Suit dismissed on mistakes of sale deed.
FORM NO. HCJDC/A-38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE,
JUDICIAL DEPARTMENT
JUDGMENT
RSA No.76527 of 2017
Salma Bibi etc
Vs.
Rana Sagheer Hussain
Date of Hearing :
21.04.2022
Appellants by :
Mian Tariq Ahmad and Rana
Qaisar Ali Khan, Advocates
Respondent by :
Qazi Ghulam Mohayudin,
M.Safdar Shaheen Gill and
Mrs. Falak Naz Gill,
Advocates.
MASUD ABID NAQVI, J. Brief facts necessary for the
adjudication of this lis are that on 14.03.2005, the plaintiff/
respondent filed a suit for possession of plot alongwith perpetual as
well as mandatory injunction with the averments that he purchased
disputed plot from the predecessor in interest of defendants namely
late Niaz Muhammad, however, the defendants/ appellants took over
illegal possession of the same with the intention to set up a CNG
station over there. The plaintiff/ respondent asked the defendants/
appellants to hand over the possession of the disputed plot but they
refused, hence, the suit. The defendants/appellants contested the suit
by filing contesting written statement with the contentions that they
are in possession of plot, duly inherited by them through inheritance
mutation No. 2517 dated 10.08.1999 and the registered sale deed
allegedly executed by the predecessor in interest of defendants/
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2
appellant in favour of plaintiff/ respondent is not only fake document
but is also based on fraud and fabrication as the predecessor in
interest of defendants/ appellant never executed that sale deed.
2.
Out of divergent pleadings of the parties, issues were framed
by the learned Trial Court and parties led their respective oral as well
as documentary evidence and after hearing the arguments advanced
by both the parties, the learned Trial Court decreed the suit vide
judgment and decree dated 27.07.2010. Learned Appellate Court
accepted the defendants/appellants’ appeal vide judgment and decree
dated 11.09.2012 which was challenged before this Court in RSA
No.176 of 2012 by the plaintiff/respondent and the same was
accepted vid order dated 16.06.2016 with the direction to decide the
appeal afresh. In remand proceedings, the appeal was dismissed vide
judgment and decree dated 23.05.2017. Feeling aggrieved, the
defendants/appellants have filed the instant Regular Second Appeal
and challenged the validity of the impugned judgments and decrees
passed by the learned courts below.
3.
Learned counsel for defendants/appellants by placing reliance
on the cases reported as Farid Bakhsh Vs Jind Wadda and others
(2015 SCMR 1044), Hafiz Tassaduq Hussain Vs Muhammad Din
through Legal Heirs and others (PLD 2011 Supreme Court ), Sultan
Mahmood Shah through L.Rs. and othes Vs Muhammad Din and 2
others (2005 SCMR 1872), Muhammad Aslam Vs Mst. Ferozi and
others (PLD 2001 Supreme Court 213), Mst. Arshan Bi (deceased)
through Mst Fatima and othes Vs Maula Bakhsh (deceased) through
Mst. Ghulam Safoor and others (PLJ 2003 SC 513) argued that
RSA No.76527 of 2017
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impugned sale deed was witnessed by only one attesting witness and
the requirement of Article 79 of Qanun-e-Shahdat Order 1984 was
not complied with, hence the impugned judgments and decrees are
not sustainable at law. While on the other hand, learned counsel for
respondent/plaintiff fully supported the impugned judgments and
decrees with the arguments that plaintiff/respondent proved the
execution of sale deed through evidence and even the denial of
defendants/appellants in written statement was evasive by placing
reliance on the case reported as Sajjad Ahmad Khan Vs Muhammad
Saleem Alvi and others (2021 SCMR 415) etc.
I have heard the
arguments of learned counsels for the parties and perused the
available record as well as have minutely gone through the impugned
judgments and decrees.
4.
