Zarshad Vs Mst. Bibi Sultana

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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R No. 1441-Pl2010

Zarshad and one other (Petitioners) Versus

Mst. Bibi Sultana and 40 others (Respondents)

Present: IWS Altaf Ahmad and Atta-Ur-Rehman, Advocates for the petitioners.

Arbab Muhammad Usman, Advocatelor Respondenls,

Date of hearing: 09.05.2018

JUDGMENT

MUHAMMAD GHAZANFAR KHAN, J..

Impugned herein is the judgment and decree dated 02.07.2010 of the learned Additional District Judge/lzafi Zilla Qazi, Buner whereby appeal of the petitioners was dismissed and judgment and decree dated 20.11.2009 of the learned Senior Civil N JudgelA'ala Illaqa Qazi, Buner, was maintained who vide the same had decreed the suit of Respondent No.1

) Brief facts of the case are that Respondent No.1 namely Mst. Bibi Sultana filed a suit for declaration, perpetual injunction and possession as consequential relief against the rajamu/Ps'l 5B: Hon'blc Mr. Jusuce Muhrmmd Gh.ant., Xhan (C.R No. 1441-P ol 2010 Zotshdd ond on. othct Vs. MsL Blbl Sultono ond 40 othe6)

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petitioners and rest of the respondents claiming that she is entitled to the extent of ll2 share of her father Aziz Khan in the suit property, fully detailed in the head note of the plaint.

I The defendants were summoned out of

whom the present petitioners and some of the remaining respondents/defendants filed their written statement and refuted the claim of Respondent No.l by raising various legal and factual objections while Respondents No. 2 & 3 filed their joint cognovits.

The trial Court framed necessary issues on the basis of divergent pleadings and invited the parties to lead their respective evidence on the issues. After recording pro and contra evidence and hearing arguments of the parties, the leamed trial Court decreed the suit of Respondent No.l/plaintiff vide W judgment and decree dated 20.11.2009. The petitioners alongwith other contesting defendants preferred appeal against the judgrnent and decree of the trial Court which was dismissed by the learned Additional District Judgellzafi Zil\a Qazi, Buner, vide judgment and decree dated 02.07.2010. Being aggrieved the present petitioners have assailed the Ta;amu/PS* | SB:

lc.R No. lUl-P ol 2O1O Zctshod ond on. othct Vs. Mn. Sibl sukonc ond tto othc6)

\l concurrent judgments of both the Courts below through the instant revision petition.

I Learned counsel for the petitioners

argued that the petitioners do not dispute the pedigree table produced by respondents/plaintiffs, as the present petitioners do not claim any share through inheritance. He maintained that both the Courts below were materially wrong in passing the decree in favour of respondents/plaintiffs as the petitioners have purchased the same vide registered deeds bearing No.609 & 599 attested on21.08.1934 and 17.08.1934 respectively. Both the deeds, he maintained, are registered sale deeds and exempted from the proof provided under Anicles 17 & 79 of N the Qanune-e-shahadat Order, 1984, so, both the Courts below have erred in facts and law by passing the decree in favour of the respondents/plaintiffs. He kept on arguing that not only the deeds in favour of the present petitioners are 30 years old (carrying the presumption of truth) but the stlme are registered deeds, So, earn double presumption of truth. He further argued that the case was adjudged against the petitioners on the other ground that none from the Ta;amu/PS'l SB: Hon'ble Mr. Justlce Muhammad Ghaanfar Kh.n (C,R No. 1441-P oI 2o7O Zorshod and one othctvs. Mst. Bibl Suhono ond 40 othe5)

v official witnesses were produced to verity the authenticity or otherwise of the impugned sale deeds. He added that though initially this Court vide order dated 26.10.2015 turned down the application of the petitioners for production of additional evidence, however, vide order dated 10.11.2015 he was allowed by this Court to produce his additional evidence, as such, statement of Naik Ali Junior Clerk was recorded on 07.12.2015 who produced the official record pertaining to the sale deeds bearing No. 599 & 609; he exhibited extract from the relevant register without any objection from the other side. The learned counsel submitted that even then the learned lower Courts, while skipping over the jurisdiction vested in them under the law, have passed the impugned judgments and decrees which are not tenable in the eye of law being materially illegal, inegular and result of misreading of the evidence on file, besides the decrees are result of misinterpretation of law on the subject. He prayed for setting aside the judgments and decrees of the Courts below.

rajamul/Ps* | 5B: Hon'ble Mr. Justlce Muhtmmad GhaEnfar Khan (C.R No. 1441-P oI 2O7o Zorshod ond one oth.t Vs. Msa Blbl Sukono ond 40 othe6)

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I On the contrary, the learned counsel for the respondents/plaintiffs strongly opposed the arguments advanced by the learned counsel for the petitioners/defendants and argued that the judgments and decrees concurrently passed by the Courts below, are corect and based on corect appreciation of evidence available on the record duly supported by the law on the subject. He argued that the concurrent judgments passed by both the Courts below can only be disturbed if it is proved that the same have been passed in excess of jurisdiction or materially irregular or were passed contrary to the record available on file. He maintained that no such irregularity, illegality, jurisdictional defect or any misreading & non-reading of evidence has been pointed out by the petitioners in the impugned judgments and decrees, hence, the revision petition deserves outright dismissal.

a I have heard learned counsels for the parties and have gone through the record.

