1996 PLP 1598 (SCMR)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.

This order shall dispose of Civil Petitions for Special Leave to Appeal Nos. 137-P to 144-P all of 1995 as common questions of law and facts are involved therein and also they arise out of a single judgment delivered by a learned Single Judge of Peshawar High Court, Peshawar, dismissing the revision petitions filed by the defendants petitioners wherein the respondent is one and the same.

2. The facts succinctly narrated by the learned Judge in Chamber of the High Court are these: The petitioners in all the petitions are occupants of separate shops situate in Khasra No. 1121, Village Char Guli, Tehsil and District Mardan. Haji Muhammad Sadiq Khan, respondent, in all these petitions, filed separate suits against each of the petitioners in the Court of Senior Civil Judge, Mardan, for recovery of Rs.3,600 as rent for the period from August, 1987 to August, 1990 at Rs.100 per mensum and for their ejectment on the ground of default in payment of rent and reconstruction. In the alternative, possessory relief was added. All the petitioners contested the suits pleading that they were tenants of one Gul Roze on the basis of rent deeds executed between them and the aforementioned Gul Roze. The pleadings of the parties in all the suits being similar, identical issues were settled; the same witnesses were examined who furnished identical evidence in all the suits. The learned Trial Judge found on the crucial issue that the relationship of landlord and tenant between each of the petitioners and the respondent or between each of the petitioners and Gul Roze was not established. Nonetheless, all the petitioners were. held to be trespassers and, therefore, all the suits were decreed. Petitioners, feeling aggrieved, filed, separate appeals before the learned District Judge, Mardan, which were also dismissed.

3. Dissatisfied with the appellate orders, each one of the petitioners filed civil revisions in the High Court which, as stated earlier, were heard together. On behalf of the petitioners it was argued before the learned Single Judge that out of total area of 8 Kanals and 6 Marlas, the respondent owned only 4 Marlas; that the remaining 5 Kanals and 12 Marlas belonged to Gut Roze to whom the petitioners were attorning regularly; that me two Courts below have erred in law in placing reliance on the evidence of Shah Pasand Khan, grandfather of the respondent, recorded in an earlier suit; that likewise averments attributed to Gut Roze in his plaint in an earlier suit were illegally considered in the present suits and lastly; that the judgments of the High Court as well as of this Court in an earlier round were not between the petitioners and the respondent herein and, therefore, were devoid of any evidentiary value in so far as the present round of litigation was concerned.

4. The learned Single Judge, however, reached the conclusion that in the earlier revision petition arising out of similar suit between the respondent and one Mohibullah "at least goes on to show that the respondent was in possession of at least one shop in dispute". The learned Judge further held that Civil Revision No.431 of 1988, filed against the judgments of the lower Courts decreeing the suit of the respondent herein for ejectment and recovery of rent for a part of the disputed property situate in Khasra No.1121 was dismissed "as it was found that Gut Roze was tenant of Haji Muhammad Sadiq Khan" and, therefore, "this judgment also advanced the case of the respondent to a certain extent, in that, Gut Roze to whom the petitioners herein own to be their landlord, remained as tenant of the respondent over part of the property in Khasra number in question". The learned Judge then proceeded to examine the proposition as to whether the petitioners had succeeded in establishing their relationship of landlord and tenant between the petitioners on the one hand and Gut Roze on the other on the strength of rent deeds Exh.P.W.2/5 in each suit, the execution whereof was sought to be proved through the solitary statement of their attorney Farhad Ali and abandoning the other two attesting witnesses, namely, Safdar Ali and Jehanzeb Khan. In this context, that is what was observed by the learned Judge --since he was an attorney for the petitioner/plaintiffs and the only witness to appear for them, he was a partisan in the proceedings, which would diminish the evidentiary value of his testimony as an attesting witness to the rent deeds; an attesting witness is expected not to be a partisan. Furthermore, Gut Roze who allegedly executed the deeds as landlord, was not a party to the suits and thus had no opportunity to respond to the plea of the petitioners. It was thus essential that he should have been produced by the petitioners as witness, not only to prove execution of the deeds by him, but to testify as to the existence of 'the tenancy between him and the petitioner... It follows that the petitioners were neither tenants of the respondent nor of Gut Roze, reducing their status to that of trespassers. " The revision petitions were thus dismissed.

5. Mr. Muhammad Umar Khan, learned counsel appearing on behalf of the petitioners, vehemently contended that the execution of the rent deeds copies Exh. P.W.2/5 between the petitioners and Gut Roze was proved through the testimony of Farhad Ali (D.W.1) their special attorney and that, therefore, the learned Judge in Chamber had fallen into an error to hold: (i) "that Farhad Ali was partisan witness which diminished his evidentiary value as an attesting witness"; (ii) "that an attesting witness is expected not to be -a partisan witness"; and (iii) that "Gut Roze who had purportedly executed the deeds as landlord was not party to the suits and had thus no opportunity to respond to the plea of the petitioners". In this context, the learned counsel placed reliance on the interpretation put on section 68 of the repealed Evidence Act, 1872, corresponding to Article 79 of Qanun-e-Shahadat, 1984 in the precedent case of Muhammad Rafiq v. Muhammad Zahur Nasir (PLD 1956 (W.P.) Lahore 354) and urged that the provisions of Article 79 (ibid) applied to those cases only in which the dispute regarding execution is between the maker of the document and the person in whose favour it was made.

