Noor Ali Shah Vs Baidullah

Judgment SI: Cat

I N TI [E PESFIAWA R ILICH COURT,

IANNU BENCH

'JwIiciuf Ikpurtnwnt,.(

CR .Vo. 87/2011.

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:'%oor 4/i Slut/i Vy ll1i(/UI/t1/i 1(1/! & (/1/IC/S

1)iic oIhcarinc. 25.01.21(16

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Respøndcm b>,,,.. 4?22áA 2-

. f.'f.4 I) )'OUA'LS TJL-1 i!EEi'!, J. ihis t'viitm ptiIum ii s 11 el UI'C is directed aaiist the Md'-woll and decree dated 02.03.2011. passed b learned I )i.triet .Iudee I nkli Marwat vide which rcgiilai' civil appLal t led by p itmer at'.aiflt the jLId2nlcnI aticl decree dac'(l .3. 122009 ol Icarned civil Iudce-V 1_:ikkj 'lat It. "-;N (IISlIiISscd

Brief I:iet; ot the ease arc that petuloner iiismitti(etl ct ii suit "CCUIlL (lecrec lur (I laration to the e1ict tluu lie and priIrm;i delcmnl:uits No. 7 to $1 arc tltC oe ners

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iii possession of suit land pertaining to Khatn No.235.

Kitasra Nos. 16 & 17 and Khata No.236 Khasra Nos.

21 measuring 51 Kanal 11 MarIa vide

itputed sale inutat ion No.3449 attested on 05.06.1942 is based on ii ialzi h(Ie. Iratid. void collusive, vitIiutit pa\111cill of ctuistderuion amount and is inellective upon the ru!h(s ol plainti II an(I prolontia defendants 7 to 41 and liable to he set asick further relief Jar PSSCss 'Ott lit CtSC PhSeSSiOt) is not I)IOVed.

ilte learned trial Court summoned the

de indants. out of whoni tie defendants No.1 & 2 respondents No.1 &2 contested the suit by filing their writlen statement laisin Various legal as well is factual objections and the learned trial Court framed issues in the tiiht of divercnt pleadines of the parties.

lhiii the parti s recorded their respective evjcfeiice and all i hearing argulnent of counsel for the parties. the kaned trial Court dismissed the suit side Judgment and decree dated 23.12.2009 mainly ott the grounds that suit is badly time barred and plaintiff has g*tI

lailed In (li%l) et. htIr(leJl 01 proof ithotit the litelunt of frau(1. I )i.ssat isfl ed from the jude nicnt and decree of ' learned trial Ctttri petitioner filed regular civil appeal bcii.n'c the !ett ucd appellate Court of I)istrict Judge I.aLki Marwat hich was also tlisnitssed mainLajnjiu he find in tt of Ic am ed tr i a I Court v ide j udgn) en I and

decree dated 02.032011. hence the inst ant civil revision petition.

5.The learned counsel for petitioner argued that it is ptoved on record that veril'ving witness Feroz Khan Stut of ()a,a l.ilt:io lat ttl)ill(laI ' as not I .aitthardai Of %I(Iya Sheri KihIil "ho died before the year 1925 and 11 WV a dead man yen fled the mutation in the year 1942 hence alleced fraud has been proved; he further added that possession of suit land is with petitioner and prolorma deIindaItt a'l(l in this respect important and coe.ent evidence escaped the judicial notice of loth the learned Courts below so needs inter(rence of this Court and pra\ ed for acceptance instant petit ion and decreeing of his suit l'eliaiice was placed on the cases

201 ICLC

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1938. 2013 CLC 499, 2014 CU' 134 and 2015 CLC

6.On the other hand, the learned counsel br respondents argued that suit ol plaintiff, is Irivulons, bdlv time htned. his predecessor did not challenec the sak mutanon No.3449 and has not expressly alleged in the plaint that how, when, by whom and with whose ciii hiioii fraud was coin;niued so they failed to sliseharce initial burden of' proof rather admitted that sonic 30 years aeo his predecessor was in knovlecicc of iniii'iicd sale inulalunul but t:uled to bring on record 111,11 lie during his lit'ctiinc had challenged it by institutitie civil suit so both the learned Courts below decided tile us according to evidence on record ahler proper apprecial on of cvi ence and law in its tulie perspective .\hoi cover, the person who verifled the mutation was i• cray. Klian and his parentage had not been ci v'n in the imitation so this argument is not worth consideration and prayed for dismissal of petition with

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).aI.wa,iIltzh ('nfl.

COStS. Reliance k placed of) the case law

PLD 2008 SC

57/, 2009 SC'.ii: 598.

.\rIi:ttens heard. considered and record tli Va) nab) c a ist a nec of both learned Con nsel perused.

