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Petitioner: SHER BAZ KHAN and others VS Respondent: Mst. MALKANI SAHIBZADI TIWANA and others
Court Name: Supreme Court of Pakistan Judge(s): Syed Deedar Hussain Shah, Rana Bhagwan Das, Munir A. Sheikh Title: SHER BAZ KHAN and others vs Mst. MALKANI SAHIBZADI TIWANA and others Case No.: Civil Appeals Nos.1465 and 1466 of 1996 Date of Judgment:2003-02-04 Reported As: PLD 2003 Supreme Court 849 Result: Appeals dismissed
JUDGMENT
JUDGMENT MUNIR A. SHEIKH, J.---By this common judgment, we propose to decide the above titled two appeals involving identical questions of law and facts. 2. These appeals by leave of the Court are directed against the consolidated judgment dated 13-2- 1996 of Division Bench of the Lahore High Court whereby two appeals (R.F.As. Nos.6 and 7 of 1990) filed by the appellants have been dismissed. 3. The facts of the case giving rise to these appeals shortly stated are that Mst. Malkani Sahibzadi Tiwana, respondent No,1-plaintiff in both the appeals was owner of agricultural land in Village Kalra, Tehsil Shahpur, District Sargodha. Land measuring 1983-3/4 Kanals out of the land of respondent No,1 was sold to Malik Shahbaz Khan, deceased predecessor-in-interest of appellants Nos.1 to 3, Malik Muhammad Nazir, respondent No,2, Ghulam Muhammad, appellant No,4, Shahjehan deceased predecessor-in-interest of appellants Nos.5 to 8 in C.A.No,1465 of 1996 and Sultan Mehmood who was defendant No,5 in Civil Suit No,1/1 of 1988 from which R.F.A. No,6 of 1990 in the High Court had arisen vide mutation of oral sale No,46 (Exh.PA) sanctioned on 19-6-1970 by the Assistant Collector-II, Shahpur. District Sargodha, for a consideration of an amount of Rs,3,71,953. Respondent No,1 was minor a: that time and the said mutation as is manifest therefrom is based on an oral transaction of sale made by Messrs Sheikh Zahoor Ahmad and Malik Shahbaz Khan alleged general attorneys of late Malik Khizar Hayat Tiwana father of respondent No,1 which had also reference to Roznamcha Waqiati No,337 but was not produced in evidence. The presence of Messrs Ahmad Ali, a member of Union Council, KaIra and one Muhammad Yar as identifiers had been recorded alongwith the presence of Malik Khizar Hayat Tiwana father of respondent No,l. According to the contents of the Mutation, no part of the amount of consideration had been paid at the time
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of its attestation whereas the payment of the amount of consideration and delivery of possession at that time was acknowledged. This sale was brought under challenge through a civil suit filed by respondent No,1 bearing No,1/1 of 1988 from which R.F.A. No,6 of 1990 filed before the High Court had arisen. This sale is subject-matter of Civil Appeal No,1465 of 1996. 4. Land measuring 992 Kanals situated in the same village of respondent No,1 was sold to Muhammad Aslam, Ahmad Khan and Col. Shabbir Hussain Shah, respondents Nos.2 to 4 in Civil Appeal No,1466 of 1996 through mutation of Sale No,80 (Exh.PC) sanctioned on 12-12-1974 by the Assistant Collector-II, Shahpur, District, Sargodha for an amount of Rs,4,04,240. This mutation was entered on the basis of an alleged oral transaction of sale entered into between the said vendees and Shaikh Zahoor Ahmad and Muhammad Nazir, respondents Nos.5 and 7 in Civil Appeal No,1466 of 1996 as alleged general attorneys of respondent No,1-plaintiff vide registered deed of power of attorney dated 27-1-1971. 5. In this mutation, the presence of Sahib Khan, Sarbarah Lambardar, Muhammad Sher and Malik Shahbaz Khan had been recorded as identifies whereas Sheikh Zahoor Ahmad and Muhammad Nazir respondents Nos.5 and 7 in Civil Appeal No,1466 of 1996 were shown to have appeared as general attorneys of respondent No,1-plaintiff who admitted the receipt of consideration as well as change of possession. This transaction was brought under challenge by respondent No,1 through Civil Suit No,2/1 of 1988 from which R.F.A. No,7 of 1990 had arisen before the High Court which is subject-matter of Civil Appeal No,1466 of 1996. 6. Respondent No,1 on coming to know of both these transactions after obtaining copies thereof filed two suits on 9-12-1978 challenging both these transactions of sale as being illegal, unauthorized, without consideration and inoperative against her ownership and possessory rights in the said land, inter alia, on the ground that the disputed transaction had taken place during the time when she was minor, that the sales were unauthorized and based on fraud and that no sale was made for her welfare. 