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EVIDENTIARY VALUE OF PHOTO COPY
2007 S C M R 1884
[Supreme Court of Pakistan]
Present: Javed Iqbal and Hamid Ali Mirza, JJ
Syed SHABBIR HUSSAIN SHAH and others----Petitioners
Versus
ASGHAR HUSSAIN SHAH and others----Respondents
Civil Petition No.1489 of 2004, decided on 6th December, 2005.
(On appeal from the judgment, dated 13-5-2004 in Civil Revision No.62-D of 1992,
passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur).
(a) Qanun-e-Shahadat (10 of 1984)---
----Arts. 78, 79, 119 & 129(g)---Denial of execution of agreement of sale---Burden of
proof---Non-examination of remaining two marginal witnesses of agreement by
defendant, though alive, without showing sufficient cause---Effect---Vendee being
beneficiary would be bound to prove due execution of agreement by vendor in
accordance with law---Adverse presumption would be drawn that had such witnesses
been examined, they would have not supported vendee's case.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 76---Mutation of sale, photocopy of---Evidentiary value---Such copy could
not be admitted in evidence without fulfilling conditions provided under Art.76 of
Qanun-e-Shahadat, 1984.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art. 78---Document; execution of---Proof---Not only mere signing or putting
thumb-mark on a document, but something more must be proved for its due
execution---Principles.
According to Article 78 of the Qanun-e-Shahadat, 1984, execution of a document is to
be proved to be in the handwriting or signature or thumb-mark of the alleged
executant, which would mean signing or putting thumb-mark over a document as
consenting party thereto. Execution of document would not only mean mere signing
or putting thumb-impression but something more than mere signing or putting thumbimpression
by the executant. It must be proved that thumb-mark was made in the
presence of witness in whose presence the document was written and read over and it
was understood by the vendor and would not only be limited to merely signing a
name or placing thumb-impression upon a blank sheet of paper so as to prove the
document to have been executed whose identification should also be proved by
reliable and authentic evidence that a person who had affixed thumb-mark or
signature was the same person who owned the land and sold the same to the vendee.
Execution would mean series of acts, which would complete the execution. Mere
signing or putting thumb-mark would not amount to execution in terms of Article 78
of Qanun-e-Shah.adat, 1984. A document which is not proved is inadmissible in
evidence, unless strict proof of it is waived.
(d) Co-sharer---
----Sale by---Joint Khata---Agreement of sale not finding mention of delivery of
possession of specific Khasra numbers 'to vendee out of joint Khata---Vendee
alleging his exclusive possession over such specific Khasra numbers under
agreement---Validity---When property was joint and not partitioned, then fact of such
exclusive possession of vendee could not be believed---Every co-owner/co-sharer
would be considered to be in 'possession of each inch of unpartitioned land according
to his share.
(e) Co-sharer---
----Every co-owner/co-sharer would be considered to be in possession of each inch of
unpartitioned land according to his share.
(f) Specific Relief Act (I of 1877)---
----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.XX, R.9---Plaintiff
dispossessed from suit-land by defendant during pendency of suit---Effect---Plaintiff
could be granted decree for declaration and possession subject to payment of courtfee
under the law.
Niaz Ahmad Rathore, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing: 6th December, 2005.
JUDGMENT
HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against
judgment, dated 20-5-2004 in Civil Revision No.62-D of 1992 passed by learned
Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby the
said civil revision was dismissed, hence this petition for leave to appeal.
2. Brief facts of the case are that the respondents Ghulam Akhtar Shah son of Nibaho
Shah and others filed Civil Suit No.289 of 1976 before the Civil Judge 2nd Class
Liaquatpur against Syed Said Ali Shah son of Fateh Muhammad Shah and others for
declaration to the effect that they were owners upto 11904/2073 6 share in the
disputed property, as a result of inheritance of Nibaho Shah and Mutation No.670
sanctioned on 24-3-1971 along with Mutation No.679 sanctioned on 8-7-1971 was
illegal, collusive, fictitious, therefore, ineffective and inoperative on the rights of the
respondents/plaintiffs wherein respondents' predecessor-in-interest Ghulam Akhtar
Shah also prayed for possession of the suit property. The said suit .was dismissed vide
judgment and decree, dated 21-2-1989 passed by Civil Judge 2nd Class, Liaquatpur.
Ghulam Akhtar Shah, predecessor-in-interest of present, respondents/plaintiffs
preferred Civil Appeal No.361 of 1991 before the District Judge, Rahimyar Khan
which was passed on to the Additional District Judge, Rahimyar Khan, which appeal
after hearing learned counsel for the parties was accepted and thus, suit of present
respondents/plaintiffs was decreed vide judgment and decree dated 18-2-1992.
