Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUKHTAR AHMAD VS Respondent: TAJ DINHonorable Justice Abdul Shakoor ParachaAamer Raza A. Khan,Mian Nisar Ahmad, Sh. Naveed Sheryar and Malik Abdul Latif
2002 Y L R 2660
2002 Y L R 2660
[Lahore]
Before Abdul Shakoor Paracha, J
MUKHTAR AHMAD and 4 others‑‑‑Petitioners
Versus
TAJ DIN and 3 others‑‑‑Respondents
Civil Revision No.1021‑D of 1992, decided 6th, November, 2001.
(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Art. 79‑‑‑Execution of document‑‑‑Proof of‑‑‑Procedure‑‑‑Where copy of agreement was not public record or per se admissible, the same had to be proved in accordance with the provisions of Art. 79 of the Qanun e‑Shahadat, 1984.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑-‑O.XIII, R.4‑‑Document admitted in evidence‑‑‑Endorsement on such document‑‑‑Agreement to sell exhibited in the statement of plaintiff without examining the scribe or marginal witness ‑‑‑Validity‑‑ Such endorsement was in violation of O. XIII, R. 4, C. P. C.
(c) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.XIII, R.4‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 79‑‑‑Execution of document‑‑ Proof of‑‑‑Putting of exhibit mark on the document by Trial Court ‑‑‑Effect‑‑ Admittance of document under O.XIII, R.4, C P. C. is not binding on the parties and unproved document cannot be regarded as proved merely because the same has been admitted by the Court.
Khan Muhammad Yousaf Khatak v. S.M. Ayub and 2 others PLD 1973 SC 160 and Hari Singh v. Firm Karam Chand AIR 1927 Lah. 115 rel.
(d) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S.115‑‑‑Revision‑‑‑Appreciation of evidence‑‑‑Judgments of two Courts below on facts were at variance‑‑‑Where the judgments of two Courts below on disputed question of fact were controversial, High Court could read the evidence and record its own conclusion in exercise of revisional jurisdiction under S.115, C. P. C., after proper appraisal of evidence.
2001 SCMR 1493 and Mst. Amir Begum v. Muhammad Naeem Khan PLD 2000 SC 839 rel.
(e) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss.12 & 27(b)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 79‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Specific performance of agreement to sell‑‑‑Agreement, proof of‑‑ Judgment of two Courts below on facts were at variance‑‑‑Execution of the agreement was denied by the defendants‑‑‑Onus to prove the document was upon the plaintiff and the witnesses appeared on their behalf had neither referred to nor identified the thumb‑impressions of the defendants, furthermore the defendants were not confronted with the thumb‑impressions when they appeared in the witness‑box‑‑ Trial Court dismissed the suit while the Appellate Court reversed the findings of the Trial Court and decreed the same‑ Validity ‑‑‑Where the agreement to sell was not proved under the provisions of Qanun e‑Shahadat, 1984, such agreement could not be read in evidence‑‑‑Finding of the trial Court was based on the correct reading of statements of the witnesses and appreciation of evidence on record‑‑ Judgment and decree passed by the Appellate Court were set aside and that of the Trial Court were restored‑‑‑Revision was allowed in circumstances.
Feroze Din and others v. Nawab Khan and others AIR 1928 Lah. 432; Khair‑un‑Nisa's case PLD 1972 SC 25; Gopal Das v. Sri Thakarji AIR 1943 PC 83; Abdullah and 3 others v. Abdul Karim and others PLD 1968 SC 140; Malik Din v. Muhammad Aslam and another PLD 1969 SC 136; Nazir Ahmad v. Muhammad Rafique 1993 CLC 257; Muhammad Yaqoob and another, v. Naseer Hussain PLD 1995 Lah. 395; Siraj Din v. Mst. Jamilan PLD 1997 Lah.633; Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359; Saheb Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162 and Mst. Jannat Bibi v. Sher Muhammad 1988 SCMR 1696 ref.