7. The trial Court consolidated both the suits which were contested by the defendants/appellants by alleging that both the transactions of sale were valid in law and the vendees had purchased the land for valuable consideration from authorized persons. i,e,, father of respondent No,1 who was her natural guardian and from her duly appointed general attorneys respectively. The said Court in the first instance framed the following two preliminary issues:-- (1) Whether the suit is barred by limitation? OPD (2) Whether the suit suffered from laches and is liable to be dismissed as such? OPD 8. The trial Court through order dated 10-6-1984 decided both these issues against the defendants and held that suits had been filed within period of limitation prescribed by law i,e, with three years of the attainment of age of majority by respondent No,1-plaintiff and since it was that the suits had been filed within period of limitation, as such, it was held that there was no question of laches. 9. After the decision on preliminary issues, the trial Court reflected the controversies arising from the pleadings Of the parties on merits of the case in the following issues:-- (1) Whether the defendants Nos.1 and 6 had valid authority to make any statement on behalf of the plaintiff or sanctioning the impugned Mutation No,46? OPD (2) Whether the father of the plaintiff was not competent to make any statement in regard with getting the impugned mutation sanctioned No,46 before the Revenue Officer as a natural guardian of the plaintiff? OPP (3) Whether the father of the plaintiff did not make any statement in regard with sanctioning the impugned Mutation No,46 before the Revenue Officer? OPP (4) Whether the impugned Mutation No,46 is fraudulent transaction and is based on misrepresentation and the impugned mutation is void, illegal and ineffective against the rights of the plaintiff? OPP
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(5) Whether the alleged sale under the impugned mutation was for the benefit of the plaintiff and it was with consideration? OPP (6) Whether the plaintiff has no cause of action against the defendants in respect of suit relating to Mutation No,46? OPP (7) Whether the father of the plaintiff was not competent to authorize defendants Nos.4 and 5 to get sanctioned the impugned Mutation No,80 on his behalf in respect of the land belonging to the plaintiff? OPP (8) Whether defendants Nos.4 and 5 had any valid power of attorney in their favour from the plaintiff to get the impugned Mutation No,80 sanctioned on her behalf? OPD (9) Whether the alleged sale by virtue of Mutation No,80 was fraudulent transaction and the transaction is invalid, void without lawful authority and of no effect against the rights of the plaintiff? OPP (10) Whether the impugned sale by virtue of Mutation No,80 was in the benefit of the plaintiff and was with consideration? OPD (11) Whether the plaintiff is estopped by her conduct to bring the suit in regard with Mutation No,80? OPD (12) (12) Whether the plaintiff has no cause of action against the defendant in respect of suit relating to Mutation No,80? OPP (12-A) Whether the defendant No,3 had violated the orders of the Court for maintaining status quo with regard to the disputed property? So, its effect? (12-B) Whether this Court lacks jurisdiction to entertain the application under Order 39, Rule 2, C.P.C.? (13) Relief. 10. The documentary evidence produced by the respondent-plaintiff both on preliminary issues and merits as well consisted of copy of Mutation No,46 Exh.PA (also marked as D.W.4/1), copy of Mutation No,51, Exh.PB, copy of Mutation No,80, Exh.PC, copy of Mutation No,83 Exh.PD, copy of Mutation No,5, Exh.PE and the document Exh.P.W.1/A (Nikahnama of mother of respondent No,1), Exh.P.W.2/1 (Matriculation Certificate) Exh.P.W.2/II (copy of birth entry of respondent No,1) and documents Exhs.PF to PN. She also examined Begum Zainab Tiwana her mother as P.W.1, plaintiff herself appeared as P.W.2. The documentary evidence produced by the appellants consisted of Exh.D1 (Register of Accounts), Exh.D2 (last will of Malik Khizar Hayat Tiwana dated. 10-11-1967), Exh.D3 (affidavit of respondent No,1 dated 23-7-1975), Exh.D4 (report dated 15-8-1959 of Deputy Land Commissioner, Shahpur), Exh.D.W.4/A (general power of attorney in favour of Sikandar Hayat by Malik Shahbaz Khan), Exh.D.W.4/B to Exh.D.W.4/L (letters), Exh.D.W.4/M (agreement of sale dated 16- 7-1974), Exh.D.W.4/N (statement of Muhammad Nazir), Exh. D6 (Mutation No, 267 dated 28-8-1965, Exh.D7 (copy of Pert Patwari) and Exh.D8 (copy of Register Haqdaran-e-Zameen). The oral evidence Jf the appellants consisted of statement of Muhammad Nawaz (D.W.1), Muhammad Khan (D.W.2), Dost Muhammad Patwari (D.W.3), Sheikh Zahoor Ahmad, defendant (D.W.1), Malik Shahbaz Khan, defendant (D.W.2s, and Sikandar Hayat general attorney of Malik Shahbaz Khan (D.W.4). 11. After considering the documentary and oral evidence produced by the parties, the trial Court decided Issue No,1 against the defendants on the ground that defendants Nos.1 to 6 in Civil Suit No,1/1 of 1988 did not produce the primary evidence i,e, general power of attorneys allegedly executed by Malik Khizar Hayat Tiwana father of the plaintiff in favour of Sheikh Zahoor Ahmad and Malik Shahbaz Khan. It may be mentioned here that an application was made for permission to produce certified copies of the said general power of attorneys which was dismissed through order dated 1-3-1988 against which revision petition filed before the High Court was dismissed through judgment dated 4-9-1988. It was held that even the oral evidence produced by the defendants did not prove that Malik Khizar Hayat Tiwana father of the respondent-plaintiff or the plaintiff herself
