2006 PLP 820 (YLR)

JAWWAD S. KHAWAJA, J.

This judgment shall decide the present revision petition as well as Writ Petition No.7602 of 2002 because the two matters have arisen out of one consolidated judgment of he learned trial Court dated 4-9-1993 and a common judgment of the learned Additional District Judge dated 22-1-2002.

2. Briefly stated, the facts are that one Mst. Bashiri Hazoor filed a declaratory suit against Dr. Mehr Ali Khurshid respondent on 26-4-1981 claiming that she was the owner of the land described in the said suit measuring 32 Marlas under an oral sale effected in her favour by Dr. Mehr Ali Khurshid in 1961 for a total consideration of Rs.480. Dr. Mehr Ali Khurshid respondent/defendant appeared in the case and conceded the claim of the petitioner. As a consequence, a consent decree dated 28-4-1981 was passed in favour of Mst. Bashiri Hazoor against Dr. Mehr AN Khurshid. Nazir Ahmad, father of the present petitioner, namely, Mansoor Ahmad filed an application under section 12(2), C.P.C. to assail the consent decree dated 28-4-1981 on the ground that it had been fraudulently obtained. This application has been dismissed by the learned trial Court on 4-9-1993. A revision petition to assail the same has been dismissed by the learned revision Court on 2-1-2002. These two orders are subject-matter of Writ Petition No.7602 of 2002.

3. Mst. Bashiri Hazoor also filed a suit for possession against Nazir Ahmad (father of the present petitioner) and also claimed a sum of Rs.1,000 per month as compensation for the illegal use and occupation of the suit-land. This suit was resisted on the basis of title derived from Dr. Mehr Ali Khurshid. The title of Mst. Bashiri Hazoor, on the basis of the consent decree, was also denied on the ground that the same was fraudulent. The learned trial Court consolidated the two matters and framed nine consolidated issues.

4. Although the facts of this case are long drawn out and voluminous, the basic controversy between the parties is simple. Mansoor Ahmad, the petitioner in these two matters, claims that he, in his own right, is owner of 5 Marlas of the suit-land having purchased the same from Dr. Meter All Khurshid vide unregistered sale-deed dated 4-3-1966 (Exh.P.2 and Exh.P.A.2) for a consideration of Rs.75 only. The title of the petitioner on the basis of Exh.P-2/Exh.A-2 has been denied by Mst. Bashiri Hazoor. This, as such, is the only controversy requiring adjudication by me.

5. The petitioner produced the sale-deed' Exh.P.2 itself and in order to prove the same, he produced two witnesses, A namely, Muhammad Yousaf son of Chhota, who is one of the marginal witnesses to Exh.P-2, and Abdul Haq son of Sheikh Siraj-ul-Haq (P.W.4), who is the grandson of the scribe of Exh.P-2, namely, Sheikh Munawar-ud-Din. The testimony of P.W.2 is clear and has remained unshaken in cross-examination. He has deposed that Exh.P-2 was duly executed by Dr. Meter Ali Khurshid, who was known to him personally. From his testimony, P.W-2 comes out as a credible witness.

6. Abdul Haq (P.W.4) deposed that his grandfather Sheikh Munawar-ud-Din was a deed writer whose handwriting he recognized. He confirmed that Exh.A-2 was in the handwriting of his grandfather and he also recognized the signatures of his grandfather which have been identified on the document as Exh.A-2/Y. From the register of his grandfather, he proved that the transaction was noted in the said register at Serial No.763.

