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Petitioner: Mst. AKHTAR SULTANA VS Respondent: Major (Retd) MUZAFFAR KHAN MALIK (deceased) through Legal Heirs and Others
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf Title:Mst. AKHTAR SULTANA vs Major (Retd) MUZAFFAR KHAN MALIK (deceased)
through Legal Heirs and Others Case No.: CIVIL REVISION NO.428 of 2006 Date of Judgment:2015-06-16 Reported As: 2015 LHC 5791 Result: N/A Judgment MIRZA VIQAS RAUF, J. The instant petition is directed against the judgment and decree dated 9th of January, 2006, passed by the learned Additional District Judge, Mianwali, whereby appeal filed by the petitioner against the judgment and decree dated 18th of February, 2003 passed by the learned Civil Judge, Mianwali, was dismissed. 2. Precisely the facts necessary for adjudication of instant petition are that Major (Retired), Muzaffar Khan Malik, Mst. Rashida Begum and Mst. Zainab Khatoon, the predecessorin-interest of the present respondents, filed a suit for joint possession with regard to suit properties (described in the plaint) against the petitioner and others (the transferees from the petitioner). It was averred in the plaint that Bashir Khan Malik brother of Muzaffar Khan Malik and Mst. Rashida Begum and son of Mst. Zainab Khatoon, was a British national whose whereabouts are not known since 30th of June, 1963, thus on account of lapse of seven years time, he shall be presumed to have died in terms of Sections 107 and 108 of The Evidence Act, 1872 (now Articles 124 and 125 of The Qanune-Shahadat Order 1984) (hereinafter referred as "The Order"). It was further asserted in the plaint that certain transactions of sale allegedly made by Bashir Khan Malik through sale mutations Nos.5430 dated 15th of June, 1963 and 5808 dated 26th of June, 1963 of the suit land in favour of the petitioner/defendant No.1, are based upon fraud and misrepresentation, thus be annulled. Besides this, the respondents also challenged the general power of attorney allegedly executed by Bashir Khan Malik, in favour of Muhammad Aslam, who ultimately on the basis of this instrument got the disputed sale mutations sanctioned in favour of the petitioner/defendant No.1, on the primary ground that Bashir Khan Malik, was unable to read or right Urdu. The petitioner, being the
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defendant contested the suit and filed a written statement whereby the assertions contained in the plaint were controverted. She defended the sale mutations as well as the deed of attorney on the ground that all were executed competently and validly. From the divergent pleadings of the parties the learned Trial Court framed the following issues:- ISSUES 1. Whether the rights of defendants No.2 to 10 are protected under section 41 T.P. Act? OPD 2. Whether Bashir Ahmad Malik has not been heard of for the last seven years and should legally be presumed as dead? OPP 3. If issue No.2 answered in negative, then whether the plaintiffs have got a locus standi to bring the suit? OPP 4. Whether the plaintiffs are estopped by their own words and conduct to file the present suit? OPD 5. Whether the suit is time barred? OPD 6. Whether the sale in dispute by Bashir Malik in favour of Akhtar Sultana defendant No.1 was for consideration? OPD 7. Whether the sale in dispute in favour of defendant No.1 is result of fraud, and had for the reasons mentioned in para-11 and grounds a to h of the plaint? OPP 8. Whether the suit land has not been correctly described in the plaint. If so, what is its effect? OPD 9. Whether the suit is bad and liable to be dismissed for non-joinder of necessary parties? OPD 9.A Whether the suit is not maintainable in its present form? OPD (added vide order dated 01.02.2003). 10. Relief. 3. The parties were put to trial. The respondent/plaintiff examined Major (Retired) Muzaffar Khan as PW-1, Asif Masood Malik as PW-2 (he is the real maternal nephew of Bashir Khan Malik); PW-3 Faiz Ameer is servant of the plaintiffs; PW-4 Zafar Hussain Qureshi is a family friend and PW-5 Muhammad Ahmad Khan is the son of Major (Retired) Muzaffar Khan (plaintiff No.1) and he appeared in rebuttal. Asad Raza was examined on commission, but has not been given any PW number. The following documentary evidence was adduced by the plaintiffs:- Exhibit-P1 is Jamanbandi for the village Chakrala, Exhibit-P2 is Jamabandi for the village Kund (both are under challenged), Exhibit-P3 is Jamanbandi for village Bhanberanwali (not under challenge), Exhibit-P4 is the copy of PTI regarding the house in the name of Akhtar Sultana situated in Mauza Watta Khel. It may be noted that some documents, which were earlier exhibited as Exhibit-P6 to Exhibit-P8, were de-exhibited by the court vide order dated 17.01.981. 4. The defendants examined Khan Zaman as DW-1 who is cultivator; DW-2 is Wali Muhammad
