1992 PLP 807 (CLC)

‑‑‑‑S. 123‑‑‑Civil Procedure Code (V of 1908), 5.115‑‑‑Validity of gift‑‑ Concurrent findings of Courts below were not shown to have suffered from any material irregularity and illegality such as misreading, non‑reading or mis construction of evidence‑‑‑Such finding did not warrant interference it revisional jurisdiction. Ch. Muhammad Farooq for Petitioners. Syed Ashiq Hussain Rizvi for Respondent. Date of hearing: 18th November, 1991. This revision petition is directed against judgment and decree dated 4‑2‑1988 passed by learned Addl. District Judge, Toba Tek Singh by which the appeal filed by the petitioners against judgment and decree dated 13‑9‑1987 passed by the learned trial Court decreeing the suit of respondent has been dismissed.

2. The dispute relates to land left by Alawal deceased. ‑Alawal deceased had two wives namely Mst. Bakht Bhari and Sahib Bibi petitioner No.1 Respondent is the son of Alawal from Bakht Bhari whereas petitioners 2 to 6 are his sons from Mst. Sahib Bibi petitioner No.l. According to the petitioners Alawal deceased through gift‑deed executed on 12‑3‑1976 and registered on 15‑4‑1976 gifted the land in dispute in favour of Mst. Sahib Bibi. The respondent filed suit before the learned trial Court in which he challenged the gift‑deed and its registration. It was pleaded in the plaint that Alawal who was an old man was under the influence of petitioners because he was residing with them and the said gift‑deed, its registration and mutation sanctioned in pursuance thereof were collusive, fictitious, forged and ineffective against his rights in the land as one of the heirs of Alawal. The plaintiff's case was that Alawal had already died and another person was produced before the Sub Registrar to impersonate him and the gift deed was got registered. The suit was contested by the petitioners who alleged that the gift‑deed was executed and got registered by the deceased Alawal. Their case was that Alawal was alive on the date when the gift‑deed was got registered.

3. The learned trial Court framed comprehensive issue No.l. regarding controversies raised in the pleadings which is to the following effect:‑ Issue No.l: Whether the registered hibanama dated 15‑4‑1976 and Mutation No.75 dated 11‑10‑1976 in favour of defendant No.l are illegal, void, fictitious, fraudulent and have been procured by producing a fictitious‑ person are ineffective qua the rights of the plaintiff? OPP.

4. The respondent/plaintiff examined Zulfiqar son of Umar Hayat as P.W.1. Sardara son of Mehnga as P.W.2 and he examined himself as his own witness as P.W.3. The documentary evidence produced by the plaintiff consists of copy of mutation Exh.Pl, copy of register Choukidara Exh.P2, copy of register gift‑deed Exh.P3 and copy of register Haqdaran for the year 1972‑73 as Exh.P

4. As against this, the petitioners examined Lai Khan son of Gahnav Khan as D.W.1 and one of the petitioners namely Haq Nawaz examined himself as his own witness as D.W.2. The petitioners also produced in evidence the original gift‑deed as Exh.D/1.

5. The learned trial Court after careful and elaborate appraisal of evidence produced by the parties held that the plaintiff had established beyond any shadow of doubt that the impugned gift‑deed was executed after the death of Alawal deceased while producing another person in his place. It was also held that the impugned registered gift‑deed as well as mutation was forged, void and ineffective against the rights of the plaintiff. The suit was decreed through judgment dated 13‑9‑1987 which was assailed by the petitioners before the learned lower appellate Court by filing appeal which has also been dismissed through judgment and decree dated 4‑2‑1988. The learned lower appellate Court upheld the finding of fact recorded by the learned trial Court which has been challenged in this petition.