From the pentsal of record it reveal that mutajon No.3449 attested on 05.06.1942 EXPW 1 / I is sale mtitatjo which was then entered by the Patwari i ld oil 27.03.194 1 and the t)\vf)Lrs mentioned in column No.4 immelv Abclullah Jan. Mir Jan Sons of Mir Qalam .'\va,. Khan. Mir Adam, Anaullali and Nizarn sons of Few,. Khan alienated their share, total IncastIrin SI Kanal II Maria in lieu of sale consideration of Rs.35 in favour of Ghulam son of A,am vende&•. the predecessor oC present respondents No.1 &2 ineludin others except proforma respondents.

This mutatjcm No.3449 WaS yen lied by one Feroz Khan Malgo,ar on 22.04.1941 at Khairo Khel in the public achcr while revenue oflicer attested the same on q.jnti

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It is pertinent to mention that only

petioner Noor i1i Shih son of Mir Adam had chalIefle(l tile sale mutation No. 3449 whereas legal heir of other vcndrs namely Abdullali Jan, Mir Jan sons Of hlir Qadam. Aai Khart. Altaullab and Nizam had neither challenged the suit mutation nor submitted their written statement nor appeared in the witness bo_s in suppon of son of one of vendor \Mir Adam which gives rise a Stromg adverse inkrence against the petitioner.

the other question for determination is as to \ hether sonic old sale transaction could be challenged on the plea of Iiaud and whether initial burden of proof is upon the beneficiary or in view of mw en saged undcr Article 117. 118 he who alleges fraud is lust hotIIl(1 to prove the said tactum 01 fraud. So to determine the above proInsition it is nccessa!y to reproduce .\rtiele I 17 of Qanoon-e-Shaha(tat as below:

proof. IJ'/wcvcr desires wit Court to give jitilgineizi as to our Ie'q/ rig/it or luthililt depen dciii on i/ic

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existence of fads u/jjc/ he asserts, ,,:s,st prove 111(11 tho..c'fact.v exist.

(2)Jf'/,en a person is bowul 10 prove the e.vi.rtence of an fact, it is said that the burdt',, of /Jriwf lies on that person.

Ace rdine to above provision of Qanoon-e-Shahadai it is mandatory 1-6, a pat-tv ho alleges fraud in his pleaclins the but den oi proof initially is upon the shoulders of that puiv. Secondly, the party shall have to allege fraud by narrating its all particulars in an expressed manner in the plaint and then prove it by prod ewe cogent. believable and conttdence inspiring evidence. In this respect case titlC(1 Msthwnnwd So/cent I'S :1i1li(tflZ/fl(id Tariq (2009 CLC 1295), Noor SIu/:a,,,i,:ad Vc Jamal Din and others (2002 CLC 305) and S1u/zam,nad & others i's i1st. ifunatvar ftp: & others 2009 SCMR 598) are referred for reliance. So in the instant case plaintifFpetitioner failed to discliargt \\ initial onus to prove alleged fraud and defendant rcpondcnt had proved sale mutation No.3449 by proLlucine revenue record kept and maintained by the

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revenue deP.Irtillent. therefore the entire burden of proof could not be only put on the legal heirs of original vendees to produce evidence regarding a transaction atier the lapse ot 50 years.

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II. The main stance of plaintiff is that he had dischartcd burden of proof by placing on record inheri lalice mutation No.1981 of Ferox Khan son of Qaza Khan attested on 25.03:1925 EXPWI/2. So from this documentary evidence it has been proved that Fcroz Khan son ut Qaza Khan died prior to 1925 and the disputed mutation No.3449 was attested in the year 1942 duly veri lied by one Fetox Klian son of Qaza Khan \1)iCh iS not tenable as the impuncd mutation No.3449 reveals that it was yen lied on 22.04.1941 by one "Feroz Khan Mahzozar Deh of Moui.a T.ibbi Murad and was not verilied by Feroz Khan son of Qaza Khan,

12.The record lunher reveals that the father of \ the vendors .\vaz Khan. Mir Adam, Attaullah and Ni/am was also Feroz Khan. During cross-examination P\V I :\l)K N r luhatrad produced Jamabandi b (•h.'.r

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rclatina to Khata No.78 for the year 1942-43 placed on record as FXI'\VI DI wherein one Fero7. Khan son (il Muhammad I lavat Khan is emered as Malozar. This 'iicssadjnittcd that on mutation No.3449 the parenta2e ofFeroz khan had not been given.

13.From the record it divimlees that (here ale three perons havinmz same name i.e. Fcroz Khan.

I)Fe roz Khan son o F Qaza Khan N ambardar 1 abbi i u rail.

ii)Ferox Kh am son of M.,hammad Havat Khan.