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Khan (Wasil Baqi Navees); DW-3 is Muhammad Husnain (Registry Clerk), who has appeared to prove the alleged power of attorney given by Bashir Khan Malik in favour of Muhammad Aslam; DW-4 Mehr Khan is the Moharrar record, office of Saddar Mianwali; DW-5 is Muhammad Amin, Patwari who had entered the mutations; DW-6 is Ghulam Yaqoob, Girdawar (this witness before promotion was Patwari of village Kund and entered the mutation in question; DW-7 is Muhammad Aslam (the attorney), who finally got the mutations sanctioned on behalf of Bashir Khan malik in favour of Mst. Akhtar Sultana; DW-8 is Muhammad Husnain, Moharrar Registry of the same power of attorney (Exhibit-D6); DW-9 Gulab is the witness of Exhibit-D5; DW-10 Allah Yar is the witness of Exhibit-D4; DW-11 Muhammad Farooq is a teacher of Government High School No.1, Sargodha who has been examined to prove that Bashir Khan Malik could read and write Urdu. The defendant No.1 (Akhtar Sultana) was examined on commission, however, no DW number has assigned to her. Besides the oral, large number of documentary evidence has been produced by the petitioner/defendant comprises of Exhibit-D1 to Exhibit-D43. However, during the course of arguments, the learned counsel for the petitioner has mainly relied upon Ex.D18 to Ex.D26. It was also specifically pointed out that contention of plaintiff in order to create a ground for denial for execution of power of attorney was that Bashir Khan could not write or read Urdu. This contention of the plaintiffs is fully rebutted by authentic documents like Exhibit-D7, Exhibit-D14, Exhibit-D15 and Exhibit-D16. 5. In the earlier round of litigation, the suit of the respondents was decreed on 03.05.1983; the petitioner preferred an appeal, which was accepted on 16.07.1984; the respondents filed a revision petition (C.R. No.1526/1984) before this Court, which was allowed and the case was remanded to the trial court with permission to the petitioner to produce the additional evidence and the respondents having the right of rebuttal. It may not be out of place to mention here that the documents Exhibit-D18 to Exhibit-D20, which according to Ch. Khurshid Ahmad, learned Advocate for the petitioner are significant, are those, which have been adduced as the additional evidence. After the remand, the learned Trial Court has decreed the suit on 18.02.2003 and the appeal of the petitioner has failed on 09.01.2006, hence, this revision petition. 6. Learned counsel for the petitioner at the start of his arguments submitted that his contentions are already available on the file as those were duly got recorded at the time of previous hearing of the case and he will reiterate the said contentions. This being so, as the same are available on the record so, those are reproduced below as per verbatim:- "The learned counsel for the petitioner contends that both the courts below have misread the evidence on the record and also have misconceived, misconstrued and misapplied the relevant law; in this regard, it is submitted that the following propositions arise for the determination by this Court:- i) That in the case where a suit is based on the assumption of seven years of a person being unheard of and the plaintiff seeks some benefit on account of that, then the plaintiff is required to prove the exact date of death; in this behalf, reliance has been placed upon "Sakhi Muhammad and another vs. Mst. Allah Bi and others" (PLJ 1988 S.C 522) "Khudadad vs. Mst. Resham Jan and others (PLD 1968 Peshawar 172), and "Ram Kali and others vs. Narain Singh (AIR 1934 Oudh 298) (at page 299); ii) That in a suit, as is the present one, which is based on assumption of seven years of a person being unheard, if it is not proved by positive evidence the exact date of death, the plaintiff shall be
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deemed to have lost the cause of action on which the suit is based and the court may: a) Dismiss the suit for lack of cause of action on which the suit is based. (According to the learned counsel for the petitioner as per definition of the cause of action as recognized by judicial pronouncements in the sum total of the facts which the plaintiff must prove to get the relief prayed for); b) The second alternative is that if the defendants admit the date of death as proved on record apply for the amendment of the suit and show as to how the plaintiff is entitled to the reliefs prayed for and to show that the suit already filed is within time. c) It may also be shown by the plaintiff that if the actions of the defendants had not been challenged during his lifetime in spite of knowledge, the reversions have might to challenge the same and in such a case the concept of maturity of cause of action cannot be imported. (iii) The evidence led by the plaintiffs/respondents regarding the aspect that Bashir Khan Malik has not been heard for 7 years is general in nature and thus, cannot be relied upon, whereas the petitioner has given the positive evidence that gentleman was alive till 1997 and had died on 03.04.1997, which has the preference; in this behalf, the learned counsel states that the relevant documents are Ex.D.18 to Ex.D.26; (iv) The