Petitioner Said Ali Shah preferred Civil Revision No.62-D of1992 before the Lahore
High Court, Bahawalpur Bench, Bahawalpur which was heard by learned Single
Judge of the High Court who dismissed the same vide impugned judgment dated 20-
5-2004.
3. We have heard learned counsel for the petitioners and perused the record.
4. Learned counsel for the petitioners has submitted that learned Single Judge has
illegally and erroneously affirmed the decision of the Appellate Court setting aside
the finding of the learned Civil Judge on wrong assumption by placing onus of
proving Issues Nos.1 and 2 upon the petitioners/defendants. He further submitted that
the First Appellate Court and the learned Single Judge have misread the evidence of
the parties considering that Exh.P.5 (death entry) though exhibited without objection
was not reliable. He submitted that the respondents/plaintiffs did not plead
specifically in the plaint that Nibaho Shah was not alive at the time of sanctioning of
the mutation and also that he had not made any sale to respondent No.19 Said Ali
Shah. He further submitted that learned Single Judge and the Appellate Court have
only discussed the evidence of the petitioners/defendants ignoring the evidence of the
respondents/plaintiffs when the onus of Issues Nos.1 and 2 was on the
respondents/plaintiffs. He also submitted that the learned Single Judge and the
Appellate Court did not consider Exhs.D.1 to D.9 as such illegally presumed that sale
to minor son of Nibaho Shah could not have been made as the said minor could not
pay consideration having no source considering that as per statement dated 7-12-1981
of Ghulam Akhtar Shah P.W.3, plaintiff stated that when he went to get the mutation
of inheritance entered he was informed by Patwari that area of 12 Bighas was mutated
in the name of Said Ali Shah and he filed suit when he was major and that Bhoorey
Shah had forcibly taken possession of land about 2-1/2 years back.
5. Learned counsel for the respondent has submitted that the First Appellate Court
being a final Court of facts has rightly, correctly and legally appreciated the evidence
on record which findings arrived at have rightly been affirmed by the learned Single
Judge as there was neither misreading nor non-reading of evidence nor any
misconstruction of law was available for his interference in the revisional jurisdiction.
6. We do not find merit and substance in the contentions of the learned counsel for the
petitioners.
7. Admittedly as per evidence the respondents (appellants Nos.1 to 3 in appeal before
the Appellate Court and their sisters) were minors at the time of death of Nibaho Shah
whereas their mother was a Parda Nasheen lady. Mutation No.670 was sanctioned on
24-3-1971 when as per evidence on record Nibaho Shah was not alive and as per
evidence on record Nibaho Shah had not sold suit-land to anybody. The onus to prove
that Mutation No.670 attested 'on 24-3-1971 of the suit-land was upon the
petitioners/defendants being beneficiary of it that it was legal and binding upon the
respondents/plaintiffs but the former failed to discharge onus keeping in view the
minority of the above said respondents and their mother who Leing Parda Nasheen
lady when Nibaho Shah was also not alive on the date of mutation as such he had not
executed the said agreement and would have not got the mutation sanctioned in
favour of the petitioners/defendants.
8. It is true that P.W.1 Ghulam Akhtar Shah has not given the specific date about the
death of Nibaho Shah, however, P.W.2 Manzoor Ahmad has deposed that Nibaho
Shah died about 16/17 years before and his statement was recorded on 10-3-1986, so
also has been deposed by P.W.3 Jam Malrmood and thus, if calculated Nibaho Shah
could be said to have expired around 1969 considering also Exh. P.5 which mentioned
the date of death as 2-5-1968 whereas mutation was sanctioned on 24-3-1971 .as such
the mutations were not made during 'the life time of Nibaho Shah, hence he cannot be
said to have executed agreement Exh. D.2 for the purpose of sale or transfer in favour
of the petitioners/ defendants.
9. Articles 78 and 79 and sub-Article 2(a) of Article 17 of the Qanun-e-Shahadat,
Order, 1984 provide the mode of proof of the execution of document which read as
under:--
"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 purpose of
proving its execution, if there be two attesting witnesses alive, and subject to
the process of the Court and capable of giving evidence. "
"17………………………………………………….
(2)………………………………………………….
(a) in matters pertaining to financial or future obligations, if reduced to
writing, the instrument shall be attested by two men, or one man and two
women, so that one may remind the other, if necessary, and evidence shall be
led accordingly."
Agreement Exh.D.2 in respect of sale of land is alleged to have been thumb-marked
by Nibaho Shah the contents of which would indicate that deceased was owner of 115
Kanals, 6 Marlas of land out of which it is alleged that he had already gifted part of
land in the name of his son whereas remaining 48 Kanals of land was sold to
respondent No.19 Said Ali Shah for a sum of Rs. twelve thousand and handed over
the possession to him which agreement also mentioned that the deceased had sold
land, out of Khata No.7 only. A copy of disputed Mutation Exh.P.3 would show entry
in Column No.12 was sanctioned on the basis of agreement Exh. D.2 whereas Exh.