Z. The respondent No.l in her suit has sought declaration to the effect that she is owner in the disputed property being the legacy of her father Taiamu/Ps'I SB: Hon'blc Mr. Junle Muhrmm.d Gh.arf.t Kh.n (C.R No. 1.U1-P oI 2O1O Zotshqd ond on. othct Vs. Mst. Blbl Sultono ond 40 othcrs)

v wherein she is entitled to the extent of her shari share. She has annexed with her plaint a copy of pedigree table which is not disputed. The present petitioners contested the suit only to the extent that they have purchased the suit property vide registered deeds bearing No. 599 & 609 respectively attested on 17.08.1934 and 21.08.1934. The pedigree table was never questioned as the present petitioners are not claiming the suit property through inheritance but on the basis of registered deeds above mentioned vide which Aziz Khan, predecessor-in-interest of Respondent No.l, transferred his share in the name of Mir Alam, predecessor-in-interest of the present petitioners

0 The question for determination before the learned Courts below was that whether after transfer of the suit property in the name of predecessor-in-interest of the present petitioners through the impugned deeds, the legal heirs of said Aziz Khan can claim the property as legacy of their predecessor and secondly, that whether the deeds produced by the present petitioners during the trial were legally and validly registered or otherwise.

Talamul/Ps'l SB: Hon'ble Mr. Ju3tlc. Muh.mmd Gh.anf.r Kh.n (C.R No. ltul-P ol 2O1O Zo6hod ond one oth.t V5. Mst. Blbl Suhono ond 40 othec)

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There was no other question to be determined by both the Courts below. It is a fact proved on the record that the deeds were produced and thereafter on the application of the petitioners for additional evidence, Junior Clerk from the office of Tehsildar Daggar was examined who also testified the authenticity of the above said deeds by producing the relevant extract from the registered maintained for the purpose. Now the question which requires determination is whether the production of two witnesses under Articles 17 and 79 of the Qanun-e- Shahadat Order, 1984 is necessary to prove the authenticity of a registered sale deed or otherwise.

Article 17 (2)(a) reads :

"17. Competence and number of witness. (l)

(2)Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law.

(a)In matters pertaining to financial or future obligations, if reduced into 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; and (b)

Similarly Article 79 of the Qanun-e- Shahadat Order, L984 reads

Ta;amul/PS'l SB:

(C.R No. ,tt41-P ol 2O1O Zoahod ond onc oth.t Vs. Mst. Slbl Suftana ond tO oth.6)

\1 s(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:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908 (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied".

The above said two articles, if read with care and caution, leads one to the conclusion that a registered document does not require to be proved on the touch stone of Articles t7 and 79 of the Qanun-e-Shahadat Order, 1984. There is also Article 100 of the Qanan-e-Shahadat Order according to W which presumption of truth is attached to a document which is more than 30 years old.

Similarly, a registered document also carries the presumption of truth. To cltallenge the validity of a registered and more than 30 years old document, very cogent, reliable and trustworthy evidence would be required.

ralamul/Ps'I SB: Hon'bla Mr. Justle Muhammad Gh.anf.r Khan G.n No. 1441-P ol 2OlOZa$hod ond one oth.tVs. Mtt. Blbl Suftono ond 40 othcB)

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9.In the instant case, the petitioners have proved the existence/legality of the above mentioned documents which even otherwise carry the presumption of truth in accord with the mandate of Qanun-e-Shahadat which has not been taken into consideration by either of the Courts below. The learned appellate Court while passing the judgment against the present petitioner has totally ignored the facts firstly that the deeds were registered and secondly the same were more than 30 years old, as such, they carried presumption of double truth.

There is nothing on the record to rebut the documentary evidence produced by the present petitioner, so the judgrnents passed by both the Courts below are totally against the mandate of law and evidence available on the file.

10.The learned appellate Court has also taken a ground for dismissal of the appeal that the petitioner has never produced any official witness to authenticate or veriff the authenticity of the registered deeds. Although this ground is not sustainable in the eye of law as has been discussed earlier, however, during pendency of the revision raJrmu/Ps'l SB: Hon'blc Mr, ru3tle Muhrnnad Ghranfrr Khrn (C.R No. tUl-P ol 2010 Zo6hod ond oN othct Vs. Mst. ,,lbl Sufto@ ond tto oth6t

w petition on the request of the petitioner Naik Ali Junior Clerk office of Tehsildar concerned was summoned and was examined as a witness. He produced register pertaining to registration of the deeds bearing No. 599 and 609 besides abstract from the registered was produced and placed on file as Ex.PHC/l and Ex.PHC|Z. Both the above said documents were exhibited without any objection from the other side, so, registration of the impugned deeds has been authenticated by official record which too supports the version advanced by the present petitioner.

11.For what has been discussed, the instant revlsl0n petition is allowed, the impugned judgments and decrees passed by both the Courts below are set aside and resultantly the suit of Respondent No.l/plaintiff is dismissed with no order as to costs.

Announced.

Dt: 09.05.2018

6th & nl 5

ra.Pmu/Ps'I 58: Hon'bh Mr. Juttlo Muhemmrd Ghranfar Khen (CR No. lul-P ol 2O7o Zushod o\d one othct V5. Mst. Elbl suhono ond 40 oth.R)