documents produced by the petitioner are foreign/public 5 of the Qanun-e-Shahadat Order, 1984, thus are duly proved under the law, and against the above the respondents have led no evidence in rebuttal; (v) In case the date of death of Bashir Khan Malik is proved to be 03.04.1997, the issues/questions as to whether the suit is within time or not and whether the plaintiffs have any locus standi to file the suit, would become relevant, in the eventuality, it is established by the petitioner that he had the knowledge of disputed transactions and never himself challenged those during his lifetime; whether in the circumstances, the same can be challenged by the respondents; reliance in this behalf is placed on "Abdul Haq and another vs. Mst. Surrya Begum and others" (2002 SCMR 1330), "Gopal Bhimjo Advte vs. Manaji Ganuji Padwal and others" ( AIR 1923 Bombay 163 and 168), "Lal Chand Marwari vs. Mahant Ramrup Gir and another" (AIR 1926 Privy Council 9), " Ram Kali and others vs. Narain Singh" (AIR 1934 Oudh 298) and "Fateh Ali and others vs. Ahmad Din" (AIR 1927 Lahore 284); (vi) Though issues No.6 and 7 are important, but issue No.5 in view of the fact that Bashir Khan Malik had the knowledge of the transactions but never challenged those within time, these will recede to the background and the issue of limitation shall attain prime importance; (vii) In the mutation it is recorded that Bashir Khan Malik himself appeared and got recorded the mutation and, therefore, a fact recorded in the mutation shall be presumed to be correct until it is rebutted; reliance is placed upon "Mian Zafar Iqbal and others vs. Bashir Ahmad and others (PLD 1989 Lahore 152); but no rebuttal has been given by the respondents; (viii) Article 89 (5) of the Order has certain ingredients which are spelt out in Noor Din and 2 others vs. Saleem Ahmed and 6 others (PLJ 2003 Lahore 1190) and the documents adduced by the petitioner in the instant case to prove the death of Bashir Khan Malik such as Ex.D.18 to Ex.D.26 fulfill
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the criteria of law referred to above. Further submissions are: ( a ) The stand of the respondents that Bashir Khan Malik's whereabouts are not known since the last seven years, the learned counsel has made reference to the evidence of PW-1 who in the statement has stated that I do not know the address of my brother in U.K and has not mentioned about his personal knowledge of the search made by himself rather it is alleged to be through certain friends etc, who have not been produced; it is also in his cross-examination that though Bashir Khan Malik was working in General Electric Company but he has made no inquiry from the said company to ascertain if he was alive or dead; (b) Ex.D.18 is the document of marriage entry dated 30.07.1976 of Bashir Khan Malik with one Mst. Shamim; Ex.D.19 is certificate of divorce; Ex.D.20 is his pension documents; Ex.D.21 is certificate of National Health Service; Ex.D.23 is the death certificate of Bashir Khan Malik (though initially he was shown to be the resident of Bangladesh but subsequently through a corrigendum this was corrected and he was held to be Pakistani); Ex.D.26 is a certificate of tax department. All these documents are public documents of foreign origin and have been issued by the competent authorities bearing the seal and attested by Pakistani High Commissioner in U.K. These documents have been illegally discarded by the courts; (c) Though the appellants court has relied upon Ex.D.18, Ex.D.19 and Ex.D.22 in paragraph No.22 of the impugned judgment, but has discarded the same for no valid reasons; that the objections to the admissibility and proof of the documents have been raised by the respondents in an illusionary manner i.e. The documents are {{ URDU TEXT }} ;as this by itself is no objection when the document is of foreign nature duly comply with the provisions of Article 89; moreover, no evidence in rebuttal has been produced by the respondents; (d) In the earlier round, the trial court vide order dated 26.10.2002 had refused the petitioner certain additional evidence, however, upon revision, which was accepted by the learned Additional District Judge vide order dated 02.12.2002 it was held " documents are relevant to the proof of the date of death"; the respondents challenged this order before this Court in W.P No.26 of 2000, and on 16.01.2003 at pre-admission stage, the following order was passed:- "Though the question of validity of impugned order shall be considered at the main hearing, however, in order to regulate the proceedings before the learned trial court, the court below is directed to conclude the additional evidence permitted by the ADJ to the respondents." In the meantime, as the learned trial court after concluding the additional evidence passed the final judgment and decree, therefore, the respondents withdrew this petition; however, in appeal filed by the petitioner against the above, they moved an application with the caption of 'Cross Objections' before the Additional District Judge simply reiterating there objection to the proof/admissibility of the documents a {{ URDU TEXT }}. But no challenge has been thrown to the proof/admissibility of the documents by the respondents in these proceedings in any form; (e) DW-7 in his cross-examination has stated that he had received a letter from Bashir Khan Malik; the petitioner in order to seek permission of the court to produce such letter in evidence moved an application which was refused by the learned Civil Judge vide order dated 08.0-9.1976; this order
