1986 PLP 562 (MLD)

Dates of hearing: 26th, 29th October; 30th November4th and 9th December, 1985. This regular second appeal by Ramzan is directed against the judgment and decree of the Additional District Judge, Jhang, dated 20th of April, 1978 whereby his appeal from the judgment and decree passed by the Senior Civil Judge, Jhang on 14th of December, 1974 dismissing his suit was dismissed.

2. Agricultural land measuring 71 Kanals and 5 Marlas situate in Mauza Wasu Astana, Tehsil and District Jhang after having been resumed under paragraph 16 of the West Pakistan Land Reforms Regulation, 1959 (Martial Law Regulation No.64) was granted by the Government to the parties jointly in equal shares under a Scheme prepared in pursuance of paragraph 19 ibid, vide sale agreement (Exh. P.17) executed in their favour by Sub‑Assistant Land Commissioner on 29th of April, 1961. This agreement was registered on 15th of August, 1961. On 20th of January, 1970, the appellant instituted a suit for a declaration than since the respondent had surrendered his rights in the land to the extent of his share in his favour by a surrender deed executed or 23rd of June, 1969, he had ceased to have any right thereto and for a perpetual injunction restraining him from interfering with his possession and alienating the land. He alleged that after the grant of the land to him and the respondent jointly, the respondent on account of hi: indigence expressed his inability to pay instalments of Government due and, therefore, the respondent executed an Iqrarnama on 23rd of June 1969 surrendering his rights to the land in his favour and allowing him to pay Government dues and acquire proprietary rights in respect thereof. According to him, the respondent delivered to him the possession of the land of his share also. Subsequently, however, the respondent resiled from the agreement and attempted to interfere with his possession He, therefore, brought the suit for the declaration and perpetual injunction as mentioned above.

3. The respondent resisted the suit. He denied that he executed any agreement in favour of the appellant. According to him, in case the appellant was in possession of any agreement, it was fictitious and fraudulent. He pleaded that both the parties were jointly in possession of the land since its grant in their favour and they were jointly paying the Government dues in instalments. He raised preliminary objection to the effect that since the appellant was not in possession of the land, the suit was not maintainable in its present form and that the appellant had no locus standi to bring the suit.

4. On the basis of the pleadings filed by the parties, the learner trial Court framed the following issues:‑‑-- (1) Whether the defendant executed the agreement to relinquish his claim in the property in dispute in favour of the plaintiff (2) Whether the plaintiff is in possession of the land in dispute and the suit is maintainable in the present form? (3) Whether the plaintiff has no locus standi to bring this suit ? (4) Relief . Subsequently the following issue was added:‑‑

(1‑A) If issue No.l is proved, whether the thumb‑mark of the defendant was obtained on the document in question by way of fraud and what is its effect?

5. The appellant examined three witnesses including himself in support of the issues while in rebuttal the respondent produced three witnesses besides himself. They also tendered in evidence certain documents. After appraising the evidence, the trial Court found all the issues against the appellant and consequently dismissed his suit. Feeling aggrieved, the appellant preferred an appeal which was heard by the learned Additional District Judge, Jhang who, vide his judgment and decree impugned in this appeal concurred in the findings arrived at by the learned trial Court and dismissed the appeal.