7. The testimony of these two witnesses, namely, Yousuf son of Chhota (P.W.2) and Abdul Haq (P.W.4), coupled with the document Exh.P-2/Exh.A-2 itself, unfortunately has not been considered or properly discussed by the learned Courts below. They have instead proceeded on certain conjectures which do not qualify as evidence. One circumstance, which has prevailed with the learned lower Courts, is that after the death of Nazir Ahmad, only the present petitioner continued to assert his claim, while the other legal heirs of Nazir Ahmad joined hands with Mst. Bashiri Hazoor and did not support the present petitioner. The testimony of the aforesaid legal heirs, by itself, is not sufficient to dislodge the evidence of P.W.2 and P.W.4, noted above. This is particularly so considering that the other legal heirs admitted that differences arose between them and the petitioner on the question of the marriage of one of their sisters. The learned Appellate Court has also been swayed by the fact that there was no proof that the legal heirs of Nazir Ahmad (other than the petitioner) had received compensation of payment from Mst. Bashiri Hazoor for giving up their rights in the suit-land. This is a fallacious premise because the petitioner could not have furnished proof of any compensation and, in any event, the differences between them and the petitioner Mansoor were acknowledged by the other legal heirs.

8. In addition to the above, the learned Appellate Court has proceeded on a serious misconception law to discount the testimony of Abdul Haq (P.W.4). It has been observed by the learned Court that the petitioner had not obtained permission from the Court for proving the document Exh.P-2/Exh.A-2 through secondary evidence. Here it needs to be noted that the document was produced in original and, therefore, there was no occasion for seeking permission to prove it through secondary evidence. If, however, the observation of the learned Appellate Court is taken to mean that the grandson (P.W.4) could have testified only after seeking the Court's permission, this would be wholly untenable. The scribe Sheikh Munawar-ud-Din (grandfather of P.W.4) had died and, therefore, the said witness was competent to identify the handwriting and signatures of his grandfather. The reason given by the learned Appellate Court for not relying on the testimony of P.W.4 is, therefore, without any legal basis.

9. Another reason, which found favour with the learned Appellate Court while rejecting the claim of the petitioner, was that the document Exh.P-2/Exh.A-2 was executed on 4-3-1966 but no attempt was made to gel the same implemented in the Revenue Record through mutation or otherwise. It is strange that while this standard was applied to the title asserted by the petitioner on the basis of a written instrument, a similar test was not applied to the title asserted by. Mst Bashiri Hazoor on the basis of an alleged oral sale in her favour. It is worth-noting that Mst. Bashiri Hazoor had claimed having purchased the land in 1961 from Dr. Mehr All Khurshid by means of an oral sale. She however, did not get any mutation to incorporate the sale in the Revenue Record. It is only in 1981 that she filed her declaratory suit against Dr. Mehr Ali Khurshid and shortly after filing, obtained the consent decree dated 28-4-1981. There is no valid basis for applying one standard to the sale claimed by the petitioner and another standard to the sale claimed by Mst. Bashiri Hazoor.

10. Here it may be usefully noted that Mst. Bashiri Hazoor was the plaintiff in both cases and it was therefore for her to prove affirmatively that she had acquired title in 1961 through an oral sale made in her favour by Dr. Mehr Ali Khurshid. The evidence on record is not sufficient for the purpose of discharging the onus of proof placed on her considering, firstly, that the petitioner and before hint, his father. Nazir Ahmad were in possession of the suit-land and, secondly, because of the unexplained omission as to why the alleged oral sale was not incorporated in the Revenue Record by Mst. Bashiri Hazoor.

11. Finally, I need to take note of the comments of the learned Appellate Court as to the stamp paper on which Exh.P-2/Exh.A-2 has been inscribed. The Court has concluded that the document is not genuine because it does not bear the signatures of Mehr Ali Khurshid on the verse under the endorsement of the stamp vendor. This conclusion, I am afraid, is entirely conjectural. P.W.2 and P.W.4, as noted above, had given credible testimony to prove the document. No question was put to the petitioner as to the purchase of the stamp paper, nor was any attempt made by Mst. Bashiri Hazoor to summon the stamp vendor' or his register, with the object of impugning the authenticity of the stamp paper. The adverse inference drawn against the petitioner on this score is, therefore, without basis.

12. For the foregoing reasons, I allow this revision petition and Writ Petition No.7602 of 2002 and set aside the impugned orders dated 4-9-1993 and 22-1-2002 to the extent of the petitioner. H.B.T. /M-1283/L Petitions allowed.