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had ever given general power of attorneys to Sheikh Zahoor Ahmad and others. Issue No,2 was also decided against the defendants by holding that the disputed mutations of sale had been sanctioned at the time when the respondent-plaintiff was minor, that the alleged sale of land by her father was violative of the provisions of paragraph 362 of the Mahomedan Law. Under IssueNo,3 which was answered against the defendants/appellants, the trial Court held that the sale subject- matter of Mutation Exh.PA dated 19-6-1970 which was shown to have been attested on the identification of Ahmad Ali, Member, Union Council, Kalra and one Muhammad Yar on the basis of oral transaction had not been proved, for neither Ahmad Ali nor Muhammad Yar nor the Assistant Collector-II who attested the mutation were examined as witnesses. The evidence of other witnesses examined by the appellants/defendants as D.W.1 to D.W.4 was disbelieved. 12. Issue No,4 was decided in favour of respondent No,1-plaintiff on the ground that Issue No,3 had already been answered against the defendant. Issue No,5 was decided against the defendants- appellants for the reason that it was not established through evidence that the sale of land of respondent No,1 was for the welfare of the minor with further findings that the same was without consideration. Issue No,6 was answered in the negative for the reasons discussed under Issues Nos.1 to 5. Under Issue No,7, it was held that deed of power of attorneys on the basis of which land measuring 992 Kanals was sold through the alleged general attorneys of respondent No,I which were subject-matter of Civil Suit No,2/1 of 1988 was also invalid for the reason that the date on which respondent No,1 had allegedly executed general power of attorneys, she was 14 years old, as such minor, secondly the said power of attorneys had not been produced in evidence, as such, their execution was not proved. Issue No,8 was decided against the defendants/appellants, for similar reasons as were recorded under Issue No,7 with the added reason that Muhammad Nazir who purported to have got the mutation of sale attested as general attorney had filed an affidavit in negation of the mutation in dispute who had categorically stated that he did not appear before the Assistant Collector for the attestation of mutation and the affidavit filed by him remained uncontroverted. Other issues were also decided against the defendants and in favour of the plaintiff as a consequence whereof both the suits were decreed by the trial Court through judgment dated 14-12-1989 against which two Regular First Appeals Nos.6 and 7 of 1990, respectively filed before the High Court have been dismissed through the consolidated impugned judgment dated 13-2-1996 against which these two appeals by leave of the Court are directed. 13. We have heard Rana Muhammad Sarwar, learned counsel for the appellants and Mr. Hamid Khan, learned counsel for the respondents who have taken us through the evidence produced in this case, order dated 10-6-1984 passed by the trial Court whereby preliminary issues of limitation and laches were decided against the appellants and order dated 19-9-1989whereby application for permission to produce documents as additional evidence and final judgment passed by the two Courts below which have been scrutinized in detail with their assistance. 14. The onus of preliminary issues of limitation and laches was on the defendants/appellants. The documents produced by them to discharge the onus of the said issues was Exh.D.1, i,e,, relevant entries of Register of Accounts allegedly maintained by Malik Khizar Hayat Tiwana from 16-4-1975 to 25-4-1975, Exh.D.2, a will allegedly executed by Malik Khizar Hayat Tiwana on 10-11-1967, Exh.D.3, copy of affidavit allegedly sworn by the respondent-plaintiff and copy of judgment/report of the Land Commissioner dated 15-8-1959 Exh. D .4. 15. To prove the authenticity of Exh.D.1, the appellants examined Sheikh Zahoor Ahmad as D.W.1 according to whose evidence, he was in the service of the family of late Malik Khizar Hayat Tiwana since 1939 and used to maintain his accounts. According to him, these entries bore his signatures as also the signatures of Malik Khizar Hayat Khan Tiwana. Act4ording to these entries, a cap was purchased for respondent-plaintiff for an amount of Rs,7 and fruit for an amount of Rs,24. The endeavour of the appellants by production of these documents was to establish that the
