Framing of issues case laws
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| Framing of issues |
been held that if a specific issue is not framed but
allegations are made in the plaint and the parties
challenged in the written statement, it is open to the
Court to allow the parties to lead evidence on such point
and to give decision on it without framing any issue.”
Stereo H.C.J.D.A 38
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE,
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
C.R. No.1080-D of 2020
Nazeer Ahmad etc.
Versus
Zakir Hussain etc.
JUDGMENT
Petitioners by:
Mr. Tahir Mehmood, Advocate.
Respondents by:
Syed Tajammal Hussain Bukhari and
Khawar Habib Gujjar, Advocates.
Date of hearing:
07.06.2022.
MUHAMMAD SHAN GUL-J:- Through this judgment the titled
Civil Revision is sought to be decided.
2.
Facts in brief are that respondents No.1 and 2 instituted a
suit for specific performance of contract on the basis that
respondent No.3 Rukhsanan Begum entered into a registered
agreement to sell No.205/1 dated 03.02.2005 with respect to
property comprising Khewat No.7, Khatooni No.51 to 71
measuring 47 Kanals 3 Marlas of Mauza Qadirabad. The suit was
resisted by respondent No.3 as also by petitioners No.1 and 2.
While Rukhsanan Begum denied the execution of the agreement
to sell in favour of respondents No.1 and 2 she admitted transfer
of property in favour of Nazeer Ahmad and others i.e. the
petitioners before this Court and supported the stance of the
C.R. No.1080-D of 2020
2
petitioners that they were bonafide purchasers having bought the
suit property from Rukhsanan Begum and who had paid
consideration and were in possession. She supported their stance
that mutation bearing No.2240 dated 15.02.2005 was correct and
had been rightly sanctioned. Rukhsanan Begum also contended
that the agreement to sell was a result of fraud. However, she
chose not to appear in the witness box and stayed away!
3.
On account of divergent pleadings the following issues
were framed:
1. Whether the plaintiffs have got no cause of
action and locus standi to file this suit? OPD
2. Whether the plaintiffs are estopped by their
words and conduct to file this suit? OPP
3. Whether the suit is not maintainable in its
present form? OPD
4. Whether the suit is pre-mature? OPD
5. Whether the plaintiffs are entitled to a decree
for possession through specific performance
as has been prayed for in the plaint? OPP
6. Relief?
4.
The contesting parties led their respective evidence and the
trial court decreed the suit filed by respondents No.1 and 2. This
led petitioner Nazeer Ahmad to file an appeal before the District
Court but this appeal too, was dismissed by the appellate court
and hence this in turn led the petitioners to lay a challenge to
concurrent judgments passed by the Courts below through the
present Civil Revision.
C.R. No.1080-D of 2020
3
5.
The trial court noted that the agreement to sell had been
proved in accordance with law inasmuch as presumption of truth
is attached to a registered document which was to be preferred
over a mere rapt mutation; that while one marginal witness of the
agreement to sell had been produced and who deposed in favour
of the respondents the other marginal witness had died and whose
brother was produced so as to vouch for his signatures on the
agreement to sell; that the scribe of the agreement to sell i.e. the
stamp vendor had also been produced and who had remained
consistent in his deposition; that proof of payment of
consideration was forthcoming and Rukhsanan Begum the main
character had not been produced as witness and which meant that
the petitioners before this Court had withheld their best evidence;
that the revenue officer who had attested mutation No.2240 had
not been produced; that there were massive contradictions in the
statement of witnesses produced by the petitioners with reference
to the payment of consideration and hence decreed the suit filed
by the respondents directing them to submit remaining amount of
consideration.
6.
