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Petitioner: Mst, JANNA T BIBI VS Respondent: FAQIR MUHAMMAD
Court Name: Lahore High Court Judge(s): Muhammad Islam Bhatti Title: Mst, JANNA T BIBI vs FAQIR MUHAMMAD Case No.: Civil Revision No,1620 of 1981 Date of Judgment:1997-11-03 Reported As: 1998 MLD 837 Result: Revision accepted
JUDGMENT
JUDGMENT In this civil revision Mst. Jannat Bibi petitioner has claimed that she belongs to Shia Sect and being the only daughter of her father Sher Khan, her former husband Faqir Muhammad, the respondent herein, lived with them (her parents and the petitioner) as Khana Damad. Her father had been ill before his death for over two years and he never went out of the house during this period, being paralysed and not in his senses. He died in early 1974 which is indicated from the death certificate even, (placed on record by the respondent himself) Exh.D.2 showing the date of his death as 17-4- 1974 and the date of its being reported as 30-3-1978. After her father's death the respondent divorced her and later started threatening her with eviction from the house she was living in. The petitioner claims that it was at this stage that she learnt that he had fraudulently got transferred in his name not only two of her houses but also the agricultural land the latter having already been transferred to the petitioner by her father. It also transpired that he had got forged a sale-deed and fictitiously got it registered, purporting to be the evidence of this sale by Sher Khan, for a sum of Rs,15,000. The petitioner has claimed that respondent did nothing for his livelihood and had no means to raise the sale consideration because he was entirely dependent on the petitioner's family for his sustenance. It was in these circumstances that she joined hands with her mother Mst. Barkat Bibi and brought a suit for a declaration to the effect that they were the owners in possession of the two houses in dispute but the defendant, without paying any consideration, forged a registered sale-deed dated 18-2-1974 which was based on fraud because Sher Khan never executed any such document nor did he get the same registered and that in these circumstances the defendant had nothing to do with these houses and the said registered sale-deed being forged, fictitious and without
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consideration was void and in-operative as against their rights. As a consequential relief they prayed for the issuance of a mandatory injunction restraining the defendant from interfering in their possession over the said houses. 2. The respondent/defendant resisted the suit and in his written statement maintained that these two houses had been validly purchased by him from the predecessor of the plaintiff/petitioner namely Sher Khan for a sum of Rs,15,000 and it was in her capacity as wife of the respondent that Mst. Jannat Bibi remained living with him while Mst. Barkat Bibi lived in another house and had nothing to do with the house in question; that the plaintiffs also participated in the sale transaction and had full knowledge of the registration of the sale-deed because it was with the consent and approval of his wife Mst. Jannat Bibi that he had purchased the houses from Sher Khan. 3. It appears that Mst. Barkat Bibi plaintiff No,2 died during the pendency of this suit and it was so reported by the learned counsel for the plaintiff on 10-11-1997, who stated further that Mst. Jannat Bibi was her sole heir. It was thereafter that Mst. Jannat Bibi submitted a replication and then the parties were put to the following issues arising out of their pleadings:-- (1)Whether the suit has not been properly valued if so, what is the correct valuation? OP Parties? (2)Whether the suit has been filed without any cause of action? OPD (3) Whether the plaintiff is owner in possession of the disputed property and the impugned registered sale-deed is result of fraud, mis-representation, without consideration and has no legal effect as against the rights of plaintiff? OPP (4) Relief. 4. Both the parties led evidence on these issues. Besides appearing herself as her own witness (P.W.3) Mst. Zainab Bibi produced Amanat Khan P.W.1 and Walayat Khan P.W.2 in order to substantiate her claim. The defendant appeared as the only D.W. but his counsel produced Exh.D.1 and Exh.D.2 being the copies of the impugned sale-deed and the death entry of Sher Khan. 5. It was on the basis of this evidence and after hearing the learned counsel for the parties that the learned Civil Judge, then seized of the matter, proceeded to give his findings on these issues. He found Issue No,1 in the negative. On Issue No,3, however, he came to the conclusion that the plaintiff had failed to establish that she was the owner in possession of the disputed property and the impugned registered sale-deed was the result of fraud and misrepresentation and was without consideration and as such had no legal effect as against her rights. After answering issue No,3 in the negative, he observed that issue No,2 was dependent on his findings on the said issue and accordingly he found this issue in the affirmative. On the basis of these findings he dismissed the plaintiff's suit with costs by means of his detailed judgment dated 25-3-1981. 