P L D 2022 Lahore 589 (PLP)

MASUD ABID NAQVI, J.

Brief facts necessary for the adjudication of this lis are that on 14.03.2005, the plaintiff/respondent filed a suit for possession of plot along with perpetual as well as mandatory injunction with the averments that he purchased disputed plot from the predecessor in interest of defendants namely late Niaz Muhammad, however, the defendants/appellants took over illegal possession of the same with the intention to set up a CNG station over there. The plaintiff/respondent asked the defendants/appellants to hand over the possession of the disputed plot but they refused, hence, the suit. The defendants/appellants contested the suit by filing contesting written statement with the contentions that they are in possession of plot, duly inherited by them through inheritance mutation No. 2517 dated 10.08.1999 and the registered sale deed allegedly executed by the predecessor in interest of defendants/appellant in favour of plaintiff/ respondent is not only fake document but is also based on fraud and fabrication as the predecessor in interest of defendants/appellant never executed that sale deed.

2. Out of divergent pleadings of the parties, issues were framed by the learned Trial Court and parties led their respective oral as well as documentary evidence and after hearing the arguments advanced by both the parties, the learned Trial Court decreed the suit vide judgment and decree dated 27.07.2010. Learned Appellate Court accepted the defendants/appellants' appeal vide judgment and decree dated 11.09.2012 which was challenged before this Court in R.S.A. No.176 of 2012 by the plaintiff/respondent and the same was accepted vide order dated 16.06.2016 with the direction to decide the appeal afresh. In remand proceedings, the appeal was dismissed vide judgment and decree dated 23.05.2017. Feeling aggrieved, the defendants/appellants have filed the instant Regular Second Appeal and challenged the validity of the impugned judgments and decrees passed by the learned courts below.

3. Learned counsel for defendants/appellants by placing reliance on the cases reported as Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044), Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241), Sultan Mahmood Shah through L.Rs. and othes v. Muhammad Din and 2 others (2005 SCMR 1872), Muhammad Aslam v. Mst. Ferozi and others (PLD 2001 Supreme Court 213), Mst. Arshan Bi (deceased) through Mst Fatima and others v. Maula Bakhsh (deceased) through Mst. Ghulam Safoor and others (2003 SCMR 318) argued that impugned sale deed was witnessed by only one attesting witness and the requirement of Article 79 of Qanun-e-Shahadat Order 1984 was not complied with, hence the impugned judgments and decrees are not sustainable at law. While on the other hand, learned counsel for respondent/plaintiff fully supported the impugned judgments and decrees with the arguments that plaintiff/respondent proved the execution of sale deed through evidence and even the denial of defendants/appellants in written statement was evasive by placing reliance on the case reported as Sajjad Ahmad Khan v. Muhammad Saleem Alvi and others (2021 SCMR 415) etc. I have heard the arguments of learned counsel for the parties and perused the available record as well as have minutely gone through the impugned judgments and decrees.

