2008 PLP 1639 (MLD)

MIAN SAQIB NISAR, J.

R.F.As. Nos. 113 of 1994 and 153 of 1994, are being decided together, as both involve common question of law and facts.

2. Briefly stated the facts of the case are that, on 16-9-1986, the appellant filed a suit for declaration seeking confirmation of his possession and title over the piece of land, measuring 11-1/2 marlas, situated in Chak No.285, Main Bazar Rajana, District Toba Tek Singh (hereinafter referred to as suit property). The case of the appellant is that out of the suit property, he has purchased 6-1/2 marlas of land from the respondent through sale-deed, dated 12-4-1954 (Exh.P-5) and for the remaining 5 marlas of land he has paid consideration to the respondent amounting to Rs.300, vide receipt Exh.P-1, dated 20-3-1952, which contemplates 1/4th payment of the consideration, whereas the remaining amount of 3/4th was subsequently paid through instalments. It is further the case of the appellant that he had made construction over the entire 11-1/2 marlas of land by raising 10 shops, 6 Chaubaras and 3 Almaras. In this way the appellant claims to be the exclusive owner of the entire land together with the superstructure raised thereon. The defendants contested the suit by way of filing the written statement, thereby controverting the allegations/assertions made in the plaint, raising some legal objections and, inter alia, pleading that the appellant is not the owner of the suit property nor he raised any construction. The respondents also filed a suit for possession regarding the shop known as "Chaudhry Cloth House" on the basis of ownership. It is alleged by the defendants that they are owners of land measuring 213 kanals 12 marlas; they have constructed shops and chobaras in killa Nos. 3, 4, 7 and 8 by spending huge amount and they rented them out to different persons. It was the case of the defendants that one of these shops is in possession of the appellant. The defendants, firstly, filed a suit for ejectment, wherein the appellant denied the relationship of landlord and tenant, which suit was ultimately dismissed and the appeal was withdrawn by the respondents with the permission to file a suit for possession. In these circumstances the respondents filed a suit for possession regarding the shop in question. This suit was contested by the appellant by way of filing the written statement.

3. The learned trial Court consolidated the aforenoted suits and the following consolidated issues were framed:-- (1) Whether the suit is not maintainable in its present form? OPD. (2) Whether the plaintiff has no cause of action and locus standi to file this suit/OPD. (3) Whether the suit, is bad for mis-joinder of causes of action? OPD. (4) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD. (5) Whether the suit is incorrectly valued for the purposes of court fee and jurisdiction, if so, what is correct valuation? OPD. (6) Whether the suit is time-barred? OPD (7) Whether the decree in favour of the plaintiffs based on fraud and ineffective upon the rights of the defendants? OPD. (8) Whether the defendants are entitled to special costs? OPD. (9) Whether the plaintiff is owner in possession of the suit property? OPP. (10) Whether the plaintiff is entitled to get decree for possession against the defendants? OPP. (11) Whether the plaintiff is entitled mesne profits of the suit property? OPP (12) Whether the plaintiff had raised construction in the suit plot, if so, its effect? OPP. (13) Whether defendant Nos. 27 to 43 are tenants under the plaintiff? OPP. (14) Whether the suit of Muhammad Ibrahim is bad for mis-joinder and non-joinder of necessary parties? O.P.M. Siddiq etc. (15) Whether the suit of Muhammad Ibrahim is under value, if so, what is correct valuation? OPD. (16) Whether Muhammad Saddique are entitled to special costs? OPD. (17) Whether Muhammad Ibrahim is estopped by his conduct to file this suit? OPD. (18) Whether Muhammad Ibrahim etc. are entitled to get decree for possession regarding shop known as Ch. Cloth House? OPD. (19) Relief. The appellant produced 12 witnesses and himself appeared as P.W.13. Additionally, he produced documentary evidence, which was exhibited as Exh.P-1 to P-14. The defendants produced four witnesses and also produced some documents, which were exhibited as Exh.D-1 to D-10. After recording the evidence, the suit of the appellant has been decreed to the extent that he had purchased the land measuring 6-1/2 marlas through registered sale-deed, dated 12-4-1954, while his case for the remaining 5 marlas of land has been dismissed and it has been held that the superstructure over the aforesaid land has been raised by both the parties, therefore, the parties being the joint owners of the property may seek the remedy of partition, vide trial Court's judgment and decree, dated 8-3-1994. Both the parties aggrieved of the aforesaid judgment and decree have filed the _present appeal (R.F.A. No.13 of 1994) and also the cross objections, which have been treated as R.F.A. No.153 of 1994.