It is also a well-settled law that the initial burden of proof is on
the plaintiff to substantiate his/her claim(s) by adducing cogent,
legal, relevant and unimpeachable evidence of definitiveness and the
weakness in the defense evidence, if any, would not relieve a
plaintiff from discharging the above burden of proof. Onus to prove
issue No.7 about purchase of plot on the basis of sale deed was/is
upon the plaintiff/respondent. Although, the plaintiff/respondent
claimed himself as owner of disputed plot but failed to plead about
the existence or execution of alleged sale deed in his plaint. Hence,
the rule of “secundum allegata et probata” duly applied on the
plaintiff/respondent with regard to alleged sale deed.
Disputed sale deed/Exh.P.1 consists of three pages and on first
and second page neither the alleged vendor/executant namely late
RSA No.76527 of 2017
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Niaz Muhammad nor the plaintiff/respondent/alleged vendee or any
marginal witness put their signatures/thumb impressions while on
the third page the plaintiff/respondent as well as one marginal
witness namely Muhammad Fawad Ghani Cheema put their
signatures and the predecessor in interest of defendants/appellants
allegedly affixed his thumb impression. First and second page
contains all the terms and conditions of sale while third page does
not contain any term and condition. It is settled principle of law that
if the document is written on more than one page, then the parties
must sign or put their thumb impressions on each page of document
or otherwise the plaintiff/respondent is/was under legal obligation to
connect the two unsigned pages with signed/thumb marked third
page by producing evidence to prove the terms and conditions of
disputed sale deed but the testimony does not convincingly connect
the papers or show assent of alleged executor to the unsigned papers.
Resultantly, without the sufficient connection between the unsigned
papers with signed paper, the unsigned papers cannot be considered
as part of the disputed sale deed. With the failure of the
plaintiff/respondent to prove the execution of first & second page as
well as terms and conditions of disputed sale deed, the principle of
“consensus ad idem” is not established. Reference is placed on the
cases reported as Manzoor Hussain Vs Haji Khushi Muhammad
(2017 CLC 70) and Zafar Iqbal and others Vs Mst. Nasim Akhtar
and others (PLD 2012 Lahore 386).
For the purpose of proving the under challenge sale deed, it
was/is mandatory for the beneficiary/plaintiff/respondent that two
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attesting witnesses of mutation must be examined by him as per
Article 79, Qanoon-e-Shahadat Order 1984. By discussing in detail
the requirement of Article 79, Qanoon-e-Shahadat Order 1984, the
Hon’ble Supreme Court of Pakistan in a case reported as
FaridBaksh Vs JindWadda and others (2015 SCMR 1044) held as
under:
“This Article in clear and unambiguous words provides
that a document required to be attested shall not be used as
evidence unless two attesting witnesses at least have been
called for the purpose of proving its execution. The words
“shall not be used as evidence” unmistakably show that
such document shall be proved in such and no other
manner. The words “two attesting witnesses at least”
further show that calling two attesting witnesses for the
purpose of proving its execution is a bare minimum.
Nothing short of two attesting witnesses if alive and
capable of giving evidence can even be imagined for
proving its execution. Construing the requirement of the
Article as being procedural rather than substantive and
equating the testimony of a Scribe with that of an attesting
witness would not only defeat the letter and spirit of the
Article but reduce the whole exercise of re-enacting it to a
farce. We thus, have no doubt in our mind and this Article
being mandatory has to be construed and complied with as
such…………………..In the case of Hafiz Tassaduq
Hussain v. Mohammad Din through legal heirs (PLD 2011
SC 241), this court after defining the meaning of the word
attesting” in the light of Black’s Law Dictionary and other
classical books and case law held that a document shall
not be considered, taken as proved or used in evidence, if
not proved in accordance with the requirements of Article
79 of the Order.
