1998 PLP 1908 (MLD)

(5) What were the terms of Sale agreement, dated 6-11-1966 in respect of the suit land and whether the agreement was entered into by Ch. Naseer Ahmed on behalf of the present plaintiffs.? (6) What were the terms of sale agreement, dated 7-12-1966 in respect of suit land and whether the said agreement was entered on behalf of Zaheer Ahmed and Anis Ahmed, sons of Naseer Ahmed under circumstances stated in para. 7 of the plaint. (7) Whether defendant entered into agreement of sale in respect of suit land on 18-9-1967 with deceased Ch. Naseer Ahmed. If yes what were the terms of this agreement? (8) Whether the suit land has been mortgaged by defendant with Pakistan Agricultural Development Bank Tando Muhammad Khan and whether the said mortgage was got redeemed by Ch. Baseer Ahmed on behalf of the defendant? If yet to what effect? (9) How much amount was paid by deceased Ch. Naseer Ahmed defendant towards sale price of the land? (10) Whether defendant on 18-9-1967 had executed general power of attorney in favour of Ch. Naseer Ahmed authorizing him to sale the suit land? (11) Whether deceased Ch. Naseer Ahmed legally and validly sold the land to plaintiff under sale-deed, dated 31-8-1970 and whether plaintiff have a right title or interest under the said deed in the suit land? (12) Whether the plaintiffs took possession of the suit land in their right as its purchasers and whether they were ousted therefrom in the year 1971 by the defendant? (13) Whether the plaintiffs are entitled to mesne profits? If yes, how much amount? (14) Whether the defendant is entitled to compensatory costs if yes, how much (15) What should the decree be? From the record it appears that both the Suits Nos.238 of 1971 and 99 of 1974 were ordered to be consolidated and as such common evidence has been recorded in the matter. In the proceeding of Suit No.238 of 1971 the plaintiff/appellant examined himself (Exh.70) and produced documents. He also examined one Ishaq son of Abdullah as Exh.105, Soomar son of Jurio as Exh.106, Sirajuddin Qureshi son of Fakhruddin Qureshi as Exh.126 and Haji Abdul Khaliq son of Haji Essa, Exh. 140 and thereafter through his advocate s statement, dated 21-2-1983 closed his side. On behalf of respondents witnesses namely Shakir Hussain son of Anwar-ul-Hassan, Muhammad Ramzan son of Muhammad Jumman and Zaheer Ahmed son of Naseer Ahmed were examined who filed/produced documents also and as per statement, dated 21-2-1984 closed their side. On the basis of the pleadings and evidence adduced and documents produced the learned Trial Court on 30-1-1986 passed common judgment in both the Suits Nos.238 of 1971 and 99 of 1974 and a common decree, dated 19-4-1986 was prepared. I have heard the learned Advocates of the parties. The contention of Mr. Hassan Mehmood Baig, learned Advocate for appellant, in both these appeals is that the learned Trial Court has not given the correct assessment of evidence of Muhammad Ramzan (Exh.159) and further that from the record it is not proved that Zaheer Ahmed, respondent in both the appeals, was present at the time of execution of sale-deed and also at the time of execution of Deed of agreement and General Power of Attorney, dated 18-9-1967. He also submitted that in fact the appellant neither executed alleged third agreement or Power of Attorney (Exhs. 160 and 161) nor he received cash amount of Rs.1,000 or alleged demand draft of Rs.5,000 (Exh.157) and/or that the same was credited to his account. Further that Ch. Naseer Ahmad was not competent to either sell the suits lands or to put the respondents in possession thereof and as such there was no question of them being dispossessed lands giving them alleged cause of action to file Suit No.99 of 1974 against the appellant. On the other hand Mr. Jhamat Jethanand, learned Advocate, for respondents has argued that in the first place the appellant did execute Deed of Agreement (Exh.160) and General Power of Attorney (Exh.161) in favour of Ch. Naseer Ahmad and on the strength of such power of attorney he did execute the sale-deed in favour of the two respondents, delivered to them the symbolic possession and their names were mutated in the Revenue Record; but the appellant surreptitiously dispossessed them from the suit lands and as such they filed Suit No.99 of 1974, against appellant. The evidence of the appellant is that he did execute the two agreements, dated 5-11-1966 and 7-12-1966 and received part payment of Rs.1,35,000; but denied to have executed the third Agreement or the general power of attorney (Exhs.160 and 161) or to have received the balance sale consideration of Rs.74,

