1994 PLP 151 (CLC)

(1) Whether the suit is not maintainable, not in proper form and misconceived. If so, what is its effect? (2) Whether the suit is time‑barred? (3) Whether the suit is undervalued and improperly stamped? (4) Whether the respondent/plaintiff is estopped from asking the relief claimed by her? (5) Whether deceased Amir Hassan mortgaged the suit property with appellant/defendant No.l and received RsS,000? (6) Whether respondent/plaintiff surrendered the suit property in favour of the appellant/defendant No.l? (7) Whether the appellant/defendant No.l got the suit property demolished mala fidely and took away the debris and is liable to pay damages to the extent of Rs.2,000? (8) Whether the possession of appellant/defendant No.l over the property in suit is unauthorised? (9) Whether appellant/defendant No.l got mutation of said property in his name without notice to respondent/plaintiff by fraud. If so, what is the effect? (10) Whether the possession of appellant/defendant No.l is that of a trespasser? (11) Whether the respondent/plaintiffs are the just owners of the suit property? (12) Whether respondent/plaintiffs Bite entitled to mesne profits. If so, at what rate and for what period? (13) What should the decree be? The respondent and her mother examined the City Surveyor Fazalullah Exh.18, Syed Akhtar Din, the Settlement Inspector Exh.24, and the respondent herself Exh

35. They also produced several documents. As against this the appellant examined himself as Exh.63, Qamaruddin from Settlement Department as Exh.78, Baboo Khan Exh.80 and late Mr.Jibreel Siddiqi Exh.

81. The other defendant Muhammad Shafi also examined himself as Exh.

85. The trial Court after hearing the arguments of the learned counsel for the parties decreed the suit on 23‑12‑1982. Being aggrieved the present appellant preferred Civil Appeal No.39 of 1982 which was also dismissed by IVth Additional District Judge, Hyderabad on 4‑2‑1984. The present appellant has, therefore, preferred this Second Appeal. I have heard the learned counsel for the parties. Mr. Hassan Mahmood Baig, the learned counsel appearing for the appellant has based his arguments on Issues Nos.5 and 6 only. The main contention raised by the learned counsel as is also reflected in the order of admission of this appeal is that the two Courts below have not considered the documents placed on record and their evidentiary value. The other point pleaded by the learned counsel is that the present respondent and her deceased mother were estopped from challenging the title of the present appellant in view of their surrender document and the joint statement given by them before Settlement Authorities. On the first point dealing with the documents I have perused the record and submissions of the learned counsel. The following are the documents in order according to dates on which the learned counsel for the appellant has placed his emphasis; (i) Exh.71 Mortgage Deed dated 18‑2=1961. (ii) Exh.72 Agreement of Sale dated 18‑2‑1961. (iii) Exh.73 Receipt for Rs.5,000 dated 18‑2‑1961. (iv) Exh.25 application of appellant dated 24‑1‑1970. (v) Exh.26 affidavit of applicant in support of above application. (vi) Exh.28 application, dated 22‑6‑1972 by applicant. (vii) Exh.22 Surrender Deed by two ladies dated 13‑10‑1972. (viii) Exh.30 joint statement of ladies with no date. Now I will take up each document. The first document is said to be the Deed of Mortgage. This document shows that the deceased Amir Hassan had mortgaged the suit property with the present appellant in the sum of Rs.5,

000. The contents of the Deed are not in accordance with the provisions of Transfer of Property Act as the same do not contain any clause for redemption, rather it provides that the mortgagor shall execute the Sale Deed in favour of the mortgagee. Moreover the Deed shows the consideration to be Rs.5,000 and, therefore, it had to be registered under section 17 of the Registration Act but this being an unregistered document it would not create any rights in favour of the mortgagee. In view of the provisions of section 49 of the Registration Act, similarly, the other document Exh. 72 which is an Agreement of Sale is also an unregistered document and would not create any right under section 49 of the Registration Act. The contents of this document also show that it was a complete sale. The third document Exh.73 is the receipt of above said amount of Rs.5,

000. The learned counsel for the appellant has submitted that he has examined the attesting witness Baboo Khan Exh.80. According to the learned counsel this witness has fully supported his case. This witness has stated that deceased Amir Hassan had put his thumb‑impression in the presence of this witness but this witness does not confirm the contents of the documents nor does he say that he had read these documents before signing as attesting witness, hence he cannot be said to be a witness of the contents of the documents but at the most he can be a marginal witness. Even otherwise these facts are disputed facts which had to be proved as the ladies have denied the same. Mr. Hassan Mahmood Baig, Advocate has submitted that even if these documents cannot be received in evidence by virtue of section 49 yet the same have collateral value and can be used for the purpose of proving certain facts, such as the transaction between the parties and the payment of the consideration. There is no cavil about the abovesaid proposition. However, the point is whether the said documents are proved to be genuine documents. The ladies have denied the said transaction or any knowledge thereof. In order to further support the contention, the learned counsel has placed reliance on the surrender documents of the ladies which are Exhs.22 and