6. Feeling aggrieved from this judgment and decree Mst. Jannat Bibi plaintiff preferred an appeal but without success. It was only the finding of learned Civil Judge on Issue No,3 which was controverted before him and the learned Additional District Judge Sheikhupura, after considering the contentions raised before him, found no reason to differ with the findings of learned trial Court and as a result, dismissed the plaintiff's appeal but left the parties to bear their own costs by means of his judgment dated 26-11-1981. 7. Mst. Jannat Bibi has come up in revision. 8. I have heard the learned counsel for the parties and with their assistance have also gone through the evidence on record. The learned counsel for the respondent has raised a preliminary objection to the maintainability of this revision petition. He is of the view that because the petitioner failed to furnish copies of the statements alleged to have been misread by the learned two Courts below, the revision petition was liable to be dismissed on this short ground alone. According to him, it is the requirement of law under section 115(1) of C.P.C., that all the copies of the pleadings, documents and orders of the subordinate Court be filed and the failure of the petitioner to abide by the provisions of law could entail the dismissal of the revision petition.
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9. The learned counsel for the revision petitioner has, however, asserted with vehemence that this objection is without force being only technical in nature and the revision petition cannot be dismissed on the basis thereof in view of the law laid down by the superior Courts. The relevant portion of section 115 runs as under:-- "Section 115. Revision.---(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-- (a)to have exercised a jurisdiction not vested in it by law, or (b)to have failed to exercise a jurisdiction so vested, or (c)to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court..." It is thus clear from the reading of these provisions of law that the High Court shall except for reasons to be recorded dispose of such application without calling for the record of the subordinate Court. This course regarding disposal was obviously not adopted in the present case and the petitioner was directed to place the copies on record, as is evident from the order dated 16-12-1981 and the certified copies of the statements are now available on record. The judgment relied on by the learned counsel for the respondent Re. Sultan Ahmad Awan v. Ghulam Muhammad Awan (PLD 1987 Lahore 663) says that proviso to subsection (1) of section 115 of the Civil Procedure Code enjoins an applicant for revision to furnish the copies of the pleadings and documents alongwith his revision petition, therefore, the revision petition filed by the petitioner being not documented in accordance therewith could not be regarded to have been properly filed. In the said case, it was also observed that the revision petition could be considered to have been instituted only after the filing of these documents and the delay which remains unexplained would amount to laches. In the instant case, it was contended by the learned counsel for the petitioner on 13-1-1982, that reference to certain points necessitated perusal of the record, and accordingly the record was urgently summoned and it was directed that the petition be fixed in motion by an early date. On 7-4-1982, it was contended by the learned counsel for the petitioner that the learned Appellate Court below attached undue importance to the certificate of registration of the sale- deed, copy of which is Exh.D.1 and also misread the evidence of the petitioner as also of her witnesses. The revision petition was admitted to regular hearing for the consideration of these points. It, therefore, cannot be said that the filing of this revision petition suffered from a delay and the laches remained unexplained. It was held in Mian Bashir Haider v. Mrs. Nur Jehan Kirmani (1984 SCMR 730) that such an objection to the maintainability of the proceedings shall be termed as a technical objection. In another esteemed judgment Re. Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345) it was observed by a Full Bench that rules of procedure were meant to advance justice and to preserve rights of litigants and they were not meant to entrap them into blind corner so as to frustrate purpose of law and justice. Earlier in Manager Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678), it was held that mere technicalities unless offering insurmountable hurdles should not be allowed to defeat ends of justice and the logic of words should yield to logic of realities; particularly while dealing with adjustment of conflicting authorities. Lastly, in Khurshid Ali and 6 others v. Shah Nazar (PLD 1992 SC 822) it was held that Courts are not only to sit and watch as to who commits a mistake and who does not commit a mistake, from amongst the litigants, and one who commits a mistake, in procedural matters should be deprived of the right claimed, even if he is entitled to it.
