Muhammad Ali etc VS Muhammad Yousaf etc

Stereo. H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

Civil Revision No. 363-D / 2010 / BWP

Muhammad Ali and others Versus

Muhammad Yousaf and others

JUDGMENT

Date of Hearing: 04.11.2021 Petitioner(s) By: Mr. Aejaz Ahmad Ansari, Advocate Respondent(s) Raja Muhammad Sohail Iftikhar, Advocate for By: Respondents No. 1 to 6 Mian Noor Ali Watto, Advocate for Respondents No. 7 and 8

ABID HUSSAIN CHATTHA, J: This Civil Revision is directed against the Judgment and Decree dated 26.05.2010 passed by the Additional District Judge, Bahawalnagar, whereby, while accepting the appeal of the Respondents/Plaintiffs, the suit for declaration with consequential relief of possession and permanent injunction regarding the suit property filed by the Respondents was decreed and the Judgment and Decree dated 04.01.2006 passed by the Civil Judge, Minchanabad, whereby, the said suit was dismissed was accordingly, reversed.

2.The brief facts necessary for the decision of this Civil Revision are that the predecessor-in-interest of the Respondents, namely, Khan Muhammad (hereinafter referred to as “Khan Muhammad”) was allotted land measuring 185-Kanal and 10-Marla in Khata No. 18 of R.L.-II, Mouza Bhawan Shah, Tehsil & District, Bahawalnagar against his evacuee property verified claim on 07.06.1950. Since the said land fell in the border area, it was cancelled except to the extent of 27-Kanal

which was sold to one Jalal Din vide sale mutation No. 220 dated 07.12.1961. In substitution of cancelled land against remaining units of verified claim No. 3122/204, land measuring 488-Kanal and 17-Marla was allotted by Allotment Committee, Bahawalnagar vide order dated 28.07.1968 in revenue estate Rohriwala, Tehsil Minchababad, District Bahawalnagar which is the suit property duly described in the plaint. The Respondents deriving their right and interest as surviving legal heirs of Khan Muhammad averred in the suit that Khan Muhammad died on 24.04.1967 and since his children being minors at the time of his death were raised outside Bahawalnagar, therefore, the fact of allotment of suit property was not in their knowledge. However, a year prior to the filing of suit, one of the Respondents accidently came to know about the allotment of land in the name of his father. After due scrutiny of relevant revenue record, it transpired that some of the Petitioners were in possession of the suit property and their predecessor-in-interest, namely, Haji Allawal (hereinafter referred to as “Allawal”) on the basis of General Power of Attorney (Exhibit D-1), Special Power of Attorney (Exhibit D-2) and Agreement to Sell (Exh.D-3) dated 13.04.1968 all registered on 22.04.1968 (the “Transfer Documents”) executed by Khan Muhammad in his favour transferred the suit property to his five sons and one brother through registered sale deed dated 05.04.1969. It was alleged that Khan Muhammad had died on 24.04.1967, therefore, the Transfer Documents through which the suit property was transferred were forged and fictitious. Accordingly, the suit property was transferred through forgery with the active connivance of the marginal witnesses, identifier and through impersonation of Khan Muhammad. All subsequent alienations of the suit property were also alleged to be illegal and unlawful, including consolidation proceedings. As such, the Respondents sought a declaration to the effect that they are owners of the suit property, entitled to its possession and the Petitioners be restrained to alienate the suit property or to create any charge on it.

3.The suit was duly resisted by the Petitioners. It was specifically alleged in the written statement that the Respondents have

managed to procure a forged entry regarding the death of Khan Muhammad on 24.04.1967. In fact, he died in the year 1972 and duly executed the Transfer Documents through which he sold his remaining verified claim of units against sale consideration of Rs. 4926/- in the presence of witnesses regarding which the suit property was allotted in Mouza Rohriwala. After sale, Khan Muhammad shifted to Mouza Kaliana, Tehsil & District Pakpattan where he owned other agricultural land and lived there till his death in 1972, where mutation of estate left behind by him was attested in 1972 in favour of his legal heirs. Accordingly, the Respondents have no right to claim ownership of the suit property and even otherwise the suit is liable to be dismissed being barred by limitation.

