Haji Basheer Muhammad vs Abdul Sameer Khan

2014 M L D 1295

[Peshawar]

Before Waqar Ahmad Seth and Muhammad Daud Khan, JJ

Haji BASHEER MUHAMMAD---Appellant

Versus

ABDUL SHAMEER KHAN through Legal Heirs and 2 others---Respondents

R.F.A. No.268-M of 2011, decided on 16th January, 2014.

Specific Relief Act (I of 1877)---

----Ss. 42 & 8---Qanun-e-Shahadat (10 of 1984), Art. 79---Suit for declaration and possession of immovable property---Iqrarnama, onus to prove---Scope---Plaintiff filed suit for declaration whereas defendants filed suit for possession of disputed house---Contention of plaintiff was that he was owner in possession of suit house on the basis of sale-deed---Both the suits were consolidated and suit of plaintiff was dismissed whereas that of defendants was decreed by the Trial Court---Validity---Onus was on the plaintiff to prove the execution of Iqrar Nama which was a unregistered document through cogent, concrete and reliable evidence---No one could be deprived from his property in absence of forthright and convincing evidence---Original document had not been produced in the court at the time of recording of evidence---Statement of scribe who was servant of plaintiff did not find corroboration from any independent source--- Scribe was not attesting witness of sale-deed---Two marginal witnesses of an agreement were necessary to be examined for proving the same---Sale deed had not been proved in accordance with law---Oath Commissioner had not been produced to prove the factum of possession--- Appeal was dismissed in circumstances.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Muhammad Yousaf v. Muhammad Ramzan and another 2010 YLR 3222; Ameer and another v. Mohabbata and another 2006 SCMR 690 and Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others 2007 SCMR 1884 rel.

Abdul Sattar Khan for Appellant.

Maazullah Barkandi for Respondents.

Date of hearing: 16th January, 2014.

JUDGMENT

MUHAMMAD DAUD KHAN, J.---This regular first appeal is against the consolidated judgment and decree passed by learned Civil Judge-XIX, Peshawar dated 10-6-2011 vide which

the suit of petitioner/plaintiff was dismissed while the suit of respondent was decreed.

2.The necessary facts of the instant case are that the plaintiff Haji Bashir Muhammad (hereinafter called the appellant) filed suit for declaration to the effect that he is owner in possession of the suit house on the basis of sale deed dated 10-9-2001 and defendant (hereinafter called the respondent) has no right to deny the rights of the appellant and also sought for permanent injunction. The main averments in the plaint are that parties had joint business and appellant purchased suit house from the respondent through said sale deed and after payment of Rs.35,00000 (Thirty-Five Lac) got possession of the property along with ownership document but promised to transfer the suit house in the name of appellant in future at suitable time. Recently, defendant No.1 was asked to transfer the suit house in the name of plaintiff but he denied. On 17-7-2004, plaintiff came to know through daily `Mashriq' about misplacement of ownership document of suit house. On this plaintiff contacted the defendant but he shown himself the owner of the house and denied the sale deed.

3.On the other side, defendant No.1 Abdul Shamir filed counter suit against Haji Gula Jan and Haji Bashir for possession of the suit house and prayed for return of all ownership documents and also claimed rent @ Rs.18000 per month. Both the suits were consolidated. On the divergence of pleadings of the parties, following consolidated issues were framed by the trial Court:--

(1)Whether plaintiff/Bashir Muhammad has got cause of action? OPP.

(2)Whether plaintiff/Bashir Muhammad is estopped to sue by his own conduct? OPD.

(3)Whether this Court has got jurisdiction to entertain the present suit? OPD

(4)Whether suit in hand is maintainable? OPD.

(5)Whether suit in hand is based on mala fide? OPD.

(6)Whether suit in hand is liable to be dismissed due to non-joinder and mis-joinder of necessary parties?

(7)Whether sale agreement deed dated 10-9-2001 is fake and fictitious? OPD

(8)Whether plaintiff/Bashir Muhammad is entitled to the decree as prayed for?

(9)Whether plaintiff/Shamir Muhammad in connected Suit No.180/1 is entitle to the decree as prayed for?

(10)Relief.

Parties produced their evidence as they wished. After conclusion of trial and hearing arguments of learned counsel for the parties, the learned trial Court vide judgment and decree dated 10-6-2011, dismissed the suit of appellant/plaintiff Haji Bashir Muhammad, titled `Haji

Bashir v. Haji Abdul Shamir', as he could not prove his case through cogent and reliable evidence while consolidated suit, titled, `Haji Abdul Shamir v. Gula Jan and others', was decreed up to the possession, ownership document and rent @ Rs:18,000 per month till possession of the suit house.

