c.r no. 872 of 2010 nadir khan vs muqadar khan...9. record transpires that jaffar khan was the...

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*M.Siraj Afridi P.S. D

IN THE PESHAWAR HIGH COURT,

PESHAWAR (Judicial Department)

Civil Revision No.872-P/2010

Date of hearing: 22.02.2016

Petitioner (s) : Nadir Khan etc, by Mr. Muhammad Asif Advocate

Respondent (s) : Muqadar Khan etc by Mr. Waheed ur Rehman,

Advocate.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, C.J.- This

revision petition is directed against the judgment and decree

dated 18.05.2009, passed by learned Trial Court/Civil

Judge-V, Charsadda and that of learned Appellate Court/

Additional District Judge-II, Charsadda dated 19.12.2009,

whereby suit of the plaintiffs (respondents No.1 to 7 herein)

has been concurrently decreed in their favour by both the

Courts below.

2. Facts in brief forming the background of the

instant revision petition are that Muqadar Khan etc

(plaintiff/respondents No.1 to 7), filed a suit against Sher Ali

and others defendant No.1 to 8 (respondents No.8 to 14

herein) and defendants No.9 to 15 (petitioners herein), for

declaration and possession through partition to the effect that

they alongwith defendants No.1 to 8, being owners and in

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possession of a land measuring 11 Kanal 01 Marla in Khasra

Nos.815/816 and 509, situated in the revenue estate of Moza

Mahzara as well as a residential house, fully described in the

heading of the plaint, enjoy its usufructs, hence, inheritance

mutation No.4705 dated 02.10.1995, on behalf of Mst. Khan

Khela in favour of defendants No.9 to 15, being forged,

fictitious and based on fraud, is ineffective upon their rights,

is liable to be cancelled, as she had already sold out her share

to the predecessors of the plaintiffs and defendants No.1 to 8

in the year 1961 vide sale deeds; that plaintiff/respondents

came to know qua the wrong entries in favour of the

petitioners in the revenue record on the basis of inheritance

mutation No.4705 of Mst. Khan Khela, when the petitioners

brought a suit for produce before the Revenue Officer.

3. The suit was contested by the petitioners by

filing written statement, raising therein variety of objections,

legal as well as factual. From the divergent pleadings of the

parties, the learned Trial Court formulated issues. Parties

adduced evidence in support of their respective stance and on

conclusion of trial, the learned Trial Court, after hearing both

the sides, decreed the suit of the plaintiff/respondents, against

which, the defendants/petitioners preferred appeal before the

learned Appellate Court, but was dismissed, hence, this

revision petition.

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4. Learned counsel for the petitioners argued that

petitioners being the LRs of Mst. Khan Khela are the owners

of the suit property while plaintiff/respondents have got no

concern with the same; that sale deeds relied upon by the

plaintiff/respondents, are wrong, fictitious, void and based on

fraud, having no adverse effect upon the rights of the

petitioners; that the plaintiff/ respondents by placing reliance

on the said sale deeds, were legally bound to have proved the

genuineness of the same, but they bitterly failed to do so. He

next argued that the alleged sale deeds were also void and

against the law as Mst. Khan Khela was minor at the time of

execution of the alleged sale deed, but the two Courts below

have committed serious illegality by ignoring the above

aspects.

5. As against that, learned counsel for the

respondent/plaintiffs submitted that the sale deeds being

thirty years old documents, presumption of truth and

correctness is attached to the same, which have been proved

by the respondent/plaintiffs through the statement of Murad

Ali (PW.2) son-in-law of the Deed-writer, who being well

conversant with the handwriting and signature of his father-

in-law, verified his handwriting and signatures over the sale

deed (Exh.PW.2/1 consisting of 15 sheets); that statement of

DW.1 also supports the claim of the plaintiff/respondents

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therefore, findings of the two Courts below, being well

reasoned and based on proper appreciation of evidence and

law on the subject, are not open to any interference by this

Court. In support of his arguments, he placed reliance on the

judgment of the Apex Court in case titled, “Muhammad

Rafiq and others Vs Muhammad Ali and others” (2004

SCMR 704).