6. The plaintiff produced evidence to establish that Alawal died on 21‑3‑1976. P.W.1 supported him in this respect who stated that the parties were related to him. 1t is m his evidence that Alawal died on 21‑3‑1976 and that he was about 100 years old and was not in a position to walk. The correctness of his statement that Alawal died on 21‑3‑1976 was not specifically questioned in the cross‑examination. No suggestion was put to him that Alawal was not 100 years old and that he was in a position to walk about. P.W.2 is the Choukidar Chak No.185 where the land is situated and Alawal resided. He produced register Choukidara regarding death entries who stated that in respect of death entry of Alawal there was overwriting which was done by Nawaz one of the pensioners/defend4nts. The plaintiff himself when appeared as his own witness stated that his father Alawal was 100 years old who could not walk and that he died on 21‑3‑1976 and the date on which the gift‑deed was registered i.e. on 15‑4‑1976 Alawal had already died. In the cross‑examination it was suggested on behalf of the petitioners that Alawal died on 21‑4‑1976 from which it is clear that according to the petitioners Alawal died on the said date. Exh. P2 which is copy of register of deaths maintained by Choukidar of the village from which it is. apparent that on the date 21‑3‑1976 regarding death entry of Alawal deceased there is overwriting. The original register was produced before the learned trial Court. 1; also before admitting this revision petition summoned the original register which is available even today. It is abundantly clear from the relevant death entry of Alawal in the said register that figure 3 in the date 21‑3‑1976 has.been over‑written and instead figure 4 has been put in order to' show that death of Alawal took place on 21‑4‑1976. The original figure 3 appears to have been written with the same ink which tallies with the ink used for the other entries regarding his name and figures 21 and 76 whereas figure 4 has been written over figure 3 with different ink. There are sufficient reasons to hold that the entry was made on 21‑3‑1976 as the next entry regarding death of some other person has been made on 24‑3‑1976. If Alawal had in fact died on 21‑4‑1976 there was no question of recording his death entry over the death entry of 24‑3‑1976. The entries made in this register were checked by some Officer Incharge, on 30‑3‑1976 under his signatures therefore, it can safely be presumed and held that death entry regarding Alawal deceased was made on 21‑3‑1976 and not 21‑4‑1976. Apart from this entry in the relevant register the evidence of P.W.1 who is relative of both the parties is available to the fact that Alawal died on 21‑3‑1976. No sufficient evidence to rebut evidence of P.W.1 and entries in the death register has been produced. It is in the evidence of e t plaintiff that he was about 60/70 years old. One of the defendants namely Nawaz when appeared as D.W.2 did not state in the examination‑in‑chief that Alawal died on 21‑4‑1976, rather he did not state at all as to on which date Alawal died. He denied that the plaintiff was related to him in an attempt to deprive the plaintiff of his right of inheritance but when further questioned he admitted that the plaintiff was the son of his stepmother. He admitted that his other two brothers were 50 and 55 years old and stated that the age of his deceased father was 60/70 years, which is on the face of it a bare lie. A person having son of about 55 years old could not himself be 60 years old. When. questioned he stated that he did not know as to when his father died. The evidence of Lai Khan D.W.1 who identified the donor before the Tehsildar/Sub‑Registrar is admittedly Lambardar of Chak No.186 and not Chak No.185 where the land is situated and Alawal resided. Haqnawaz one of the petitioners admitted in his evidence that Lai D.W.l was not Lambardar of his Chak. He also admitted that there were two Lambardars of the Chak in question and none of them was present to identify Alawal at the time of attestation of registration of gift‑deed. As against the case of the petitioners that Alawal died on 21‑4‑1976 D.W.1 stated that he died one month after the death of registration of gift‑deed which means that according to him Alawal died somewhere on or about 15‑5‑1976. According to Haqnawaz the gift‑deed was written by a scribe. Neither the scribe nor any of the marginal witnesses of the gift‑deed were examined by the petitioners. The evidence produced by the petitioners does not inspire confidence.

7. Learned counsel for the petitioners argued that since the gift‑deed was a registered document therefore, a presumption of correctness about its contents was attached to it therefore, it was for the respondent/plaintiff to produce marginal witnesses, scribe and the Sub‑Registrar who registered the document to prove that Alawal did not appear before the Sub Registrar or that he did not execute the gift‑deed. I am afraid in my opinion the argument is plainly unsound. The plea of the plaintiff in the plaint was that the said gift deed and. its registration and the mutation sanctioned in pursuance thereof were fictitious, forged and collusive documents. Under the law no presumption is attached to a registered document regarding its execution where the document was challenged as forged one. The onus of proof in such a case is always on the person who asserts execution and registration of document by a particular person in his favour. The respondent was not required to produce marginal witnesses of the document or the scribe as argued by learned counsel. for the petitioners. Learned counsel for the petitioner then argued that the gift deed was shown to have been executed on 12‑3‑1976 which is a date earlier to the date of death of Alawal as alleged by the plaintiff therefore the gift‑deed even if had not been registered the same was complete as the document contained declaration of gift by Alawal in favour of petitioner No.l and declaration that the possession of the gifted land had been delivered therefore, the gift was complete and its registration even if held to have been obtained by producing some other person to impersonate Alawal would not adversely affect the factum of gift. I am not persuaded to accept this argument inasmuch as the conduct of the petitioner in this case of producing some other person to impersonate Alawal for getting the gift‑deed registered furnishes strong evidence to come to a conclusion that the petitioners cannot be believed regarding execution of deed by Alawal, who was proved to be an old man of 100 years and was unable to walk. The petitioners colluded to create the said document fraudulently in order to deprive the respondent from the inheritance of Alawal being the son from his other wife. After examining the evidence produced by the parties, I am in agreement with the. concurrent finding of fact recorded by both the Courts below under issue No.l against the petitioners. It has not been shown to have suffered from any material irregularity and illegality such as misreading, non‑reading or misconstruction of the evidence.

8. The revision petition ‑has .no merits, which is accordingly dismissed' with costs. AA./S‑48/L Revision dismissed.