2002 PLP 3491 (YLR)

(2) Whether plaintiffs have no locus standi or cause of action to sue? OPD (3) Whether suit is time‑barred? OPD (4) Whether Civil Court has got no jurisdiction about subject‑matter of suit? OPD (5) Whether plaintiffs are exclusively owner in possession of suit‑land measuring 6 Kanals, 19 Marlas? OPP (6) Whether suit is not maintainable in its present form? OPD (7) Whether plaintiffs are entitled to relief as prayed for? OPP (8) Relief. Evidence of the parties was recorded. Vide a judgment and decree dated 16‑11‑1987, the suit was decreed. A first appeal filed by the petitioners was heard by a learned Additional District Judge, Gujrat who dismissed the same on 14‑6‑1990.

2. The learned counsel for the petitioner argues that the execution of the unregistered sale‑deed being relied upon by plaintiffs had not been proved on record and the evidence has been misread. According to the learned counsel the sale‑deeds have no nexus with the suit‑land. Further contends that while applying the rule relating to ancient document, the teamed Courts below were bound to take note of all the attending of the case. The learned refers to the judgment, Exh.D.8 in the suit brought by respondent No.2 in respect of these very documents. The learned counsel for the respondents, on the other hand, supports the impugned judgment and decree and according to him the documents being 30 years old had rightly been treated as proved and their contents as correct.

3. I have gone through the copies of the record appended with this civil revision, with the assistance of the learned counsel for the parties. I have already referred to the respective pleadings of the, parties, particularly the plaint in some detail above. The entire reliance of the plaintiffs is on the unregistered sale‑deed, Exh. P.1 to P.4, stated to have been executed by Noor Din on 10‑10‑1952. Before I proceed further in the matter I may note here that according to the entries in Exh.D.8, which is a copy of Mutation No. 1707 of inheritance attested on 26‑11‑1963, the said Noor Din had died on 5‑7‑1963. Through the said mutation the estate, including the suit‑land was mutated in favour of the present petitioners who are the widow and children of the said Noor Din. Reverting back to the said documents, Exh.P.1, is purported to have been executed by Noor Din in favour of Muhammad Bashir plaintiff, Exh.P.2 in favour of Ayesha Bibi, Exh.P.3 in favour of Khadeeja Bibi anal Exh.P.4 in favour of Zubeda Begum. All these four documents stated that Noor Din son of Allah Ditta owned land in village Madh, Tehsil Kharian, District Gujrat and in every sale‑deed it is written that he is transferring 1/12 share in favour of respective vendees for a consideration of Rs.99 in each case and that he has received consideration and had delivered possession to the respective vendee. The date of each of the four documents is mentioned as 10‑10‑1952. It is true that the documents bear the date 10‑10‑1952 and by the time they were produced in Court a period of more than 30 years had elapsed from the said date. Still the plaintiffs produced one Muhammad Hussain stated to be the scribe of the said documents. Now this Muhammad Hussain is the brother of Ayesha Bibi plaintiff and consequently maternal uncle of the other plaintiffs. He was aged 50 years. His statement was recorded on 8‑7‑1987. Now whereas in the plaint the sister, nephew and nieces of this witness have stated that after executing the said sale‑deeds, Noor Din proceeded to take up residence in Chak No.490. Tehsil Shore Kot and died there. The witnesses state that Noor Din was already living in the said Chak No.490 and that Noor Din had taken up the residence there before the witness attained his senses. Re that as it may. I find that there is no evidence on record that the land alleged to have been transferred by Noor Din vide Exh.P.1 to Exh.P.4. is the land being claimed by the plaintiffs as described in the plaint i.e. the suit‑land. There is no consistency whatsoever between the pleadings made in the plaint and the said documents. In the plaint it has been stated that Noor' Din owned 13 Kanals and 19 Marlas of land being 1/9 share of 120 Kanals and 15 Marlas of land described in para. 1 of the plaint with reference to Jamabandi for the year 1978‑