D.2 mentioned that land was sold out, from Khata No.7 only, whereas in Exh.P.3,
land out of Khatas Nos.4 and 5 was also included. Exh.D.2 mentioned consideration
of Rs. twelve thousand for 48 Kanals whereas as per Exh.P.3, 116 Kanals, 7 Marlas of
land was shown to have been sold for Rs. fourteen thousand only. According to
Exh.D.2 executant had gifted his land to his son whereas Exh.P.3 mentioned land to
have been sold to his son. In the circumstances it could be conveniently said that the
mutation in question was not sanctioned as per contents of agreement Exh.D.2, and
that minor son of late Nibaho Shah could not have paid consideration of land as such
Exh.D.2 was doubtful and suspicious document, therefore, the mutation being also
based on Exh. D.2 would also be not beyond doubt and suspicion, hence cannot be
relied upon. D.W.2 Javed Iqbal is a cashier in treasury who has deposed that stamp
paper of Exh. D.2 was sold by Shaikh Ghulam Muhammad Stamp Vendor. D.W.3
Faiz Muhammad was scribe of Exh.D.2 who deposed that it was written by him at the
instance of Nibaho Shah. He also stated that he has not made identification of Nibaho
Shah who was not personally known to him and that thumb-impression of Exh. D.2
was dim/dull. He deposed that the person who came disclosed to be Nibaho Shah. He
also stated that he did not remember if any amount of compensation was paid in his
presence or not. He also stated that he did not remember that as to whether Nibaho
Shah in fact had come before him or not. He also stated that he did not remember the
vendees whose favour document was written had come before him or not. He also
deposed that he could not say if amount of consideration was paid in his presence or
not. In case the scribe D.W.3 Faiz Muhammad was not personally knowing Nibaho
Shah how could he say that Exh. D.2 was thumb-marked by him so also over
Exh.D.3. Consideration amount was also not said to be paid in his presence. It may
also be observed that only one marginal witness Jam Muhammad Sadiq was examined
though other marginal witness namely Muhammad Murad was alive as stated by D.
W.8 Jam Muhammad Sadiq. No sufficient cause has been shown for nonproduction/examination
of marginal witness Muhammad Murad so also Khuda
Bakhsh who attested the mutation was also riot exatined by the petitioner, therefore,
adverse presumption is to be drawn that said witnesses would have been examined
would have not supported the petitioners' case. It may also be observed that Exh. P.3
being a photocopy cannot be admitted as secondary evidence admissible unless under
the law conditions provided under Article 76 of Qanun-e-Shahadat are fulfilled.
D.W.6 Saif-ur-Rehman Patwari did not know the parties, therefore, he would not be
in a position to say if the agreement was thumb-marked by Nibaho Shah who also
admitted that alleged statement made by Nibaho Shah before the Tehsildar did not
appear to be thumb-marked by Nibaho Shah. It is surprising that when the alleged
vendor had not put the thumb-impression or signature over it, how it could be said
that Nibaho Shah had sold the land. The evidence adduced by the
petitioners/defendants was not sufficient to discharge the onus with regard to proof of
execution of alleged agreement to sell suit-land. According to Article 78 of the
Qanun-e-Shahadat, 1984, execution of a document is to be proved to be in the
handwriting or signature or thumb-mark of the alleged executant, which would mean
signing or putting thumb-mark over a document as consenting party thereto.
Execution of document would not only mean mere signing or putting thumbimpression
but something more than mere signing or putting thumb-impression by the
executant. It must be proved that thumb-mark was made in the presence of witness in
whose presence the document was written and read over and it was understood by the
vendor and would not only be limited to merely signing a name or placing thumbimpression
upon a blank sheet of paper so as to prove the document to have been
executed whose identification should also be proved by reliable and authentic
evidence that a person who has affixed thumb-mark or signature was the same person
who owned the land and sold the same to the vendee. Execution would mean series of
acts; which would complete the execution. Mere signing or putting thumb-mark
would not amount to execution in terms of Article 78 of Qanun-e-Shahadat, 1984. A
document which is not proved is inadmissible in evidence, unless strict proof of it is
waived. In the instant case the petitioners/defendants being beneficiary were bound to
prove due execution of the sale agreement by the vendor in accordance with law. All
this would lead to a conclusion that Mutations Nos.670 and 679 were sanctioned
fraudulently. It also cannot be imagined that land measuring 48 Kanals could be sold
for the sum of Rs.twelve thousand on 13-3-1971 while 46 Kanals and 12 Marlas from
the land for a lesser sum of Rs.nine thousand only on 15-7-1971 vide Exh.P.4.