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was challenged by the petitioner through a revision petition which was disposed of on 11.03.1980 wherein it is held that it is for the respondents/plaintiffs to adduce such evidence and the petitioner should not bother; the respondents, however, never moved any application for the purpose of the producing the letter, and no question was asked to DW-7 if he was able to produce the same; (f) The petitioner has proved in unequivocal terms the actual date of death of Bashir Khan Malik through the positive evidence referred to above, thus the presumption of Article 124 of the Order stands dispelled, and the date of death for all intents and purposes shall be 03.04.1997, with the legal effect that in any case he was alive till that date and the law declared in PLJ 1988 SC 522 and PLD 1968 Peshawar 172 shall be squarely applicable; (g) When the date of death is proved as 03.04.1997, no cause of action is left for the respondents to pursue the present suit; (h) The other important question would arise, whether it is the case where cause of action has accrued during the pendency of the suit and if the respondents choose to pursue it without the amendment of the plaint, which is the remedy available to them, if Bashir Khan Malik was aware of the transactions; the question of limitation for the plaintiffs to pursue the case; their cause of action especially would be the relevant issues, which have been answered in the negative by the two courts below against the petitioner. (I) In C.R No.1526 of 1984 vide judgment dated 05.12.2001, the parties were permitted to adduce additional evidence; relevant paragraph of the judgment is reproduced below: " Learned counsel for the parties have no objection if by setting aside the impugned judgment and decree, the matter is remanded to the learned trial court for decision afresh, where the parties may also be given the opportunity of producing the additional evidence on the issues involved but through proper application in this behalf; the application, which the respondents moved before the first appellate court for additional evidence, can be repeated before the learned trial court." Though the petitioner on account of the above availed the opportunity and brought on record material evidence, but no evidence in rebuttal thereof has been adduced by the respondents, therefore, presumption for such lapse be drawn against them." 7. Conversely, learned counsel for the respondents submitted that there are concurrent findings of facts recorded by both the Courts below which are based on proper appraisal of evidence and the petitioner has failed to point out any misreading or non-reading of evidence. He maintained that reappraisal of evidence is not permissible in exercise of revisional jurisdiction. Learned counsel added that there is no dispute with regard to the pedigree table of the legal heirs of Malik Ahmad Khan. Learned counsel contended that the documents Exhibit-D8 to Exhibit-D43 were tendered in the statement of learned counsel for the petitioner which were duly objected before the learned trial court, thus the same are inadmissible. To further supplement his contentions, learned counsel submitted that the said documents are not the public documents and Article 89(5) of "The Order" is not applicable. Learned counsel next contended that the validity and execution of said documents is also under serious assailance. In support of his contentions learned counsel referred Sections 29 and 34 of The Birth and Deaths Registration Act, 1953. In this regard, he has also drawn the attention of this Court to the relevant provision of The Corners Act, 1958. Learned counsel argued that the proof of death is not necessary in terms of Article 124 "The Order" as in case of a missing person
