2016 PLP 2 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this civil revision, the petitioners/defendants have impugned the judgment and decree dated 19.07.2005 passed by learned Additional District Judge, Sargodha, whereby the appeal filed by them was dismissed, and the judgment and decree dated 12.03.2001 passed by learned Civil Judge 1st Class, Sargodha, whereby the suit for declaration filed by respondent No.1/plaintiff was decreed.

2. Briefly, the facts as leading to this civil revision are that on 03.01.1987 the plaintiff/respondent No.1 filed a suit for declaration that she is the owner of 1/3 share mentioned in registered sale deed No.687 registered on 05.12.1975. The written statement was filed and, suit was contested. Learned trial court framed issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the closing of trial, vide judgment and decree dated 12.03.2001 suit was decreed by learned trial court. Feeling aggrieved thereby, an appeal was preferred by the defendants before learned first appellate court, which was dismissed vide judgment and decree dated 19.07.2005. Hence, this civil revision by the petitioners-defendants. In this case the record was also requisitioned, which is available with the instant file.

3. Learned counsel for the petitioners-defendants argues that the suit was filed more than 11 years after the sale in favour of defendants; that even the previous suit filed by the plaintiff-respondent No.1 on the basis of same cause of action was rejected for non payment of court fee on 16.12.1986, therefore this second suit was time barred as well as not maintainable; that the sellers through the impugned sale deed (Ex.D-1) are Mst. Rukhsana owner of 1/3 of suit property, the other 1/3 is owned by Mst. Soban who is real paternal aunt of plaintiff and the rest of 1/3 was owned by Muhammad Yousaf and Nasar Hayat, who are real paternal cousins of plaintiff; that one of the marginal witnesses is the real father of plaintiff, whereas the other witness is real uncle of plaintiff whose wife was one of the sellers and Muhammad Aslam Khan real uncle of plaintiff who is also Lumberdar of the Mouza identified the parties before the Sub-Registrar; that the plaintiff never appeared in the witness box but some Fateh Khan claims to be a Kardar attorney appeared as PW-1; that the petitioners-defendants fully proved the execution and registration of sale deed; that actually the plaintiff never filed the suit of her own and on the basis of greed her cousins have filed this suit. Further states that the plaintiff failed to prove that she was minor at the time of execution of sale deed; that even the suit has been filed long after the prescribed period of limitation. While relying upon "2010 SCMR 1042 (Mehr Manzoor Hussain and others v. Muhammad Nawaz and another) and 1999 CLC 1755 (Yamin Khan and 5 others v. Rais Jhangli Khan and another)" learned counsel states that the plaintiff was able to file the suit three years after attaining the age of majority but the suit has been filed after more than three years of the attaining the age of majority, therefore the findings recorded by both the courts below are not sustainable under the law and that the possession is with the petitioners-defendants since the time of sale in their favour.

4. On the other hand, learned counsel for the plaintiff‑respondent No.1 argues that when the certified copy of birth certificate attested by the Secretary Union Council was produced as Ex.P-1, therefore it was sufficient to prove the birth of plaintiff. While relying upon "PLD 1960 (W.P) Karachi 625 (Abdur Rahman v. Abdul Haq and others)" learned counsel states that the suit was within time.

5. I have heard the learned counsel for the parties at full length and also gone through the original record available with this file as well as the case law referred to by learned counsel for the parties with their able assistance.