(f) Admission‑‑‑
‑‑‑‑ Admissions are not conclusive proof of matters admitted.
Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 ref.
(g) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.27(b)‑‑‑Bona fide purchaser for valuable consideration‑‑‑Onus to prove‑‑ Where the defendant appeared and denied knowledge of agreement between the owner and the plaintiff, the onus of proof that the defendant had the knowledge of agreement shifted to the plaintiff.
(h) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Arts. 117 & 120‑‑‑Burden of proof‑‑ Significance‑‑‑Where both parties had led evidence, the onus of proof of an issue was of not of much importance and lost its significance.
(i) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Art. 140‑‑‑Execution of document‑‑‑Proof of‑‑‑Failure to confront the document to the witness‑‑‑Effect‑‑‑Where the witness was not confronted with the document, the same could not be used against the witness.
Akbar Hayat and 4 others v. Mst. Fazal Karim PLD 1971 SC 30 and The State v. Habib‑ur‑Rehman and others PLD 1983 SC 286 ref.
Aamer Raza A. Khan for Petitioners.
Mian Nisar Ahmad, Sh. Naveed Sheryar and Malik Abdul Latif for Respondents.
Dates of hearing: 10th, 11th and 15th October, 2001.
JUDGMENT
Through this consolidated judgment, I intend to dispose of Civil Revision Nos. 1021 and 1022 of 1992 as common questions of law and facts are involved.
2. Civil Revision No. 1021 of 1992: The subject‑matter of the land in dispute was measuring 57 Kanals, 18 Marlas situated in Khewat Nos.98/98, Khatuni No.498, Square No.55, Killa Nos.9, 12, 21, Square No.56 Killa No.25, Square No.64, Killa No.1, 10, 11, 20, 26 in the area of village Ganaishpur, Tehsil Nankana Sahib, District Sheikhupura, owned by defendants/respondents Nos. 2 to 4 herein. They agreed to sell the same to Taj Din, plaintiff‑respondent No. 1 herein, for consideration of Rs.33,000 and an agreement to sell was executed on 5‑2‑1987 in favour of Taj Din. The plaintiff advanced Rs.20,000 as earnest money. It was further agreed to execute sale‑deed in favour of Taj Din till 30‑3‑1988. It was stated in the plaint that the plaintiff was always willing to perform his part of the agreement but the defendants Nos.1 to 3 Khushi Muhammad etc., respondents Nos. 2 to 4 sold out the disputed land to Mukhtar Ahmad etc., petitioner herein who had full knowledge of agreement to sell. It was prayed that the defendants be directed to execute the sale‑deed in favour of the plaintiff after receiving the remaining amount and they also be restrained from interfering into the possession of the plaintiff.
3. Civil Revision No.1022 of 1992: The subject‑matter of the land in dispute was land measuring 83 Kanals and 8 Marlas situated in Khewat No.94/94, Khatuni No.494, Square No.55, comprising Killa Nos.21/1, 22/1, 24/1, 24/2, Square No.63, Killa Nos.3, 4, 5, 6/1, 6/2, 8/1, 8/2, 15 in village Ganaishpur, Tehsil Nankana Sahib owned by respondents Nos.2 to 6 Abdul Ghani etc., who agreed to sell the same to Taj Din plaintiff‑respondent No.1 herein, for consideration of Rs.48,000 and agreement to sell was executed on 18‑2‑1987 and they received the amount of Rs.35,000 as earnest money. It was further agreed to execute the sale‑deed in favour of plaintiff till 30‑3‑1988. It is stated in the plaint that the plaintiff was always willing to perform his part of the agreement but the respondents Nos.2 to 6 sold out the disputed land to petitioners Nos. 1 to 5, the subsequent purchaser who had full knowledge of agreement to sell. It was prayed in the plaint that the defendants be directed to execute the sale‑deed in favour of the plaintiff after 'receiving the remaining amount and they also be restrained from interfering in the possession of the plaintiff.