617. He stated that in June-July, 1971 Tapedar of the beat informed him that Ch. Naseer has sold the suit land to his son and wife and Khata has also been mutated in favour of respondents. In his cross-examination he denied to have received either a sum of Rs.5,000 by Bank Draft and Rs.1,000 in cash. He also denied that Ch. Naseer Ahmad had paid Rs.44,617 to Agricultural Development Bank on his behalf, which amount he claimed to have paid himself to the Bank but he did not produce any receipt in that behalf. He denied that under the circumstances Ch. Naseer Ahmed was entitled to adjust the sum of Rs.30,000 as penalty referred to in earlier and admitted two agreements. He admitted that as per Exh.96, a receipt issued by Mukhtiarkar for recovery of loan of A.D.B.P. Hyderabad, the amount of Rs.44,617 was paid by Ch. Naseer Ahmad on his behalf. That he did not receive the sum of Rs.5,000 through Bank Draft, dated 18-9-1967 (Exh.157). From the perusal of the record it appears that the appellant's signature on the amended plaint of Suit No.238 of 1971 are different from the signature on the original memo. of suit which do tally with his signature on Exhs.Nos.97, 98, 160 and

161. In their deposition appellant's witnesses Muhammad Ishaq (Exh.105) and Soomar (Exh.106) have stated that they are Haris of appellant and they know that appellant is in possession of the suit land and denied to have any knowledge about the total area of agricultural land owned by the appellant. They denied to have any knowledge whether the land in question were ever agreed to be sold to Ch. Naseer Ahmad. They also stated that they are deposing at the request of appellant. Appellant also examined Sirajuddin Qureshi (Exh.126) an employee of A.D. B.P. who stated that amount of Rs.44,617 was recovered by his bank as per Exh.96. Appellant's another witness Haji Abdul Khaliq (Exh.140) deposed that in view of loan an area of 340 acres out of the suit land was mortgaged with A.D.B.P. but he expressed his inability to state Survey numbers of so mortgaged land. In rebuttal to the evidence of the appellant the respondents examined one Shakir Hussain (Exh.156) a Grade 11 Officer of National Bank of Pakistan Risala Road Branch, Hyderabad who stated that his Bank on 18-9-1967 had issued Bank Draft No.5-874756 (Exh.157) in the sum of Rs.5,000 in favour of Syed Gul Muhammad Shah and said draft was presented in his Bank on 19-9-1967 by the appellant who had Account No.2266 with the Bank and said sum of Rs.5,000 was credited to his account under his own signature. He also produced Exh.158, being Draft Transfer Slip. He also stated that he is making his statement on the, basis of the record and did not personally verify if the Account No.2266 was in the name of the appellant. He also stated that he was not in a position to say as to who attested the signature of appellant on deposit slip (Exh.158). The other witness of the appellant was Muhammad Ramzan (Exh.159) who stated that he knows the parties to the suit and Exhs.97 and 98 (Agreements of sale, dated 5-11-1966 and 7-12-1966) which bear his signature as attesting witness and that all the parties to the agreement signed them. He also stated that on 18-9-1967 appellant and Ch. Naseer Ahmad signed Deed of Agreement (Exh.160) and appellant also executed General Power of Attorney (Exh.161) in favour of Ch. Naseer Ahmad and both Exhs.160 and 161 bear his signature as witness. In his cross-examination he stated that he had no friendship with Ch. Naseer Ahmad or his son but he had friendship with the appellant. He stated that the third agreement and power of attorney (Exhs.160 and 161) were drafted by the Petition writer and that he came to depose in Court as he was informed by the respondent of the date of hearing. Third witness on behalf respondent Ch. Zaheer Ahmad, one of the respondents (Exh.162) in his deposition reiterated the statements made in the written statement in Suit No.238 of 1971 and Plaint of Suit No.99 of 1974 and the documents filed therewith. He stated that Exh.160 bears signature of his father (Ch. Naseer Ahmad) and appellant and that Exh.161 bears the signature of appellant and specimen signature of his father as general attorney. He also stated that Mr. Muhammad Munawar Ali Khan the Notary Public who attested Exh.161 has died and he could not trace out the Advocate who had drafted the two documents and the Sub-Divisional Magistrate who had attested the document. He stated that since his father, Ch. Naseer Ahmad, had paid the sale price to appellant in the manner referred to in the agreements etc., therefore, on the strength of the General Power of Attorney (Exh.161) granted to him by the appellant he on 31-8-1970 executed the sale-deed of the suit land in his favour and in favour of his mother i.e., respondents in the matter. He also stated that' Khata was mutated and they were put in possession but after about one year they were forcibly dispossessed from the land by the appellant. Hence Suit No.99 of 1974 was filed. He produced in the matter Exhs. 163 and 164 being letter and certificate, dated 22-9-1981 issued by the National Bank of Pakistan, such certificate (Exh.164) recites that amount of Rs.5,000 pertaining to demand draft No.5-874756, dated 18-9-19'67 in favour of Gul Muhammad Shah, was credited to his Account No.2266. He also produced Exhs. 165 and 166 i.e. certified copy of Village Farm IX and an extract from Register Dakhli Kharajee and that he and his mother Mst Begum Inayat are the transferees of the suit land. In his cross examination Ch. Zaheer Ahmad stated that at the time of execution of all the agreements by and between his father and appellant as well as execution of general power of attorney he was present on such occasions and that in fact from the very beginning his father had intention to purchase the suit land for him and his younger brother. He denied that Exhs.160 and 161 are forged documents or that the appellant was not paid Rs.5,000 by Bank Draft and Rs.1,000 in cash or that his father did not pay the loan amount to A.D.B.P. He stated that after mutation order he for one year paid the revenue of the suit land as its owner. The learned Advocate for appellant has submitted that the most important point to be considered in the present Appeals is as to whether the appellant executed the Deed Agreement and the General Power of Attorney both, dated 18-9-1967 (Exhs. 160 and 161) in favour of Ch. Naseer Ahmed or not and the burden of proof of execution of the two documents was on the respondents who have failed to prove the same as with the exception of Muhammad Ramzan (Exh.159) no other witness has been examined. He stated that evidence of said Muhammad Ramzan is not credit worthy. His other contention is, that the learned Trial Court has erred in presuming that the two documents (Exhs.160 and 161) have been executed by the appellant as his signature on disputed documents tally with his signature on admitted documents Exhs.98 and 97 i.e., agreements, dated 5-11-1966 and 7-12-1966. In support of his said submission the learned Advocate for appellant placed reliance on the following cases:

(1) Muhammad Siddique v. M/s. Al-Muslim Goods Transport Co. and another PLD 1968 Karachi 263. (2) Abdul Razzaq v. Mst. Fatima Bai 1981 CLC 1083. (3) Nadir Ali and another v. Muhammad Adam Khan 1985 CLC 373. (4) Muhammad Kabiruddin v. Muhammad Muniruddin through LRs and another 1993 CLC 747. (5) Hamid Qayyum and 2 others v. Muhammad Azam through LRs. And another PLD 1995 Supreme Court 381 (d) and (e). (6) Fazal Muhammad v. Mst. Aishan and 9 others 1984 CLC 3401(b). PLD 1968 Karachi 263 is to the effect that "handwriting experts produced by both patties deposing to opposite conclusions opinion which suffered from "generalities and excessive brevity and vaguness" discarded in favour of other Court itself with assistance of counsel compared disputed handwriting with genuine by visual examination, ,in arriving at its own conclusion. 1981 CLC 1083 (c) is to the effect that "many documents on record containing admitted signatures of appellant--Additional District Judge comparing disputed signature with only one admitted document--Held, inference drawn by Additional District Judge, purely subjective and totally lacking reasons for his conclusion. In 1985 CLC 373 (b) it has been held that comparison of disputed signatures with admitted signatures by Court--such comparison not made in presence of parties--procedure adopted, held, not tenable in law. In 1993 CLC 747(d) (Division Bench Judgment) it has been held that "Court although competent to compare disputed and admitted signatures of a person such procedure is risky and has to be adopted with caution and sparingly. In PLD 1995 Supreme Court 381(d) it has been held that "Handwriting Expert, opinion of evidentiary value--opinion of handwriting expert supported by reasons deserves preference if the opinion is in accord with the direct evidence. In 1984 CLC 3401(b) it has been held that "alleged executant categorically denying of execution of lease deed and having put his thumb impression on said deed--subscribe of document not examined but only two attesting witness examined-Held, best evidence to prove execution of lease deed would have been that of finger print expert--Both Courts below had erred in holding that execution of deed was duly proved simply on the oasis of statement of two attesting witnesses without taking into consideration categorical denial of alleged execution. As against the above-cited judgments the learned Advocate for the respondents has placed reliance on the following reported cases:

(1) Sirbaland v. Allah Loke and others 1996 SCMR 575(d). (2) Mst. Noorjehan and others v. Muhammad Rafique and others 1995 CLC 43(c) (D.B. Judgment). (3) Muhammad Salim v. District Judge, Multan and others 1996 CLC 819(b). In 1996 SCMR 575(d) it has been held that "Trial Court is not legally prohibited to compare handwriting of a disputed document with the admitted writing or to take a contrary view to the opinion of the handwriting expert. " In 1995 CLC 43 a Division Bench Judgment, it has been held that "no lacuna in the evidence of marginal witnesses was apparent or pointed out, therefore, their veracity could not be discredited--Evidence of such witnesses, alone was sufficient to prove the document in question, even if other evidence was altogether ignored 1996 CLC 819(b), the facts of this case are that a consent order was passed for sending specimen signature/thumb-impression of the appellant to handwriting expert and the fee of the handwriting expert was to be paid by the appellant but after some time of passing of the said order appellant made an application that he could not pay the fee of the handwriting expert, therefore, the learned District Judge compared the disputed signature and thumb-impression himself and passed the order in the matter. In the said circumstances it has been held in this judgment that "the evidence of an expert witness is primarily corroborative in nature. If there is overwhelming direct evidence qua the point in issue, the recording of the statement of an expert witness may not be essential in every case. Moreover, the Court is not denude of its power to compare the signature itself and the finding so arrived at by the learned Court cannot be taken exception to merely on the ground that the expert witness was not called". I have carefully perused the aforesaid cited judgments and before discussing the same feel it necessary that the provisions of Articles 59 and 84 of Qanun-e-Shahadat Order, 1984, be looked into and for the sake of convenience the said Articles are re-produced hereunder:

"Article 59, opinions of an experts

When the Court has to form an opinion upon a point of foreign law, or of Science, or Article or as to identity of handwriting or finger impression, the opinions upon that point of persons specially skilled in such foreign law. science or art or question as to identity of handwriting or finger impressions are relevant facts. 'Article 84, Comparison of signature, writing or seal with other admitted or proved.--(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. (2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.' (3) This Article applies also, with any necessary modifications to fingers impression." It is amply clear from the record and as was admitted by the learned Advocate for the parties before this Court while advancing their arguments in the matter that during the proceedings of the suits before the learned Trial Court, none of the parties moved appropriate application for referring the disputed documents/signatures to a handwriting expert. I am of the view that in the circumstances of the case that the parties to the suit did not deem it fit to apply for referring the disputed documents/signatures to the handwriting expert the learned Trial Court was not obliged to refer the disputed documents/signatures to the handwriting expert. There being number of documents on record bearing different signatures of appellant, more particularly his common signature on his original memo. of A plaint of Suit No.238 of 1971, Exhs.97, 98, 160 and 161 i.e., agreement of sale, dated 5-11-1966, 7-12-1966 and 18-9-1966, schedule of property (Exh.2), Reverse of (Exh.157), original Demand Draft No.5-874756 drawn in favour of appellant by National Bank of Pakistan and slip for depositing cheques, drafts etc. of the said bank (Exh.158) the learned Trial Court has rightly compared the signatures and given his findings in that behalf. It is strange to note that the amended plaint of the Suit No.238 of 1971 (Exh.37) bears signature of appellant which are different from his signatures on his original plaint and other documents referred to above, but his signatures on the disputed documents, Deed of agreement, dated 18-9-1967 (Exh.160) and General Power of Attorney, dated 18-6-1967 (Exh.161) are similar signatures as those on his original memo. of plaint of Suit No.238 of 1971 (Exh.l) and schedule of property attached therewith, Exhs.97 and 98, reverse of Exh.157 and Exh.158 as has been held by the learned Trial Court. With due respect to the aforesaid cited judgments by the learned Advocate for the appellant I am of the view that the facts of those cases are quite different and distinguishable from the facts of the case of the appellant and as such they are not applicable to the facts and circumstances of the present appeals. I am in respectful agreement with the abovesaid judgments referred to by the learned Advocate for respondents as the facts and circumstances thereof are more akin to the case of the respondents and I find the said judgments applicable to the case of the respondent. Another aspect of these appeals is that while denying the execution of deed of agreement and General Power of Attorney both, dated 18-9-1967 (Exhs.160 and 161) the appellant had also denied to have received the said Demand Draft of Rs.5,000 bearing No.5-874756, dated 18-9-1967 (Exh.157) which demand draft was deposited and credited in appellant's Bank account No.2266 as per Exh.158 on record. In the presence of Exhs.157 and 158 it was the bounden duty of the appellant to discredit the evidence of Officer of National Bank of Pakistan who appeared in the matter as D. W.1 (Exh.156) and produced the originals of Bank Draft and Deposits slip (Exhs.157 and 158) from the record of the bank. Another point for consideration is that though D.W.2, Muhammad Ramzan (Exh.159) has categorically stated that he is the friend of the appellant and not that of the respondents or of late Ch. Naseer Ahmad and he was the marginal witness to all the above-referred documents i.e., Exhs.97, 98, 160 and 161 yet his such statement was neither rebutted nor disproved by the appellant by any cogent evidence. For the facts and reasons mentioned above, I am satisfied that no interference is warranted with the impugned judgment, dated 30-1-1986 and decree, dated 19-4-1986 passed by the learned Trial Court in the proceedings of FC. Suits Nos.238 of 1971 and 99 of 1974, which are hereby upheld and in the result these First Appeals Nos.31 of 1986 and 32 of 1986 are dismissed with costs. A.A./G-59/K Appeal dismissed