2017 PLP 419 (YLRN)

FAHIM AHMED SIDDIQUI, J.

This Civil Revision Petition is preferred against the judgment passed in Civil Appeal No. 31/1998 dated 17.06.2000 by learned Additional District Judge-V, Shikarpur, whereby the verdict of learned Senior Civil Judge-I, Shikarpur in F.C. Suit No.85/1987 under judgment dated 14.09.1998 and decree dated 19.09.1998 was maintained.

2. The facts giving rise to this Civil Revision are briefly that the respondent No.1 (Late Noor Muhammad) filed a civil suit for declaration and permanent injunction against the applicant in which he had sought the following reliefs: (a) To declare that the plaintiff is sole, absolute and exclusive owner of the suit house i.e. C.S. No.19/31 Ward-51, Hakra Mohalla, Shikarpur and the defendant No. 3 has no right, claim or interest in the same and that the alleged sale deed is false, forged, fraudulent and frivolous, illegal and void. (b) To grant permanent injunction restraining the defendants from denying or disputing the plaintiff's title in respect of the suit house and so from dispossessing the plaintiffs therefrom by adopting forcible and coercive methods. (c) To grant the cost of the suit to the plaintiff.

3. The said suit was proceeded and decreed in favour of the respondent No. 1 (plaintiff of the said suit). The applicant (defendant of the said suit) challenged the verdict of the trial court before the appellate forum, but the same was also dismissed; hence he filed the instant revision.

4. The case of the respondent No. 1 is that he has purchased the aforesaid property (hereinafter referred as 'said property') from settlement department and since then he is continuously in possession of the said property. About ten years back from the date of filing of the suit, he rented out northern portion of the said property (comprising two rooms) to the applicant at the monthly rent of Rs.30/-per month. As per respondent No. 1, he neither sold out the said property to applicant nor executed a sale deed in his favour. The official respondents did not contest the suit before the trial Court.

5. The applicant case is that he claimed to be the bona fide purchaser of the said property for a consideration of Rs.4268/- through registered sale deed dated 28.09.1965. He denied that he was ever tenant of the respondent No.

1. Applicant filed written statement before the trial Court on the lines of above-mentioned defence, and from the pleadings of the parties, the trial Court framed certain factual and legal issues. Both the parties led their evidence, and after evaluating the evidence on the yardstick of issues, the trial Court decreed the suit in favour of respondent No.

1. The applicant challenged the verdict of the trial Court before the appellate forum but could not succeed.

6. In the instant revision application, the applicant has objected upon the concurrent findings of the two courts below on several grounds regarding the findings of the trial Court as well as appellate Court. The foremost ground is that the respondent No. 1 could not establish that the sale deed is a forged document. As the respondent No.1 has neither produced the sale deed before trial court nor sought its cancellation, therefore, a finding regarding the same is unwarranted.

7. The learned counsel for the applicant argued at length. According to him, the suit remained pending before the trial court for nine years, but respondent No. 1 did not appear for evidence. After his death, his son entered in the witness box but he was not privy to the entire facts as at the time of sale deed, he was only 13 years old while the other witness was 15 years old as such being tender ages their evidence is not reliable. He submitted that the sub-registrar was an important witness but trial court did not examine him. The respondent No. 1 could not establish that the applicant was ever his tenant, and if he was a tenant then why rent case was not filed. According to him, the respondent No. 1 could not discharge his burden of proof, and the trial court has illegally and unreasonably shifted the onus of proving sale deed on the applicant. He contended that the respondent No. 1 had to prove his case with concrete evidence and not to rely upon the weakness of applicant's case. He took reliance from PLD 1969 Supreme Court 167, 1984 PCr.LJ 1320, 2000 MLD 1459, 2001 CLC 1922, 2012 CLC 912 and 2009 CLC 250.

8. The sequel of arguments of learned counsel for the respondent No.1 aims to support the impugned judgment. According to him, the respondent No. 1 in his suit has prayed for certain declarations, and there was no need to seek cancellation of sale deed through a specific prayer clause. According to him, cancellation of sale deed is the ancillary relief of declaration; therefore, respondent No. 1 had no need to insert a separate and a specific prayer for the same. He submitted that it was least necessary for the respondent No. 1 to file a rent case especially when he came to know about the forged sale deed. According to him, it is the duty of applicant to establish his document when it was disputed. He submitted that the quantity and quality of evidence produced before the trial court were solely and completely in favour of the respondent No.