4. The suit was resisted by the defendants, inter alia, on the ground that the plaintiff had no cause of action to file the suit, that agreement to sell is forged, fictitious and based on fraud. The defendants have neither sold the suit‑land in favour of the plaintiff nor have ever entered into and executed any agreement to sell. Further, it was contended that the subsequent purchaser was bona fide transferee for value in good faith and without notice of the original contract.
5. From the divergent pleadings of the parties, following issues were framed by the trial Court:‑
(1) Whether the defendants Nos. 1 to 3 agreed to sell out the suit‑land to the plaintiff and executed an agreement to sell on 5‑2‑1987? OPP.
(2) Whether the said defendants received an amount of Rs.33,000 from the plaintiff? OPP
(3) Whether the defendants Nos. 4 to 8 were bona fide purchaser of the suit property for value and without notice ?OPD
(4) Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD
(5) Whether the suit is false, vexatious and conclusive? OPD.
(6) Whether the plaintiff has got cause of action to file this suit? OPP
(7) Whether the plaintiff has not come to the Court with clean hands? OPD
(8) Relief.
6. Four witnesses were examined by plaintiff Taj Din to prove issues Nos. 1, 2 and 3. Taj Din plaintiff appeared as P.W.1, Muhammad Shafique Naz, scribe of agreement dated 5‑2‑1987, as P.W.2, Saleem Javed and Muhammad Tahir, marginal witnesses, appeared as P.Ws.3 and 4, respectively, whereas all the three venders, i.e. Khushi Muhammad, appeared as D.W.1, Mst. Ramzan Bibi as D.W.2 and Mst. Jamila Bibi as D.W.3, as well as Jamshed Ali, Assistant Inspector, Office of S.P. Technical Service Crime Branch, Lahore as D. W.4 and Nasim Hussain Zaidi retired D.S.P., Incharge Finger Print Bureag, appeared as D.W.5, who were Witnesses of examination of thumb- impressions being expert. Two vendees Mukhtar Ahmad and Nazar Hussain appeared as D.Ws.6 and 7 the evidence was closed on 28‑5‑1991. Documentary evidence consisting of agreement to sell Exh.P.1, application allegedly moved by Mukhtar Ahmad to the Tehsildar Exh.P.2, his statement Exh.P.3, application to the Magistrate Exh.P.4 and Mutation Exh.D.4 were also produced.
7. The learned Civil Judge, Nankana Sahib dismissed the suit of Taj Din plaintiff vide judgment and decree dated 20‑7‑1991. According to the learned Civil Judge, the plaintiff has not proved the execution of agreement Exh.P.1 dated 5‑2‑1987 and that, petitioners are bona fide purchaser with consideration and without notice.
8. Plaintiff Taj Din filed an appeal against the judgment and decree dated 20‑7‑1991, which appeal was accepted by the learned Additional District Judge, Nankana Sahib vide judgment dated 6‑6‑1992. The learned Additional District Judge held that since Taj Din plaintiff himself appeared and also examined scribe Muhammad Shafique; as well as the two marginal witnesses of agreement Exh.P.1, namely, Saleem Javed and Muhammad Tahir, coupled with admission of Mst. Ramzan Bibi and Mst. Jamila Bibi, defendants Nos. 2 and 3: Plaintiff Taj Din has succeeded in establishing that in fact defendants Nos. 1 to 3 had agreed to sell the land in dispute in favour of plaintiff Taj Din.