The petitioners before this Court challenged this judgment
and decree by way of filing an appeal. However, most
interestingly Rukhsanan Begum did not file any appeal. The
appellate court, in addition to approving the verdict of the trial
C.R. No.1080-D of 2020
4
court ruled that a rapt mutation did not transfer or confer any right
and that the star argument raised by the petitioners before this
Court about the trial court not framing an additional issue about
cancellation of mutation No.2240 dated 15.02.2005 was
misconceived because the petitioners had themselves moved an
application before the trial court for framing an additional issue
which was dismissed against which decision a revision was filed
and even the revision was dismissed and the same was challenged
by means of Writ Petition No.13304/2011 which was also
dismissed. The appellate court took great pains, which is evident
from a perusal of paragraph No.10 of its judgment in addressing
the issue of mutation and dismissed the appeal filed by the
petitioners.
7.
Learned counsel for the petitioners has attacked the
concurrent judgments passed by the courts below by submitting
that Mst. Rukhsana Begum i.e. respondent No.3 admitted
mutation bearing No.2240 as valid and legal in her written
statement and averred that the mutation had been effectuated two
days before the date of the alleged agreement to sell. He was
immediately confronted with the fact that this particular
aspect of the matter could not allow him to make any headway
because Mst. Rukhsana Begum had refused to appear in the
witness box and hence there was no testimony on her part to
C.R. No.1080-D of 2020
5
back up her written statement. Learned counsel for the
petitioners then contended that there was massive misreading of
evidence by the courts below because PW-6 Zakir Hussain
averred that consideration with respect to the registered agreement
to sell was paid in front of the Registrar whereas PW-2 in his
cross-examination clearly stated that no payment had been made
in front of him. I am afraid that this reading on the part of the
counsel for the petitioners is indeed selective reading of evidence
and cannot be granted any mileage in view of the fact that PW-2
deposed that payment of consideration was acknowledged in his
presence (Page-61 of the civil revision) and hence the mountain
sought to be erected out of this molehill does not grant any
impetus to the case of the petitioners.
8.
On the other hand, learned counsel for the respondents
submits that PW-5 in his statement appearing at Page-50 of this
civil revision identified parties, acknowledged his own signatures
on Exh.P/1 i.e. registered agreement to sell and deposed that he
had identified Mst. Rukhsana Begum on the pointation of her
husband. Adds that PW-2 clearly deposed that the registered
agreement to sell was signed in his presence. He has also stated
that the registered agreement to sell was never challenged and the
petitioners before this Court also withheld their best evidence i.e.
Mst. Rukhsana Begum was never produced even when the
C.R. No.1080-D of 2020
6
petitioners before this Court and Mst. Rukhsana Begum were
represented through the same learned counsel before the trial
court. Rounds of by submitting that PW-8 who is brother of the
concerned Lambardar appeared and vouched on behalf of his
brother. He states that concurrent judgments of the courts below
do not suffer from any infirmity and should be upheld.
9.
Heard. Record perused.
10.
It is a fact that presumption of truth is attached to a
registered deed. It is also true that the agreement to sell in
question was proved inasmuch as one marginal witness of the
agreement to sell was produced who deposed in favour of the
registered agreement to sell while other marginal witness who had
passed away was represented by his brother who vouched for his
signatures on the registered agreement to sell. Likewise, the
payment of consideration was also acknowledged, as has been
noted above, and it is also equally true that the petitioners are
guilty of withholding their best evidence. On the other hand, it is
correct that the revenue officer who had attested mutation bearing
No.2240 was never produced and there were massive
contradictions in the statements of witnesses produced by the
petitioners especially with reference to the payment of
consideration with respect to the mutation in question. It is also
true that even when Mst. Rukhsana Begum shared a counsel with
C.R. No.1080-D of 2020
7
the petitioners before the trial court during the course of trial she
chose not to file any appeal against the judgment and decree
passed by the trial court in favour of respondents No.1 and 2. It is
equally correct that a Rapat mutation does not transfer or confer
any right and is dwarfed when faced with a registered agreement
to sell.
11.
