1989 PLP 1327 (CLC)

Z. Mehfouz Khan for Respondents. . Date of hearing: 25th January, 1989.. Through the instant revision petition, Apwar Khan and others have challenged the judgments and decrees dated 19‑5‑1983 and 3‑6‑1985 passed by the learned Civil Judge and learned Additional District Judge, Charsadda respectively whereby the former, partly decreed the suit of the plaintiffs/respondents and the latter decreed their suit in toto, by accepting their appeal and dismissing the cross‑ objections filed by the defendants Nos.2 to 8 and 10.

2. The facts of the case briefly stated are, that Haji Amir Nawaz was the owner of the suit property, who transferred the same in favour of his wives, the plaintiffs/respondents, in lieu of their dower and executed an agreement deed dated 1‑12‑1980, acknowledging the said alienation in their favour that the said deed was not given effect to in the Revenue record with the result that the existing entries of the Revenue record in the name of Haji Amir Nawaz remained intact till his death, whereupon his inheritance Mutation No.2257 was entered on 17‑2‑1981 in the names of the plaintiffs/respondents (44 shares being widows) and the defendants/petitioners (132 shares being residuaries) according to the Muhammadan Law of Inheritance; that the plaintiff/respondents thus feeling aggrieved from the entry of inheritance mutation rushed to the Court with the instant suit, seeking declaration of exclusive title to the suit property and solicited for the issuance of perpetual injunction against the defendants/petitioners not to claim any share in the suit property. Defendants Nos.l to 9 only contested the suit and denied the title of the plaintiffs/respondents while defendants Nos.10 and 11 confessed judgment vide their written compromise (Iqbal Dawa) dated 14‑4‑1981 placed on the file. The learned trial Judge framed the necessary issues in the case and recorded the evidence of the plaintiffs/respondents in support of their contentions. However, before the defendants entered upon their defence, the defendants Nos.2 to 9 compromised the matter with the plaintiffs/respondents and submitted written compromise deed dated 28‑7‑1982, wherein they admitted the transfer of the suit property in their favour by their husband during his lifetime, in consideration of their dower debt and the valid execution of the deed dated 1‑12‑1980 referred to above. They also acknowledged the possession of the plaintiffs over the suit property and prayed for the passing of the decree in favour of the plaintiffs/respondents against them. Since the defendant/petitioner No.1, namely Anwar Khan was not party to the compromise deed was placed on the file, and the case was allowed to proceed for determination of the rights inter se plaintiffs/respondents and defendant/petitioner No.l. After recording the statement of defendant/petitioner No.l the learned trial Judge vide his judgment and decree dated 19‑5‑1983, decreed the suit of the plaintiffs/respondents against the defendant No.2 predecessor‑in‑interest of petitioners Nos.2 to 8) and the other defendants/petitioners Nos.9 to 17) on the strength of the compromise referred to above and dismissed the same qua the rights of Anwar Khan defendant/petitioner No.l. Aggrieved with the partial dismissal, the plaintiffs/respondents filed appeal before the learned Additional District Judge, Charsadda and the defendants Nos.2 to 8 and 10 filed cross‑objections. The learned Appellate Court after hearing the parties and consideration of the material on record, accepted the appeal of the plaintiffs/respondents vide his judgment and decree dated 3‑6‑1985 and decreed their suit in toto. The cross objections being against consent decree were held not maintainable and accordingly dismissed. The living defendants and the L.Rs. of the decd. defendant No.2 have jointly preferred the present revision petition. 3. 1 have heard learned counsel for the parties and have perused the record of the case with their assistance.

4. The thrust of the arguments of the learned counsel for the defendants/petitioners are that the deed dated 1‑12‑1980, copy Exh.PW.2/1 is forged, fictitious, the result of undue influence practiced upon the executant when he was suffering from Marzul Maut and is also inadmissible in evidence for want of proper stamp and registration. It was also submitted that the deed in question is not a dower deed inasmuch as it was not scribed at the time of the Nikah ceremony of the plaintiffs/respondents with Haji Amir Nawaz deceased. Additionally it was stressed that the witnesses produced by the plaintiffs/ respondents were interested and that the possession of the plaintiffs/respondents over the suit property was not as exclusive owners but as co- owners. The learned counsel for the plaintiffs/respondents on the other hand controverted all these submissions of the learned counsel for the defendants/petitioners. He emphasised that the execution of the deed was duly established through the evidence of disinterested witnesses, and that the same was legally not compulsorily registrable. 5. 1 have given my anxious consideration to the arguments of the learned counsel for the parties. No doubt, the burden heavily lay on the plaintiffs/respondents to prove the genuineness of the transfer in their favour and, the due execution of the document relied upon by them. To discharge the same, they produced Muhammad Zahir Shah (PW.3), Ghulam Muhammad (PW.4) Shahzad Gul (PW.5) besides their attorney Muhammad Amir. All of them have deposed, with one voice, that the suit land was transferred by Haji Amir Nawaz in favour of the plaintiffs/respondents and that the deed copy Exh.PW.2/1 was scribed by Ghulam Muhamamd (PW.4) Stamp Vendor at Mardan at the instance of Haji Amir Nawaz deceased in the presence of the other P.Ws. and that the executant and the attesting witnesses have affixed their signatures/thumb impressions upon it. All of them have been cross‑examined but nothing material could be elicited from them to cast any aspersion on their veracity. Faiz Muhammad (P.W.6) is tenanting part of the suit land and according to his deposition in Court, he had been directed by Haji Amir Nawaz deceased to pay the share of produce to the plaintiffs/respondents being the owners thereof on account of its transfer in their favour by him. Anwar Khan defendant/petitioner No.l rest contented with his solitary statement as D.W.1 and did not produce any A evidence to corroborate his version. Even he admitted in his statement in Court that his. co‑defendants have patched up the matter with the plaintiffs/respondents and .have admitted the claim of the plaintiffs/respondents. He further conceded that Haji Amir Nawaz might have executed the deed in question in favour of the plaintiffs/respondents pertaining to the suit property. In view of the direct evidence discussed above the execution of the deed copy of Exh.P.W.2/l, as well as the transfer of the suit property by Haji Amir Nawaz in favour of the plaintiffs/respondents, is satisfactorily established.

