Court has observed as under:---, ' Moreover, the document creating financial liability as per Article 17 of the Qanun-e-Shahadat Order has to be attested by the two witnesses. (2) Unless otherwise provided in any law relating to the Enforcement of Hudood or any other special law:-- (a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly." ' While according to Article 79 of the Qanun-e-Shahadat Order, to prove the execution, two attesting witnesses at least have to be called by the party relying on it." ' He has further stated that attesting witness Muhammad Sardar had filed his affidavit-in-evidence but he was never produced in Court and as such the document has not been proved. He has relied upon the case of Anwar Begum v. Muhammad Siddique reported in 1991 MLD 1182. This is a rent matter and the head notes (b) and (d) are reproduced as under:-- "(b) Qanun-e-Shahadat (10 of 1984) ----Art. 133---Statement in Court not challenged in cross-examination would be deemed to be correct. (d) Qanun-e-Shahadat (10 of 1984)
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----Art. 72---Proof of documents---No reliance could be placed on document not proved in accordance with law." 14. Learned counsel for the appellant has further argued that receipt of sale consideration has been denied by the 'appellant. Any agreement without consideration is void. In support of his contention he has relied upon the case of Rasheeda Begum v. Muhammad Yousaf reported in 2002 SCMR 1089 Head notes (c), (t), (g) and (i) of this authority are reproduced hereunder:-- "(c) Qanun-e-Shahadat (10 of 1984)--- ----Arts. 17(2)(a) & 79---Agreement to sell---Attestation by witnesses---Proof of execution--- Agreement to sell involving future obligations, if reduced to writing and executed after coming into force of Qanun-e-Shahadat, 1984, is required by Art.17(2)(a) of Qanun-e-Shahadat, 1984 to be attested by two male or one male and two female witnesses, as the case may be---Such agreement has to be proved in accordance with the provisions of Art.79 of Qanun-e-Shahadat, 1984. (f) Evidence Act (I of 1872)--- 68---Qanun-e-Shahadat (10 of 1984), S.79... If agreement to sell has been reduced into writing and attested by witnesses, then its execution must be proved in accordance with provisions of S.68 of Evidence Act, 1872, notwithstanding the fact that the same applied only to document required by law to be attested... (g) Specific Relief Act (I of 1877)--- ----S. 12---Evidence Act (I of 1877), S.68---Suit for specific performance---Agreement to sell attested by two witnesses--- Execution, proof of---Non-examination of attesting witnesses-- Effect---Execution of agreement had not been proved within contemplation of S.68 of Evidence Act, 1872---Bald statement of petition-writer, who had allegedly scribed the agreement to sell, was not enough to prove its execution. (i) Specific Relief Act (I of 1877)--- ----S. 12---Qanurt-e-Shahadat (10 of 1984), Arts.17(2)(a) & 79---Suit for specific performance of agreement to sell---Plaintiff examined only one attesting witness---Trial Court dismissed the suit on the ground that agreement to sell had, not been proved in accordance with Art.79 of Qanun-e- Shahadat, 1984-Validity-Agreement to sell having been attested by two witnesses and executed after promulgation of Qanun-e-Shahadat, 1984 ought to have been proved in accordance with Art.79 thereof---Evidence on record consisted of only one attesting witness---Payment of earnest money had not been proved---Evidence produced by plaintiff did not meet the requirement of Art.79 of Qanun-eShahadat, 1984." ' He has stated that for typing the agreement stamp-paper was purchased on 14-9-1986, undertaking was signed on 14-10-1986 while the attestation was made on 14-9-1986. 15. Regarding concurrent findings by the Courts below, the learned Advocate for the appellant has vehemently argued at length that this Court is fully competent to set aside the concurrent findings. In support of this point, he has relied upon the cases of Iftikhar v. Khadim Hussain PLD 2002 SC 607; Rabia Bibi v. Alam Bibi PLD 1987 (AJ&K) 79; Municipal Committee, Bannu v. Munawar Khan PLD 1982 Pesh. 61 and Alamdar Hussain v. Nazir Hussain 2004 SCMR 595. 16. In the case of Iftikhar PLD 2002 SC 607, cited by the learned counsel it has been observed by the Honourable Supreme Court that:--- "(4) ... We are conscious of the fact that concurrent findings are not sacrosanct and can be reversed when such findings are based on insufficient evidence, misreading of evidence, non- consideration of material evidence, erroneous assumption of facts, patent errors of law or consideration of inadmissible evidence or something so outrageous or so gross as to shock the very basis of justice."
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' Next, the learned counsel for the appellant cited the case of Rabia Bibi PLD 1987 (AJ&K) 79. In this case, the Honourable Court has observed as under:-- "(12) An appeal in the High Court, as contemplated by section 100, C.P.C. Is only contempt if the decision appeared against is contrary to law or some usage having the force of law or some material issue on this point has not been determined or the Court trying the suit has committed substantial error or procedural defect which has caused error or defect in the decision of the suit on merits. (13) The objection taken up by the learned counsel for the respondent precisely is that the adverse possession is a question of fact and when both the lower Courts after appraisal of the evidence in accordance with law found that the possession of the appellant over the suit-land is not adverse, the High Court is not competent to reopen it. This objection must have been weighty if the appraisal of the evidence brought on the file would have been conducted in accordance with law. But whenever and wherever the High Court finds that the lower Court, while determining the question of fact has ignored some evidence or misread it, it becomes its duty to examine the question in the light of the evidence in its true perspective and determine it as required by law. (14) The finding of fact arrived at by the lower Court on the question of fact is biding on the High Court if the Judge, after having attended to it, has conducted its examination critically and formed his view about the point at issue but when the Judge, without making any reference to the evidence, forms an opinion or misreads it and arrives at a wrong decision, it will not be a finding which can have a binding on the High Court." ' Then, the learned counsel for the appellant cited the case of Municipal Committee Bannu's case PLD 1982 Pesh. 61. In this case, a learned Division Bench of Peshawar High Court has observed as under; -- "(6) the law is now well-settled that where the concurrent findings of the two courts below on any question are in utter disregard of the mandatory provisions of the law or Rules, the High Court would not only have the powers but would be duty bound to disturb those findings when the matter is brought before it for adjudication in second appeal. ' High Court would not only have the powers but would be duty bound to disterb those findings when the matter is brought before it for adjudication in second appeal." ' The other authority cited by the learned counsel on the point that this Court is fully competent to set aside the concurrent findings is the case of Alamdar Hussain 2004 SCMR 595 wherein a Full Bench of Honourable Supreme Court of Pakistan has observed as under; - "(14) Having examined all aspects of the matter, we find that no exception could be taken to the conclusions reached by the Honourable High Court which had persuaded the learned Judge in Chamber to set aside the concurrent judgments of the two subordinate Courts. Needless to mention here that there was no absolute rule that the concurrent judgments of the subordinate Court could never be…
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