4.Out of the divergent pleadings of the parties, the Trial Court framed the following issues:

(i)Whether the suit is within time? OPP

(ii)Whether the suit is not maintainable in view of preliminary objection No. 2 of the written statement? OPD

(iii)Whether the Plaintiffs have no locus standi and cause of action? OPD

(iv)Whether the Plaintiffs are estopped by their words and conduct to bring this suit? OPD

(v)Whether the suit has not properly been valued for the court fee and jurisdiction, and what is the correct valuation of the suit property? OPD

(vi)Whether the Defendants are entitled to get special costs under Section 35-A of the CPC from the Plaintiffs? OPD (vii) Whether the Plaintiffs are entitled to get the decree for declaration as prayed for? OPP

(viii)Relief.

5.The parties to the suit duly produced their respective evidence. The Trial Court after hearing the parties and examining the evidence on record dismissed the suit of the Respondents which was reversed in appeal by the Appellate Court. Hence, this Civil Revision.

6.Learned counsel for the Petitioners contended that the suit was badly barred by time and there was no valid ground for condonation or exclusion of time. He further contended that Allawal as Attorney having an interest in the suit property was fully competent to transfer the

suit property to his own sons and brother as specifically provided under Section 202 of the Contract Act, 1872. Moreover, in the presence of Transfer Documents registered as back as 22.04.1968, allegation of impersonation is superfluous, baseless and unsustainable in the eyes of law. Learned counsel for the Petitioners submitted that the Transfer Documents were duly executed by Khan Muhammad in favour of Allawal who followed the entire process of allotment of the suit property against verified units of Khan Muhammad and after allotment, transferred the same in favour of his sons and brother through registered sale deed dated 05.04.1969 followed by duly attested mutation. Hence, the suit filed by the legal heirs of Khan Muhammad was rightly dismissed by the Trial Court. However, the Appellate Court has erred in law by reversing the same on the sole ground that Khan Muhammad had died before the date of Transfer Documents by merely relying upon the alleged entry of date of death (Exhibit P-1). The Petitioners had specifically questioned the genuineness of death entry in their written statement in the preliminary objection as well as in the reply to Paragraph Nos. 3 and 6. The Petitioners also filed a complaint before the Deputy Commissioner, Bahawalnagar in this regard which was inquired by the Assistant Commissioner which vindicated the stance of the Petitioners. He added that Muhammad Iqbal, Secretary Union Council produced by the Respondents as PW-3 tendered the copy of the death entry. The Petitioners specifically objected thereto which was rejected by the Trial Court. The said witness admitted that the original register was not produced before him, the entry in register was not written in his hand and he did not know who was the Secretary Union Council at the relevant time who made the entry. He also deposed that Exhibit P-1 was issued in the year 1989 on the application of one Rasheed Ahmad. The original register was never produced before the Court or even before the Assistant Commissioner in the inquiry conducted by him. Contradicting PW-3 one of the Respondents, Muhammad Yousaf appeared as PW-4 and stated that he had obtained Exhibit P-1 but neither his name appears on Exhibit P-1 nor it corroborates with the deposition of PW-3 who

stated that it was issued on the application of one, Rasheed Ahmad. Conversely, on the same issue, the concerned Secretary Union Council categorically deposed that he tried his best to search out the death register of 1967 but the same was not available. Learned Council therefore, emphasized that the Respondents could not prove the death entry and the Appellate Court misread and non-read the evidence on record. He placed reliance on cases titled “Mst. Hameeda Begum and others Vs. Mst. Irshad Begum and others” (2007 SCMR 996); “Abdul Rahim Vs. Mukhtar Ahmad and six others” (2001 SCMR 1488); and “Noor Muhammad Vs. Nazar Muhammad” (2002 SCMR 1301).

7.Learned counsel for the Respondents submitted that Khan Muhammad died on 24.04.1967 which fact was consistently deposed by PW-3, Muhammad Iqbal as well as PW-4, Muhammad Yousaf. He submitted that Allawal being General Attorney under the law could not have transferred the suit property in the name of his sons and brother, that is, to his kith and kin without the consent of the principal. Further, the entire evidence is silent about the payment of consideration amount as to who paid the same to Khan Muhammad, although DW-2 and DW- 3 as marginal witnesses had deposed to prove Transfer Documents. Hence, since the death of Khan Muhammad was proved on 24.04.1967, therefore, the Transfer Document registered on 24.04.1968 after more than one year from the date of his death unequivocally proved that the Transfer Documents were forged and fictitious and as such, the transfer of the suit property was a fraudulent transaction which has been rightly declared as such by the Appellate Court. He also stated that the reliance by the Petitioners on Exhibit D-12, a copy of inheritance mutation pertaining to land situated at Mouza Kaliana through which the estate left behind by Khan Muhammad was mutated to his legal heirs on 20.07.1972 to assert that Khan Muhammad died in the year 1972 is not credible evidence since the same was got incorporated by the wife of Khan Muhammad and it is normal routine that such mutations are entered much after the death of the deceased. Muhammad Yousaf and Shamshad Bibi, the successors-in-interest of Khan Muhammad were