10. It may also be observed that evidence has brought on record to show that Said Ali
Shah and Nibaho Shah were not on speaking terms because of the matrimonial dispute
as Nawab Shah brother of Said Ali Shah had divorced his wife and. contracted second
marriage when his first wife was daughter of Nibaho Shah which fact was admitted by
Bhoorey Shah D.W.10. All these facts and circumstances would lead to a conclusion
that there being strained relations between the vendee and vendor, the transaction in
respect of the land in dispute could not have been arrived at Transaction with regard
to transfer of land through mutations on .the basis of alleged sale agreement in view
of above discussion was a fraudulent transaction and as such would not affect the
legal rights of respondents/plaintiffs.
11. The evidence showed that there being joint Khata and in absence of any mention
of specific Khasra numbers how the physical possession of land in dispute
admeasuring 48 Kanals could have been passed to the petitioners/defendants when the
property was joint and not partitioned, therefore, the question of delivery of
possession as alleged to be in the exclusive possession of the petitioners/defendants
cannot be believed, considering that every co-owner/co-sharer would be considered to
be in possession of each inch of un-partitioned land according to his share. Exhs.D.8
and D.9 copies of Jamabandies stated possession is said to be with the owners
whereas Exhs.D.4 and D.5 copies of Khasra Girdawari for 1984 to 1987 some land
has been shown in possession of tenants while the remaining has been shown in the
possession of sons of Nibaho Shah as such no exclusive possession of
petitioners/defendants has been shown in the above said documents. P.Ws. Nos.1 to 3
have also deposed that Bhooray Shah during .the pendency of suit forcibly occupied
the land. In case a party is dispossessed during the pendency of suit, he under the law
could be granted decree for declaration and possession subject to payment of the
court-fee under the law. Learned Single Judge in paras.5 to 7 of the impugned
judgment has observed:--
"(5) Undeniably, the respondents are legal .heirs of deceased Nibaho Shah who
were minors at the time of his death except their mother who was a Parda
Nashin lady. In the presence of allegation that said Nibaho Shah was not alive
at the time of attestation of the impugned Mutation No.670 on 26-3-1971, onus
of proving the valid execution of same (Issue No.2) was heavily on the
petitioners particularly when they were also the beneficiaries of the same
respondents tendered in evidence Exh. P.5, a certificate showing the death
entry of said Nibaho Shah as 2-5-1968 which was incorporated in the Register
at Serial No.20 on 25-5-1968. It is not clear from the record as to what
objection was raised by the petitioners when this document was exhibited.
This being a public document prepared in the normal routine cannot be lightly
ignored particularly when D.W.1 Ahmad Bakhsh Secretary of the relevant
Union Council appeared and admitted in cross-examination that:--
Statement of this witness was also scanned by the learned Additional District
Judge in para.6 of his impugned judgment. This aspect, obviously is fatal to
the case of the petitioners.
(6) In order to prove the sale by late Nibaho Shah in favour of the petitioners,
an agreement to sell the suit-land (Exh. D.2) and receipt (Exh.D.3) were
brought in evidence. These documents appeared to have been written on 13-3-
1971. and the attesting witnesses were Muhammad Murad and Jam
Muhammad Siddique and the scribe was Faiz Muhammad petition Writer. Faiz
Muhammad, appeared as D. W.3 who did not categorically affirm the payment
of the sale price of Rs.12,000. he stated that:--
Jam Muhammad Siddique the alleged marginal witness appeared as D.W.8 and
stated that;--
This Murad Shah was not produced in the witness-box.
(7) On a Court question, as to when the entire sale price was allegedly paid
and possession of the suit-land was also allegedly delivered, then what for the
attestation of mutation was deferred: No satisfactory answer was given by the
learned counsel for the petitioner. I have also noticed that in the impugned
mutation (Exh.P.3), sale price was shown to be Rs.14,000 whereas in the
impugned agreement, the same was shown to be Rs.12,000. In Exh.P.3 there is
no .mention of Tamleek from Nibaho Shah in favour of his minor
sons/contesting respondents whereas such an assertion finds mentioned in the
impugned agreement (Exh.D.2). In the impugned mutation (Exh.P.3), a part to
the suit-land was shown to be sold in favour of his sons (now the respondents)
by Nibaho Shah but how it could be that the minors purchased a part of the
suit-land, what was their source of income. These factors were specially limelighted
by the learned Additional District Judge in para.? of his impugned
judgment."
12. We do not find any legal or factual infirmity with the impugned judgment,
considering that no misreading or non-reading of evidence has been pointed out for
our interference in the constitutional jurisdiction of this Court. In view of aforesaid
reasons and discussions we find no case of grant of leave to appeal is made out which
is declined and the petition is dismissed.
S.A.K./S-33/SC Leave refused.
