2016 PLP 2 (CLCN)

ATIR MAHMOOD, J.

Through this civil revision, the petitioners impugn judgment and decree dated 20.11.2008 passed by learned Additional District Judge, Chishtian who dismissed appeal of the petitioners and maintained judgment and decree dated 29.07.2004 passed by learned Civil Judge Class-III, Chishtian whereby suit of the petitioners for declaration with permanent injunction was dismissed.

2. Brief facts of the case are that the petitioners filed a suit for declaration with permanent injunction against the respondent on 21.10.1997 with the averments that the petitioners were owners in possession of the land situated in Mari Shauq Shah Tehsil Chishtian, fully described in headnote of the plaint and that the exchange deed dated 15.08.1997 as well as mutation Nos.1429 and 1430 both dated 15.09.1997 sanctioned on the basis of said exchange deed were illegal, unlawful and inoperative upon rights of the petitioners; that the petitioners neither made any exchange deed with the respondent nor appeared before the Sub-Registrar in this regard; that value as well as area of land of the petitioners was much higher as compared to that of respondent-defendant.

3. The suit was contested by the respondent by filing written statement. Out of divergent pleadings of the parties, following issues were framed: "ISSUES

1. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD

2. Whether the suit has been filed with mala fide intention and defendant is entitled to special cost? OPD

3. Whether the mutation of exchange Nos.1429 and 1430 dated 15.09.1997, are against law and facts? OPP

4. Whether the plaintiffs are owner in possession of disputed property? OPP 4-A. Whether the exchange deed No.948 dated 15.08.1997 is against law and facts, and same is liable to be declared as such? OPP

5. Relief." The evidence led by the parties was recorded. Thereafter, learned Civil Judge, Chishtian after hearing both sides dismissed the suit of the petitioners vide judgment and decree dated 29.07.2004. Feeling aggrieved, the petitioners filed appeal which also met with the same fate vide judgment and decree dated 20.11.2008 passed by learned Additional District Judge, Chishtian. Hence this revision petition.

4. Learned counsel for the petitioners inter alia contends that since only one marginal witness could be produced by the respondent-defendant, learned lower courts have mistakenly and illegally held that the respondent has proved the execution of the exchange deed which finding offends the requirements of Article 79 of Qanun-e -Shahadat Order, 1984; that the alleged exchange deed is a result of fraud and forgery as the petitioners neither exchanged their land with the respondent nor ever appeared before the Sub-Registrar to make statements in this regard; that the scribe has admitted during the evidence, he does not know any of the petitioners/plaintiffs; that mere registration of a document does not ipso facto prove valid and lawful execution of the same; that identification of the plaintiffs could not be established by the respondent-defendant through evidence; that as per khasra girdawari uptill 2002 the petitioners enjoy possession over the property situated in Marri Shauq Shah and there is no documentary evidence that the petitioners were put in possession of property situated in Chak No.14/Gijani owned by the respondent; that non-delivery of possession strengthens the version of the petitioners that no exchange deed was executed; that value of the land of the petitioners than that of the respondent-defendant is much higher which extinguishes any possibility of exchange as the exchange is only made when two things are almost of same value; that the report of Patwari stating price of respondent's land as Rs.65,000/- per marla is neither admissible in evidence nor can be believed upon as the Patwari did not appear before the court to support the contents of the report nor the report can be considered as exclusive evidence of market value of the land; that there is also difference in area of lands allegedly exchanged between the parties; that the learned courts below have not embarked upon the proper appreciation of evidence adduced by the parties and have failed to even give any plausible reason in support of their findings; that there is misreading and non-reading of evidence; that the revision petition is barred by time as the petitioner failed to append the impugned judgment and decree of learned lower appellate court with the revision petition and subsequently placed it on record after 90 days were elapsed, therefore, this civil revision be allowed, impugned judgments and decrees be set aside and the suit of the petitioners be decreed as prayed for. He has placed reliance on the dictums laid down in cases reported as Hafiz Tassaduq Hussain v. Muhammad Din (deceased) through L.Rs. and others (PLD 2011 SC 241), Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others (2006 SCMR 1144), Ibrar Hussain v. Khalid Hussain and 3 others (2004 YLR 432 Lahore), Tariq Mahmood v. Ghulam Mustafa Shah and another (2013 SCMR 877), Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245), Mubarak Ali and others v. Khushi Muhammad and others (PLD 2011 SC 155), Bashir Ahmed and others v. Ahmed Yar Khan and others (2013 SCMR 1047), Rasheed Ahmad v. Province of Punjab through District Collector Vehari and another (2004 SCMR 707) and Muhammad Nawaz v. Muhammad Shafi and another (2006 YLR 2613 Lahore).

