1984 PLP 461 (MLD)

(c) Civil Procedure Code (V of 1908)

S.100--Suit for declaration that plaintiff and defendant were co tenants--Suit decree on ground that rent deed was signed by both parties--Reliance was placed on Expert's report--Marginal witnesses did not corroborate the execution--District Judge confirming finding of trial Court--Held, landlords themselves having been neutral--Both parties seemed to be occupying premises by having virtually divided into two parts--Receipts of rent or services were equally held by either party did not prove decisively either's claim--It was a phenomenon conceptually accepted by, landlords without giving a clear word for or against any parties--Onus probandi lying on respondent/ plaintiff was not squarely discharged--Appeal accepted and suit dismissed. Malik Muhammad Qayyum for Appellant. Khawaja Kamalud Din for Respondent. Date of hearing: 17th March, 1984. This R . S . A . calls in question a decree dated 15-1-1981 passed by Mr. Ehsanul Haque Bhalli, Additional District Judge, Faisalabad, affirming that of the trial Court dated 21-1-1980. 2. The respondent /plaintiff Abdul Hamid sued the appellant defendant Amir Ahmad for declaration that he was a co-tenant with the latter in the impugned shop under other respondents. His grievance was that the appellant was trying to oust him from it claiming himself to be the exclusive tenant under the landlords. 3. The appellant denied the alleged co-tenancy; showed himself to be the sole tenant and pleaded that he had allowed the respondent only as a licensee due to close relationship. The suit was, however, decreed and even the appeal failed. 4. Counsel strenuously urged that the learned Additional District Judge was entirely wrong in assuming that both the parties were signatories to the rent-deed Exh.P.l. Muhammad Khan P.W.1, a marginal witness thereof unequivocally admitted in his cross-examination that neither party had signed it. The other marginal witness Abdul Ghani P.W.3 .also denied having signed it. Abdul Hamid plaintiff P.W.5 as well denied to have had signed it. It passes one's comprehension how the learned Additional District Judge, in spite of all this negative evidence, observed that both the plaintiff and the defendant were signatories to it. The evidence was seriously misread. 5. The appellant Amir Ahmad refuted to have signed the document. However, the expert opinion was relied upon to establish that it bore his signatures. A naked eye-view especially the pictorial effect of comparing the disputed signatures with the specimen, leave room to think that they were not by the same hand. There was considerable difference in regard to the letter ' Meem" of 'Ahmad' which was circular in the specimen but not in the disputed one. Besides, the letter ' Meem`' of 'Ameer' was horizontal in formation whereas that of the disputed signatures was somewhat verticle. Of course, the letters ' Ameer' were not taken alongwith the specimen. Those appeared to be a part of the disputed signatures and should have been also examined by taking specimen thereof. It was ruled in Mst.Bhagan v. Muhammad Younis PLJ 1980 Lah. 565 that the expert opinion by itself may not always be conclusive and that as a salutary rule, some corroboration of the execution of the document may be insisted upon. The oral evidence here as already indicated, did not make the mark as, either the P.Ws. themselves did not sign it, or the parties. The necessary corroboration was seriously lacking. It is on the record that the appellant got examined the document through his own handwriting expert and that the report was not formally proved. The respondent did not avail the opportunity of calling the expert concerned. At best it was an opinion which could not be relied upon unless its author was formally examined. The learned trial Court was unduly influenced by this omission. 6. The greatest damage to the respondent's case was done by his own witness Abdul Ghani P.W.3, who disclosed that he was inducted in the shop in dispute with the licence of the respondent Amir Ahmad. He was neither cross-examined nor declared hostile. Although subsequently, the respondent tried to show that he had annoyed him over his ejectment from a house, yet nothing of the sorts was suggested to him. His testimony remained unassailed. By virtue of the rule laid down in Sohrab Khan v. Abdul Jalil and 2 others 1979 C L C 62, if a party fails to get his own witness declared hostile, he remains to bell bound by his testimony. 7. It is a case in which the landlords themselves have been rather neutral. Eversince 1949, both the contending parties seem to be occupying the premises by having virtually divided them into two parts. The receipts of rent or services being equally held by either party did not prove decisively either's claim. It was a phenomenon conceptually accepted by the landlords without giving a clear word for or against any of the parties. The upshot is that the onus probandi lying on the respondent/ plaintiff was not squarely discharged. 8. For all these reasons, I am constrained to take a different view. The appeal is accepted, the judgment/decree of the learned Additional District Judge is set aside and the respondent /plaintiff's suit is dismissed. However, the parties are left to bear their own costs. M. A. K. Appeal accepted.