9. The learned counsel for the petitioner has argued that document Exh.P.1, which is an agreement to sell dated 5‑2‑1987, has not been proved on the record in accordance
with provisions of Qanun‑e‑Shahadat Order, 1984. He has referred to the statements of P.W.1 to P.W.4, and argued that issues Nos. 1 and 2 were rightly decided by the Civil Judge in favour of respondents Nos.1 to 3 and non- suited the plaintiffs. Muhammad Shafique, P.W.2, petition‑writer was known to the plaintiff Taj Din and was not a licensed petition‑writer. He has further argued that no number has been endorsed on the document Exh.P.1 by the petition‑writer Muhammad Shafique and that said Muhammad Shafique, P.W.2, has stated that he knew Saleem for the last five years, who was his class‑fellow. It is further argued that the amount of sale has not been stated by P. W.2 and he is not aware about the names of the parties. He is not keeping the register and thumb‑impressions are in different inks and that both the marginal witnesses are from different village. Criticizing the statement of Saleem P.W.3 the learned counsel argued that his statement was recorded on 3‑5‑1989 when he was of tender‑age at the time of execution of the agreement to sell dated 5‑2‑1987. There is no I. D. Card number mentioned on the agreement to sell Exh. P.1 and that P.W.3 stated that the second marginal witness is his `Khalazad'. The learned counsel has given much stress that both the witnesses general and Saleem P.W. particularly cannot be believed as he is not a truthful witness as he has contradicted the petition‑writer on every aspect. The learned counsel further argued that the plaintiff was aware of the fact that the agreement to sell was a forged document therefore, he has never asked for comparison of the disputed and admitted thumb‑impressions on the agreement Exh.P.1. He further argued that no doubt D. Ws.4 and 5 are Government servants and have made their report Exhs.D.1 to D‑3, according to which the thumb‑impressions were not comparable, but the adverse inference could have been drawn by the Court because the same has not been confronted by the plaintiff to the above‑said witnesses. Finally he has argued that erroneous admission on the part of illiterate Pardanishin ladies, namely, Mst. Ramzan Bibi and Mst. Jamila Bibi, D.Ws.2 and 3, has been relied by the learned Additional District Judge and illegally granted a decree in favour of Taj Din plaintiff. He has vehemently argued that the plaintiff was a tenant and chronic defaulter and the vendors were resident of different village at Arifwala. Exh.P.1 was exhibited without proof of thumb‑impressions. According to the learned counsel, the document could have not been exhibited unless it was proved in accordance with Order XIII, rule, 4 C.P.C, which had to be complied with by the learned trial Court. In this regard the learned counsel has relied on Feroze Din and others v. Nawab Khan and others (AIR 1928 Lahore 432). According to the learned counsel, there were two different transactions of the bargain and execution of agreement Exh.P.1. the witnesses were not aware when the bargain was reached between the parties. The learned counsel for the petitioner has argued that when the defendants who purchased the property appeared in the witness‑box and stated that being subsequent vendees they had no knowledge of the previous agreement, then the onus of proof regarding the knowledge of the earlier agreement has been shifted to the plaintiff. Reliance has been placed on Kahir‑un‑Nisa's case (PLD 1972 SC 25). Since no evidence in rebuttal has been led and Exhs.P.3 and P.4 relied upon by the respondent could not have been relied because these documents were neither shown nor confronted to the petitioners, and was with a purpose to create‑ evidence after filing the suit.
10. The learned counsel for the respondent No.1 Taj Din has argued that agreement (Exh.P.1) was exhibited in evidence, by producing the marginal witnesses and scribe. According to the learned counsel, two‑fold objections could have been raised by the defendants, (i) objection regarding the mode of proof of the document Exh.P.1, and (ii) objection regarding admissibility of the document/ agreement to sell dated 5‑2‑1987 (Exh.P.1) he has argued that since no objection was raised at the time of production of the document as to formality of proof, the document has to be read in evidence because where a document has been admitted into evidence without objection in the trial Court, it cannot be allowed to be taken at appellate stage. Reliance has been placed on Gopal Das v. Sri Thakarji (AIR 1943 PC 83, Abdullah and 3 others v. Abdul Karim and others (PLD 1968 SC 140) and Malik Din v. Muhammad Aslam and another (PLD 1969 SC 136). The learned counsel has contended that the plaintiff has discharged his onus of proof placed on him of Issues No. 1 and 2 under Article 79 of Qanun‑e‑Shahadat Order, 1984 (P.O. 10 of 1984) by producing scribe of agreement to sell Muhammad Shafique as P.W.2 and two marginal witnesses, i.e. P.Ws.3 and 4. Reliance is placed on Nazir Ahmad v. Muhammad Rafique (1993 CLC 257), Muhammad Yaqoob and another v. Naseer Hussain (PLD 1995 Lah. 395) and Siraj Din v. Mst. Jamilan (PLD 1997 Lah. 633).