6. The plaintiff pleaded that she was minor at the time of impugned sale and has challenged a registered document in favour of defendants-petitioners. When the document is registered one, some presumptions are attached with that document, though the same are, rebutable but till the time the presumptions are not rebutted, it is presumed that same is validly executed and registered document. The plaintiff has challenged in her suit the validity of document. The execution of impugned sale deed (Ex.D-1) has not been denied by her. The main contention of plaintiff is that she was born on 30.12.1965, therefore the execution of sale deed in her minority was non-existent document. I have noticed that on 12.06.1988 learned counsel for the plaintiff in his statement got exhibited the copy of birth certificate of plaintiff as Ex.P-1, Jamabandi for the year 1980-81 as Ex.P-2, copy of mutation No.280 as Ex.P-3 and stated that he will got recorded the statement of plaintiff in affirmative as well as in rebuttal after the evidence of defendants. I am clear in my mind that in a case where the plaintiff has challenged the registered sale deed on the basis of her minority at the time of registration of sale deed, it was the primary duty of plaintiff to appear before the court and make a statement on oath that she was minor and she never got executed the same. Only then the defendants were obliged to prove the valid execution of sale deed in their favour, as the beneficiary of the document. Till the time a plaintiff after filing a suit challenging any instrument of transfer appears in the witness box and makes a statement on oath, the onus does not shift upon the other side, as initial onus is upon the plaintiff who challenges the validity of any instrument of transfer of property. In case in hand, there is a registered document in favour of petitioners-defendants and as I have earlier noted that a document which has been registered under the Registration Act, 1908 (XVI of 1908) in accordance with Article 85(2) of Qanun-e-Shahadat Order, 1984 it becomes a public document and further in accordance with sub-Article (5) of Article 85 of the Order ibid the registered document, the execution whereof is not disputed, is a public document and presumption of correctness attaches to the document, therefore the proceedings of registration of a document are presumed to be correct until the execution of document or its registration is rebutted. In this case the plaintiff opted not to appear or produce any oral evidence in support of her version in affirmative evidence. Any evidence which has been produced by the plaintiff and recorded after the recording of evidence of defendants, can be read only in rebuttal of evidence of defendants and not in affirmative claim of plaintiff. Furthermore, the plaintiff was obliged to appear before the court as a witness, as she has negated her personal acts of her appearance at the time of registration of sale-deed before the Sub-Registrar and further she has mainly taken the defence of being minor at the time of execution and registration of sale deed but she opted not to appear even in the witness box and one Fateh Khan was produced as PW-1 claims to be a Kardar and attorney of plaintiff, power of attorney produced as Ex.P-4. The reason mentioned in the power of attorney is that she is parda-observing lady and is unable to appear before the court. I have noticed that this power of attorney is written by Mr. Azhar Hassan Advocate, Sargodha, whereas it has been attested by Mr. Ansar Ahmad Malik Advocate as Notary Public. There is no mention in this endorsement that whether this document was written and attested by the Notary Public anywhere else from the court premises, therefore presumption is that this document was written and endorsed by the Notary Public in the court premises at Sargodha. This eventuality gives strength to the argument of learned counsel for the petitioners-defendants that actually the suit has not been filed by the plaintiff-respondent No.1 herself but her cousins got filed this suit for their own interest. Even the scrutiny of statement of Attorney of plaintiff is not fully in line with the pleadings of plaintiff. In this view of the matter, when the plaintiff failed to appear as her own witness or produce any oral evidence in support of her claim in affirmative evidence, therefore she miserably failed to prove the case pleaded by her when there is a registered document in favour of petitioners-defendants. In these circumstances, the onus to prove valid execution of registered sale deed never shifted upon the defendants when plaintiff failed to discharge her initial burden to properly dispute the document.

7. So far as Ex.P-1 is concerned, the certificate from Birth-Register prepared by the Secretary Union Council has been produced in the statement of learned counsel for the plaintiff without summoning the record or Author of this document, therefore this document is not per se admissible. The plaintiff was required to prove the entries of this document by summoning the original record from the concerned Union Council. As such, the findings recorded by both the courts below on issues Nos.5 and 6 are absolutely not only against the law but also against the evidence available on the file.

8. So far as issue No.1 is concerned, when the earlier suit filed by the plaintiff as mentioned in Para 7 of plaint of this suit that the plaint was rejected on the basis that court fee was not deposited despite the order passed by the court. I did not agree with the argument of learned counsel for the petitioners that this constitute res-judicata, rather I am of the view that in accordance with the Order VII, Rule 13 of the C.P.C. the same cannot preclude the plaintiff from filing a fresh suit but for the purposes of counting of limitation the previous suit may create hurdle in the way of plaintiff.

9. Now I come to issue No.3 which is with regard to the limitation. If the story narrated by the plaintiff in her plaint is admitted and her date of birth mentioned in the plaint be taken as correct i.e. 30.12.1965, she becomes major i.e. of 18 years of age on 29.12.1983 and in accordance with Article 44 of the Limitation Act, 1908 she was entitled to file the suit within three years from attaining the age of majority, which comes to 29.12.1986 and this suit was filed on 03.01.1987, when the plaint of previous suit was also rejected on 16.12.1986. In this view of the matter, in the light of judgments referred supra by learned counsel for the petitioners-defendants the suit was certainly filed after the prescribed period of limitation, whereas the case law cited by learned counsel for the plaintiff-respondent No.1 is not applicable to the facts of this case.

10. In the impugned sale deed father of plaintiff is a witness and along with the plaintiff her co-sellers are her real paternal aunt and her two maternal cousins, the other witness of impugned sale deed is her real uncle and the person who identified the parties is not only her real uncle but Lumberdar of Mouza also. In these circumstances, when she never appeared in the witness box and produced no affirmative oral evidence the findings recorded by both the Courts below in her favour are result of misreading, non‑reading of evidence and an instance of exercise of jurisdiction not vested in them by law, therefore, not sustainable.

11. In the light of what has been discussed above, this civil revision is accepted and the impugned judgments and decrees passed by both the courts below are set aside. Resultantly, the suit filed by the plaintiff-respondent No.1 shall stand dismissed. ZC/M-216/L Revision accepted.