79. There is no mention in the sale‑deed whatsoever as to with reference to which Revenue Records the land had been sold. In para 3 of the plaint, it has been claimed that the plaintiffs are owners of 5 Kanals and 6 Marlas of land on the basis of the said four sale-deeds. It is a matter of simple arithmetic s that even treating the said documents to have been executed by the said Noor Din and to be relatable to the suit‑land, upon a reading of the said documents, with the contents of para 1 of the plaint, the area being claimed by the plaintiffs had not been transferred by means of the said sale‑deeds. Needless to state that the contents of the plaint had been denied by the petitioners. No. 1 attempt had been made by the plaintiffs to establish a nexus between the said sale‑deeds and the land being‑ claimed by the plaintiffs. None of the alleged vendees i.e. plaintiffs all of whom are alive entered the witness‑box and instead Ghazanfar Iqbal, who is a student, was put in the witness‑box as D.W.2. He stated that he was 25 years of age on 24‑10‑1987 when his statement was recorded. It will be seen that the said witness was born much after the alleged execution of the said documents. No reason is forth‑coming on the record as to why the said vendees or anyone of them particularly Muhammad Bashir did not enter the witness‑box. A bare look on the cross‑examination of this witness would show that he had no personal knowledge. The statement on the face of it is hearsay and in response to almost all the relevant questions he proceeded to express ignorance. He could not have been present when the said documents are stated to have been executed and he did admit that he did not participate in the said proceedings and that he had heard about the matter from his paternal grandfather and grandmother. He had stated that he had not seen Noor Din. To my mind, failure of the plaintiffs to enter the witness‑box is fatal. As stated by me above, Noor Din remained alive till the year 1963 i.e. for a period of 11 years after the alleged execution of the sale deeds. The reason stated by the plaintiffs for not presenting the documents for its incorporation in the Revenue Records is that Noor Din had left the village after the executing the sale‑deeds. In view of the serious discrepancy noted above with reference to the statement of the brother and uncle of the plaintiffs i.e. P.W.1. the said plea is not plausible. The appointment of son of the said Muhammad Bashir, plaintiff who was not even born when the event took place shall not cure the defect. It was incumbent upon the plaintiff/alleged vendees to have a entered the witness‑box to explain as to why the sale‑deeds were not got incorporated in the Revenue Records in the lifetime of Noor Din. In somewhat similar circumstances, in the case of Shah Nawaz and another v. Nawab Khan (PLD 1976 SC 767) where the matter of relationship of the respondent before the Supreme Court of Pakistan was in question. He appointed his son as a Special Attorney who proceeded to make a statement that his father was son of the last owner. As to the source of knowledge the said attorney said that his father has told him. In the said circumstances, the Honourable Supreme Court of Pakistan observed that the father of the witness is alive but did not enter the witness‑box and this makes the evidence of his son‑attorney inadmissible being hearsay. Further observations of his Lordship are as follows:‑ "If I may say so with respect, it is rather surprising that the trial Court and the learned Judges in the High Court did not think it proper to raise presumption against the respondent's case when there is no explanation whatever, for his failure to enter the witness‑box in support of his case. The mere fact that the respondent resorted to the device of appointing his son to 'be his special attorney is no excuse for his own failure to enter witness‑box. "

4. In the present case as‑ well all the alleged vendees are alive. No reason is for the coming for their failure to enter the witness‑box and the special attorney i.e P.W.2 has stated that he had heard the matter of the stamps from his paternal grandfather and grandmother out of whom grandmother is alive.

5. Coming to the impugned judgment, I find that both the learned Courts below have sufficed with reference to Article 100 of the Qanun‑e‑Shahadat Order, 1984 stating that the documents Exh.P.1. Exh.P.4 stand proved. However a plain reading of the impugned judgment would show that the learned Courts below have not cared to read the said documents and have simply assumed that by means of the said documents the suit land was sold by Noor Din to the plaintiffs. I have already stated above that there is no evidence on record rather no attempt at all to establish nexus between the documents. Exh.P.1 to Exh.P.4 and the suit‑land as described in plaint to the area being claimed by the plaintiffs on the basis of the same. So far as the matter of possession is concerned, nothing turns on the same. It is an admitted position that the three brothers, Noor Din. Mehr Din and Nawab (predecessor‑in‑interest of the plaintiffs) were owners of 1/3rd share in the entire joint (Jamabandi for the year 1950‑51 Exh.P.5 refers) all the said owners were in possession of same part of land while other owners were in possession of the other part of land. Thus even if the plaintiffs are in possession as heirs of Nawab the possession is joint and annures for the benefit of the petitioners as well.

6. As a result of above discussion, I do find that the learned Courts below have mis read the evidence on record and as such the impugned judgments and decrees do fall within the mischief of section 115, C.P.C. This Civil Revision accordingly is allowed. Both the impugned judgment and decree of the learned Courts below are set aside. The result would be that the suit filed by the respondent‑plaintiffs shall stand dismissed without any order as to the costs. H.B.T./M‑1348/L Revision allowed.