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respondent was bout before April, 1957. This witness in the cross-examination, however, admitted that the said register from which these entries were taken remained with him up to 1957 and after that it was in the record office of the Record Keeper Ahmad Khan. 16. The trial Court on examination of the said register noticed that the binding cover of the same had been torn and that no evidence was produced to prove the genuineness of the alleged signatures against one of the entries in the said register. Apart from this, it may also be observed here that there is no evidence as to from whose custody the said register was produced in evidence before the Court, therefore, we can safely conclude that the said register had not been produced from proper custody, therefore, no reliance could be placed on the entries made therein. 17. To prove Exh.D2, a will allegedly executed by Malik Khizar Tiwana on 10-11-1967, the appellants examined Malik Shahbaz Khan as D.W.2. According to his evidence, the said Will was executed by Malik Khizar Hayat Tiwana at his house situated at Sargodha but he did not remember as to how many persons were present at that time. He claimed to be the servant of Malik Khizar Hayat Tiwana and stated that her daughters were also present in the house. In the cross-examination, however, he was unable to state as to when Malik Khizar Hayat Tiwana was married to the mother of respondent No,1 plaintiff and as to when did he divorce her. He was also unable to state as to when the first and the last child were born from Mst.Zainab Tiwana the mother of respondent No,1 plaintiff. He was also notin a position to tell as to in whose possession the said document Exh.D.2 remained after its alleged execution. The evidence of this witness is hardly of creditworthy, for though he claimed to be servant of family of Malik Khizar Hayat Tiwana and was so closed to the family and a man on whom so much confidence was reposed that he was made to witness the Will allegedly executed at the house of Malik Khizar Hayat Tiwana but strangely did not know as to when Mst. Zainab Tiwana mother of the respondent was married to Malik Khizar Hayat Tiwana and when she was divorced and also as to the first and last child were born from her. It has been clearly established that evidence of this witness is of no value, for he did not know the above noted more prominent and significant events of the life of Malik Khizar Hayat Tiwana. It is also not established on the record that as to in whose possession, the Will remained after its execution and as to from whose custody the same was produced. It is in the evidence which fact is not in dispute or denied that Malik Khizar Hayat Tiwana had executed a Will which was deposited in the Office of the Deputy Commissioner and the same was being acted upon. If the Will Exh.D2 had also been executed by him as claimed, the same would also have seen the light of the day and deposited in the Office of the Deputy Commissioner as it was done in relation to the other Will. The purpose to produce the said Will in evidence was to show that in the recital of it, respondent No,1-plaintiff was described as daughter of 11 years old. From this, the effort of the appellants was to establish that if on 10-11-1967, she was of 11 years old, she must have been born somewhere in November, 1956. In the light of the above discussion, we have concluded that genuineness of Exh.D2 has not been established on the record through cogent evidence and no reliance can be placed on evidence of D.W.2. 18. Coming to the affidavit allegedly sworn by the respondent-plaintiff (Exh.D3) on 23-7-1975, it may be mentioned here that as per contents of the said affidavit, the same had some nexus with operation of Bank Account No,159 in Habib Bank Limited in Joharabad. Firstly, the execution of this document has not been proved according to law. Apart from this, no direct evidence was produced as to operation of the said account by her though evidence could easily be produced from the record of the said Bank, therefore, this documentary evidence is also of no avail and was rightly not accepted as genuine piece of evidence. Exh.D4 is the judgment/report of the Land Commissioner which shall be discussed in the part of the judgment to follow. 19. As against this, in rebuttal, the respondent-plaintiff produced documentary evidence such as Exh.P.W.2/1, her Matriculation Certificate, copy of birth entry maintained in the relevant register Exh.P.W.2/II. She examined herself as her own witness in support of the said document. Her mother