minors aged 02 and 04 years respectively at the time of death of Khan Muhammad which fact demonstrates that they were not in a position to defend their right and Allawal taking advantage of the same committed fraud by transferring the suit property to his sons and brother. Accordingly, it was prayed that the instant Civil Revision be dismissed and the Judgment and Decree passed by the Appellate Court be upheld.

8.Arguments were heard, evidence tendered by the parties was scanned and record of the case was perused with the able assistance of the learned counsel for the parties.

9.The issue of limitation was of vital importance in the instant case. The Respondents had specifically alleged fraud and that discovery of the same before one year of filing of the suit. However, it was established on record that the claim of units of Khan Muhammad was processed and followed by Allawal on the basis of General and Special Power of Attorney duly executed in his favour by Khan Muhammad with the Settlement and Revenue Authorities but the Respondents challenged the same and subsequent transactions flowing out of the said General and Special Power of Attorney on the basis of forgery, collusion and impersonation. Further, regarding knowledge of fraud, it was pleaded and deposed that Muhammad Yousaf, one of the Petitioners came to know about the existence of suit property one year ago when he was serving water and Hukka to the guests of a wedding (Barat) at Mouza Kaliana, Tehsil & District Pakpattan Sharif, where he was residing at that time. Thereafter, after due scrutiny of the revenue record, the case facts as stated above were revealed to him. Since he and his sister were minors at the time of transfer of suit property, therefore, the transaction was not in their knowledge. To prove and corroborate the same, he produced Muhammad Ali who testified that out of conversation taken place at the wedding ceremony, he came to know regarding the suit property allotted in lieu of units of Allawal which was confirmed after scrutiny of revenue record. This oral evidence was not corroborated when it is compared with the admitted facts on record that wife of Khan Muhammad was alive till 1972. Even if Muhammad

Yousaf and his sisters were minors at that time, their mother could have told the same to some other person seeking help in this regard or could have undertaken due scrutiny at the relevant time. The mere bald, general and evasive oral evidence cannot be considered as conclusive and is certainly not confidence inspiring to hold that the knowledge of the transfer of suit property was gained a year prior to the filing of the suit, especially when such evidence is not direct as the deposition of PW-3 is merely hearsay. Further, the mere plea of being minor cannot be permitted to open closed and past transactions on account of limitation. Otherwise, virtually every transaction can be questioned on the same basis. On the other hand, Transfer Documents executed in 1968 are registered documents which carry presumption of truth attached to them which though rebuttable but require irrefutable evidence to dislodge such presumption. Certainly, the evidence on record is not enough to disregard such presumption. Hence, the suit was clearly barred by time and as such not maintainable.

10.In view of peculiar facts and circumstances of the case, in order to prove that the Respondents were entitled to get the decree for declaration as prayed for, the moot question was regarding the date of death of Khan Muhmmad. No direct confidence inspiring evidence was produced by the Petitioners regarding the date of death of Khan Muhammad. PW-4, one of the Respondents even did not depose regarding the exact date of death of his father and merely stated that his father died in the year 1967. He further deposed that his age at the relevant time was 05 to 06 years, whereas, he is now 30 to 35 years. As his statement was recorded on 23.01.2003, he would have been born between 1968 to 1973 but according to his own statement, he was 05 to 06 years of age at the time of death of his father. This means that his father must have died at least in the year 1972 which fact corroborates with the date of mutation of inheritance of Khan Muhammad (Exhibit D-12) which was sanctioned on 25.07.1972 and the deposition of the witnesses of the Petitioners who also testified that Khan Muhammad died in the year 1972. No independent witness or evidence was produced