[Supreme Court of Pakistan]
Present: Javed Iqbal and Hamid Ali Mirza, JJ
Syed SHABBIR HUSSAIN SHAH and others----Petitioners
Versus
ASGHAR HUSSAIN SHAH and others----Respondents
Civil Petition No.1489 of 2004, decided on 6th December, 2005.
(On appeal from the judgment, dated 13-5-2004 in Civil Revision No.62-D of 1992,
passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur).
(a) Qanun-e-Shahadat (10 of 1984)---
----Arts. 78, 79, 119 & 129(g)---Denial of execution of agreement of sale---Burden of
proof---Non-examination of remaining two marginal witnesses of agreement by
defendant, though alive, without showing sufficient cause---Effect---Vendee being
beneficiary would be bound to prove due execution of agreement by vendor in
accordance with law---Adverse presumption would be drawn that had such witnesses
been examined, they would have not supported vendee's case.
(b) Qanun-e-Shahadat (10 of 1984)---
----Art. 76---Mutation of sale, photocopy of---Evidentiary value---Such copy could
not be admitted in evidence without fulfilling conditions provided under Art.76 of
Qanun-e-Shahadat, 1984.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art. 78---Document; execution of---Proof---Not only mere signing or putting
thumb-mark on a document, but something more must be proved for its due
execution---Principles.
According to Article 78 of the Qanun-e-Shahadat, 1984, execution of a document is to
be proved to be in the handwriting or signature or thumb-mark of the alleged
executant, which would mean signing or putting thumb-mark over a document as
consenting party thereto. Execution of document would not only mean mere signing
or putting thumb-impression but something more than mere signing or putting thumbimpression
by the executant. It must be proved that thumb-mark was made in the
presence of witness in whose presence the document was written and read over and it
was understood by the vendor and would not only be limited to merely signing a
name or placing thumb-impression upon a blank sheet of paper so as to prove the
document to have been executed whose identification should also be proved by
reliable and authentic evidence that a person who had affixed thumb-mark or
signature was the same person who owned the land and sold the same to the vendee.
Execution would mean series of acts, which would complete the execution. Mere
signing or putting thumb-mark would not amount to execution in terms of Article 78
of Qanun-e-Shah.adat, 1984. A document which is not proved is inadmissible in
evidence, unless strict proof of it is waived.
(d) Co-sharer---
----Sale by---Joint Khata---Agreement of sale not finding mention of delivery of
possession of specific Khasra numbers 'to vendee out of joint Khata---Vendee
alleging his exclusive possession over such specific Khasra numbers under
agreement---Validity---When property was joint and not partitioned, then fact of such
exclusive possession of vendee could not be believed---Every co-owner/co-sharer
would be considered to be in 'possession of each inch of unpartitioned land according
to his share.
(e) Co-sharer---
----Every co-owner/co-sharer would be considered to be in possession of each inch of
unpartitioned land according to his share.
(f) Specific Relief Act (I of 1877)---
----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.XX, R.9---Plaintiff
dispossessed from suit-land by defendant during pendency of suit---Effect---Plaintiff
could be granted decree for declaration and possession subject to payment of courtfee
under the law.
Niaz Ahmad Rathore, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing: 6th December, 2005.
JUDGMENT
HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against
judgment, dated 20-5-2004 in Civil Revision No.62-D of 1992 passed by learned
Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby the
said civil revision was dismissed, hence this petition for leave to appeal.
2. Brief facts of the case are that the respondents Ghulam Akhtar Shah son of Nibaho
Shah and others filed Civil Suit No.289 of 1976 before the Civil Judge 2nd Class
Liaquatpur against Syed Said Ali Shah son of Fateh Muhammad Shah and others for
declaration to the effect that they were owners upto 11904/2073 6 share in the
disputed property, as a result of inheritance of Nibaho Shah and Mutation No.670
sanctioned on 24-3-1971 along with Mutation No.679 sanctioned on 8-7-1971 was
illegal, collusive, fictitious, therefore, ineffective and inoperative on the rights of the
respondents/plaintiffs wherein respondents' predecessor-in-interest Ghulam Akhtar
Shah also prayed for possession of the suit property. The said suit .was dismissed vide
judgment and decree, dated 21-2-1989 passed by Civil Judge 2nd Class, Liaquatpur.
Ghulam Akhtar Shah, predecessor-in-interest of present, respondents/plaintiffs
preferred Civil Appeal No.361 of 1991 before the District Judge, Rahimyar Khan
which was passed on to the Additional District Judge, Rahimyar Khan, which appeal
after hearing learned counsel for the parties was accepted and thus, suit of present
respondents/plaintiffs was decreed vide judgment and decree dated 18-2-1992.
