1980 PLP 17 (CLC)

(1) Whether the plaintiff has a cause of action ? (2) Whether the suit was within time ? (3) Whether the suit had been properly valued for court-fee and jurisdiction ? (4) Whether the suit was not in proper form ? (5) Whether the boundaries of the house given in the plaint were not correct 7 (6) Whether the plaintiff was the owner of the house through inheritance and private partition ? (7) Whether the plaintiff had validly purchased the suit house ? (8) Whether defendants 1 and 2 had become owners of the suit house by adverse possession ? (9) Whether defendants 1 and 2 had made improvements in the disputed house, if so, to what extent and what was its effect ? (10) Whether Rahim Gul was the sole owner of the house in dispute on the basis of registered deed dated 13-8-1925 and defendant 1 had inherited from him ? In view of the documentary and oral evidence produced before him by the parties on these issues, the learned trial Judge dismissed the suit of the plaintiff, vide his judgment dated 8-2-1966. On appeal filed before him by the plaintiff, the learned District Judge concurred in the judgment of the learned trial Judge and dismissed the Appeal, vide his judgment dated 13-12-67 impugned in this second appeal. The first question argued before me in this appeal is whether or not the suit house belongs to the plaintiff ? In this respect, the parties relied on oral and documentary evidence in support of their respective claims. In order to prove his claim, the plaintiff relied on a pedigree-table as given in the judgment of the learned District Judge to show that Gulab Khan, the predecessor-in-interest of the plaintiff, was an owner of considerable agricultural and house property in village Chamkani, on whose death the property was inherited by his three sons, namely, Said Ahmad, Gul Ahmad and Nawab Khan. The plaintiff is the son of Nawab Khan while Noor Ahmad is the son of Gul Ahmad. It is stated that in consequence of the family partition with respect to the houses effected between the heirs of Gulab Khan, the suit house fell to the share of the plaintiff and his cousin Noor Ahmad, and subsequently Abdus Sattar son of Noor Ahmad sold his share to the plaintiff. The plaintiff mainly based his claim on two deeds (Exh. P. W. 8/1 and Exh. P. W. 8/2). He further relied on the oral evidence of Hasham, Farid, Qamar Jan, Muhammad Amir, Pir Muhammad, Din Muhammad, Samar Gul, Khan Muhammad, Hamesh Gul and Nauroze. Exh. P. W. 8/1 is an arbitration deed dated 18-10-1939 on the basis of which the offspring of Gulab Khan appointed Musa Khan and Muhammad Sadiq (both members of Panchayat Committee of village Chaukani) an arbitrators to settle the dispute amongst them relating to the houses and Hujra in village Chamkani. While Exh. P. W. 8/2 is an agreement dated 9-5-1940 by which the dispute was settled as a result whereof besides other houses, the suit Miana occupied by Bakhshish, Hussain Gul and Wasim Gul as tenants went to the share of the plaintiff and Noor Ahmad. Exh. P. 1 is a sale-deed on the basis of which Abdus Sattar son of Noor Ahmad sold his share in the suit Miana to the plaintiff. The learned District Judge held the aforesaid two documents (Exh. P. W. 8/1 and Exh. P. W. 8/2) to be inadmissible in evidence and hence not worth consideration. He observed that as regards Exh. P. W. 8/1, the plaintiff failed to produce its scribe and attesting witnesses to depose that in it the suit house was included. As regards Exh. P. W. 8/2, he observed that it pertains to the partition of a number of houses valued more than Rs. 100 and since this document was compulsorily registerable which was not done, it would, therefore, l3ave no evidentiary value. He also rejected the evidence of the witnesses, who were parties to this deed and had executed it, on the ground that they are interested persons, being related to the plaintiff. The further reason which weighed with him in rejecting this document was that it does not give the boundaries of the suit Miana and thus it cannot be said whether this document relates to the suit Miana also. On a careful review of the evidence on record, I have come to the conclusion that both Exh. P. W. 8/1 and Exh. P. W. 8/2 are a satisfactory piece of documentary evidence to be relied upon. In other words, the plaintiff has been able to prove the execution of these two deeds. The plaintiff produced the executants of these documents and they admitted their execution. There is nothing on the record to show that they falsely deposed in regard to the execution of these two documents. Not only this but these two documents bear their signatures/thumb-marks to which the defendants have not put up challenge that these are false signatures/thumb-marks. It would, therefore, be obvious that both Exh. P. W. 8/1 and Exh. P. W. 8/ stand proved, so far as their execution is concerned. This being the position, the evidence of the witnesses, even though they are related to the plaintiff, cannot be questioned. Now it is the rule of evidence that if the execution of a deed is proved, the question whether it has been registered would have no material bearing upon the merit of the case. I would like to deal with another objection about the non-registration of Exh. P. W. 8/2. In this context, it may be observed that while determining the question whether a particular document falls within the scope of section 17(1)(c) of the Registration Act, what the Court is required, is to go through the document and its consents as well as the nature and surrounding circumstances in each particular case. In other words, if it is found that the document is of such a nature in which the particulars of each item were uncalled for, the Court would not make it a ground for rejecting the same. Now a look at Exh. P. W. 8/2 will show that it is in the nature of a memo. containing the list of shares