4.Aggrieved by the aforesaid judgment and decree, the appellant has preferred the instant appeal before this Court.

5.Mr. Abdul Sattar Khan, the learned counsel for the appellant contended that sale effected through deed Exh. P.W.3/1 was proved in accordance with law, as ingredients required by law were fulfilled by the appellant and proved through evidence produced by the appellant, but the learned trial Court over-looked the same while deciding the important issues Nos.1, 7, 8. He further argued that the learned trial Court also did not consider the provision of section 53-A of Transfer of Property Act (doctrine part performer). He added that the appellant proved the sale deed by producing scribe as well as attesting witness, required under section 79 of Qanun-e- Shahadat Order, 1984. The learned counsel also contended that judgment of trial Court is based on mis-appreciation of evidence and misapplication of law on the subject.

On the contrary, Mr. Ma'azullah Khan Barkandi, learned counsel for the respondent opposed the arguments of learned counsel for appellant tooth and nail; and supported the impugned judgment of trial Court.

6.Arguments heard and record perused.

7.The entire case between the parties revolves around the impugned sale deed dated 10-9- 2001 and plaintiff Haji Bashir based his claim on execution of said sale deed.

8.The pivotal question for determination would be as to whether the Iqrar Nama dated 10- 9-2001 was executed between the parties and after payment of sale consideration, the possession was delivered to the appellant or otherwise?

In order to prove the execution of Iqrar Nama, which is an unregistered, a heavy burden was upon the shoulders of appellant to have produced cogent concrete and worthy of credence evidence to prove execution of the same, because in absence of forthright and convincing evidence, no one could be deprived from his property.

9.The plaintiff Haji Bashir Muhammad produced five witnesses including himself in support of alleged bargain. The bargain relied upon by the appellant, was Iqrar Nama Exh. P.W.3/1, which is an unregistered and written on stamp paper of Rs.10 and for proving the same, the appellant produced two witnesses, namely Jawad Ahmad P.W.1 and Shahid Hameed P.W.2.

The witness Jawad Ahmad P.W.1 in cross-examination admitted that Abdul Shameer was not known to him at the time of execution of sale-deed. Moreover, the original document has not been produced in the Court at the time of recording of evidence on 22-4-2010. Likewise, Shahid Hameed P.W.2, who claimed to be scribe of the deed, stated in cross-examination that Haji Bashir Muhammad is running a business of bargain and he is his worker (servant). A servant

worker, who was scribe of the impugned deed Exh.P.W.3/1, was produced as scribe and his statement does not find corroboration from any independent source. Even he did not know Abdul Shamir and was introduced by plaintiff/ petitioner, who is beneficiary of the impugned deed. For the sake of argument, if we consider the statement of Shahid Hameed, alleged scribe of the sale deed, then he cannot be considered the attesting witness according to Article 79 of Qanun-e- Shahadat Order, 1984. Reliance can be placed on PLD 2011 Supreme Court 241(c) `Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others', wherein it has been held that:--

"Scribe of a document could only be a competent witnesses in terms of Arts.17 and 79 of Qanun-e-Shahadat, 1984, if he had affixed his signature as an attesting witness of the document and not otherwise---Signing of document in the capacity of a writer did not fulfill and meet mandatory requirement of attestation by him separately--Scribe of document could be examined by concerned party for corroboration of evidence of marginal witnesses in the eventuality those were conceived by Art.79 of Qanune-e-Shahadat Order, 1984, itself not a substitute".

In our opinion, the document has not been proved in accordance with law, because it well settled law that two marginal witnesses of an agreement are necessary to be examined for proving the same. Reliance can be placed on 2010 YLR 3222 [Lahore] 'Muhammad Yousaf v. Muhammad Ramzan and another'. Wisdom can also be drawn from 2006 SCMR 690, 'Ameer and another v. Mohabbata and another' and 2007 SCMR 1884 'Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah etc.'

The nutshell of all the above is that the alleged sale deed is an unregistered document, written on a stamp paper of worth Rs.10 and scribe is servant of plaintiff; Oath Commissioner or tenant has not been produced to prove the factum of possession, because the plaintiff being beneficiary was legally bound to prove the alleged Iqrar Nama through cogent and reliable evidence, which is lacking in the present case.

For the foregoing reasons, this appeal being without force, is hereby dismissed with no order as to costs.

AG/46/P Appeal dismissed.