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10.Basing his arguments on these pronouncements of law and also referring to the principle laid down in Chief Commissioner Karachi v. Jamil Ahmad and (2) Municipal Commissioner Karachi (PLD 1961 SC 145) with regard to directory or mandatory provisions of law and Dr. Habibur Rahman v. The West Pakistan Public Service Commission Lahore and 4 others (PLD 1973 SC 144), the learned counsel for the petitioner has urged that (i) filing of copies of proceedings in the lower Courts is for the benefit of perusal by the Court but it does not invest the respondent with any right and (ii) the failure is not visited by any penalty particularly so when the learned Judge who admitted this petition for regular hearing by not insisting on this technicality, in fact condoned it. With respect, I find myself in agreement with the learned counsel for the petitioner and hold that this technical objection is untenable. 11.It has been contended by the learned counsel for the respondent that the concurrent findings of fact by the learned two Courts below cannot be interfered with particularly so when the petitioner has not pointed out any jurisdictional error of law or of facts and, therefore, the revision is not competent. For this he has placed reliance on a chain of authorities including Mirza Abdul Ghafoor v. Shafi Woollen Industries Ltd. (PLD 1989 Lahore 299), Ghulam Hussain and 7 others v. Mehdi Hassan Khan and 6 others (PLD 1993 Lahore 303), Allah Ditta and 7 others v. Mst. Hussain Bibi (1993 CLC 228) and also PLD 1983 SC 83, PLD 1994 SC 91 and PLD 1992 Lahore 385. 12.PLD 1983 SC 83 has been wrongly cited. The judgment reported as Murad Khan v. Fazal-e- Subhan and another (PLD 1983 SC 82 and not 83) pertains to section 498-A of the Cr.P.C. and obviously has no bearing on the question before this Court. Similar is the position with PLD 1994 SC 91 Almas Khanum v. Federation of Pakistan and 4 others which relates to Articles 9(2), 2(1) and 32 of the Constitution of Pakistan 1973 and Articles 185 (3) and 199 (ibid). The same is the case with Peer Bakhsh v. Rahim Bakhsh (PLD 1992 Lahore 385) pertaining to a gift made in favour of an infant by his father or other guardian and it was held that law would look to the intention of the donor. In PLD 1989 Lahore 299, PLD 1993 Lahore 303 and 1993 CLC 228 it was no doubt held that concurrent finding of Courts below on question of fact was beyond reproach and immune from interference in revisional jurisdiction and where orders passed by Courts below not shown to be suffering from any error of law and jurisdiction, the findings were unexceptionable and could not be interfered with in exercise of revisional jurisdiction. But it has always to be seen by the Court in exercise of its jurisdiction under section 115, C.P.C. that no misreading or non-reading of evidence or any other legal infirmity with the judgment rendered by the Appellate Court has occurred and in case it is shown that the judgments rendered by the Courts below suffered from misreading and non- reading of evidence or any other legal infirmity, the same can be inerfered with. It is in this context that the evidence has to be analysed. It was held in Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53) that revisional powers were primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction. In Karamat Husain and others v. Muhammad Zaman and others (PLD 1987 SC 139) it was held that mere fact that exercise of revisional jurisdiction by the High Court was discretionary, did not mean that a revision was not a right but only a privilege. Again in Arif Yazdani and others v. Sheikh Abdus Salam and others (PLD 1957 (W.P.) Lahore 983) it was concluded that when a Court in the exercise of its jurisdiction acts in breach of some provision of law or by committing some error of procedure in the trial which is material in that it may have affected the ultimate decision, then the Court acts illegally or with material irregularity within the meaning of subsection (c) of section 115 of the Code of Civil Procedure. The following observations made in the said judgment can be reproduced with advantage:-- "If the Court commits an error in the mode prescribed for the exercise of jurisdiction then the High Court has the power to interfere under section 115 of the Code of Civil Procedure. A Judge cannot hold a fact to be proved unless there is legal proof of it. Conjecture cannot take the place of proof. It is the duty of the Court to consider the relevant and admissible evidence and then