of each party who got the time of its execution. In the circumstances, literally this document cannot be said to be a partition deed, for it was designed only to determine the shares of the parties and was not designed to separate their shares in order that the parties should take the possession of their respective shares. There is no evidence on record to show that in consequence of Exh. P. W. 8/Z the parties were put into possession of their respective shares. In this view of the matter, the deed can be held to have explained the title of the parties including the plaintiff and thus the provision of section 17(1)(c) cannot be attracted to it, as it does not constitute a partition deed. It may be observed that in a case of this nature, Exh. P. W. 8/2 or for that matter Exh. P. W. 8/t can be used a evidence of collateral transaction requiring no registration. A well-settled principle had been followed by various Courts and it was held in a number of cases that a document which requires registration under section 17 of the Registration Act and which is not admissible for want of Registration to l prove a transaction, is nevertheless admissible to explain its nature and character as well as the position of the person who holds under it. In so far as the gift-deed (Exh. D. 1) on which the defendants have based their title is concerned, the two Courts below have observed that since it is a 30 years old document, it can, therefore, be presumed to be genuine under section 90 of the Evidence Act. Now a look at the language of section 90 of the Evidence Act will show that it is discretionary for the Court to raise the presumption in regard to the genuineness of a document. This section does not make the presumption imperative. What it says is that the Court may presume a document to be genuine. The word may is of significance from which it would be obvious that the court may or may not presume a document to be genuine. In other words the court is not bound to presume genuineness of a document id doubtful the court may reject it outright . In this context I proceed to examine gift-deed (Exh. D.1). It shows that the suit house was gifted by Khan Gul in favour of Rahim Gul. Khan Gul is the cousin of Rahim Gul who is the father of defendants. It is, therefore, clear that the vendor and vendee not only belong to the same family but they are very close relatives. Now in view of the fact that the defendants are artisans of the village, the same would be the position of Khan Gul. It is in evidence that the artisans belong to a non-proprietary body of the village. The question will thus arise as to when and from whom Khan Gul purchased the suit house ? In this respect, the defendants have failed to bring any cogent and satisfactory evidence on record. Substantially their averment is that the suit house is in their possession since the time of their forefathers. Wasim Gul (D. W. 3), the son of Rahim Gul (the alleged donee of the suit house). has in his statement did not refer to the gift deed. While Hussain Gul (D. W. 1) has said only this much that the disputed house is in their possession since 50/60 years and that it was purchased by Khan Gul donor from an unknown woman. The kind of this evidence, in my view, can hardly be a ground to establish the claim of defendants that they are owners of the suit house by purchase. I have, therefore, come to the conclusion that Khan Gul had never purchased the suit house from any one of the proprietary body of the village and thus Exh. D. W. 1/1 can be held to be a fictitious document executed between the father of defendants and Khan Gul at the back of the real owners. Having reached this conclusion, it will follow as a necessary corollary that the plaintiff is the owner of the suit site, for it is abundantly clear from the evidence on record that the abadi upon the suit site belongs to the defendants. In this respect, the learned District Judge has furnished a very cogent and plausible reason that it is a new abadi containing largely wooden work and this would be the job of the defendants who are carpenters by profession. Now there is no evidence on the record to show that the defendants bad raised the abadi upon the site without the consent of its owners. In the circumstances, the defendants would be entitled to the price of the abad upon the suit site. The Local Commissioner appointed by the learned trial Judge in this case has fixed the price of the abadi as Rs. 3,

250. It may be mentioned that the Local Commissioner had fixed the said price in 1966 when the necessities of life were comparatively cheaper than nowadays. There would thus be no justification to stick to the said amount in the circumstances of the case. Notice may also be taken of the fact that the defendants were successful in this case in the two Courts below. It can thus be said that if they had lost the case in the two Courts below, surely they would have then managed to purchase a house for themselves at some cheaper rate. Equity, therefore, demands that the price of the abadi upon the suit site be assessed freshly at the present market value in order to compensate the defendants fairly and properly. Consequently, setting aside the judgments of the two Courts below, I decree the suit of the plaintiff in the manner that he is held owner of the suit site. As regards the abadi upon the suit site, I direct the trial Judge that be would appoint a new Commissioner who would assess the price of the abadi upon the suit site at the present market value. Whatever price is fixed by the Local Commissioner, the defendants would be entitled to receive it from the plaintiff and unless the same is paid, they would not be ejected from the suit house. This appeal, therefore, succeeds in terms indicated above. Under the circumstances, however, there would be no order as to costs. S. A. H. Appeal allowed.