2005 PLP 1734 (YLR)

3. The suit was contested by the defendant on all grounds legal, as well factual and the claim of the plaintiffs was denied. The pleadings of the parties gave rise to the framing of following issues:-- (1) Whether the plaintiff has got a cause of action? (2) Whether the suit is incompetent in its present form? (3) Whether the suit is bad for non joinder of necessary parties? (4) Whether the plaintiff has got locus standi? (5) Whether the agreement deed dated 25-7-1995 is forged, fictitious, bogus and based on fraud, therefore, ineffective upon the rights of the defendants? (6) Whether the suit is within time? (7) Whether the plaintiffs are estopped to sue? (8) Whether the plaintiff is entitled to the decree as prayed for? (9) Relief.

4. After analyzing and appreciating the material on record, the learned Civil Judge Swabi, seized of the matter, accepted the claim of the plaintiffs and passed a decree in their favour by his judgment and decree dated 13-10-2001. An appeal was preferred thereagainst before learned District Judge, Swabi which was accepted by judgment dated 1-3-1999. The impugned judgment and decree was set aside and the case was remanded to the trial Court with direction to decide the wine after referring the matter to Forensic Science Laboratory, Peshawar for opinion and report. After remand, suit was again decreed. An appeal was preferred, but it did not succeed. The same was dismissed on 28-1-2003 giving rise to the filing of instant civil revision.

5. Mr. Javed A. Khan, Advocate, the learned counsel for the petitioner bitterly criticized the impugned judgments and decrees of the Courts below and attempted to argue that the Courts below have proceeded on wrong premises to rely on an unregistered deed dated 25-7-1995 allegedly executed parties, whereby the shares of the parties were fixed in equal shares instead of `sharia' shares in the legacy of Mst. Shahzadgai, the predecessor of the parties, out of which the plaintiff was entitled to 2/3rd share while the defendant petitioner to 1/3rd share, as neither the so- called deed was proved in evidence in accordance with law nor the same was found genuine by the handwriting Expert. The learned counsel reiterated that even otherwise besides the aforementioned fictitious document being unregistered and inadmissible in evidence, the same was not valid for the reason that the plaintiff respondent was minor at the time of alleged execution of the document and, therefore, could not enter into any contract. The learned counsel further submitted that the inheritance Mutation No.4766 with regard to the legacy of Mst. Shahzadgai was rightly entered and recorded by the revenue staff and the learned Courts below had no justifiable reason to take a contrary view. Concluding the arguments the learned counsel submitted that the plaintiff respondent miserably failed to discharge his onus to substantiate his claim and proved the so-called fictitious document as genuine for the relief prayed for in the plaint under the Specific Relief Act.

6. Mian Younis Shah, Advocate for the respondents on the contrary, refuted the arguments addressed on behalf of the petitioner and contended that both the learned Courts below have taken lawful view of the matter which is in consonance with the evidence oil the file, none part of which has been misread or non-read. No illegality or irregularity was committed by the Courts below in absence of which no interference in revisional jurisdiction is permissible, under the law. To substantiate the pleas reliance was placed on Misri Lal Nayak v. Mt. Surji and others A.I.R (37) 1960 Privy Council 28, Rarnkaransingh v. Emperor (AIR 1935 Nagpur 13), Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 Supreme Court 53), Haji Muhammad Moosa and others v. Provincial Government of Balochistan (1985 CLC 2951), Crown Prosecutor v. Gopal alias Malayathan (AIR 1941 Madras 551), and Satya Dev v. Behariji. Maharaj, Birajman Mandir and another (AIR 1980 Allahabad 220).

7. It is a common ground between the parties that Mst. Shahzadgai was real owner of suit property. She had three brothers namely, Anwan Khan, Nawar Khan and Numan Khan. The latter i.e. Numan Khan died during life time of Mst. Shahzadgai leaving behind two sons namely, Mir Wali and Khair Wali. It stands established from the material on record that a deed was executed on 25-7-1995 amongst the parties on the basis of which they divided the inheritance of Mst. Shahzadgai in three equal shares and after a proper partition possession was delivered to the respective owners. The deed in question (Exh.DW.3/1) has been satisfactorily proved through the deposition of the petition writer, stamp vendor and its marginal witnesses. The report of handwriting Expert which is negative has rightly been discarded by the Courts below on the ground that no reason in support thereof, has been given. The question as to how much reliance Court would be entitled to place on statement of an Expert depends on facts and circumstances of each case. Expert testimony need not be corroborated before it is acted upon, however, as a matter of prudence and abundant caution, Courts generally insists upon some sort of corroboration. The Court can come to its own conclusion independently of the Expert opinion after taking into consideration the facts and circumstances of the particular case. An Expert is unconsciously prejudiced in favour of the party calling him. The evidence of a Handwriting Expert is neither only nor the best method of proving handwriting or signature of a person. It is at the best only opinion evidence where other direct evidence of the nature adduced in the case is available. The Expert opinion is admissible only to aid the Court in forming its opinion and in order to form its opinion, the Court is competent to call for such opinion if it feels it necessary. If an authority is needed on the point, reference can be made to a case reported in PLD 1958 Lahore 447, wherein it was held:-- "The opinion of a Handwriting Expert should be received with great caution; however impartial an expert may be, he is likely to be unconsciously prejudiced in favour of the side that calls him. From the mere fact that an expert has said that a document was written by a certain person one will not be justified in arriving at the conclusion that the scribe was the person mentioned by the expert because before giving a finding to that effect the Court has to consider the entire evidence on the point. "

8. There is no cavil to the proposition of law that revisional Court has jurisdiction to correct error resulting from non-reading, mis-reading of evidence or where the Courts below failed to exercise the jurisdiction vested in them. In the instant case, both the Courts below have recorded concurrent finding of fact, about genuineness of the deed (Ex.DW.3/1) in question, which are supported by actual evidence on file.

9. On a careful assessment of the evidence, I am of the considered view that the finding of fact recorded by the trial Court and affirmed by the appellate Court are based on correct and careful appraisal of evidence and the grounds urged stand conclusively determined by the judgments of the Courts below. The trail Court as well as the appellate Court have elaborately discussed every aspect of the case and dealt with the same in detail, leaving no room for further consideration. The Courts below while decreeing the plaintiff's suit on the basis of evidence on record, neither committed any misreading of evidence nor omitted from consideration any material piece of evidence on record nor appreciation of evidence by them Court be described as perversed, so as to warrant interference by the High Court under section 115, C.P.C. In this view of the matter I am fortified by observations made in PLD 1994 SC 291, 1994 SCMR 818, 1996 SCMR 575, 1997 SCMR 1139 and PLD 2000 SC

839. In view of the above discussion, finding no substance in this civil revision, I dismiss the same with no order as to costs. M.B.A./379/P Petition dismissed.