2018 PLP 1692 (YLR)

Laws Cited

Representation

• ----Arts. 17, 71, 79 & 100---Specific Relief Act (I of 1877), Ss. 8 & 42---Suit for declaration and possession---Claim of share of common landed property of mothers of contesting parties devolved from their maternal grandfather---Defendants claimed right over suit property on the basis of gift deed,an old document---Proof of private (old) document---Scope---Petitioners/defendants contended that mother of plaintiff/ respondent in her lifetime gave her share to her sister/mother of the defendant through gift deed which document was not challenged in any court---Plaintiff/ respondent contended that alleged gift deed was never a gift deed even in its form and that after demise of his mother, defendant took possession of whole of suit property---Validity---Suit property was undisputedly in ownership of real mother of plaintiff, once it was admitted, the petitioners/ defendants were duty bound to prove that the same came in their possession as a result of a valid gift as averred in their written statement---Burden of proof shifted to petitioners/defendants in the light of averments of parawise written statement---Counsel for petitioners/defendants had conceded that burden of proof was shifted to the defendants, so, the sole question for determination was whether there was sufficient evidence in proof of the alleged transfer of suit property to the petitioner through a valid gift---Perusal of gift deed exhibited by defendants showed that word hibbah had not been used therein---Exhibited document was written in Persian and was a private document---Petitioners/defendants were legally bound to prove the said document in strict accordance with the relevant provisions of Qanun-e-Shahadat, 1984 governing proof of private document---Exhibited document contained names of the marginal witnesses thereto as well as the name of scribe of the same, but neither contained any signature of the marginal witnesses thereto nor the signature of the scribe---Article 79 read with Art. 17(2) of Qanun-e-Shahadat, 1984, governed the procedure of proof of a document similar to that of exhibited document---In case of non-availability of witnesses to a document, proviso to Art. 71 of Qanun-e-Shahadat, 1984 was attracted---Petitioners/defendants did not adduce any evidence in the light of said provisions of law, therefore, failed to prove the exhibited document---Petitioners had produced two witnesses who had stated with reference to what they had heard from a person who was not a marginal witness, such witness was not convincing---Impugned judgment of first Appellate Court was not result of any misreading of evidence, nor that court committed any other material irregularity in coming to the conclusion reflected in the impugned judgment---Revision was dismissed accordingly.
• Haji Mirza Ali for Petitioners.
• Sher Baz Ali for Respondent.
• 4. I have gone through the file and have heard learned counsel for parties. First of all, I am taking up some admitted state of affairs between parties. It is not disputed that suit property is or was ownership of Mst. Najaf Gul, who is real mother of respondent. In my opinion, once it is admitted that suit land is or was ownership of real mother of respondent/ plaintiff, the petitioners were duty bound to prove that the same came in their possession as a result of a valid gift as they have averred in para No.2 of parawise written statement. Burden of proof shifted to petitioners in the light of averments of para No.2 of parawise written statement. It is very important to note that learned counsel for petitioners frankly conceded that burden of proof has shifted to the petitioners. So, the sole question for determination is whether there is sufficient evidence in proof of the alleged transfer of suit property to the petitioners through a valid gift?
• 5. I, therefore, take up the evidence of petitioners in proof of transfer of the suit property to them is in the light of said gift. Learned trial court has marked the gift deed as Exh.D/A. Learned counsel for petitioners argued that the gift (Exh.D/A) is an old document, therefore, cannot be challenged in any court in the light of Article 100 of Qanun-e-Shahadat Order. On the other hand, learned counsel for respondent argued that the alleged gift deed (Exh.D/A) is never a gift deed even in its form.
• 6. I have gone through Exh.D/A, wherein, the word hibbah has not been used. Exh.D/A is written in Persian and is a private document. Petitioners were legally bound to prove the said document in strict accordance with the relevant provisions of Qanun-e-Shahadat Order, governing proof of private documents. I have noted that Exh.D/A contains names of the marginal witnesses thereto as well as the name of scribe of the same, but neither contains any signature of the marginal witnesses thereto nor contains any signature of the scribe. Article 79 read with Article 17(2) of Qanun-e-Shahadat Order governs the procedure of proof of a document similar to that of Exh.D/A. In case of non-availability of witnesses to a document, proviso to Article 71 of Qanun-e-Shahadat Order attracts. Petitioners did not adduce any evidence in light of said provisions of law, therefore, badly failed to prove Exh.D/A. Petitioners have produced two DWs, DW-1 and DW-2 in proof of the contents of Exh.D/A. DW-1 has given his statement with reference to what he heard from his father Qurban. But Mr. Qurban is not a marginal witness to Exh.D/A as the said document does not contain name of the said Qurban. DW-2 has given a false statement as to age of Mr. Sultan, a marginal witness to Exh.D/A. It is very clear from statement of DW-2 that age of said Sultan was 70 years in the year 1999 A.D. as well as in the year 1420 Hijri. Learned counsel for petitioners failed to convince the court that the same position is possible in the attending circumstances.

Judgment & Decree