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succession open on the date on which he is presumed to be dead. In support of his arguments, he relied upon Rule 216 of The Muhammadan Law. Learned counsel has also placed reliance on "Arjun v. Jug Lal" (A.I.R. 1923 Lahore 422), "LAL HUSSAIN versus Mst. SADIQ and another" (2001 SCMR 1036) and "MUHAMMAD SARWAR AND ANOTHER versus FAZAL AHMAD AND ANOTHER" (PLD 1987 Supreme Court 1). Learned counsel while emphasizing on the issue of presumption in terms of Article 124 of "The Order" submitted that ample evidence was led by the respondents to prove the said fact and the said evidence is not rebutted by the petitioner. Reliance in this respect was placed on "PAKISTAN CYCLE INDUSTRIAL versus M/s MUHAMMAD YOUSAF, PROPRIETOR ALPHA SUPPLY" (PLJ 2003 Lahore 1100), "Khan MUHAMMAD YUSUF KHAN KHATTAK versus S. M. AYUB AND 2 OTHERS" (PLD 1973 Supreme Court 160) and "Civil Petition K-138 of 1974 LAL MUHAMMAD versus MUHAMMAD USMAN AND OTHERS Civil Petition K-143 of 1974 MUHAMMAD USMAN versus LAL MUHAMMAD AND OTHERS" (1975 SCMR 409). 8. I have heard the learned counsel for the parties at considerable length and also perused the record with their able assistance. 9. From the perusal of pleadings of the parties, it is evident that there is a serious dispute with regard to the factum of missing of Bashir Khan Malik, and his date of death. As per stance of the respondents, Bashir Khan Malik, came to Pakistan in the year 1962 on the death of his father Malik Ahmad Khan. After his return to the homeland he stayed in Pakistan for few months and during this period, he contracted marriage with the petitioner. Though in the plaint, there is no mention about the exact date of the marriage and divorce but later on, it has come on the record that the marriage took place on 27th of February, 1963 which ended in divorce on 29th of June, 1963. The respondents alleged that Bashir Ahmed Khan Malik, left the country on 30th June, 1963, and since then, his whereabouts are not known. The suit was filed on 3rd of October, 1970. On the other hand, the petitioner asserted that Bashir Ahmad Khan Malik, remained alive even on the date of filing of the suit. In order to prove the factum of missing of Bashir Ahmad Khan Malik, the respondents examined five witnesses in toto, who were all closely related to the said person. The examination of the statements of the witnesses reflects that they all deposed in line with each other. The respondent No.1 himself appeared as PW-1. As per his statement Bashir Ahmed Khan Malik was his real brother who came to Pakistan towards the end of 1962 and while staying for some months he left on 30th of June 1963 whereafter inspite of their efforts, they were unable to trace his whereabouts. Asif Masood Malik, nephew of Bashir Ahmed Khan Malik appeared as PW-2. During his cross-examination, a request was made on behalf of the petitioner for adjournment of the proceeding on the ground that a letter is received on behalf of Bashir Ahmed Khan Malik, duly attested by the notary public and identified by Third Secretary, Pakistan High Commissioner in U.K, which is in possession of Malik Muhammad Akram, who at present is posted in PAF at Karachi. As he has not come today, so he is not in a position to show the letter to the witness so as to seek his opinion about the handwriting of executant and signatures affixed on it. On this request, the proceedings were adjourned however, no such letter was ever confronted to the said witness later on. 10. Since, the petitioner have taken a specific plea that Bashir Ahmad Khan Malik remained alive after 30th of June 1963 and he was never missing, so in terms of Article 118 of "The Order", the onus to prove this fact heavily shifted upon her. The petitioner recorded her statement in the form of sealed question. Her answer to some of the relevant questions are as under :- {{ URDU TEXT }}
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11. It is evident from the above that even the petitioner by her own statement lastly met Bashir Ahmed Khan Malik, in the last week of June 1963, and it is also admitted position that she was divorced on 29th of June, 1963. She even failed to give the country name where Bashir Ahmed Khan Malik was residing in those days. The main stay of petitioner claim with regard to the status of Bashir Ahmed Khan Malik, remained on the documents Exhibit-D20, Exhibit-D24, Exhibit-25 and Exhibit-D26. As already observed in the earlier part of the judgment that the documents Exhibit-D8 to Exhibit-D43 were tendered in the evidence through the statement of learned counsel for the petitioner, which were duly objected by the respondents. The respondents also produced Muhammad Ahmad Khan as PW-5 to rebut these documents. The learned courts below have duly pondered upon the validity of these documents and discarded the same after assigning valid reasons. The main argument of the learned counsel for the petitioner is that the said documents, being foreign documents are parse admissible in evidence in terms of Article 89(5) of "The Order". In the light of contentions raised by learned counsel for the petitioner, I have also examined the admissibility of the documents on this perspective. For the purpose of convenience and ready reference Article 89 of "The order" is re-produced below:- "89. Proof of other public documents: The following public documents may be proved as follows: - (1) Acts orders or notifications of the Federal Government in any of its departments, or of any Provincial Government or any department of any Provincial Government-by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government; (2) The proceedings of the…
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