Another reason for not equating the testimony of a
Scribe with that of an attesting witness is that both of them
RSA No.76527 of 2017
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signed the document in a different capacity and with a
different state of mind. They, as such, do not meet the
requirements of Article 79 of the Qanun-e-Shahadat
Order. Scribe however, could be examined by the party for
corroboration of the evidence of the attesting witnesses but
not as a substitute therefor. This aspect was also
highlighted in the case of Hafiz Tassaduq Hussain vs.
Muhammad Din through Legal Heirs (supra) in the
paragraph which reads as under :-
“To the same effect are the judgments
reported as Qasim Ali vs. Khadim Hussain
through legal representative and other (PLD
2005 Lahore 654) and Shamu Patter vs.
Abdul Nadir Rowthan and others (1912 (16)
IC 250). Therefore, in my considered view a
scribe of a document can only be a competent
witness in terms of Articles 17 & 79 of the
Qanun-e-Shahadat Order, 1984 if he has
fixed his signature as an attesting witness of
the document and not otherwise; his signing
the document in the capacity of a writer does
not fulfill and meet the mandatory
requirement of attestation by him separately,
however, he may be examined by the
concerned party for the corroboration of the
evidence of the marginal witnesses, or in the
eventuality those are conceived by Article 79
itself not as a substitute.”
Scanning of record especially sale deed adduced by the
plaintiff/respondent before the civil court reveals that neither the
name of second witness is written on the disputed sale deed nor any
signature or thumb impression of second attesting witness is
available on the disputed sale deed. Alongwith attesting witness
namely Muhammad Fawad Ghani Cheema/PW-2, the plaintiff/
RSA No.76527 of 2017
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respondent produced his brother who is an advocate/PW-3,
portraying him as scribe of disputed sale deed while the testimony of
PWs clearly establishes the fact that stricto sensu he was not even the
scribe of disputed sale deed. Even otherwise, the deposition of a
scribe cannot be equated with deposition of an attesting witness and
equating the testimony of a Scribe with that of an attesting witness
would not only defeat the letter and spirit of the Article 79, Qanoone-Shahadat Order 1984 but also reduce the whole exercise of reenacting it to a farce as has been held by the Hon’ble Supreme Court
of Pakistan. Hence, the plaintiff/respondent failed to meet the
mandatory requirement of Article 79, Qanoon-e-Shahadat Order
1984 by failing to produce the two attesting witnesses of disputed
registered sale deed. In so far as the case law referred by the learned
counsel for respondent/plaintiff is concerned, the same is
distinguishable and not applicable in the facts and circumstances of
the instant case.
5.
In a case of concurrent findings by courts below, this court
normally does not interfere in second appeal under section 100 of
CPC, unless the decision of courts below is contrary to law or is
based on failure to determine material issue of law. However, once
the High Court entertains a second appeal, it can determine an issue
of fact provided the conditions mentioned in section 103 CPC are
fulfilled as the concurrent findings of facts recorded by the courts
below cannot become sacrosanct. With respect to interference in
concurrent findings, the Hon’ble Apex Court in a case reported as
RSA No.76527 of 2017
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Muhammad Aslam Vs Mst. Ferozi and others (PLD 2001 Supreme
Court 213) had held that:-
“We are not persuaded to agree with the prime contention as
raised by learned counsel for the petitioner that the
concurrent findings could not have been reversed in R.S.A.
by the learned High Court for the simple reason that the
concurrent findings cannot be considered as sacrosanct and
High Court was competent to interfere if such findings were
based on insufficient evidence, misreading of evidence, nonconsideration of material evidence, erroneous presumption
of facts and consideration of inadmissible evidence.”
6.
In view of the foregoing discussion, this Court is of the
affirmed view that learned courts below fell in error by not properly
appreciating the questions of facts and law and ignored the material
piece of evidence on record while passing the impugned judgments
and decrees, which are not sustainable in the eyes of law and the
same are hereby set-aside and the suit filed by plaintiff/respondent is
hereby dismissed by allowing this regular second appeal.
(MASUD ABID NAQVI)
JUDGE
Approved for reporting
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