4. Learned counsel for the appellant contends, that the Court below, has absolutely misread the evidence on record in concluding, that the appellant, had not purchased the land measuring 5 marlas, out of the suit property, through receipt Exh.P-1, and finding that such receipt has been proved, is based upon erroneous reading of the evidence. It is also stated, that the appellant, had raised the superstructure over the suit-land by exclusively spending huge amount without any contribution having been made by the respondents, therefore, at least to the extent of the superstructure, being belonging to him, he is full-fleged owner thereof, resultantly, no question of joint ownership and partition of the property arises in the matter. It is contended, that according to Exh.P-5, Ihata No.55, was sold to the appellant, and this fact has been admitted in the written statement by the respondents. It is lastly stated, that if it is found that the receipt Exh.P-1, is a genuine document, and his suit for declaration was not competent, in that eventuality, this Court, under Order VII, Rule 8, C.P.C. may grant the relief of specific performance of the agreement on the basis of Exh.P-1.

5. Learned counsel for the respondents states, that the findings of the learned trial Court on Issues Nos.2 to 9, are absolutely in consonance with the law; he has taken us through Exh.P-1, the receipt, to show that there is interpolation about the killa number, and this is also substantiated by the judgment of this Court in W.P. No.467 of 1983, dated 18-2-1984 (Exh.P-6 = Exh.D-10). Thus, on the basis of the above, it is stated that the receipt is absolutely bogus and has correctly been so relied by the learned trial Court. As regards the sale-deed, dated 12-4-1954 (Exh.P-5), regarding 6-1/2 marlas of land, it has been pointed out that the appellant earlier had filed a suit for declaration against the Government at Faisalabad, though the property was situated at Toba Tek Singh and the Faisalabad Court, did not have the jurisdiction, thus, according to the learned counsel this was done with an object to fraudulently procure a decree for the title towards 6-1/2 marlas of land. Lastly, it is submitted, that in the impugned sale-deed, the square number has been mentioned as 7, killa number as 2/71 and Ihata number as 55, which do not correspond the property in dispute between the parties.

6. To our mind, the crucial question, which has arisen for determination is as to whether the appellant/plaintiff had purchased the land measuring 5 marlas through receipt, dated 20-3-1952 (Exh.P-1) and as to whether the said receipt has been proved in accordance with law. In this context, we have examined the receipt (Exh.P-1) from the original record and find that there is apparent manipulation in killa number in the said receipt. In line No.3 of the said receipt, killa number is illegible, as number of killa appears to have been scratched from the said receipt. We have observed that after the word "Killa Number", the number has been purposely erased so that it cannot be read. Copy of the said receipt, annexed with the paper-book, also shows the same tampering in killa number, as one cannot read killa number from the said copy of the receipt. We have also called for the original record of the constitutional petition (W.P. No.467 of 1983), filed by the appellant, against S.H.O., with the prayer that S.H.O. may be directed to register a case against the persons mentioned in the petition. The said petition was filed, on 2-2-1983, and the same was allowed .by this Court, on 18-2-1984. From the record of the said writ petition, we find that the appellant has submitted a copy of the same receipt (Exh.P-1) as Annex-A to the writ petition, which clearly manifests that killa number, which has been scratched from the original receipt, as noted above, can easily be read, which is "8". While the case of the appellant, as made in the plaint, is that he is owner in possession of land measuring 11-1/2 marlas (which obviously includes the land measuring 5 marlas allegedly purchased by the appellant through the receipt, under discussion) comprises is square No.2 of killa No.7 and not killa No.8. It would be appropriate to reproduce portion of the prayer of the appellant prayed in his suit, which reads as under:-

7. It is evident from the above narrative that the receipt Exh.P-1 was forged; clearly manipulated and was prepared by the appellant to grab the land measuring 5 marlas under the cover of the said receipt, which clearly relates to killa No.8 and has no nexus with killa No.7. The appellant, by forging the said receipt, so as to make it killa No.7 by removing the actual figure of "8", tried to take advantage of the said receipt.

8. Besides the forgery and manipulation, apparently committed on the said receipt, the beneficiary of which, obviously, is the appellant, the next question would be as to whether the appellant has been able to prove the execution of the said receipt in accordance with law. In order to prove the execution, the appellant has relied upon P.W. and P.W.2. Scribe of the document, namely, Abdul Ghafoor has died, the appellant has produced P.W. who claims himself to be the nephew of the deceased and he tried to identify the hand writing of his uncle on the receipt (Exh.P-1). Notwithstanding the fact that Abdul Ghafoor scribed the said receipt, it has been proved on record that he was not authorized by the alleged vendors or competent under the law to sell, transfer or even enter into any agreement, to sell on behalf of the original owners qua the land in question. In view whereof, even if it is proved that Abdul Ghafoor in fact, scribed that receipt, even then it would be of no avail to the appellant on account of incompetency and lack of authority of Abdul Ghafoor to sell the said land. P.W.1 has also admitted that the receipt is undated and that it does not bear killa number. P.W.2. although claims that he has signed Exh.P-1, yet admits that "(But at this time I can't see my signature)". In the above perspective, we have examined the judgment of the learned trial Court and find that it has rightly declined to rely upon the genuineness and authenticity of Exh.P-1 and on the veracity of P.Ws. 1 and

2. We are of the view that the receipt appears to be scratched, forged and fabricated and additionally, the appellant could not prove the execution of the said receipt, therefore, it cannot be legitimately argued that the plaintiff/appellant is the owner of plot of 5 marlas in killa No.7 of square No.2, on .the basis of Exh.P-1. Findings of the learned trial Court to that extent are unexceptionable and we are not inclined to interfere in those findings, thus, the same are maintained.