6. As regards the plea of the non‑registration of the deed in question, the careful perusal thereof would show that the same was not a document creating or extinguishing right in immovable property worth more than Rs.100 but the executant thereof only acknowledged the factum of transfer of immovable property in favour of his wives in lieu of dower having already taken place 3/4 years prior thereto. Under section 17 of the Registration Act only those instruments which create or extinguish rights in immovable property worth more than Rs.99 require compulsory registration. The instant document does not offend against the said provision of law inasmuch as it neither creates nor extinguishes rights but is an acknowledgment deed, whereby the executant simply admits an existing ownership in property through a valid transfer, having been completed much earlier than the time of execution. In this view of the matter, I am fortified by the judgment of the Peshawar High Court in case Mst. Zarin Oaisha v. Arbab Wali Muhammad Khan and 5 others reported as PLD 1976 Pesh.128 and those of the Lahore High Court in case Fateh Muhammad v. Muhammad Shari and another reported as PLD 1953 Lah. 251 and Khawaja and another v. Nur Alain and others PLD 1953 Lah.277. The deed copy Exh.P.W.2/1, therefore, did not require registration and was rightly relied upon by the Courts below in arriving at their conclusions.

7. There is yet another insurmountable difficulty in the way of the defendants/petitioners. Defendants Nos.10 and 11 and confessed judgment at the very outset while defendants Nos.2 to 9 admitted the plaintiffs/respondents as full‑ fledged owners in possession of the suit property and the decree passed against them, being a consent decree, was not appealable and consequently not revisable as well, there being no patent illegality or material irregularity. All the defendants derive their rights as residuaries of Haji Amir Nawaz and obviously their rights are joint and indivisible. In the absence of any proof regarding collusion between the plaintiffs and the consenting defendants, the learned lower Courts could not pass contradictory decrees in the same suit. The contesting defendant No.l filed joint written statement with defendants Nos.2 to 8, acted as their special attorney in the trial Court, all of them joined hands before the appellate Court in quashing the decree passed by the trial Court and even, at present, are jointly prosecuting the revision petition, which can only lead to the irresistible conclusions that they were and are jointly interested in the defence of the suit. All the defendants except defendant No.l have admitted the ownership of the plaintiffs/respondents which culminated in the passing of the decree against them. They have not denied the execution and submission of the compromise deeds before the trial Judge, in the cross‑objections filed before the learned Additional District Judge, but asserted that they had only conceded the plaintiffs/respondents as life estate holders and had not abandoned their claim to inheritance of Haji Amir Nawaz. They did not resile from the admission, before it was incorporated in the decree, though the case lingered on for sufficiently long time. After he passing of the decree on its basis by the trial Judge, they are legally debarred to deny the truth of such admissions or to withdraw from it. Since the said admission are against the interest of the maker thereof, the same are relevant and admissible against their co‑defendants, jointly interested with them in the defence of the suit, under section 18 of the Evidence Act (since repealed) repeated verbatim in para 31 of the Oanun‑e‑Shahadat 1984. On this score too, the instant revision petition is liable to dismissal.

8. Before concluding, it is worthwhile to mention here that the determination of ownership of the suit property was a question of fact which was the exclusive domain of the trial Court and the Appellate Court. This Court, in exercise of its revisional jurisdiction, has very limited powers to interfere with the findings of facts arrived at by the trial and Appellate Courts. It can only step in, if it finds that the lower forums have either acted illegally or with material irregularity or have resorted to misreading or non‑reading of evidence. No such lapse on the part of the lower forums could be pointed out by the learned counsel for the petitioners to justify the invoking of the revisional jurisdiction of this Court under section 115 of the Civil Procedure Code.

9. The result of the foregoing discussion is that the instant revision petition on fails and the same is hereby dismissed. A.A./733/P Revision dismissed