11. The learned counsel has also argued that the plaintiff has not prayed for sending the disputed thumb‑impressions for comparison to the Expert because opinion of the Expert is very ‑ weak type of evidence, particularly when no opinion has been expressed by the witness P.Ws.4 and 5 regarding authenticity of document Exh.P.1. In this regard he has relied on Ch. Abdul Hamid v. Deputy Commissioner and others (1985 SCMR 359). According to the learned counsel, there is no bar for an educated person or a lawyer or anybody else to scribe or write a document. Finally, he has argued that minor discrepancies should not be given undue consideration. In support his argument the learned counsel has cited Saheb Khan through Legal Heirs v. Muhammad Pannah (PLD 1994 SC 162). According to the learned counsel, there was no separate transaction of bargain and the execution of agreement Exh. P. 1, as alleged by the learned counsel for the petitioner in his arguments, there was only one agreement to sell dated 5‑2‑1987 (Exh.P.1), which has been proved by the plaintiff Taj Din. Argued that since both the parties have led evidence and the onus of issue is of not much importance and it has lost its significance in the circumstances of the case. The learned counsel further argued that the person who does not hold an inquiry about the possession is not entitled for any protection being bona fide purchaser with consideration and without notice. According to him, the defendants have not stated in so many words in written statement that they are bona fide purchaser with value without notice and they cannot be allowed to set up a new case. In this regard, reliance is placed on. Mst. Jannat Bibi v. Sher Muhammad (1988 SCMR 1696).
12. In reply to the above arguments, the learned counsel for the petitioner contends that the total picture which has emerged from reading of the evidence would show and prove on the record that the agreement to sell Exh.P.1 dated 5‑2‑1987 was forged and fictitious and there was no rebuttal to issue No.3.
There is complete conflict of opinion regarding the proof of the agreement to sell Exh.P.1 in the judgments of the two Courts below. The learned civil Judge has not accepted the document Exh.P.1 as genuine.
13. The foremost and pivotal question raised in this case is whether document Exh.PA the agreement to sell dated 5‑2‑1987 between the parties is a genuine or forged document and has been proved in accordance with law or not. This document, it may be stated, was the main subject of controversy between the parties. To resolve this controversy the provisions of Article 78 and 79 of the Qanun‑e‑Shahadat Order 1984, are reproduced:‑
"78. Proof of signature and handwriting of person alleged to have signed or written document produced.‑‑‑If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
79. Proof of execution of document required by law to be attested.‑‑‑If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purposes of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence."