30. He has submitted that the respondent Mst. Jameela in her deposition has admitted the fact that the two ladies had given certain statements before the Settlement Authorities. The deposition of respondent is Exh.35. It is pertinent to point out that in. her examination‑in‑chief, she states that when she came to know about issuance of P.T.D. in favour of the present appellant, she approached the Settlement Authorities and moved an application before them and in continuation she says in her examination‑in chief that at the instance of the present appellant she and her mother had given statements before Settlement Authorities. Obviously these statements which are referred in her evidence are not the statements given by the ladies in the proceedings initiated by respondent who had made application to Settlement Authorities. These proceedings thus would be different than the proceedings which are initiated on the applications moved by the present appellant. However, this contention of the respondent has not been challenged by the appellant in cross‑examination of Mst. Jameela and, therefore, would stand admitted. This fact finds further support when the reference is made to Surrender Documents dated 13‑10‑1972 which is Exh. 22 on the record. This document is shown to have been executed on 13‑10‑1972 and is attested by late Mr. Jibrecl Siddiqi, Advocate and Notary Public of Hyderabad. Mr. Jibreel Siddiqi in his evidence has stated that the parties and witnesses have signed in his presence. However, in cross‑examination he states that he did not know the ladies personally; and that these ladies were brought before him by the present appellant and were identified by him. In cross‑examination he further stated that he cannot say if the said document Exh.22 bears the thumb‑impression of the two‑ ladies as he did not know them. It may also be pointed out that Mst. Jameela who has been examined as Exh. 35 when confronted with this document Exh. 22 has denied the same. Similarly, the other document alleged to be the joint statement of the ladies before the Settlement Authorities which is placed on record as Exh. 30 does not stand proved as the same has not been admitted by Mst. Jameela in her cross‑examination. She has not been read over the contents of Exhs. 22 and 30 in her cross‑examination. Now the first question arises that if the Surrender Document was " executed by the two ladies on 13‑10‑1972 (Exh. 22) how could the said Surrender Document find the reference in the second application of the appellant made on 22‑6‑1972 (Exh. 28). This application is earlier in time than the Surrender Document. Again in this application it has been said that the first application moved by the appellant dated 24‑1‑1970 (Exh. 25) was prepared by some Munshi and it was that Munshi who had wrongly shown the present appellant to be sole heir of deceased Amir Hassan. This Munshi was the material witness but very conveniently the appellant has neither disclosed his name nor examined him in evidence. All these inconsistencies go to show that the appellant had made an attempt in the first instance to grab the suit property by posing to be the sole surviving heir of deceased Amir Hassan but when he was confronted by his own brother Muhammad Ishaq, he thought it to be more practicable to get the land transferred to the ladies who are the real heirs of the deceased and then have the same surrendered in his own favour. This is nothing but blatant attempt to usurp the property of two helpless, Pardahnasheen and ignorant ladies. Even otherwise in case of Pardahnasheen ladies the burden to prove the facts against them or execution of document would lie on the adversary. Reliance is placed on the case of Janat Bibi v. Sikandar Ali and others PLD 1990 SC

642. Also a similar view has been held in the case of National Bank of Pakistan v. Dawood Yousuf Methani (PLD 1978 Karachi 42). In this view of the matter even the question of estoppel would not arise. Mr. Hassan Mahmood Baig, Advocate has placed reliance on the following cases in support of his contention that in view of the two statements Exh.22 and Exh.30, the respondent and her mother are estopped from challenging the transaction of suit property in favour of the appellant: (1) 1991 SCMR 2300. (2) PLD 1981 SC 376. (3) PLD 1973 Karachi 309. (4) PLD 1969 Lahore 418. (5) 1989 CLC 1819. (6). 1986 CLC

770. I have read the above‑cited cases. In view of the facts that the ladies were neither read out their statements in cross‑examination and the fact that Surrender Document Exh. 22 is subsequent to the appellant's application Exh.28 and yet mentioned therein the same do not stand proved. In these circumstances since the statements do not stand proved the case‑law cited by the learned counsel for the appellant would not be applicable. In these circumstances, I do not find any ground to interfere with the findings of fact given by the two Courts below. Accordingly, the appeal is dismissed with no order as to costs. AA./M‑1878/K Appeal dismissed.