1. He took reliance from 1999 SCMR 1242, 1991 CLC 820, 2007 YLR 2493 and 2007 YLR 2764.

9. After listing the arguments of learned counsel intently, I have gone through the available material. The entire case of applicant rests on a document i.e. registered sale deed solely on the ground that being a registered document presumption of genuineness is attached to it. No doubt, for a stranger there is a strong presumption of genuineness of a registered document, but the situation will be entirely different when the executant of the registered document himself denies its execution. The presumption attached to a registered document is a rebuttable presumption, and when clouds are thrown on a registered document by the executant of the document himself, then it is obligatory for beneficiary of the document to remove the clouds with quality and quantity of evidence otherwise the said document loses its credibility. In the present case, the applicant is required to produce the best available evidence with him to establish the execution of the sale deed by the respondent in his favour, and he could not do so before the trial Court. It is held in the case reported as Mohammed Haneef v. Irshad Ali and others (2011 YLR 2764) as under: "When the execution of any document is denied, the onus shifts on the beneficiary to prove such document by producing Miarginal witnesses but in the instant case, no marginal witnesses was produced to establish the execution of agreement of exchange. Therefore, both the learned Courts have rightly held that the execution of agreement could not be proved." This Court has also taken similar view in the cases reported as Rukhsana Tabassum Shaikh v. Kazim Imam Jan (2003 CLC 189) and Mst. Sara Bai v. Iqbal (2006 MLD 1429).

10. The learned counsel for the applicant during the course of arguments submitted that the respondent is duty bound to prove that the sale deed is a forged and fabricated document by producing concrete evidence and he cannot take advantage of the weakness of the applicant's case. It is the case of the applicant that sale of the said property was effected by means of a registered document and this plea was taken by him in his written statement. I am of the view that it is the duty of applicant to establish the affirmative assertion made by him before the court of the first instance, as such the learned trial court has rightly placed the onus to prove it on the applicant. For proving a documented sale, the examination of beneficiary is not sufficient. The procedure of proving a disputed document is laid down in Article 79 of the Qanun-e-Shahadat, 1984, which is reproduced as under: "

79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

11. It is worth noting that none of the attesting witnesses was produced before the trial court in support of the disputed sale deed for which a specific denial by its executant is on the record. It is also important to note that the scribe of the document was also not examined, who is also a competent witness in term of Articles 17 and 79 of Qanun-e-Shahadat if he has put his signature on the document. In the instant case, it has come on the record that at least one of the attesting witnesses of the alleged sale deed was alive when the suit was pending because during cross-examination of PW-2 Liaquat Ali, in response to a question has stated as under: "I know Mohammed Saleh son of Gulbahar Abro, who is alive. Mohammed Saleh, the attesting witness of the sale deed, had informed me about the sale deed of the suit house."

12. The above quoted words have come from the mouth of a witness of the respondent in response to a question put to him during cross-examination. I am of the view that the said 'Mohammed Saleh' was an important witness, who was not produced by the applicant as such he is also responsible for withholding of the best available evidence. As per provision of Article 129(g), the Court has rightly reached to an adverse presumption against the applicant due to withholding of an important and best available evidence. Thus, non-appearance of attesting witness Muhammad Saleh made the claim of the applicant highly doubtful. In the case reported as Sughran Bibi v. Mst. Aziz Begum (1996 SCMR 137), the Hon'ble Supreme Court held that, if evidence of vital importance is not produced or is withheld, the Court in terms of Article 129(g) of Qanun-e-Shahadat would draw adverse inference that had such evidence been produced by the party it would have gone against him.

13. The learned counsel for the applicant also argued that at the time of alleged sale deed, the witnesses produced for the respondent namely Ghulam Shabbir son of Noor Muhammad (PW-1) and Liaquat Ali son of Pir Bux (PW-2) were minors as such their evidence is not reliable. According to learned counsel for the applicant their ages at the time of execution of alleged sale deed would be 15 and 13 years respectively and they must have not been aware of the true facts of the case. It is the contention of the learned counsel for the respondent that they are competent witnesses and solely on account of their ages, their deposition cannot be ignored. In this respect, my observation is that solely the tender age of a witness is not sufficient to brush aside his evidence but the evaluation of a tender aged witness is judged on his capacity of understanding of the position of affairs at the relevant time. As per contention of the learned counsel for the applicant, the witnesses were teenagers and not of the tender ages at the relevant time. A teenager is having a proper understanding of the affair and it is the reason that he is not immune of the criminal responsibilities under the law. It is also a fact that in our society especially in the rural areas, the male children are sufficiently privy to the financial affairs of the household, therefore, it is quite rational that both the witnesses are well aware of the facts of the case directly. Besides, at the time of filing of suit the plaintiff was alive and whatever assertions are made in the plaint are made by himself, which was elaborately and properly explained by his son Ghulam Shabbir in his deposition, whom the right of suing was devolved, as one of his legal heirs. Both the witnesses remained firm during cross-examination and they explained every minor detail in respect of the facts of the case during cross-examination. It is also worth mentioning that neither a question to witnesses was put to shaken their credibility on this account nor anything material could be specifically pointed out by the learned counsel for the applicant in this respect.

14. In view of what has been discussed above, I found no reason to upset the concurrence findings of the two courts bellow; as such this Civil Revision is dismissed with no order as to cost. MQ/W-4/Sindh Revision dismissed.