Petitioner Said Ali Shah preferred Civil Revision No.62-D of1992 before the Lahore
High Court, Bahawalpur Bench, Bahawalpur which was heard by learned Single
Judge of the High Court who dismissed the same vide impugned judgment dated 20-
5-2004.
3. We have heard learned counsel for the petitioners and perused the record.
4. Learned counsel for the petitioners has submitted that learned Single Judge has
illegally and erroneously affirmed the decision of the Appellate Court setting aside
the finding of the learned Civil Judge on wrong assumption by placing onus of
proving Issues Nos.1 and 2 upon the petitioners/defendants. He further submitted that
the First Appellate Court and the learned Single Judge have misread the evidence of
the parties considering that Exh.P.5 (death entry) though exhibited without objection
was not reliable. He submitted that the respondents/plaintiffs did not plead
specifically in the plaint that Nibaho Shah was not alive at the time of sanctioning of
the mutation and also that he had not made any sale to respondent No.19 Said Ali
Shah. He further submitted that learned Single Judge and the Appellate Court have
only discussed the evidence of the petitioners/defendants ignoring the evidence of the
respondents/plaintiffs when the onus of Issues Nos.1 and 2 was on the
respondents/plaintiffs. He also submitted that the learned Single Judge and the
Appellate Court did not consider Exhs.D.1 to D.9 as such illegally presumed that sale
to minor son of Nibaho Shah could not have been made as the said minor could not
pay consideration having no source considering that as per statement dated 7-12-1981
of Ghulam Akhtar Shah P.W.3, plaintiff stated that when he went to get the mutation
of inheritance entered he was informed by Patwari that area of 12 Bighas was mutated
in the name of Said Ali Shah and he filed suit when he was major and that Bhoorey
Shah had forcibly taken possession of land about 2-1/2 years back.
5. Learned counsel for the respondent has submitted that the First Appellate Court
being a final Court of facts has rightly, correctly and legally appreciated the evidence
on record which findings arrived at have rightly been affirmed by the learned Single
Judge as there was neither misreading nor non-reading of evidence nor any
misconstruction of law was available for his interference in the revisional jurisdiction.
6. We do not find merit and substance in the contentions of the learned counsel for the
petitioners.
7. Admittedly as per evidence the respondents (appellants Nos.1 to 3 in appeal before
the Appellate Court and their sisters) were minors at the time of death of Nibaho Shah
whereas their mother was a Parda Nasheen lady. Mutation No.670 was sanctioned on
24-3-1971 when as per evidence on record Nibaho Shah was not alive and as per
evidence on record Nibaho Shah had not sold suit-land to anybody. The onus to prove
that Mutation No.670 attested 'on 24-3-1971 of the suit-land was upon the
petitioners/defendants being beneficiary of it that it was legal and binding upon the
respondents/plaintiffs but the former failed to discharge onus keeping in view the
minority of the above said respondents and their mother who Leing Parda Nasheen
lady when Nibaho Shah was also not alive on the date of mutation as such he had not
executed the said agreement and would have not got the mutation sanctioned in
favour of the petitioners/defendants.
8. It is true that P.W.1 Ghulam Akhtar Shah has not given the specific date about the
death of Nibaho Shah, however, P.W.2 Manzoor Ahmad has deposed that Nibaho
Shah died about 16/17 years before and his statement was recorded on 10-3-1986, so
also has been deposed by P.W.3 Jam Malrmood and thus, if calculated Nibaho Shah
could be said to have expired around 1969 considering also Exh. P.5 which mentioned
the date of death as 2-5-1968 whereas mutation was sanctioned on 24-3-1971 .as such
the mutations were not made during 'the life time of Nibaho Shah, hence he cannot be
said to have executed agreement Exh. D.2 for the purpose of sale or transfer in favour
of the petitioners/ defendants.
9. Articles 78 and 79 and sub-Article 2(a) of Article 17 of the Qanun-e-Shahadat,
Order, 1984 provide the mode of proof of the execution of document which read as
under:--
"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 purpose of
proving its execution, if there be two attesting witnesses alive, and subject to
the process of the Court and capable of giving evidence. "
"17………………………………………………….
(2)………………………………………………….
(a) in matters pertaining to financial or future obligations, if reduced to
writing, the instrument shall be attested by two men, or one man and two
women, so that one may remind the other, if necessary, and evidence shall be
led accordingly."
Agreement Exh.D.2 in respect of sale of land is alleged to have been thumb-marked
by Nibaho Shah the contents of which would indicate that deceased was owner of 115
Kanals, 6 Marlas of land out of which it is alleged that he had already gifted part of
land in the name of his son whereas remaining 48 Kanals of land was sold to
respondent No.19 Said Ali Shah for a sum of Rs. twelve thousand and handed over
the possession to him which agreement also mentioned that the deceased had sold
land, out of Khata No.7 only. A copy of disputed Mutation Exh.P.3 would show entry
in Column No.12 was sanctioned on the basis of agreement Exh. D.2 whereas Exh.
