P L D 2003 Peshawar 200 (PLP)

Sharifullah Khan, petitioner, has filed this revision petition against the impugned judgment and decree dated 20‑4‑1993 of the learned Senior Civil Judge, Malakand and Batkhela and that of the learned District Judge/Zilla Qazi, Malakand at Batkhela dated 26‑9‑1998 whereby the suit filed by Abdullah Khan and others, respondents, was decreed to the extent stated therein.

2. Brief facts of the case are that petitioner Sharifullah Khan arid respondent Abdullah Khan are sons of Khanullah Khan, Abdullah Khan and his sons brought a suit against Sharifullah Khan and his sons for a declaration to the effect that they are in possession of agricultural property and a house mentioned in List 'A' and 'B' with the plaint, as their gifted property and the defendants have got no right to deny the ownership and possession of the p plaintiffs and if the defendants are in possession of any documents regarding the property mentioned in the said lists, then the same are forged and fictitious and ineffective upon the rights of the plaintiffs. The defendants in their written statement denied the claim of the plaintiffs and also relied upon certain documents executed by Khanullah Khan in their favour.

3. The gist of the evidence produced by the parties was that Khanullah Khan, the predecessor of the plaintiffs and defendants gifted out certain properties to his son Abdullah through certain gift deeds, on the basis of which he filed suit against his brother Sharifullah not to interfere in his ownership and possession of the same. The defendant Sharifullah in his defence also produced certain deeds executed in his favour by his father Khanullah Khan, keeping in view the claim of Abdullah almost on the entire property.

4. The learned trial Court came to the conclusion that the execution of the deeds produced by the plaintiff as Exh.P.W.1/2, 1/3, 1/4, 1/5 and 1/6 has been fully established through production of witnesses 'such as Amanullah (P.W.10), Muzaffar Shah (P.W.11) and Zahir Shah. On the other hand, out of various deed relied upon by the defendant, only one deed i.e. Exh.D.W.I/3 dated 15‑5‑1970 was found to have been correctly executed but' the rest were found to have not been properly established through evidence. Hence to the extent of such deeds, the parties were held entitled to its possession whereas for the rest of the properties the parties were held in joint possession and entitled to their Sharai shares.

5. The appeal filed by the petitioners against the impugned judgment and decree was dismissed by the learned Zilla Qazi/District Judge, hence the present revision petition.

6. The conclusion of the learned Courts below is that the plaintiff produced sufficient evidence in support of the execution of the alleged deeds whereas the defendant could not produce such type of evidence as the witnesses were not only related to the defendant but the number was also insufficient. It seems that the learned Courts below laid much stress on the production of witnesses in support of the gift deeds but ignored to assess its evidentiary value in the light of its necessary ingredients such as possession. The evidence produced by both the parties rests only on the point of execution of the deeds and not possession, on which side the evidence of the parties is not worth reliance. The evidence of P.W.1 and P.W.8 reveals that possession was not delivered to the respondents. P: W.8 Jehan Faqir has admitted in his cross‑examination that after the death of Khanullah Khan, he brought the share in produce from the suit land from the threshing flour and unloaded the same 'in the Hujra of Khanullah Khan in presence of Ahmadullah plaintiff and Sharifullah defendant. 6‑A. So far as the relationship of witnesses with the petitioner/defendant is concerned, under the law, relationship is not disqualification and similarly only two witnesses are sufficient for the purpose of attestation of a document. The number of witnesses produced by the parties cannot be compared for arriving at a just conclusion as it is the quality of evidence to be appreciated by the Court's in such‑like cases. Over and above, if the witnesses produced by the petitioner/defendant were related to the petitioner/defendant, the evidence of plaintiff/respondent also shows that the witnesses produced by him were too related to the plaintiff/respondent, and therefore, two different yardsticks were thus not required to be applied while appreciating the evidence of both the parties.

7. Perusal of the evidence available on file is indicative of the fact that both the brothers have tried to deprive each others from receiving their due shares in the legacy of their father, hence the alleged deeds seems to have been manipulated with such a view, but the attempt cannot be said to be successful as the factum of possession is not established, particularly by the respondent/plaintiff. If it is presumed that possession of the properties mentioned in the deeds, Exh.P.W.1/2 to 1/6 was handed over to the plaintiff/respondent, then question arises, why he filed an execution application thereby praying for appointment of a Commission for ascertaining the respective possession of the parties over the suit land. For the aforesaid reasons, this revision petition is accepted in the terms that the impugned judgments and decrees of the learned Courts below are set aside and it is declared that the plaintiffs/respondents have not proved the execution of the gift deeds in his favour, hence the property of Khanullah, deceased, being joint between the parties would be distributed amongst the legal heirs of Khanullah in accordance with "Sharai" shares of the parties. The parties are left to bear their own costs. M.B.A./879/P Petition accepted.