Admittedly agreement Exh. P. 1 was not a copy of public record or per se admissible. It had to be proved in accordance with the provisions of Article 79 of the Order. The onus of proof was on the plaintiff Taj Din. Scribe Muhammad Shafique P.W.2, and marginal witnesses have neither referred nor identified the thumb‑impressions of defendants Nos.1 to 3, which were endorsed on the agreement Exh.P.1 nor the same were confronted to defendants Nos. 1 to 3 when they appeared in the witness‑box. It is strange that on the first day when Taj Din plaintiff appeared as P. W.1, the document was marked as Exh.P.1 in violation of Order XIII, rule 4 of the C.P.C. (V of 1908) in the statement of Taj Din plaintiff without examining the scribe or the marginal witnesses. When defendants Khushi Muhammad, Mst. Ramzan Bibi and Mst. Jamila Bibi appeared as D. W.1 to .D. W.3, they denied their thumb‑impressions on Exh.P.1. The controversy regarding proof of document and interpretation of sections 67 and 145 of the Old Evidence Act, which is synonymous with Articles 68 and 69 of Qanun‑e -Shahadat Order, and cases of Gopal Das v. Sri Thakarji (AIR 1943 P.C 43), Abdullah and 3 others v: Abdul Karim and others (PLD 1968 SC 140) and Malik Din v. Muhammad Aslam and others) PLD 1969 SC 136) came for consideration before the Honourable Supreme Court of Pakistan in case reported as Khan Muhammad Yousaf Khatak v. S.M. Ayub and 2 others (PLD 1973 SC 160) in an election matter. Regarding the proof of documents without objection the Honourable Chief Justice Mr. Justice Hamuddur Rehman, as my Lord then was, while relying on the above- referred case law, held:‑
"To the same effect are the observations of this Court in case of Abdullah v. Abdul Karim and Malik Din v. Muhammad Aslam. In the present case I cannot keep feeling that the appellant had abundant notice and this particular document would, be used against him, but in, spite of it he negligently did not either deny admission without formal proof. In the circumstances, the Tribunal, in my view cannot be said to have acted contrary to the law in relying on the document and holding that the appellant did, in fact, continue to act as Director up to 31st December, 1970. "
The majority view was recorded by my Lords Mr. Justice Sajjad Ahmad Jan and Mr. Justice S. Anwarul‑Haq, as my Lords then were, His Lordship Mr. Justice Sajjad Ahmad Jan held:‑
"I am of the view that even such documents are brought on record and exhibited without objection, they remain on the record as exhibits and truthful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purported to have written or signed them, unless the writing or signature of that person is proved in terms of mandatory provisions of section 67 of the Evidence Act."
His Lordship further observed:‑
"However, even I were to assume without holding that the document is genuine and it bears the signature of the appellant, I am of the firm opinion that it can be used against him as evidence as he was not confronted with it and it was not afforded an opportunity to explain it as required by section 145 of the Evidence Act."
His Lordship Mr. Justice Anwar ul‑Haq while agreeing with the above observation, held:‑
"While it is true as observed by Privy Council in Gopal Das v. Sri Thakarji and by this Court in Abdullah v. Abdul Karim and Malik Din v. Muhammad Aslam that an objection has to be made of proof should be taken at the trial before the document is marked as Exhibit and exhibited to the record and party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. It will be seen that in this case an objection as to the admissibility and the proof of this document was taken before the Election Tribunal itself. A cursory glance at the original of this document, which was summoned by this Court, shows that there is an overwriting on the signature of the appellant, it is recorded by the election Tribunal that the original, as produced by the Registrar Assistant was seen and returned. I cannot help feeling that Tribunal clearly failed to perform its duty if it did not see overwriting on the Exh.E. Even in the attested copy obtained by the respondent, there appears a note to the following effect:‑‑
"Attested to be true copy"
However, signatures of Muhammad Yousaf Khatak appear to be over written. In these circumstances, it was obviously necessary for the Election Tribunal to have the signature and the handwriting of the appellant proved in accordance r6th mandatory provisions of section 67 of the Evidence Act, but this was not done. The onus of proving this document lie on the respondent and the fact that the appellant or his counsel did not take any specific objection at the time of production of this document does not mean that the same stands proved, in view of the patent over‑writing existing in the original and noted in the attested copy."
It is admitted position of law that admittance of document under Order XIII rule 4, C.P.C. is not binding on the parties and unproved documents cannot regarded as proved merely because they ; so admitted by the Court (In case H Singh v. Firm Karam Chand (AIR 19 Lah. 15) this Court interpreted the provision of Order XIII rule 4 and held that rule must be strictly complied with as follows:
"The provisions of Order 13, Rule 4 must be strictly complied with. The endorsement should bear the name of the person tendering the document in evidence and the date on which it was so tendered. Merely by stamping documents with the date on which they were filed in Court, they do not ipso facto…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.