6. Learned counsel for the appellant has vehemently contended that concurrent finding of the learned Courts below on Issues Nos.1 and 1‑A suffers from gross misappreciation of evidence and is, therefore, untenable in law. The appellant alleged in paragraph 2 of his plaint that‑on 23rd of June, 1969, the respondent executed in his favour an Iqrarnama whereby he surrendered his rights in the land to him on the plea that he was not in a position to pay the Government dues. The respondent in para. 2 of the written statement simply denied the allegation asserting that he did not execute any agreement in favour of the appellant add if the appellant was in possession of any agreement, it was fictitious and fraudulent. During the pendency of the suit, the appellant filed an application praying that the agreement be sent to the Finger Print Expert for a report as to whether the same bore the thumb‑impressions of the respondent. It was in reply to this application that the respondent for the first time admitted that the agreement bore his thumb‑impressions. While admitting his thumb‑impressions, he alleged that the appellant obtained his thumb‑impressions by fraud. However, he did not give particulars of the alleged fraud. The appellant in his affirmative evidence produced Muhammad Ibrahim Khalil, the scribe of the agreement EXh.P.1, as P.W.2. He deposed that he scribed the document at the instance of the parties. He ‑read over the same to the respondent and he thumb‑marked the same‑ No question of any fraud was put to him in his cross‑examination. While adducing evidence in rebuttal the respondent disclosed that the appellant suggested to him that he executed in his favour a Mukhtarnama as it entailed unnecessary expenditure and wastage of time for them to' go together to the Courts for paying instalments. He agreed to this suggestion and accordingly he thumb‑marked the document on the understanding that a Mukhtarnama Y was being executed. In his cross‑examination he said that he had put his thumb‑impressions on a blank paper. He further said that he did not tell his counsel about 'Mukhtarnama. His statement in the circumstances does not ring plausible. Nawab D.W. 1 and Pathana D.W. 2 are ripe marginal witnesses of the agreement. They said that they had thumb‑marl, the document at the instance of the appellant who had told them that he had got a Mukhtarnama from the respondent. According to Nawab D.W. 1 in cross‑examination he was not aware as to whether the document was scribed before or after he had affixed his thumb‑impression. Pathana, however, said in his cross‑examination that the document Exh. P.1 had been written when he thumb‑marked the same. The respondent explained in his cross‑examination that it was after the institution of the suit that he came to know that an Iqrarnama had been got executed. However, Nawab D.W.1 said in hip cross‑examination that it was three years back (which means immediately after the execution of the document and before the institution of the suit) that he became aware that the document had been got executed fraudulently. These discrepancies in the evidence of the respondent eloquently recoil on its veracity. The learned lower appellate Court has observed that the onus to prove that the agreement Exh.P.1 was based on fraud would in the circumstances shift to the respondent. However, he held that the respondent had fully discharged the onus. This finding is manifestly unsustainable. As pointed out above, the evidence of the respondent is not only discrepant but also an afterthought and a contrivance. If the case of the respondent were true, he would certainly have pleaded the same in his written statement and put it to the appellant and the scribe of the document in their cross‑examination. For this reason, the concurrent finding of the Courts below on issues Nos.1 and 1‑A cannot be affirmed.

7. Learned counsel for the respondent has argued that a finding on a question of fact, even if erroneous, cannot be interfered with in second appeal. There cannot be any cavil with this proposition of law. A finding on a question of fact cannot be reversed in second appeal on the ground of insufficiency of evidence or reliability of witnesses as held in Mumtaz and 3 others v. Mian Khan P L D 1973 Lah. 47 but ‑when it is manifestly vitiated by misreading of material evidence and non‑consideration of legal effect 'of evidence on record, it can undoubtedly be reversed. In this case the prevarication of the respondent at different stages fortifies the genuineness of the claim put forward by the appellant that the respondent surrendered his rights in the land in his favour by executing the agreement Exh.P.1. In these circumstances, the finding of the learned Courts below on Issues Nos.1 and 1‑A is reversed.

8. The next question which arises for consideration is as to whether the agreement Exh.P.1 is lawful and enforceable. As mentioned above, the land was granted to the partiA under a Scheme prepared in pursuanpe of paragraph 19 of the West Pakistan Land Reforms Regulation, 1959 (Martial Law Regulation No.64). Paragraph 32(c) of the Scheme provides that "a purchaser shall not alienate the land by sale, gift, exchange, mortgage or otherwise without the prior permission in writing of the Deputy Land Commissioner". The same condition was incorporated in the sale agreement Exh.P.17 where it has been recited in clause 3 that the grantee shall not alienate the land by sale, gift, exchange mortgage or otherwise without the prior permission in writing of the Deputy Land Commissioner. This permission admittedly was not obtained before the respondent surrendered his rights in the land in favour of the appellant. Therefore, the agreement being violative of law is void and unenforceable. Reliance in this connection may be placed on Fazal Haleem v. Fateh Muhammad Khan and others P L D 1980 Pesh. 165, Ghulam Rasul and others v. Muhammad Anwar and others 1969 SCMR 254 and Mirza Muhammad Ahmad Beg v. Mirza Amjad Beg P L D 1978 Lah. 421.

9. The learned Courts below have also held that the suit as brought in the present form is not maintainable as the appellant being not in exclusive possession of the land should have sued for possession as well as a consequential relief. The finding that the appellant is not in exclusive possession of the land is borne out from not only the copies of Khhsra Girdawari Exhs. D.2 and D.4 and the oral testimony of the witnesses examined by the respondent but also from the agreement Exh. P.1 in which it has clearly been mentioned that till its execution, the land was under joint cultivation of the parties. However, this fact cannot ipso facto result into dismissal of the suit. The appellant could be offered an opportunity to amend the plaint so as to seek the relief of possession also. However, since the dismissal of the suit is the inevitable result of the agreement being offensive against the mandatory provisions of law, such a course is unnecessary.

10. For the foregoing reasons, this appeal fails and is hereby dismissed. The parties are left to bear their own costs. A. A. Appeal dismissed.