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to decide whether or not a particular fact has been proved from the evidence adduced in the case. If there is no evidence in support of the truth of a particular fact, a Court cannot hold it to be proved. And if there is legal evidence on the record, a Court cannot in giving its decision just ignore it. In case Court ignores the evidence or gives a finding when there is no evidence on record, it errs in law in the mode prescribed for the exercise of jurisdiction and acts illegally and with material irregularity, and such a case is covered by subsection (c) of section 115 of the Code of Civil Procedure. A Court is legally bound to apply its judicial mind to the evidence on the record and in arriving at a conclusion is required to be guided by well recognized judicial principles." 13. In a comparatively recent judgment Re: Muhammad Bakhsh and 4 others v. Province of Punjab through District Collector Multan and 2 others (1994 SCMR 1836) it was held that the High Court in exercise of its revisional jurisdiction could legally set at naught the concurrent finding of fact of two Courts below if it was satisfied that the finding was based on misreading or non-reading of evidence. It, therefore, follows that concurrent findings of fact do not always stand in the way of the High Court to set them at naught in the appropriate cases. 14. After dealing with these objections of the learned counsel for the respondent, essentially of preliminary nature, I now proceed to look into the merits of the case. The plaintiff-petitioner, while claiming in her statement as P.W.3 that her father Sher Khan was fairly old and he had been constrantly ill before his death for about two years and was unable even to move about from the cot for one year, deposed that she always lived in her parents house; that no officer had ever visited their house in her presence for the registration of any document and asserted that the sale-deed relied on by the defendant-respondent was without consideration and had been got registered through misrepresentation. She sought assistance from the oral evidence of Amanat Khan P.W.1 and Walayat Khan P.W.2. Amanat Khan has claimed in his examination-in- chief that he is the Lambardar of the village and lived in a house near the house of the plaintiff, just in front thereof. He added that the father of the plaintiff remained ill for a pretty long time after which he died; that only recently defendant asked the plaintiff to vacate the houses in her possession and on being told by her that the houses were her ownership, the defendant claimed that he had purchased the houses. He went on to depose that a Panchayat was also convened but the defendant was not ready to listen to anything. According to him, whenever the Tehsildar came to the village, there was always prior information about it (with regard to his expected arrival) but according to his knowledge the Naib-Tehsildar never came to their village for the registration of the document in question. He was cross-examined at length by the defendant. It was not controverted that he happened to be the Lambardar of the village or that he was residing in a house just near the house of the plaintiff. He turned down the suggestion that the plaintiff lived in the said house after conceding the ownership of the defendant or that her father had transferred the houses in dispute in the name of the defendant and that he was making a false statement. Earlier he deposed that the appeal filed by the plaintiff in respect of the mutation of agricultural land went upto the Board of Revenue. 15. Walayat Khan P.W.2 substantiated the evidence of the Lambardar by deposing that the houses in question belonged to the plaintiff; that the defendant had entered into a second marriage whereafter he wanted to sell away the houses belonging to the plaintiff; that a Panchayat was convened for reconciliation but the defendant did not agree; that the plaintiff's father never transferred the houses in question in the name of the defendant; that her father remained ill for about two years and he had been visiting their house in order to inquire about his health and he found that he was not in his proper senses. He also deposed that the plaintiff was in possession of these houses. He was also subjected to searching cross-examination but without any avail to the respondent. He also named out the persons who had joined the Panchayat at the Dera of one