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Begum Zainab Tiwana from whom she was born was examined as D.W.1 who produced copy of Nikahnama of her marriage with Malik KhizarHayat Tiwana as Exh.P.W.1/A. According to the evidence of P.W.1 i,e, the mother of the respondent-plaintiff, the plaintiff was born on 13-12-1957. According to the entries of the Nikahnama Exh.P.W.1/A, the mother of the plaintiff-respondent was married to Malik Khizar Hayat Tiwana on 11-11-1956. As per entries of Matriculation Certificate Exh.P.W.1/A, and the birth entry of the register Exh.P.W.2/II, the respondent-plaintiff was born on 13- 12-1957. 20. The crucial question around which the decision of the case revolved was as to what was the date of birth of respondent No,1-plaintiff. If oral and documentary evidence produced by both the parties is compared, it emerges that the evidence of respondent No,1-plaintiff is direct whereas the appellants-defendants apart from having failed to take a clear plea as to what was the exact date of birth of the respondent, relied upon certain documents and other oral evidence of indirect nature and wanted the Court to believe that she (respondent) was born earlier than 13-12-1957. The best evidence to prove this fact was of those persons who would have in the ordinary course of life personal knowledge. Mother of respondent No,1 Begum Zainab Tiwana from whom she was born appeared as P.W.1 who stated that she was married to Malik Khizar Hayat Tiwana on 11-11-1956 which fact stands proved from copy of Nikahnama produced in evidence as discussed above and that respondent No,1 was born on 13-12-1957. This evidence is corroborated by the statement of respondent No,1 herself and the entries in the Birth Register and the Matriculation Certificate. As against this evidence of unimpeachable character, the appellants-defendants relied upon entries in the Register of Account allegedly maintained which had an entry regarding purchase of fruit for the respondent from which they wanted the Court to believe that respondent No,1 prior to the said date had been born. If this entry is believed, it has to be concluded that she must be of more than four months, for no child younger than that age would be in a position to eat solid food, as such, according to the appellants, the date of birth of the respondent must relate to a month prior to April, 1957 which has sufficiently been proved to be wrong, for if the mother of the respondent as proved on the record was married to Malik Khizar Hayat Tiwana on 11-11-1956, how could it be maintained that she was four months prior to April, 1957 when fruit was allegedly purchased for her. ' The findings recorded by the Courts below that respondent No,1 was born on 13-12-1957 are based on elaborate and careful appraisal of evidence of both the parties and the evidence of the appellants had been rejected on valid grounds which findings have not been shown to have suffered from any illegality such as misreading or non-reading of any material piece of evidence, therefore, are hereby affirmed. 21. Learned counsel for the appellants faced with this difficulty submitted that application made by the appellants in these appeals forpermission to produce documents mentioned therein as additional evidence may be accepted and those documents allowed to be produced in evidence from which it may be demonstrated that the birth of the respondent-plaintiff took place much before December, 1956. 22. In the application moved by the appellants, they have sought permission to produce as additional evidence the following documents:-- (a) Certified copy of Form L.L.I. Allegedly signed by Malik Khizar Hayat Tiwana father of respondent No, 1. (b) Verification done by Assistant Commissioner about mutation of sale in dispute No,46. (c) Order of the Land Commissioner, Sargodha dated 25-7-1973 (the production of which was sought before the trial Court). (d) Order of the Deputy Commissioner dated 9-2-1974 in which order dated 25-7-1973 about Mutation No,11 is also mentioned; and
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(e) Order dated 24-10-1959 passed by the Chief Land Commissioner upholding the oral gift made by late Malik Khizar Hayat Tiwana in favour of respondent No,1 of the land in dispute whereby the same was validated." 23. In respect of some of these documents, the appellants made an application before the trial Court for permission to produce them as additional evidence which was dismissed through order dated 19-9-1989. The said application made before this Court is a second attempt to get the same relief which was earlier declined to them. Anyhow, in the interest of justice, we have gone through the said documents and heard learned counsel for the appellants. He wanted to argue that the ownership of respondent No,1 in the land in dispute was acquired through gift made by Malik Khizar Hayat Tiwana her father which was evidenced by Mutation No,11 entered on 24-7-1957. Since in this mutation, the name of the respondent-plaintiff as one of the donees alongwith others is mentioned, therefore, the copy of the same should be allowed to be produced in evidence. He argued that the other documents are orders of Land Reforms Authorities which he wanted to produce to show that the gift made in favour of the respondent-plaintiff was held to be valid and bona fide transaction, therefore, was given effect to which was evidence of affirmance of the date of making the said gift transaction as mentioned in this mutation. 24. Learned counsel for the appellants when questioned did not give satisfactory explanation as.To what were the reasons for non-production of these documents at the proper stage if the same were so material from appellants'…
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