by the Respondents to prove the stance taken by them. The sole reliance was upon Exhibit P-1, that is, the death entry of Khan Muhammad. Onus to prove the same was upon the Respondents. Muhammad Iqbal, Secretary Union Council produced in this behalf did not produce the original Register to prove the said entry and in his cross-examination candidly admitted that the entry was not made by him and he has not seen the original Register. This evidence when put in juxtaposition with the evidence of the Petitioners who produced certified copy of the proceedings of inquiry initiated before the Deputy Commissioner, Bahawalnagar and conducted by the Assistant Commissioner, Bahawalnagar (Exhibit D-14 to Exhibit D-18) against Muhammad Iqbal, Secretary Union, it was established that the death entry at serial No. 15 dated 15.07.1969 and signature dated 31.07.1969 were not made by him and the death entry could not be proved. No evidence in rebuttal was produced by the Respondents against the said documents regarding the inquiry although fact of pending inquiry was disclosed in written statement. Hence, the Respondents could not conclusively prove that Khan Muhammad had died prior to the execution of the Transfer Documents. No specific particulars of fraud were mentioned in the Plaint and those mentioned including impersonation were not proved. Considering that the Transfer Documents are 30 years old and are registered carrying presumption of truth with them, the evidence on record is not sufficient, credible and confidence inspiring to dislodge such presumption when the Respondents have produced all the alive witnesses regarding the Transfer Documents. Therefore, there is no reason to declare that the Transfer Documents were forged or fictitious and outcome of fraud. In the case of Mst. Hameeda Begum and others (supra), the Supreme Court of Pakistan while deciding the case relating to birth entry dated 23.06.1938 held in Paragraph No.14 as under:- “Much stress was laid by learned counsel for respondent No.1 on the entries relating to the birth of Mst. Irshad Begum indicating her date of birth as 23-6-1938 vide extract purportedly issued by District Health Officer, Gujranwala, Exh.P10. To say the least, we are hardly impressed by this document, which, though exhibited as P.10, was neither proved

nor properly tendered in evidence. In fact this extract was tendered in evidence along with the statement of Advocate for Mst. Irshad Begum and placed on record after marking it as Exh.P10. We have, nevertheless, minutely examined this document, which bears the signatures of same person against column meant for signature of Head Clerk as well as District Health Officer. Even otherwise, appellants in their written statement before the Trial Court had taken strong exception to this document. They had averred that the plaintiff had filed her birth certificate entry with the plaint, which was bogus and maneuvered and procured collusively with the lower staff of the office of District Health Officer and that the appellants reserved their right to proceed against the plaintiff and other culprits. In the face of such series, emphatic and strong objection raised by the appellants at the earliest stage of the suit, it was imperative and incumbent upon respondent No. 1 to affirmatively prove the contents of the entry heavily relied upon by Mr. Gul Zarin Khan.----”

11.The registered General Power of Attorney executed by Khan Muhammad in favour of Allawal was not a simple Power of Attorney but was coupled with an interest as depicted from simultaneous execution of registered Agreement to sell. Both instruments are even dated and registered which clearly indicate that Khan Muhammad had parted with his verified claim of units by selling the same to Allawal and moved to District Pakpattan on his other agricultural land. Agreement to sell was executed in lieu of Sale Deed since specified identifiable suit property was not in existence at the relevant time and the transaction was based upon verified claim of units which was yet to be processed by Governmental Authorities. Allawal went through the entire process of allotment. Therefore, either all the Transfer Documents were forged or all were sacrosanct being registered on a single day. If the General Power of Attorney was forged then the entire process of allotment of suit property was without jurisdiction. Therefore, there is no substance in the story put forward by the Respondents. Further, Section 202 of the Contract Act, 1872 is applicable on the transaction executed by Allawal.

12.Accordingly, this Court is constrained to hold that the findings recorded by the Trial Court are based on sound and cogent reasoning and due examination of evidence on record. The Appellate

Court has erred in law by drawing inferences beyond the evidence on record. Although, the general rule is that the findings of the Appellate Court are preferred over the Trial Court, however, this rule is subject to the exceptions thereto that where the Judgment of the Appellate Court suffers from perversity of reasoning or is result of misreading and non- reading of evidence, the same cannot be upheld to prevent the miscarriage of justice.

13.Hence, this Civil Revision is accepted with no order as to costs. Consequently, the impugned Judgment and Decree passed by the Appellate Court dated 26.05.2010 is set aside and the Judgment and Decree dated 04.01.2006 passed by the Trial Court is upheld.

(Abid Hussain Chattha) Judge *Muddasir Rasheed*