FC07 Klb.n lhthcr of vendors ,\vaz Khan. Mit Adam. Atuiullah and Nizam but as alleged by plaint ill that imputnccl s:tk mutation No.3449 was verilied by l:crO:, Khan son of Qa'a Khan has not been proved by roducing oral or documentary evidence that the yen her was saute Feroz Khan SOfl ot' Qaza Khan. Moreover, when I3aidullah Jjn appeared in the witness box as 1)\V I who was not cross-examined b plainti if from this anlc for distinction. Similarly the othcr witnesses produced 1w plaintiti also did not mention the above (uwfl, wa

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peculiar di.,iincilon by rcmainini adhered to the fact aIiccd in the plaint that vcrifvine v1a1ozar l<han son of Qaza Khan who died in the year 1925. The plainti failed to brini on record about the death cerli Ijeates or other tantiblc evidence showille other two persons h ,-Will-a same name of Feroz Khan were also dead and that Fcroz Khan "ho yen lied the mutatton was :ictuallv son of Qaza Khan. So Iindins of both the learned Courts below that phainti ft has failed to jrove the hietuni 01 liauid are based on proper appreciation of eVi(hCnCe on record and law

14..1 he other important aspect of the case dealt wit Ii 1w h ith the learned Courts below is rciardiiui tion- appear;ince of plainti Ii -, IN his 'vi mess rathcr Ii is son Rajan Shah appeared as l'\\'-1 . therefore adverse inhrencc could stronlv be drawn against the plaintill under Article I :9(g) of Qanoon-e-Shahadat 1984. In this respect reliance is placed on the judgment of (.ahore II ih Coun in case titled A'oor :tu/w,mnad Vs wHIst% (ort.

Janu,1 1)1,, ,.' otIie,s (2001/ CLC 505) the rchcvani p:ir:trajh 01 ci ed judemem is reproduced as belosv:

"1/it' failure of J.Il(ii/i(Iffc particsdarlj' of pl(zuis'sffc Var. 9 and 10 to enter the witness box and to explain the /wis clear/r isoi- .vsi,(cd t/seni as bat/s of thein st'ere the 0/li)' iiVUnf persons who could support the facts den in the p/a/in or con/ti c.vplain the rcu.soiss for (lie eXc'cllIjoij of 1IOC1II?Ie,jf.s soul tlidr silence for (1 periwl nJ 20 loisq veers. Jo re;.fs1.K/,( ,/,_ ul-:Visa and 6 of/seTs F.V .!tilik :1l1li(t1)7/?i(ld!c/saq and two ot/ser.r PLI) 1972 SC 25, I/,c'ir lords/i/ps of the Suprcme Court quoted with fm,our a part of the Jiiic/ii:q recorded ht' I'eshait'ar i/tb'1? Court in rs';/iaj/ .-1/x/u//uis A/mis and ollser.v Vs V/var .iUh5a/,l/fla(/ K/ill/i (i/itt others PLO /959 !'esis.S/. Their lards/sips found (/1(11 principle eiiii,iciuted in that (ICCiS/ols was correel. Earlier the Pcs/san'ar 1-Jig/s Court obss't't't/ tic zs,s(I('r "It ic U seCtld 1 it , that it is the l)ou,i,k'tl duty of a party personally knowing the It ,l i ole ciIcsJ,,Sstonce of the COSC to give ecu/tact' on his belie/f and to sisbu: /( to CIOS.V-cjX(lFlij,JO(jofl Ills 110/5 (IPJ)CO/O5iC' (S.c Ci tVIt!ILSS v.oithf be the strosujcs( possible circSJ,,lsta,ice going Co discredit."

I . I)urine. crs-c.xan1iiiaiji 1)\V4 Rajan Shalt admitted that lie had seen his randhtther i.e \J5dØ Mir :\daiu. I he hirthier admitted that his rk

umndl'idier did nut c}iahIcne impuviied sale mutation during his hiliime and deposed that .\hir Adziin was in Ytfh1 Coovi,

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kovde of the impuned mutation. Relevant portion of cr -examination is reproduced below:

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10.I hus. From the imboe discusxed pusitiou, it is held that the suit of plintilI was rightly adjudged by both the learned Courts below as time barred and had properly evaluated, appreciated and considered the evidence on record to which no exception could be taken. Moreover, no illegality. misreading or non- reading of evidence could he pointed out by the petitioner, thus this petition being herell of merit, is dismissed.

,•l1/7Ol11Ct'(/:

JUDGE

CERTIRED TRUE COPY

Authoric ......r Aci.cte gl of Tho Ganun-e-Shauiat Clidw 11