D.2 mentioned that land was sold out, from Khata No.7 only, whereas in Exh.P.3,
land out of Khatas Nos.4 and 5 was also included. Exh.D.2 mentioned consideration
of Rs. twelve thousand for 48 Kanals whereas as per Exh.P.3, 116 Kanals, 7 Marlas of
land was shown to have been sold for Rs. fourteen thousand only. According to
Exh.D.2 executant had gifted his land to his son whereas Exh.P.3 mentioned land to
have been sold to his son. In the circumstances it could be conveniently said that the
mutation in question was not sanctioned as per contents of agreement Exh.D.2, and
that minor son of late Nibaho Shah could not have paid consideration of land as such
Exh.D.2 was doubtful and suspicious document, therefore, the mutation being also
based on Exh. D.2 would also be not beyond doubt and suspicion, hence cannot be
relied upon. D.W.2 Javed Iqbal is a cashier in treasury who has deposed that stamp
paper of Exh. D.2 was sold by Shaikh Ghulam Muhammad Stamp Vendor. D.W.3
Faiz Muhammad was scribe of Exh.D.2 who deposed that it was written by him at the
instance of Nibaho Shah. He also stated that he has not made identification of Nibaho
Shah who was not personally known to him and that thumb-impression of Exh. D.2
was dim/dull. He deposed that the person who came disclosed to be Nibaho Shah. He
also stated that he did not remember if any amount of compensation was paid in his
presence or not. He also stated that he did not remember that as to whether Nibaho
Shah in fact had come before him or not. He also stated that he did not remember the
vendees whose favour document was written had come before him or not. He also
deposed that he could not say if amount of consideration was paid in his presence or
not. In case the scribe D.W.3 Faiz Muhammad was not personally knowing Nibaho
Shah how could he say that Exh. D.2 was thumb-marked by him so also over
Exh.D.3. Consideration amount was also not said to be paid in his presence. It may
also be observed that only one marginal witness Jam Muhammad Sadiq was examined
though other marginal witness namely Muhammad Murad was alive as stated by D.
W.8 Jam Muhammad Sadiq. No sufficient cause has been shown for nonproduction/examination
of marginal witness Muhammad Murad so also Khuda
Bakhsh who attested the mutation was also riot exatined by the petitioner, therefore,
adverse presumption is to be drawn that said witnesses would have been examined
would have not supported the petitioners' case. It may also be observed that Exh. P.3
being a photocopy cannot be admitted as secondary evidence admissible unless under
the law conditions provided under Article 76 of Qanun-e-Shahadat are fulfilled.
D.W.6 Saif-ur-Rehman Patwari did not know the parties, therefore, he would not be
in a position to say if the agreement was thumb-marked by Nibaho Shah who also
admitted that alleged statement made by Nibaho Shah before the Tehsildar did not
appear to be thumb-marked by Nibaho Shah. It is surprising that when the alleged
vendor had not put the thumb-impression or signature over it, how it could be said
that Nibaho Shah had sold the land. The evidence adduced by the
petitioners/defendants was not sufficient to discharge the onus with regard to proof of
execution of alleged agreement to sell suit-land. According to Article 78 of the
Qanun-e-Shahadat, 1984, execution of a document is to be proved to be in the
handwriting or signature or thumb-mark of the alleged executant, which would mean
signing or putting thumb-mark over a document as consenting party thereto.
Execution of document would not only mean mere signing or putting thumbimpression
but something more than mere signing or putting thumb-impression by the
executant. It must be proved that thumb-mark was made in the presence of witness in
whose presence the document was written and read over and it was understood by the
vendor and would not only be limited to merely signing a name or placing thumbimpression
upon a blank sheet of paper so as to prove the document to have been
executed whose identification should also be proved by reliable and authentic
evidence that a person who has affixed thumb-mark or signature was the same person
who owned the land and sold the same to the vendee. Execution would mean series of
acts; which would complete the execution. Mere signing or putting thumb-mark
would not amount to execution in terms of Article 78 of Qanun-e-Shahadat, 1984. A
document which is not proved is inadmissible in evidence, unless strict proof of it is
waived. In the instant case the petitioners/defendants being beneficiary were bound to
prove due execution of the sale agreement by the vendor in accordance with law. All
this would lead to a conclusion that Mutations Nos.670 and 679 were sanctioned
fraudulently. It also cannot be imagined that land measuring 48 Kanals could be sold
for the sum of Rs.twelve thousand on 13-3-1971 while 46 Kanals and 12 Marlas from
the land for a lesser sum of Rs.nine thousand only on 15-7-1971 vide Exh.P.4.
