2021 PLP 104 (YLR)

SALAHUDDIN PANHWAR, J.--Through this Revision Application, the applicant has assailed the judgment and decree dated 30.03.2016 passed by learned IV-Additional District Judge, Karachi Central in Civil Appeal No. 16 of 2012, whereby the judgment and decree dated 23.12.2011 passed by learned 1st Senior Civil Judge, Karachi Central in Suit No. 458/2003 were upheld and consequently, the appeal was dismissed.

2. Relevant facts are that plaintiffs (respondents Nos.1 to 6) filed Suit No.24/1995 that was decreed. Thereafter present Applicant filed application under Section 12(2), C.P.C. which was allowed and plaintiffs were directed to join applicant and the suit was directed to proceed afresh. Accordingly, respondents filed Suit No. 458/2003 that was decreed wherein nine (09) issues were framed. That judgment was challenged by present applicant that was also dismissed and through the present Revision Application, the applicant is claiming ownership on the basis of sale agreement dated 07.01.1989, whereas, respondents are claiming ownership allotted by KMC to their predecessor in interest Mr. Mirza Ayoub Baig. That issue was also framed by the learned trial court and decided in affirmative.

3. The scope of Revisional jurisdiction of this Court is limited one, therefore, unless it is shown that findings of two courts below are not, prima facie, illegal and perverse the same would not be disturbed. The principle is settled one, as reaffirmed in the case Muhammad Idrees v. Muhammad Parvez (2010 SCMR 5) that:- "It is settled principle of law that this Court seldom interferes in the concurrent conclusions arrived at by the Courts below while exercising power under Article 185(3) of the constitution unless and until the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of this Court in civil petitions, the burden lies rather heavily on the petitioner to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us."

4. In cases of Specific Performance of Contract the burden always remain upon the beneficiary of document to prove the document which burden always includes satisfaction of Article 79 of Qanun-e-Shahadat Order. The failure of such obligation shall always have its consequences. In the case of Farid Bakhsh v. Jind Wadda (2015 SCMR 1044), it is detailed as: "This Article is 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 witless would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting if to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such. The judgments rendered in the cases of Imtiaz Ahmed v. Ghulam Ali and others and Jameel Ahmed v. Late Safiuddin through Legal Representative (supra) have therefore no relevance to the case in hand. Reference to the judgment rendered in the case of Nazir Ahmed v. Muhammad Rafiq (1993 CLC 257) (supra) cannot help the appellant when it being against the terms and meanings of the Article is per incuriam. ..In the case of Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs (PLD 2011 SC 241), this Court after defining the meanings 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. (underlining is mine)

5. To see whether there is any illegality or patent mis-reading, likely to cause perpetuating a grave miscarriage of justice, I have examined the file. Perusal of the record shows that all issues were adjudicated and addressed by the learned trial court through a splendid judgment and there is admission on the part of applicant that he failed to examine the marginal witnesses as well as he failed to submit any proof of payment of sale consideration and proof of possession as well construction. In contra respondents submit certain documents as Exs. P/3, P/4, P/5 and P/9 pertaining to lease issue by KMC in possession of Mirza Ayoub Baig as well they examined the relevant officer of KMC. It would be conducive to refer issue No. 6, [Suit No. 458/2003], which is that: "In his cross-examination, the defendant No.2 has admitted that he has not filed any affidavit in evidence as witness namely Maqsood son of Ali Akbar and other witnesses of the agreement of sale. He has admitted that he has not filed payment receipt in respect of amount of Rs.1,50,000/- in court nor produced the documents as mentioned in Exh. D/7. He has further admitted that since 1989, he has not installed the electricity and sui gas in his name in Plot No.

45. He has further admitted that he has not filed any documentary proof in respect of construction made by him on this plot No.45. He has further submitted that the electricity meter is not installed in his name in both the plots Nos. 45 and

46. He has denied that there is no electricity installed in the name of any other persons on Plot No.

46. He has admitted that he has not filed the electricity bill in the name of any other persons over the suit plot. During cross-examination the defendant No.2 saw Exh. D/7 and Exh. D/8 and deposed that he cannot say as whether both the agreements have been written in same writing and same pen. He has further deposed that he cannot say at the time of purchasing of the stamp paper in the year 2000 he had purchased another stamp paper of the year 1989. He has denied that at that time both agreements was prepared and signed and decided by one person in the same handwriting. He has admitted that since 2000 he has in knowledge in respect of lease but he has not moved any application to for cancellation of lease since 2000 till today nor issued notice and also he has not filed any suit in the court of law and/or application to the concerned department. He has admitted that he has not applied for issuance of lease since 1989 to KMC in his name. He has further admitted that he has not produced any witness to prove that since 1989 till 2000 he was in possession of both the plots. He has also admitted that after execution of agreement of sale Exhs. D/7 and D/8 thereafter he has not executed sale deed in my name. He has admitted the he has not changed the meter of sui gas in his name instead of Muhammad Yaqoob. He has denied that he has implicated the false persons against the plaintiff and restrained the proceedings of the plaintiff in different suit. He has further denied that he has illegally occupied the plot plots Nos. 45 and 46 and intends to usurp the properties of the plaintiff and he is deposing falsely. From the above discussed evidence, it came on record that the defendant No.2 is not a owner of the suit plots. He produced Exh. D/7 and Exh. D/8, these are only agreement of sale and settled law is that these documents are not a title documents. It is an admitted facts that the defendant No.2 has not executed sale deed nor filed any suit for Specific Relief Act against the seller. Further the defendant No.2 has not in possession of title documents and has failed to prove that he is owner of suit plots and also not create his status in capacity of owner. It means that defendant No.2 is in possession of the suit property in capacity of trespass. Since long a litigation was/is pending between the suit parties but the, defendant No.2 not come in the court and not clear his status. I, therefore, issue No. 6 is answered accordingly".

6. While examining the relevant judgment as well above para in juxtaposi-tion of plea raised by the counsel for the applicant, I found the judgment to be in accordance with law; this is not a case of mis-reading and non-reading of evidence, hence, instant revision application is hereby dismissed along with listed application(s). SA/A-23/Sindh Application dismissed.