5. On the other hand, learned counsel for the respondent has vehemently opposed this civil revision and supported the impugned judgments and decrees. He avers that the lands were exchanged between the parties with their mutual consent; that the respondent has successfully proved lawful execution of the exchange deed by producing before the court marginal witness and scribe of the deed; that the possession of the property was also delivered to the respondent who had already cultivated his crop over the land; that the petitioners are no more owners of the land given to the respondent through exchange deed dated 15.08.1997, therefore, this civil revision has no substance and is liable to be dismissed. He places reliance on the dictums laid down in cases reported as Mubarak Ali v. Muhammad Ramzan and others (2004 SCMR 1740), Cooperative Model Town Society through Secretary v. Mst. Asghari Safdar and others (2005 SCMR 931), Muhammad Bashir and others v. Muhammad Hussain (1994 CLC 1207 Lahore), Deputy Commissioner, Pishin v. Abdul Salam and others (PLD 1993 Quetta 121), Sher Azam v. Fazle Azim Shah (1972 SCMR 649), Nazir Ahmad v. Muhammad Rafiq (1993 CLC 257), Muhammad Bibi and 4 others v. Province of Punjab through Collector, District Sialkot and another (2000 CLC 769 Lahore), Ch. Allah Bakhsh v. Karam Ellahi and 4 others (PLD 1988 Lah. 419), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291), Sh. Muhammad Sharif Uppal v. Sh. Akbar Hussain and others (PLD 1990 Lahore 229), Muhammad Bashir v. Mst. Sattar Bibi and another (PLD 1995 Lah. 321), Mst. Sahib Noor v. Haji Ahmad (1988 SCMR 1703), Raees Khan and 3 others v. Naseeb Khatoon (2006 MLD 1443 Lahore), Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCMR 336) and Muslim Commercial Bank Limited v. Syed Ahmad Saeed Kirmani (1991 CLC 140 Lahore).

6. After hearing the parties and perusal of record, two points have come on surface for determination by this Court. Firstly, as to whether the revision petition filed before this Court is barred by time as the impugned judgment and decree of learned lower appellate court was not submitted before this Court within period of 90 days and secondly, as to whether the respondent being beneficiary of the exchange deed failed to prove execution of the same by not producing two marginal witnesses of the disputed document.

7. Admittedly, the petitioner filed the present revision petition on 18.02.2009 against impugned judgment and decree dated 20.11.2008 within period of limitation i.e. 90 days. There was no objection from the Office of this Court, however, a C.M. No.867/2009 was filed on 02.04.2009 to place on record certified copy of impugned judgment and decree. The said application was allowed by this Court vide order dated 16.04.2009 subject to all just and legal exceptions. On that relevant time, C.M. No.868/2009, under section 5 of the Limitation Act, 1908, was also filed for condonation of delay occurred in filing certified copy of the impugned judgment and decree. This application was not decided and kept in waiting for decision along with the main case. It is now well-settled principle of law that the provisions of section 5 of the Limitation Act are not applicable to filing of revision petition under section 115, C.P.C. as a specific timeframe of 90 days has been given by the legislature to file a revision petition. The provisos given under section 115, C.P.C. read as under: "Provided that, where a person makes an application under this subsection, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court. Provided further that such application shall be made within ninety days of the decision of the subordinate Court which shall provide a copy of such decision within three days thereof and the High Court shall dispose of such application within six months." Bare reading of above provisos makes it clear that a revision petition is to be filed within 90 days from passing of the impugned order along with copies of the documents but there is no penal clause if the documents are not appended with the petition. Whereas in case of an appeal to be filed under Order XLI, C.P.C., non-filing of the impugned decrees is fatal. In the present case, revision petition was filed within period of limitation and the copy of the impugned judgment and decree was also placed on record but the question of limitation was not decided at the preliminary stage, therefore, I am of the opinion that after elapse of more than five years, the petitioner cannot be non-suited on this score alone. Furthermore, this Court has suo motu powers to thrash out the legality or illegality of the impugned order passed by its sub-ordinate courts and there is no limitation in this regard, therefore, I am not inclined to dismiss this petition on this technical ground. Had there been an appeal before this Court, then the matter would have been different.

8. Now I come to second point. Admittedly, the disputed document, i.e. exchange deed No.110 registered on 15.08.1997 with Sub-Registrar Chishtian was attested by two marginal witnesses namely Ashfaq Saeed and Umar Hayat, both sons of Sardar. This document was written on 13.08.1997 and then it was presented before the Sub-Registrar on 15.08.1997.

9. In order to prove the initial burden of issue No.4, the petitioner produced Karam Hussain who deposed that he was called upon by one Sadiq Dola in the office of A.C. to identify being a pattidar as some loan was being obtained. He stated that he made identification but no exchange deed was identified by him. In cross-examination, he admitted his signatures on Exh.D1 (disputed exchange deed) as Exh. D1/1. He stated that he did not know who was obtaining the loan. He also showed his ignorance as to whether Malhi, Advocate put signatures on the documents or not. He stated that the plaintiffs are still in possession of the disputed property. PW.2 Manzoor Hussain deposed that the plaintiffs are in cultivating possession of the disputed property and they have not made any exchange of their property and that Imtiaz Sadiq (the respondent) is not in possession of the property. He deposed that the property is worth of Rs.2,000,000/-. Nothing adverse to the plaintiffs could be brought out during his cross-examination. Plaintiff Muhammad Hanif appeared as PW.3 as his own witness as well as on behalf of other plaintiffs. He deposed that he and his brother Lakho are owners of 12-3/4 acres of land at Mari Shouq Shah through inheritance and have never exchanged their property with the defendants; that they came to know from some people about 3/4 years before that the suit property had been exchanged and that on inquiry they came to know that the property has been exchanged in the name of defendants, the value of which is Rs.2,000,000/- whereas the property allegedly exchanged consisting of 18 marla is worth of Rs.70,000/-. He also deposed that the entire proceedings are forged and fictitious. In cross-examination, he stated that he is illiterate and puts his thumb impression; that his brother Abdul Raheem alias Lakho can put his signatures. He denied his thumb impressions on Exh.D

