2007 PLP 2442 (YLR)

SYED HAMID ALI SHAH, J.--This single order will dispose of Civil Revision No.404 of 2005 titled "Muhammad Nazir and 8 others v. Allah Rakhi and another" and Civil Revision No.405 of 2005 titled Muhammad Nazair and 8 others v. Allah Rakhi". as common questions of law and fact are involved in both these petitions.

2. Petitioners instituted a suit for declaration, pertaining to House'No.3/187 in Munshi Mohalla, Mandi Bahauddin, to the effect that by virtue of oral gift and through subsequent acknowledgement dated 20-9-1980 Exh.P/1, petitioners/plaintiffs are the owner of the house. Respondent No.1, on the other hand, filed a suit that she is owner of the house in dispute vide sale-deed dated 20-9-1980 (Exh.P.2) registered as document No.509 dated 1-7-1997 and the prayer for possession was also made. Trial Court after consolidation of both the suits, framed as many as ten (10) issues, recorded evidence of the parties and thereafter on conclusion of trial, dismissed the suit of petitioners and decreed the suit of respondent No.1, vide judgment and decree dated 28-2-2004. The appeals agains the decree met the fate of dismissal, through judgment and decree dated 12-1-2005, hence these petitions.

3. Learned counsel for the petitioners has contended that both the Courts below have committed irregularity, by considering the written statement (Exh.D.1) of deceased Faqir Muhammad as evidence. The denial of gift by Faqir Muhammad deceased in the written statement, is not sufficient to dislodge the existence of a valid gift. Learned counsel' supported his contention by referring to the cases of "Mst. Maryam Mirza v. M.M. Kazi and 2 others" (1988 MLD 1651), "Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others" (PLD 1972 SC 25),. And "Muhammad Ilyas and others v. Muhammad Sharif and others" (2001 CLC 1194). Learned counsel has then submitted that written statement cannot be treated as substantive evidence. A defendant who has not appeared in witness box, his written statement has no legal value. Case of "Syed Muhammad Saleem v. Ashfaq Ahmad Khan and another" (1989 CLC 1883) was referred. Learned counsel referred to the case of "Zafar Mirza v. Mst. Naushina Amir Ali" (PLD 1993 Karachi 775) to contend that Court has to ignore assertions, made in the written statement, where the defendant has not supported the averments of written statement, through oral evidence.

4. Learned counsel for respondent No. I . on the other hand, has argued that while appearing as witness, the donee/ D.W.1 on preliminary issue supported the sale-deed and the consideration thereof. Sale-deed stands proved through the evidence of Muhammad Masood, Advocate (P.W.1) and marginal witnesses of sale-deed i.e. D.W.3 and D.W.4. Non-appearance of Nazir Ahmad/petitioner, in the witness box gives rise to adverse inference against the petitioner. Learned counsel has submitted that material contradiction in the statements of P.W. P.W.2 and P.W.4, as against the proof of sale transaction through cogent evidence, established the case of respondent No.1. Learned counsel lastly contended that concurrent findings are not open to exception in revisional jurisdiction.

5. Heard learned counsel for the parties and record perused.

6. The sale of disputed house by its owner Faqir Muhammad to the respondent No.1 through registered sale-deed dated 1-7-1997 (Exhs.P.2 and D.2) stands established through evidence of Faqir Muhammad (D.W.1), who in the course of recording of evidence on preliminary issue admitted sale and execution of the sale-deed etc. Marginal/attesting witnesses Ahmad Ali (D.W.3) and Muhammad Bashir (D.W.4) admitted sale-deed (Exh.D.2) and their signatures thereon. While Muhammad Ahmad Advocate (D.W.1) acknowledged that written statement (Exh.D.1) was filed on behalf of Faqir Muhammad. Courts below have given due weight to a registered document, which was adduced evidence in accordance with law and proved through cogent evidence of its executants and attesting witnesses. The concurrent findings of two Courts below on issues Nos.5, 6 7 and 9 are devoid of any legal infirmity hence do not call for any interference.

7. Case law cited on behalf of the petitioner, is not of any help, as the Courts below have not passed the impugned judgments/decrees solely on the basis of written statement (Exh.D/2) or on the basis of comparison of signatures. The impugned judgments and decrees were passed after properly appraising the oral as well as the documentary evidence.

8. Adverting to the genuineness of Exh.P.1 and existence of oral gift. Donor has denied the factum of oral gift and the acknowledgement (Exh.P.1). Learned trial Court compared the signatures or Executant/Faqir. Muhammad with his admitted signatures. In the course of comparison, the signatures of Faqir Muhammad on written statement (Exh. D/ 1) were compared with signatures on registered sale-deed (Exh.D.2). Learned Court found that disputed signatures oi' Faqir Muhanunad do not resemble or tally with his signatures on admitted documents. The Court has adopted permissible procedure of comparing the .signatures of Faqir Muhaimnad by itself and by resorting to the appraisal of evidence, available on record.

9. Learned trial Court while deciding Issue No.3, thoroughly examined the evidence of parties. Material contradictions were found among the witnesses of the petitioner/plaintiff. Learned Courts below have observed that P.W.S Syed Ibrar-ul-Haq who attested the document and entered it in his register, never knew the executant but only laiew Muhairunad Din, one of the witnesses of the gift: It was also noticed that P.W.S has admitted that, he while attesting the document, had not checked the National Identity Card of the donor.. Court also took into consideration that gift statedly was made against the consideration of services rendered by the alleged donees to the donor; while it is proved from record that alleged donor, spenf most of his life, in Mardi Bahauddin and Multan, being house servant with various Assistant Commissioners. .Learned Courts below after thoroughly appraising the evidence of the parties, reached conclusion, concurrently that consideration of gift had not been proved, the gift by alleged donor has been denied and that the petitioner has failed to prove the gift.

10. Concurrent findings of Courts below do not suffer from the defect of misreading and non-reading of evidence and also from wrong assumption of law. Findings thus do not call for any interference.

11. For the foregoing these petitionshave no force and are dismissedlB accordingly with no order as to costs. M.H./M-266/L Revision dismissed.