9. In order to substantiate his claim, as owner, qua the property in. dispute, although the appellant produced certain documents, such as certificate from WAPDA, electricity bills and assessments made by the Income Tax Department, before the learned trial Court, yet we are of the view that those documents do not constitute sufficient evidence to prove the appellant's ownership qua the property in question, especially when it has been proved on record, as noted in the preceding paragraphs that forgery has been committed in the receipt Exh.P-1. It has rightly been held by the learned trial Court that these documents are not conclusive proof of ownership. In the above perspective, we are of the view that those documents are of no avail to the appellant and have rightly been discarded by the learned trial Court.

10. Now coming to the other limb of the case relating to the ownership of the appellant in respect of land measuring 6-1/2 marlas on the basis of sale-deed, dated 12-4-1954 (Exh.P-5). We have examined the sale-deed and find that the appellant purchased the land measuring 6-1/2 marlas from Allah Bakhsh, Ghulam Muhammad, Ghulam Rasool and Muhammad Sharif for consideration, through the said written instrument, which was numbered as Dastawaiz No.144, dated 12-4-1954 and registered. It appears to be a straightforward transaction of sale. Additionally, the said sale-deed was never challenged either by the respondents or any other person, therefore, the presumption is that the same is a valid document conferring valid and legal ownership rights upon the appellant qua the land mentioned therein. We also find a copy of judgment and decree, dated 9-7-1979 (Exh.P-4) on record passed by the learned Civil Judge. Perusal of the said document manifests that the appellant, claiming to be the owner of the said land measuring 6-1/2 marlas on the basis of the aforenoted sale deed, re-enforced by the mutation No.208, dated 21-5-1954, filed a suit against the Province and revenue department, thereby seeking a decree directing the defendants to incorporate the ownership of the plaintiff in the jamabandi in respect of 6-1/2 marlas of land and the learned Civil Judge, on 9-7-1979, passed a decree in the following terms:-- "Accordingly I hereby grant an ex parte decree to the plaintiff against the defendant that the plaintiff is the owner in possession of the suit-land and the defendant is under a legal duty to incorporate the name of the plaintiff in the register of jamabandi. Parties are, however, left to bear their owner costs."

11. Additionally, we do not find from record any document or evidence to show that the respondents ever availed any remedy for the reversal of the said judgment, despite the fact that it was in their knowledge. Although the respondent were not party to the sale transaction or the decree, yet after attaining knowledge, if those documents were prejudicial to their rights in the property, they could have easily availed the appropriate remedies for the annulment of aforenoted documents.

12. Above narrative leads to an irresistible conclusion that the appellant is owner of the property in question to the extent of 6-1/2 marlas, moreso when immediately after the execution of the sale-deed (Exh.P-5), mutation No.208, was attested, on 21-5-1954, which documents still hold the field as the same were not challenged.

13. We have perused the findings rendered by the learned Civil Judge on Issues Nos. 2 to 9 and find that those do not suffer from any legal infirmity, thus, the same are maintained.

14. We have examined the impugned judgment and find that the learned trial Court has exhaustively embarked upon all the issues involved in the case, appreciated the oral as well as documentary evidence on record in its true perspective and has reached to the proper conclusions, which to our mind are not open to exception. The learned Civil Judge, in detail, discussed each and every aspect of the case and documents on record and after believing or disbelieving the same passed the impugned judgment. We have also perused the evidence produced by the parties in juxta position with the findings given by the learned Civil Judge and are of the view that the inferences drawn by the learned trial Court are in accordance with the evidence on record. The finding rendered by the learned Civil Judge are not only in accordance with the record of the case, but the same are also inconsonance with the law on the subject.

15. We are of the view that the impugned judgment is legal, unexceptionable, apt to the facts and circumstances of the case and does not call for interference by this Court, thus, we are not inclined to unsettle the well reasoned judgment. The findings of the learned trial Court on all the issues are confirmed and the impugned judgment and decree is hereby maintained. Upshot of the above discussion is that both the appeals are devoid of merits, thus, the same are dismissed with no orders as to costs. M.H./M-2168/L Appeal dismissed.