Since the petitioners before this Court withheld their best
evidence i.e. Mst. Rukhsana Begum, naturally an adverse
inference has to be drawn against them and which is that the
person on whose written statement they relied would have
deposed to the contrary had she been allowed to appear. The
Hon’ble Supreme Court of Pakistan in “Jehangir v. Mst. Shams
Sultana and others” (2022 SCMR 309) has held as follows at
paragraph No.4:-
“We are surprised that the plaintiff/respondent No.1
did not come forward to testify that she had not sold
the property as reflected in the said sale mutation,
particularly when her sister and mother had testified
in support of the said sale. A direct challenge had also
been thrown to her husband/ attorney that if the
plaintiff came to testify she would acknowledge the
sale. When the best evidence is intentionally withheld
an adverse presumption ensues that if it was produced
it would be against the person withholding it as per
Article 129(g) of the Qanun-e-Shahadat, 1984.”
12.
Likewise, Hon’ble Supreme Court of Pakistan in “Mst.
Zarsheda v. Nobat Khan” (PLD 2022 SC 21) has ruled as follows
at paragraph No.9:-
C.R. No.1080-D of 2020
8
“9.
At this juncture Article 129 of the Qanun-eShahadat Order 1984 is quite relevant under which
court may presume the existence of any fact which it
thinks likely to have happened, regard being had to
the common course of natural events, human conduct
and public and private business, in their relation to
the facts of the particular case. According to the
illustrations highlighted for resonating the
presumption, Illustration (g) is quite relevant which
illuminates "that evidence which could be and is not
produced would, if produced, be un-favourable to the
person who withholds it". Adverse inference for nonproduction of evidence is one of the strongest
presumptions known to law and the law allows it
against the party who withholds the evidence.
Regardless of the presence of important witnesses (the
alleged donor) and the alleged witness of the
mutation, the defendant failed to produce them despite
framing of specific issue whether there was no
transaction of sale but a gift.”
13.
In the same vein in “Muhammad Naeem Khan and another
v. Muqadas Khan (decd) through L.Rs. and another” (PLD 2022
SC 99) the Hon’ble Supreme Court of Pakistan has held as
follows:-
“Where a party keeps hold of the witnesses, the
presumption would be that if such witnesses were
produced, their testimony must have against him,
therefore adverse inference of withholding evidence
goes against the party who failed to call the
concerned person engaged in the transaction who was
in a better position to give firsthand and straight
narrative of the matter in controversy. According to
Article 129 of the Qanun-e-Shahadat Order 1984, the
court may presume the existence of any fact which it
thinks likely to have happened, regard being had to
the common course of natural events, human conduct
and public and private business in their relation to the
facts of the particular case. Illustration (g) attached to
this Article is quite relevant to the facts and
circumstances of the case in hand in which the court
may draw adverse inference or presumption that
evidence which could be and is not produced would, if
produced, be unfavorable to the person who withholds
it. No misreading or non-reading of evidence or any
other defect or error was pointed out in the impugned
judgments which may warrant interference by this
court.
C.R. No.1080-D of 2020
9
14.
Additionally, a mere Rapat of mutation does not confer any
right and this is trite. If any authority is required then reliance
with advantage can be placed on the law laid down by the Hon’ble
Supreme Court of Pakistan in “Zulfiqar and others v. Shahdat
Khan” (PLD 2007 SC 582) at paragraph No.19 as follows:-
“19. In Sattar Muhammad and 2 others v. Hussain and 3
others PLD 1988 Pesh. 48 arose out of a suit for
declaration based on title derived through a mutation.
The plaintiff relied on the entry made by the Patwari in
Roznamcha Waqiati which was repelled with the
following observation:--
"It is undisputable that no presumption of
correctness attaches to the entry made in
Roznamcha Waqiati, as the same does not
form part of the record of rights. Such an
entry is, therefore, to be proved especially
when the same is to be used against the
subsequent purchaser, in the same manner
as any other fact' is proved."