1. He stated that he has no objection if his thumb impressions are sent for comparison. He also denied the suggestion that he exchanged his property at his own will. He also denied that his brother also signed Exh. D

1. No suggestion was put to this witness that he himself purchased the stamp papers of exchange deed nor he was suggested that he appeared before the Sub-Registrar for attestation and registration of the exchange deed.

10. Since the onus to prove the execution of exchange deed shifted to the respondent being beneficiary thereof, he produced DW.1 Faiz Muhammad, Record Keeper of Office of Sub-Registrar, Chishtian who deposed that he has brought the record of exchange between the parties but no record was exhibited. DW.2 Ghulam Rasool, Naib Tehsildar deposed that he was appointed as Naib Tehsildar Chishtian in August, 1997 and was Incharge of the Registry Branch; that Exh.D1 was produced before him in his room and he inquired from the parties and they accepted it as correct; that identifiers were Abdul Razzaq Malhi, Advocate as well as Karam Hussain process server of civil court. He deposed that I.D. Cards were procured which are parts of Exh.D

1. He stated that signatures and thumb impressions were put upon Exh.D1 in his presence. In cross-examination, he stated that the entire proceedings are conducted by Registry Moharrar. He denied the suggestion that all the proceedings were conducted by Moharrar and then were placed before him. He denied that he has only put his signatures. He stated that Exh.D1 bears signature of Lakho Khan. DW.3 Qazi Zahoor Ahmed stated that Exh.D1 is written and signed by him which was written on the instructions of the parties and then it was readover and signed by the parties in his presence. In cross-examination, he stated that the document was written at 10/11 a.m. He could not recall as to whether the marginal witnesses were identified by him or not. He denied the suggestion that the plaintiffs never appeared before him. He also denied that the document was never exhibited.

11. Keeping evidence of DW.3 in juxta position with evidence of DW.2, it is absolutely clear that there is a mark difference between statements of these witnesses as according to DW.3, this document was written on 13.08.1997 and it was thumb marked on the same day whereas DW.2 stated that the disputed document was signed and thumb marked in his presence. It is to be noted that process of registration and attestation took place on 15.08.1997. I have minutely examined Exh.D1, the disputed document. Signatures of DW.3 were not confronted to him nor were identified by him when he appeared in the witness box.

12. Now I come to question of production of one marginal witness for proving the exchange deed. Admittedly, one of the marginal witness. namely Muhammad Ashfaq Saeed appeared in the witness box as DW.6 and deposed that Exh. D1 was executed in his presence and he put his signatures as Exh.D1/c. This witness did not depose that the said document was signed and thumb marked before the Sub‑Registrar. According to him, this document was executed before Qazi Sahib (DW.3). The other marginal witness of this document namely Umar Hayat did not appear in the witness box. No explanation has been given by the respondent as to why he could not appear before the court. Another witness Muhammad Razzaq Malhi, Advocate, appeared as DW.5 to depose that he identified the parties and put his thumb impressions as Exh.D1/b before the Sub-Registrar. None of the witnesses other than DW.6 Muhammad Ashfaq Saeed put his signatures on the disputed document as a marginal witness. According to Article 79 of the Qanun-e-Shahadat Order, 1984, no document can be read in evidence unless and otherwise two marginal witnesses have appeared before the court to testify the same. It has been held in the judgment of the Hon'ble Supreme Court of Pakistan reported as Hafiz Tassaduq Hussain v. Muhammad Din (deceased) through LRs and others (PLD 2011 SC 241). "8. ...The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.

9. Coming to the proposition canvassed by the counsel for appellant that a scribe of the document can be a substituted for attesting witnesses: the point on which leave was also granted. It may be held that if such witness is allowed to be considered as the attesting witness it shall be against the very concept, the purpose, object and the mandatory command of the law highlighted above. The question, however, has been examined in catena of judgments and the answer is in the negative." (Emphasis supplied)

13. Keeping the contradiction in evidence produced by the respondent and relying upon the dictums laid down in the judgment of the august Supreme Court supra, I am of the considered opinion that the judgments and decrees of learned courts below are against the law, as such, the same cannot sustain in the eye of law.

14. As a result of above discussion, this revision petition is allowed, impugned judgments and decrees of learned courts below are set aside and the suit of the petitioners-plaintiffs is decreed as prayed for. ZC/M-290/L Revision allowed.