10. It may also be observed that evidence has brought on record to show that Said Ali
Shah and Nibaho Shah were not on speaking terms because of the matrimonial dispute
as Nawab Shah brother of Said Ali Shah had divorced his wife and. contracted second
marriage when his first wife was daughter of Nibaho Shah which fact was admitted by
Bhoorey Shah D.W.10. All these facts and circumstances would lead to a conclusion
that there being strained relations between the vendee and vendor, the transaction in
respect of the land in dispute could not have been arrived at Transaction with regard
to transfer of land through mutations on .the basis of alleged sale agreement in view
of above discussion was a fraudulent transaction and as such would not affect the
legal rights of respondents/plaintiffs.
11. The evidence showed that there being joint Khata and in absence of any mention
of specific Khasra numbers how the physical possession of land in dispute
admeasuring 48 Kanals could have been passed to the petitioners/defendants when the
property was joint and not partitioned, therefore, the question of delivery of
possession as alleged to be in the exclusive possession of the petitioners/defendants
cannot be believed, considering that every co-owner/co-sharer would be considered to
be in possession of each inch of un-partitioned land according to his share. Exhs.D.8
and D.9 copies of Jamabandies stated possession is said to be with the owners
whereas Exhs.D.4 and D.5 copies of Khasra Girdawari for 1984 to 1987 some land
has been shown in possession of tenants while the remaining has been shown in the
possession of sons of Nibaho Shah as such no exclusive possession of
petitioners/defendants has been shown in the above said documents. P.Ws. Nos.1 to 3
have also deposed that Bhooray Shah during .the pendency of suit forcibly occupied
the land. In case a party is dispossessed during the pendency of suit, he under the law
could be granted decree for declaration and possession subject to payment of the
court-fee under the law. Learned Single Judge in paras.5 to 7 of the impugned
judgment has observed:--
"(5) Undeniably, the respondents are legal .heirs of deceased Nibaho Shah who
were minors at the time of his death except their mother who was a Parda
Nashin lady. In the presence of allegation that said Nibaho Shah was not alive
at the time of attestation of the impugned Mutation No.670 on 26-3-1971, onus
of proving the valid execution of same (Issue No.2) was heavily on the
petitioners particularly when they were also the beneficiaries of the same
respondents tendered in evidence Exh. P.5, a certificate showing the death
entry of said Nibaho Shah as 2-5-1968 which was incorporated in the Register
at Serial No.20 on 25-5-1968. It is not clear from the record as to what
objection was raised by the petitioners when this document was exhibited.
This being a public document prepared in the normal routine cannot be lightly
ignored particularly when D.W.1 Ahmad Bakhsh Secretary of the relevant
Union Council appeared and admitted in cross-examination that:--
Statement of this witness was also scanned by the learned Additional District
Judge in para.6 of his impugned judgment. This aspect, obviously is fatal to
the case of the petitioners.
(6) In order to prove the sale by late Nibaho Shah in favour of the petitioners,
an agreement to sell the suit-land (Exh. D.2) and receipt (Exh.D.3) were
brought in evidence. These documents appeared to have been written on 13-3-
1971. and the attesting witnesses were Muhammad Murad and Jam
Muhammad Siddique and the scribe was Faiz Muhammad petition Writer. Faiz
Muhammad, appeared as D. W.3 who did not categorically affirm the payment
of the sale price of Rs.12,000. he stated that:--
Jam Muhammad Siddique the alleged marginal witness appeared as D.W.8 and
stated that;--
This Murad Shah was not produced in the witness-box.
(7) On a Court question, as to when the entire sale price was allegedly paid
and possession of the suit-land was also allegedly delivered, then what for the
attestation of mutation was deferred: No satisfactory answer was given by the
learned counsel for the petitioner. I have also noticed that in the impugned
mutation (Exh.P.3), sale price was shown to be Rs.14,000 whereas in the
impugned agreement, the same was shown to be Rs.12,000. In Exh.P.3 there is
no .mention of Tamleek from Nibaho Shah in favour of his minor
sons/contesting respondents whereas such an assertion finds mentioned in the
impugned agreement (Exh.D.2). In the impugned mutation (Exh.P.3), a part to
the suit-land was shown to be sold in favour of his sons (now the respondents)
by Nibaho Shah but how it could be that the minors purchased a part of the
suit-land, what was their source of income. These factors were specially limelighted
by the learned Additional District Judge in para.? of his impugned
judgment."
12. We do not find any legal or factual infirmity with the impugned judgment,
considering that no misreading or non-reading of evidence has been pointed out for
our interference in the constitutional jurisdiction of this Court. In view of aforesaid
reasons and discussions we find no case of grant of leave to appeal is made out which
is declined and the petition is dismissed.
S.A.K./S-33/SC Leave refused.
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