2017 PLP 215 (YLRN)

MUHAMMAD GHAZANFAR KHAN, J.

This revision petition is directed against the judgment and decree dated 26.04.2011 of the learned ADJ-III, Haripur whereby appeal of the petitioners was dismissed while the judgment and decree dated 12.11.2010 of the learned Civil Judge-II Haripur was upheld.

2. Brief facts as per record are that respondent/plaintiff brought a suit against the petitioners/defendants for declaration, perpetual injunction and possession to the effect that suit house comprising of three rooms, courtyard and verandah measuring 6 marlas with boundaries, fully described in the heading of the plaint, was originally the ownership of predecessor-in-interest of one Najeem son of Sadder-ud-Din. After his death, the suit house devolved upon his widow Mst. Gul Noor and two daughters, namely, Mst. Zulaikha Bibi and Khudija Bibi. After the death of Mst. Gul Noor, her share devolved upon her two daughters and two brothers, namely, Jan Baz and Fazal-ur-Rehman (petitioners herein) whereafter Mst. Zulaikha Bibi transferred her share to the extent of 3 marlas vide registered sale deed bearing No.2366/1 attested on 22.12.2008 for sale consideration of Rs.100,000/- in favour of the respondent/ plaintiff, thus he became owner of half portion of the suit house whereas petitioners/defendants Nos.4 to 11 are in illegal possession of the whole suit house and intended to demolish the same who were requested time and again to admit the share of the plaintiff/respondent but in vain, hence the suit.

3. The petitioners/defendants contested the case by filing written statement whereafter as many as 11 issues were framed including relief. To prove their pleas, the parties produced pro and contra evidence.

4. The learned trial court after recording evidence of the parties and scanning the record finally decreed the suit of the respondent/plaintiff as prayed for vide judgment and decree dated 12.11.2010.

5. Feeling dissatisfied from the above judgment and decree, the petitioners/ defendants have preferred an appeal before the learned appellate court, which was entrusted to the court of learned ADJ-III, Haripur who after hearing the learned counsel for the parties concurred with the learned trial court and dismissed the appeal, hence, the instant civil revision.

6. Learned counsel for the petitioners argued that Mst. Gul Noor widow of Najeem has transferred the suit house in favour of Mir Baz, the predecessor of the present petitioners, vide deed dated 14.04.1971 (Ex.DW-1/2) and since then they are in continuous and peaceful possession of the suit house as owners. He kept on arguing that Ex.DW-1/2 being 30 years old document carries presumption of truth under Article 100 of the Qanun-e-Shahadat Order, 1984. He fortified his view by relying upon Section 53-A of the Transfer of Property Act, 1882 and section 50 of the Registration Act, 1908. He further argued that findings of the courts below are perverse, illegal and result of non-appreciation of evidence on record, so solicited for dismissal of the same.

7. On the contrary, the learned counsel for the respondents forcefully supported the judgments and decrees of the courts below by saying that the respondents are purchasers of the suit property vide a registered sale deed Ex.PW-1/1, authenticity of which is beyond any doubt as none of the predecessors before the learned Executing Court has ever challenged the validity of said deed. He kept on arguing that besides the proved registered deed, the respondents have concurrent findings in their favour which cannot be set at naught, as under the prevailing law unless the petitioner points any illegality or material irregularity or any jurisdictional defect in the concurrent judgments of the courts below, this court cannot interfere with or disturb the judgments and decrees so passed. He further argued that on one hand there is an unregistered and unproved document while, on the other hand, a registered document, authenticity of which is proved beyond any shadow of doubt, so under the law the registered deed is to prevail on an unregistered document, so he solicited for dismissal of the instant revision petition.

8. I have heard the learned counsel for the parties and gone through the record with their valuable assistance.

9. To decide the issue, let me see the authenticity of the document which was produced by the present petitioners as Ex.DW-1/2. It is a proven fact on the record that this property belongs to one Najeem, who on his death, left behind Mst. Gul Noor, as his widow, Mst. Zulaikha, daughter and Mst. Khudija Bibi, another daughter.

10. The deed Ex.DW-1/2 through which the present petitioners derived their title is admittedly an unregistered deed. There is no dispute between the parties about the legacy of Najeem, so the house which was belonging to Najeem was after his death devolved upon his legal heirs and according to Sharia the widow of the deceased namely, Mst. Gul Noor could inherit only 1/8th share. The question arises that how even if this deed is admitted to be proved and true, Mst. Gul Noor through this deed has transferred the entire suit house. Secondly, under Article 17 of the Qanun-e-Shahadat Order, 1984 this document should have been proved by producing the marginal witnesses of the said deed. Not only that none of the marginal witnesses was produced but it is also on record that one of the marginal witnesses of the said deed namely, Muhammad Ashraf son of Gul Baz appeared as PW-3 but the present petitioners have failed even to ask him a single question about the deed Ex.DW-1/2 nor he was confronted with his thumb impression or signature put on the said deed or validity or otherwise of the said deed, so the deed referred to and relied upon by the petitioners has lost its sanctity as it has not been proved according to the dictates of law.

11. Now coming to the legal side of the case as referred by the learned counsel for the petitioners. No doubt that under Article 100 of the Qanun-e-Shahadat Order, 1984 a document 30 years old carries presumption of truth. Once its validity is challenged then, the party in whose favour, the document scribed, is under the legal obligation to prove its authenticity according to the mandate of Article 17 of the Qanun-e-Shahadat Order, 1984. In the instant case, though the document is 30 years old but the marginal witness was never produced nor when he deposed against the present petitioners, was ever confronted with such document or his signature on the same. Another fact which by now is more than settled is that a document or a transfer deed pertaining to transfer by a Parda Nasheen lady, the beneficiary has to prove its authenticity, so as discussed above, the petitioners have failed to discharge their duty in proving the document relied upon in accord with the dictates of law.

12. The learned counsel for the petitioners has also tried to take shelter of Section 50 of the Registration Act, 1908 which reads as under:-- "S.50. Certain registered documents relating to land to take effect against unregistered documents.

(I) Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of section 17, sub-section (I), and clauses (a) and (b) of section 18, shall, if duly registered, take effect as regards the property [32 S.50] REGISTRATION ACT, 1908 Comprised therein, against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not. (2) Nothing in subsection (1) applies to leases exempted under the proviso to subsection (1) of section 17 or to any document mentioned in subsection (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act. "

13. The learned counsel for the petitioners mainly relied upon the provision of section 53-A of the Transfer of Property Act, 1882 and stated that he is in continuous possession under an unregistered deed, so he is entitled to be protected under the aforesaid section of law.

14. Though the protection has been given to a person, who is in continuous possession of the property under an unregistered deed but in the instant case, this protection cannot be given to the petitioner as he could not prove the authenticity of the document upon which he is relying.

15. The provision of Section 53-A of the Transfer of Property Act, 1882 is also not attracted to the present case. The Section of law is reproduced below:-- "53-A. Part performance.

Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

16. The word used in this Section leads one to the conclusion that unless from the language and contents of document admitted or proved, if it can be ascertained with reasonable certainty that transfer has been made then, the benefit of this section can be extended, otherwise, in view of the above detailed discussion, this court is left with no other option but to dismiss the instant petition, being bereft of any merits. MQ/99/P Petition dismissed.