Rahim Khan Vs Gul Bad shah

JUDGMENT SHEET

PESHAWAR HIGH COURT ABBOTTABAD BENCH

IUDICIAL DEPARTMENT

C. R. No.265-412012.

JUDGMENT

Date of hearing 08.12.2017.

Appellant / petitioner (Rahim Khan & another) by Mr. Muhammad Naeem Anwar, Advocate.

Respondent (Gul Bad Shah and others) by Syed Sajjad Hassan Shah, Advocate.

SYED ARSHAD ALI, J.- Throu gh the instant revlsl0n petition, petitioners have impugned the consolidated judgment and decree dated 07.O5.2O12 of learned Additional District Judge-V, Mansehra, whereby appeals filed by respondents were accepted and the i judgment/order/decree dated 03.L2'2OlO passed by learned trial Court was set aside.

2 Brief but relevant facts of the case are that the respondent Gul Bad Shah initially filed suit No.133/1 on 18.11.2005 against the present petitioners before learned Senior Civil Judge, Mansehra for declaration to the effect that defendant Raheem Khan and Lal Bad Shah sons of Bahadur Hussain purchased land measuring 06 marlas tJ:rough mutation No.12520 dated 29.6.2005 for sale consideration of Rs.2,30,000/-. However, out of total sale consideration defendants had given him only Rs.1,30,000/- in the presence of Jirga whereas had refused to PaY Rs.1,00,000/- the remaining sale consideration and the action of defendants to I o carye a passage in the suit property is illegal and consequently mutation No. 12520 attested

on 29.6.2OO5 was without consideration, hence, requested for cancellation of the sarne.

The defendants contested the suit by filing their written statement by raising legal as well as factual objections. It was also stated in the written statement that plaintiff GuI Bad Shah had earlier filed a suit No. L28ll on 30.8.2005 in respect of the sarne cause of action, which he withdrew on 19.11.2005 without permission to frle second suit.

Similarly, present petitioners instituted a suit bearing No.117/ 1 on 02.|.2006 against Gul Bad Shah for declaration that they had purchased the suit property measuring 06 marlas through mutation No.12580 attested on 29.6.2005 fot / the purpose of passage/thoroughfare and have

paid the entire sale consideration. They have also prayed for possession of the suit property in alternative. On being summoned defendant Gul Bad Shah contested the suit by filing his written statement, wherein he raised a preliminary objection to the maintainability of suit. In reply to Para 4 in his written statement defendant had admitted the execution of mutation for sale consideration of Rs.2,30,000/-. However, he has reiterated his earlier position regarding non-pa5nnent of the entire sale consideration.

The present petitioners filed another suit bearing No.1 18/ 1 on 17.O8.2OO7 for t perpetual injunction against Gul Bad Shah and three others, which was also contested by

the defendants by filing their written statement.

The learned trial Court consolidated all the three suits and framed consolidated issues. It is pertinent to note that all the parties are relative as Gul Bad is real uncle of the petitioners. The parties were given full opportunity to lead their respective evidence.

During evidence, the plaintiff submitted Ar1 application on 14.10.2010 that impugned mutation No.12520 attested 29.6.2005 alongwith his thumb impression be sent to FSL for comparison and if the said thumb impression on the impugned mutation and that of plaintiff Gul Bad Shah are proved to be identical in the laboratory report, the suit of t' the plaintiff be dismissed and the other suits

filed by the present petitioners be decreed.

Resultantly, the learned trial Court requisitioned the original mutation for sending it to the Expert. The thumb impressions of the plaintiff upon sample slip were taken in the Court and in this regard parties recorded their statement on 16.10.2010. Naib Offrce Kanongo, Mansehra produced tJ..e original mutation 26.LO.2OLO. The original mutation and thumb impression of plaintiff obtained in the Court, were sent to the FSL Peshawar vide C.N.No.966152 dated 26.10.2010 of Deltex Courier Service. On 25. 11.2010, the Finger Expert/Director FSL requested the Court for providing Bio-data of Gul Bad Shah, which was dispatched to Director, FSL, Peshawar.

/;' The learned trial Court received the Expert

opinion in Form No.3. The opinion of Expert is reproduced below:-

FOnm lvo.3.