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Asghar. He categorically denied that the father of the plaintiff had transferred the houses in question in the name of the defendant for a sum of Rs,15,000. He also turned down the suggestion that the defendant was in possession of these houses. According to him, it was in this very house that the father of the plaintiff died. the suggestion that the defendant had been rendering services to the father of the plaintiff was also turned down as incorrect. As against this, the defendant confined his evidence to his own solitary statement and deposed that he had purchased both the houses in question from Sher Khan for a sum of Rs,15,000; that the document was registered in the village where the Tehsildar, Petition writer and Registrar had also come, in the presence of the residents of the village and Ghulam Hussain Kumhar, Muhammad Khan Lambardar and the plaintiff Mst. Jannat Bibi were also among them. He claimed further that a sum of Rs,7,000 had already been paid as earnest money while the remaining sum of Rs,8,000 was paid before the Tehsildar and that this amount had been brought by his wife i,e, the plaintiff from inside. He went on to depose that initially both of them lived in these houses but subsequently he was turned out, by the plaintiff. According to him she lived there because' she happened to be his wife. He also added that Sher Khan happened to be his real maternal-uncle and that the plaintiff had brought this suit at the instance of his opponents. On being cross-examined, he deposed that Sher Khan died of fever about 4/5 months after the registration of the sale-deed. He also deposed that these houses consist of two rooms out of which one is residential and the other is for cattle. He added further that he was living in one of them while in the other resided the plaintiff and that he lived in the house/room meant for the cattle. The name of the Tehsildar was Qutab Shah and he had come from Sharaqpur, as was done by the scribe. It is pertinent to note that as per his version, nobody had moved an application for asking the Tehsildar to come to the village but added that he had gone to bring the Tehsildar and the fees was paid by them. (He has not clarified as to what did he mean by using the word. He also did not remember as to what fees was paid to the Tehsildar but could not help deposing that a suit brought by the plaintiff in connection with the agricultural land was also pending against him. He also added that the dispute also between the parties about 5/6 years back and he then started living in the house of his sister. It is this evidence which had to be appreciated and appraised. I have no doubt in my mind that both the Courts below, instead of arriving at the conclusions on the basis of this evidence, were carried away by the simple fact that a presumption of truth was attached to the certificate of registration and that the plaintiff had not been able to displace this presumption. There is no doubt that the burden of proof of Issue No,3 was placed on the plaintiff but the phrase 'burden of proof' has two distinct and frequently confused meanings (as per the commentary on Articles 117 and 119 of the Qanun-e-Shahadat by Mr. Justice Kahlil-ur-Rehman Khan):-- (i) the burden of proof as a matter of law and pleadings; the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (ii) the burden of proof in the sense of introducing evidence. The phrase is used in the former sense in Article 117 and in the second sense in Article 118. The burden of proof in the second sense, however, constantly shifts, as the proceedings go on, from the party on whom it rested at first by his proving facts which raise a presumption in his favour. If the plaintiff discharges that onus and makes out a case which entitles him to relief, the onus shifts on the defendant to prove circumstances, if any, which would disentitle the plaintiff to that relief. It is not always easy to determine at what particular point it shifts from the plaintiff to the defendant and then again from the defendant to the plaintiff, and then once again from the latter to the former and so on, the moreso in contested proceedings as evidence gradually continues to be adduced: but, at the conclusion of the trial, when the issues come to be judged, it has to be seen whether the initial onus which Article 117 casts upon the plaintiff has been discharged or not. The law makes provision for certain presumptions and any party on whom a burden is cast by Articles
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117 and 118 may shift the onus of proving any fact to the other party by showing that the fact should be presumed to exist. Rules as to rebuttable presumptions are no more than rules as to burden of proof. Again the eminent commentator has while referring to case-law observed "there are commonly said to be two cases in which the burden of proof (in the sense of adducing evidence) does not rest upon the party substantially asserting the affirmative,…
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