6. Arguments of learned counsel for the parties

were heard and record of the case was perused.

7. The bone of contention between the parties is

the inheritance mutation No.4705 dated 02.10.1997 on behalf

of Mst. Khan Khela in favour of her offspring

(petitioner/defendants). The stance of the

plaintiff/respondents is that the suit property was jointly

owned by their predecessor, namely, Jafar Khan and the

predecessor of defendants No.1 to 8, namely, Muzafar Khan,

to the extent of ¾ shares while Mst. Khan Khela (the

predecessor of the petitioners), was owner only to extent of

remaining 1/4th share, which she, later on, sold out to the

predecessors of the respondents, through un-registered sale

deeds dated 31.03.1961. The petitioner/defendants, in their

written statement, have squarely denied the factum of any

such sale on behalf Mst. Khan Khela (wife of defendant

No.9/ mother of defendants No.10 to 15). They alleged that

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she had been recorded as owner in the column of ownership

prior to her death and that no such sale had ever been

effected by her during her life time; that after demise her

inheritance mutation No.4705 Exh.PW.1/2, was entered and

attested on 02.10.1997, in the names of her husband

(defendant No.9) now dead, and the present petitioners.

8. In support of their claim, Muqadar Khan

plaintiff No.1 for himself as well as attorney for the

remaining plaintiffs appeared as PW.3 and produced Fazal

Khaliq Lumbardar of the village as PW.4, Muhammad Alam

as PW.5 while Patwari Halqa who produced the relevant

revenue record was produced as PW.1. Similarly, Haji

Murad Ali son-in-law of the deed-writer, namely, Saadullah

Khan, was examined as PW.2, who verified the hand writing

and signatures of his deceased father-in-law/Deed-writer over

the sale deeds (Exh.PW.2/1). In rebuttal,

petitioner/defendants examined Shakirullah as DW.1, who is

the son of the Deed-writer. He produced extracts of the

relevant Register of his father Exh.DW.1/1, wherein the

alleged sale deeds have been incorporated. Defendant No.1

and defendant No.10, appeared as DW.2 and DW.3,

respectively. In support of their stance, they also brought on

record some certified copies of the proceedings

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before the Revenue hierarchy and Civil Court, between the

parties regarding the suit land.

9. Record transpires that Jaffar Khan was the

predecessor of the parties, who, firstly, contracted marriage

with Mst. Amtu Jan. From her he had a son, namely, Muzafar

Khan i.e. (father of defendants No.1 to 8) and a daughter

Mst. Khan Khela i.e. (wife of defendant No.9 and mother of

defendants No.10 to 15/ petitioners). The suit property

belonged to Mst. Amtu Jan, and on her demise, the same

devolved upon her husband Jaffar Khan as well as his son

and daughter named above, vide mutation No.262

(Exh.PW.1/D-1), attested somewhere in June 1954. The said

mutation was properly incorporated in the record of rights for

the year 1958-59 (Exh.PW.1/D-5). After the death of Mst.

Amtu Jan, the predecessor of the parties Jaffar Khan,

contracted second marriage with Mst. Hazrat Bibi, who is the

mother of plaintiff/respondents No.1 to 7). The

plaintiff/respondents get their respective share from their

father Jafar Khan, who himself inherited from the legacy of

said Mst. Amtu Jan. The stance of the plaintiffs is that the

disputed property was sold by Mst.Khan Khela in favour of

her father Jafar Khan vide sale deed Exh.PW.2/1 including

her share in the suit house. Perusal of the sale deeds reveal

that though the same were allegedly executed way back in

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the year 1961, but never saw the light of the day till filing of

the present suit in the year 2005, and that too, by the LRs of

Jafar Khan, who was also the father of Mst. Khan Khela. No

doubt, if there is nothing on record qua the exact date of

demise of Mst. Khan Khela and Jaffar Khan deceased, at the

same time, there is no denial of the fact that Jaffar Khan, who

was also the maternal grandfather of the petitioners, has

neither filed any suit on the basis of the said sale deeds nor

tried to incorporate the same in the revenue record, during his

life time. Besides, after the death of Mst. Khan Khela, the

plaintiff/ respondents and defendant/petitioners remained

locked into litigation about the usufruct of the suit property

before the revenue hierarchy (Exh.DW.2/1), which too,

reflects that the plaintiffs, after the demise of Mst. Khan

Khela, did not base their claim on the basis of the alleged sale

deeds. A decision of the District Collector dated 08.02.2003,

alongwith documents in this regard would reflect that the

plaintiffs also fraudulently managed to procure agreement

deeds in the year 2002, in the back date i.e. 08.12.1997.