4. It is also a well-settled law that the initial burden of proof is on the plaintiff to substantiate his/her claim(s) by adducing cogent, legal, relevant and unimpeachable evidence of definitiveness and the weakness in the defense evidence, if any, would not relieve a plaintiff from discharging the above burden of proof. Onus to prove issue No.7 about purchase of plot on the basis of sale deed was/is upon the plaintiff/respondent. Although, the plaintiff/respondent claimed himself as owner of disputed plot but failed to plead about the existence or execution of alleged sale deed in his plaint. Hence, the rule of "secundum allegata et probata" duly applied on the plaintiff/respondent with regard to alleged sale deed. Disputed sale deed/Exh.P.1 consists of three pages and on first and second page neither the alleged vendor/executant namely late Niaz Muhammad nor the plaintiff/respondent/alleged vendee or any marginal witness put their signatures/thumb impressions while on the third page the plaintiff/respondent as well as one marginal witness namely Muhammad Fawad Ghani Cheema put their signatures and the predecessor in interest of defendants/appellants allegedly affixed his thumb impression. First and second page contains all the terms and conditions of sale while third page does not contain any term and condition. It is settled principle of law that if the document is written on more than one page, then the parties must sign or put their thumb impressions on each page of document or otherwise the plaintiff/respondent is/was under legal obligation to connect the two unsigned pages with signed/thumb marked third page by producing evidence to prove the terms and conditions of disputed sale deed but the testimony does not convincingly connect the papers or show assent of alleged executor to the unsigned papers. Resultantly, without the sufficient connection between the unsigned papers with signed paper, the unsigned papers cannot be considered as part of the disputed sale deed. With the failure of the plaintiff/respondent to prove the execution of first and second page as well as terms and conditions of disputed sale deed, the principle of "consensus ad idem" is not established. Reference is placed on the cases reported as Manzoor Hussain v. Haji Khushi Muhammad (2017 CLC 70) and Zafar Iqbal and others v. Mst. Nasim Akhtar and others (PLD 2012 Lahore 386). For the purpose of proving the under challenge sale deed, it was/is mandatory for the beneficiary/plaintiff/respondent that two attesting witnesses of mutation must be examined by him as per Article 79, Qanun-e-Shahadat Order 1984. By discussing in detail the requirement of Article 79, Qanun-e-Shahadat Order 1984, the Hon'ble Supreme Court of Pakistan in a case reported as Farid Baksh v. Jind Wadda and others (2015 SCMR 1044) held as under: "This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words "shall not be used as evidence" unmistakably show that such document shall be proved in such and no other manner. The words "two attesting witnesses at least" further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We thus, have no doubt in our mind and this Article being mandatory has to be construed and complied with as such ..In the case of Hafiz Tassaduq Hussain v. Mohammad Din through legal heirs (PLD 2011 SC 241), this court after defining the meaning of the word attesting" in the light of Black's Law Dictionary and other classical books and case law held that a document shall not be considered, taken as proved or used in evidence, if not proved in accordance with the requirements of Article 79 of the Order. Another reason for not equating the testimony of a Scribe with that of an attesting witness is that both of them signed the document in a different capacity and with a different state of mind. They, as such, do not meet the requirements of Article 79 of the Qanun-e-Shahadat Order. Scribe however, could be examined by the party for corroboration of the evidence of the attesting witnesses but not as a substitute therefor. This aspect was also highlighted in the case of Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs (supra) in the paragraph which reads as under :- "To the same effect are the judgments reported as Qasim Ali v. Khadim Hussain through legal representative and others (PLD 2005 Lahore 654) and Shamu Patter v. Abdul Nadir Rowthan and others (1912 (16) IC 250). Therefore, in my considered view a scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfill and meet the mandatory requirement of attestation by him separately, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or in the eventuality those are conceived by Article 79 itself not as a substitute." Scanning of record especially sale deed adduced by the plaintiff/ respondent before the civil court reveals that neither the name of second witness is written on the disputed sale deed nor any signature or thumb impression of second attesting witness is available on the disputed sale deed. Along with attesting witness namely Muhammad Fawad Ghani Cheema/PW-2, the plaintiff/respondent produced his brother who is an advocate/PW-3, portraying him as scribe of disputed sale deed while the testimony of PWs clearly establishes the fact that stricto sensu he was not even the scribe of disputed sale deed. Even otherwise, the deposition of a scribe cannot be equated with deposition of an attesting witness and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article 79, Qanun-e-Shahadat Order 1984 but also reduce the whole exercise of re-enacting it to a farce as has been held by the Hon'ble Supreme Court of Pakistan. Hence, the plaintiff/respondent failed to meet the mandatory requirement of Article 79, Qanun-e-Shahadat Order 1984 by failing to produce the two attesting witnesses of disputed registered sale deed. In so far as the case law referred by the learned counsel for respondent/plaintiff is concerned, the same is distinguishable and not applicable in the facts and circumstances of the instant case.

5. In a case of concurrent findings by courts below, this court normally does not interfere in second appeal under section 100 of C.P.C., unless the decision of courts below is contrary to law or is based on failure to determine material issue of law. However, once the High Court entertains a second appeal, it can determine an issue of fact provided the conditions mentioned in section 103, C.P.C. are fulfilled as the concurrent findings of facts recorded by the courts below cannot become sacrosanct. With respect to interference in concurrent findings, the Hon'ble Apex Court in a case reported as Muhammad Aslam v. Mst. Ferozi and others (PLD 2001 Supreme Court 213) had held that:- "We are not persuaded to agree with the prime contention as raised by learned counsel for the petitioner that the concurrent findings could not have been reversed in R.S.A. by the learned High Court for the simple reason that the concurrent findings cannot be considered as sacrosanct and High Court was competent to interfere if such findings were based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous presumption of facts and consideration of inadmissible evidence."

6. In view of the foregoing discussion, this Court is of the affirmed view that learned courts below fell in error by not properly appreciating the questions of facts and law and ignored the material piece of evidence on record while passing the impugned judgments and decrees, which are not sustainable in the eyes of law and the same are hereby set-aside and the suit filed by plaintiff/respondent is hereby dismissed by allowing this regular second appeal. SA/S-62/L Appeal allowed.