6. This contention is simply untenable for more than one reason. Conceding for the sake of argument that Farhad Ali was competent to testify to the execution of the questioned rent deeds still under Article 79, in accordance with the requirements of Islamic Jurisprudence two attesting witnesses at least are required to prove execution. Again the argument of learned counsel that Farhad Ali attorney of the petitioners was the executant of the rent deeds, therefore, no express prohibition could be led even as regards the party to a deed being an attesting witness, has also got no substance, in that, the point of view we are taking in this case is well-expressed in an old case from Indian jurisdiction in Durga Din and others v. Suraj Bakhsh (AIR 1931 Oudh 285). We would, therefore, quote from the judgment in that case the relevant portion which reads as under:-- "The word 'attested' has been defined by the Transfer of Property Amending Act, 27 of 1926, which definition has been incorporated in section 3, T.P. Act, 1882. But this definition does not lay down any rule as regards the persons who are competent to be attesting witnesses. Thus, so far as the statute law goes there is no express prohibition even as regards a party to the deed being an attesting witness. However, the rule. is well-established that a party to the deed is not competent to be an attesting witness. This rule is based on sound general principles and is intended to prevent malpractices and fraud. " We are also inclined to approve the law laid down in another case in the context of sections 3 and 59 of the Transfer of Property Act, 1882, again from Indian jurisdiction, namely, Gomathi Animal v. V.S.M. Krishna Iyer (AIR 1954 Madras 126) which is to the following effect:- "The attestation, therefore, of persons to a document is to ensure that there is no fraud or other vitiating circumstance in the execution of the document." After a great deal of discussion in the case of Gomathi Animal (supra), the learned Judge in para. 10 summarised his conclusion thus: "In the present case; though the power-of-attorney agent of Sankaramier, defendant 3, is a different person, the act he did was an act on behalf of Sankaramier and in law, Sankaramier is the executant of the document. Sankaramier, being a party to the document, could not be a valid attesting witness for the very good reasons given by Lord Selborne, Lord Chancellor in the case already cited. The argument strongly pressed on behalf of the respondent, however, is that as physically the two persons are distinct, it should be treated that the power-of-attorney agent was in fact the person who actually signed the document and, therefore, there is no objection for Sankaramier, on whose behalf the document was executed to be a valid attesting witness. It is rather difficult to accept this argument for it is impossible 'to hold that Sivasubramania Aiyar, the power of-attorney agent, was in any sense of the term the executant of the document. The person entitled to sue for redemption and liable to be sued for enforcing the mortgage is not Sivasubramania Aiyar but Sankaramier, the executant. Therefore, in law Sankaramier is treated as the executant of the document though the act was done by somebody on his behalf. The analogy of cases where the scribe puts the mark of an illiterate executant and also signs an attesting witness could equally apply in the present case. If in the one case he could not be a valid attesting witness, there is no reason why in the present case Sankaramier. should be treated as a valid attesting witness. If any, the reason for holding. that he could not be a valid attesting witness is stronger than in the other case. I am, therefore, unable. to accept the argument of the learned counsel for the respondent so strongly pressed by him and applying the well-established principle that a party to a document cannot be valid attesting witness, I must hold that the document, the othi deed was not validly attested and, therefore, ineffective to create a valid mortgage. " We have, therefore, no hesitation to hold that a person executing a document as a power-of-attorney-holder cannot be a valid attesting witness particularly when the deed of which he claims to be executant is subject-matter of dispute by a third party. The learned Judge in -the instant case had rightly taken the view that the status of Gul Roze in whose favour the alleged rent deeds had been executed was under dispute and was the best witness to have testified to the execution thereof and that having not been produced the evidence of the attorney of the petitioners was not sufficient to prove the execution.

7. The ratio in the case of Muhammad Rafiq (supra) is different and in that case the headnote has been reproduced without the narration of the factual background preceding the sidelined portion relied upon by Mr. Muhammad Umar Khan. It reads as under:-- "Lastly, the scope of the provisions of. section 68 of the Evidence Act has also been completely misunderstood by the Courts below. According to the proviso to this section, if the execution of a registered document is denied by its maker, then alone it is necessary to prove it by the evidence of one of the attesting witness; otherwise such a document is exempt from the scope of the main section. This would show that the provisions of section 68 will apply to those cases only in which the dispute regarding the execution of the document is between the maker of the document and the person in whose favour it purports to have been executed. In the present case there was no such dispute. In fact, the mortgagees in both the cases admitted the factum of mortgages and their redemption later on."

8. For the foregoing reasons, we are unable to find any legal infirmity in the findings of the impugned judgment of the learned High Court to warrant interference. The petitions are, accordingly, dismissed and the leave is refused. A.A./F-390/S Leave refused.