Similarly, the extracts of the Register of the Deed-writer

concerned regarding the disputed sale deeds Exh.DW.1/1,

wherein it has been mentioned that “the transaction has not

taken place due to minority of Mst. Khan Khela”, shows an

attempt on behalf of her father, but was abortive, as the sale

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was not completed due to minority of Mst. Khan Khela and

thereafter, her father left the same at that stage and did not try

to implement those deeds.

10. Whatever the case may be, the legal position in

the instant case would be that plaintiff/ respondents No.1 to

7, stepped into the shoes of their father Jaffar Khan, who was

the alleged beneficiary of the alleged sale deeds, therefore,

were legally bound to prove the same through cogent and

reliable evidence. The learned counsel for the

plaintiff/respondents No.1 to 7 in his argument though

admitted this legal position, but his stance was that since the

deeds were thirty years old document, therefore presumption

of correctness under Article 100 of the Qanun-e-Shahadat

Order, 1984, was attached to them, so there would be no need

to lead further evidence in proof of the same. He while

further elaborating his stance submitted that plaintiffs have

produced Fazal Khaliq Lumbardar (PW.4)/the son of late

Abdul Khaliq the marginal witness of the sale deeds. No

doubt, the deeds are apparently thirty years old and original

of the same are also in possession of the plaintiffs and son of

the marginal witness of the deeds, also appeared as a witness

and verified the signature of his father as marginal witness

over the deeds, but presumption of correctness to such a

document, let it be thirty years old, cannot be attached, as the

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initial beneficiary of these deeds/documents i.e. propositus of

the parties Jaffar Khan, left the same half way after getting

the note of minority of Mst. Khan Khela, his daughter and

during his remaining life he did not try to implement/act

upon these documents. In this regard I am fortified by the

view of the august Apex Court in the case of “Jang Bahadar

and others Vs Toti Khan and another” (2007 SCMR 497),

wherein it has been held that:-

“It is not essential for a Court to attach the

presumption of execution of a document more

than 30 years old in all the cases without

attending to the other relevant facts and

circumstances of the case before raising such

presumption and not merely because any such

presumption was claimed, to be attached to

such document”.

Same view has been reiterated by the august Apex Court in

case of “Ch. Muhammad Shafi Vs Shamim Khanum”

(2007 SCMR 838), in the following words:-

“It is settled law that presumption qua thirty

years old document under Article 100 of the

Qanun-e-Shahadat Order, 1984, is permissive

and not imperative. The Court must consider

the evidence of the documents, in order to

enable it to decide whether in any specific case

it should or should not presume proper

signature and execution. It is settled law that

the Court should be very careful about raising

any presumption under Article 100 in favour of

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old documents specially when the same are

produced during the trial of suits in which

under proprietary rights are set up on the basis

of such documents/deeds. It is also settled law

that the Court may refuse to apply the

presumption where evidence in proof the

document is available or where the evidence

has produced and disbelieved.

11. It is the settled law of evidence under Article

117 of the Qanun-e-Shahadat Order, 1984, that whoever

desires any Court to give judgment as to any legal right or

liability dependent on the existence of fact which he

asserts, must prove that those facts exists, but the plaintiffs

failed to prove the alleged sale as well as execution and

contents of the disputed sale deeds, firstly, under Article

79 of the Qanun-e-Shahadat Order, 1984, according to

which 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, and if no such attesting witness can be found,

then under Article 80 of the Order, 1984, it must be proved

that the witnesses have either died, or cannot be found and

that the document was executed by the person who

purports to have done so, therefore, mere production of

the disputed sale deeds would not absolve the plaintiffs

from proving contents of the sale deed in terms of Articles

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79 or 80 of the Qanun-e-Shahadat Order, 1984. It has been

held by the Hon’ble Supreme Court in case of “Dawa

Khan through L.Rs and others vs Muhammad Tayyab”

(2013 SCMR 1113) that;

“Admissibility of a document in evidence,

by itself, will not absolve the party from

proving its contents in terms of Article 79

provided under the scheme of the Order”.