In the said case it was also observed that neither the
vendor had appeared nor the Patwari who had recorded
entry in Roznamcha Waqiati had appeared to prove the
sale and, therefore, it was not proved.”
15.
The Apex Court in “Khalil Ahmad v. Abdul Jabbar Khan
and others” (2005 SCMR 911) has held that, “We say with
respect that entering a mutation or reporting the factum of
acquisition of any right in an estate to the Patwari was a mere
ministerial act, which did not confer or extinguish any right in any
property and thus nothing really hinged on the same.”
16.
It has been held in “Mohamamd Hussain v. Allah Ditta”
(2017 YLR 1249) that, “it is also well established that Rapat
C.R. No.1080-D of 2020
10
Roznamcha attains no presumption of truth unless and until its
maker is produced to prove the same.”
17.
In the matter before this Court the revenue officer who
attested the alleged mutation bearing No.2240 was never
produced and hence no probative value can be attached to the
Rapat incorporating mutation No.2240.
18.
At the time of initial hearing of this petition a lot of
emphasis was laid by the counsel for the petitioners on the ground
that the mutation in question was never challenged and no issue
was framed in this respect and hence it is a case of mis-trial.
19.
While the learned appellate court has adequately dealt with
this misconceived argument by pointing out that the petitioners
before this Court filed an application for framing of an additional
issue which was dismissed against which a revision was filed and
dismissed and which concurrent findings were upheld by this
Court in W.P. No.13304/2011, the fact remains that issues were
framed in the presence of competing parties and the objection
raised by the counsel for the petitioners was discarded till the
level of this Court. Furthermore, the petitioners had placed
documentary evidence with regard to establishing the mutation in
question and which is clearly indicative of the fact that they were
alive to the issue and had adduced evidence in support thereof.
No.1080-D of 2020
11
The Hon’ble Supreme Court of Pakistan in “Eada Khan v. Mt.
Ghanwar and others” (2004 SCMR 1524) has observed that once
the parties are alive to the contentions raised and when once
evidence is adduced in support of such contentions, the nonframing of such an issue loses significance.
20.
In the same vein it has been held in “Muhammad Akram
alias Raja v. Muhammad Ishaque” (2004 SCMR 1130) at
paragraph No.4 as follows:-
“4. It is important to note that although no specific issue
was framed but the parties being aware about the
controversy have led evidence in this behalf on the basis
of which finally the case was decided. In this behalf
reference can be made to the judgment reported as The
Province of East Pakistan v. Maj. Nawab Khawaja
Hasan Askary and others PLD 1971 SC 82 wherein it has
been held that if a specific issue is not framed but
allegations are made in the plaint and the parties
challenged in the written statement, it is open to the
Court to allow the parties to lead evidence on such point
and to give decision on it without framing any issue.”
21.
Similar observations have been recorded in “Muhammad
Ibrahim (deceased) through LRs and another v. Taza Gul and
others” (2020 SCMR 2033).
22.
In view of overwhelming features in support of registered
agreement to sell in favour of respondents No.1 and 2 and which
have been noted in the preceding narrative coupled with
concurrent judgments of the courts below in support thereof put
paid this civil revision which does not call for any interference.
C.R. No.1080-D of 2020
12
23.
In view of what has been noted above, this civil revision
merits to be dismissed.
(MUHAMMAD SHAN GUL)
JUDGE
APPROVED FOR REPORTING
JUDGE
Asalam o alikum sir mujhe buss yeah pochna hai k hum 3 Bhai hai or 3 bhaiyo mai sy Ghar ko sale karny k liye 1 agree NAHI kar Raha to phir hum kiya Kary plzz tell me
ReplyDeleteTaqseem ka dawa hu ga or court taqseem kare gi agar aik nahi bechna chahta tu aap ko raqam de de ju aap ki banti nahi tu phir partition kar ke apna hisa sale kar sakte agar aisa bhi mumkan nahi tu court phir sale hi kare gi.
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