We haue compared the finger impressions on the documents mentioned in the margin receiued from the Mazhar Hussain, Ciuil Judge- District Mansehra uith his letter No.147 doted 26.11.2O10 and are of the opinion that:-

1.An oiginal Mutation Sheet No.12520 doted 29/ 06/ 2005 bearing an impression now marked as'Q-I'.

2.A sample sftp 'S' (induplicate) bearing the ten digit impression of Gul Bod Shah.

The impression on the Mutotion Slrcet No.12520 dated 29/06/2005, now marked qs 'Q-l', .is 'IDENTICAL' with the Iefi tlrumb impression of Gul Bad Shah on his sample slip 'S' as per idge characteristics points of identitg dotted in one of the specimen print nout marked as 'S/ I'.

l.signature Ronk. (Faidullah Khan) DSP, FPB, Peshqwar.

2.Signature Rank. (Muhammad Aslqm Khan) InsPector F.P. / EXPERT.

The optnton of the expert in the cqse Co mpafTson of thumb lmpresslon of Gul Bad Shoh in Sltit No.133/ 1 is forwarded for 4,e information.

The docttments mentioned in the margin are returned herewith.

Olficer-in-Charge Finger Print Bureau, N.W.F.P, Peshqwqr."

Since the Expert has confirmed the thumb impression of Gul Bad Shah on the impugned mutation, therefore, the learned trial Court vide order dated O3.l2.2OlO dismissed suit No.133/1 filed by plaintiff and decreed suits bearing No.IlTlI and llSll Iiled by the defendants.

3.Dissatisfied with the order dated 03.|2.2OLO, the respondents liled three separate appeals before learned appellate Court, which were accepted by learned appellate Court vide judgment dated 07.O5.2OI2. It prevailed before learned appellate Court that Expert evidence is non- ) conclusive evidence regarding the fact in issue,

therefore, cannot be based for a decree, hence, the instant revision petition.

4 Arguments heard and record

perused.

5 It was on the application of plaintiff Gul Bad Shah that a particular mode was agreed between the parties to settle the issue by referring the disputed mutation for Expert opinion. Both the parties have specif,rcally agreed that if Expert confirms the thumb impression of the plaintiff Gul Bad Shah on the disputed mutation then his suit be dismissed and in that eventuality the suit of the petitioners be decreed. It was not a case of mere the evidentiary value of the opinion of Expert, indeed both the parties with mutual 4r; consent had adoPted a procedure for the

decision of their cases before a competent Court of law by referring the matter to the opinion of Expert and had agreed that opinion of the Expert would be binding on the parties and the suit shall be decided on the basis of the said opinion. Now this procedure is an express agreement between the parties which does not offend any law, therefore, on receipt of said opinion of the Expert the learned trial Court has rightly decreed the suits of the present petitioners and dismissed the suit of the respondent No.l. In this regard I am fortihed with the judgment of Honourable Lahore Court in case Hashlm Ali Vs Assho.r Ali O74 YI,R 2750 Laho l. It is unethica-l on behalf of the plaintiff/respondent to .iy'" approbate and reprobate as under the

principle of estoppel enunciated under Article 114 of Qanun-e-Shahadat Order, 1984, the respondent/ plaintiff could not change his position after the Expert report had confirmed his thumb impression on the impugned mutation. On the principle of estoppel the august Supreme Court of Pakistan in case Dr.Multammqd Jqaaid S.h.o,fi Vs Sued Rashid Arsho,d and others PLD 2075 Supreme Court, 2T2ll:aslatd:-

"In other taords, uhere a person u)llo is aggrieued of a fact, he has a ight, rather a dutg to object thereto for the safeguard of his ight, and if such a person does not object, he shall be held to haue wqiued his right to object and subsequentlg shall be estopped from raising such objection at q lqter stage. Such uaiuer or estoppel mag arise from mere silence or inaction or euen inconsistent conduct of a Persoh."

y't 6 The learned aPPellate Court has failed to appreciate tJris aspect of the case and

t2

has only relied on the evidentiary value of the Expert opinion. In view of the above, the impugned judgment passed by learned appellate Court is not sustainable in the eyes of law, which is accordingly set aside. Resultantly by accepting this revision petition the judgment and decree dated 03.12.2010 is restored.

ANNOUNCED

d

JUDGE

08.t2.2017.

Aftab P.S/* Justice Syed Arshad Ali.