Mere statement of the plaintiffs regarding death of witness

of the disputed sale deeds would not absolve and exonerate

them of their legal obligation to prove the contents of the

same. Guidance in this regard can be derived from the

judgment of the Hon’ble Supreme Court in case of

“Anwar Ahmad Vs Mst. Nafis Bano through Legal

Heirs” (2005 SCMR 152). The plaintiffs are alleging sale

of the disputed property in favour of their father by

Mst. Khan Khela (late) through the disputed sale deeds.

Admittedly, Mst. Khan Khela was an illiterate lady. It is

well settled law of the land that transactions with old

infirm, illiterate persons, women under the influence of

elders of the family and pardha observing ladies, burden of

proof would lie on the person claiming benefit and title

from the transactions. As stated earlier, the plaintiffs being

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beneficiaries of the suit sale have to discharge their burden

but they failed.

12. The learned counsel for the

plaintiff/respondents also laid a great stress on the question

of possession of the suit property with the plaintiffs, but in

view of this Court, that would also not support the stance

of the plaintiffs as the suit property was owned by Mst.

Khan Khela, who was residing there with her husband

Dilawar Khan (defendant No.9). Since, father of

Mst. Khan Khela, namely, Jaffar Khan was co-sharer in the

suit property and was also in possession of the same

alongwith the suit house. As explained above, the two sets

of defendants get their share direct from the legacy of

Mst. Amtu Jan whereas the plaintiffs get their share from

their father Jaffar Khan, who inherited it from Mst. Amtu

Jan. After getting married to defendant No.9, she used to

reside with him in his house, but being co-owner in the

house and co-sharer in the landed property, she remained

in constructive possession till her life time and after her

death, the present petitioners fell into her steps, therefore,

have attained the same status. So being co-owners and co-

sharers, are owners in every inch of the joint property

unless partitioned. The respondents No.1 to 7, who are the

beneficiaries of the un-registered sale deeds, have failed to

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prove their stance through cogent and tangible evidence.

They also failed to rebut the long standing entries in the

revenue record (Record of rights) in favour of the

defendant/petitioners through cogent and convincing

evidence. In light of mandate of Article 49 of the Qanun-e-

Shahadat Order, 1984, such long standing entries in the

revenue record, especially in the Register of Record of

Rights, do carry presumption of truth and cannot be

controverted by mere oral evidence unless proved

otherwise by sufficient and convincing evidence.

13. The two Courts below have squarely ignored

the above discussed facts and circumstances of the case

reflecting from the available record and evidence,

therefore, the findings of the Courts below being patently

illegal, result of bare misreading and non-reading of

material evidence and based on conjectural presumptions

and erroneous assumption, warrant interference by this

Court.

14. Though, the High Court, normally does not

interfere in the concurrent findings of facts recorded by

two Courts below, but when there is gross misreading and

non-reading of evidence and patent violation of the law,

the revisional Court/High Court, is under legal obligation

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to rectify the error by interference in such illegal findings.

Reliance in this regard can also be placed on the cases of

“Nazim ud Din and others vs Sheikh Zia ul Qamar and

others” (2016 SCMR 24), “Mushtari Khan Vs Jehangir

Khan” (PLJ 2006 SC 877) and “Ghulam Muhammad

and 3 others Vs Ghulam Ali” (2004 SCMR 1001)).

Thus, by following the command of law declared by the

Apex Court and statutory provisions of section 115 CPC,

instant revision petition is allowed, impugned judgments

and decrees of the two Courts below are set aside and

consequently, suit of the plaintiff-respondents is dismissed.

Parties are left to bear their own costs.

Announced

22.02.2016.

CHIEF JUSTICE

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c.r no. 872 of 2010 nadir khan vs muqadar khan...9. record transpires that jaffar khan was the...

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