1990 PLP 1646 (SCMR)

MUHAMMAD AFZAL ZULLAH, C J.‑‑‑This appeal through leave of the Court is directed; against a judgment of the High Court; whereby appellant's Civil Revision was dismissed. The essential facts noted for the grant of leave to appeal are that "on the marriage of Mst. Lofrin Begum (respondent No. 1) with Saadullah Khan (respondent No. 3) .respondent Khushdil Khan (the father of Saadullah Khan) transferred to her (Mst. Lofrin Begum) in lieu of her dower 1/4th share in house No. 118‑T, situated in Mohallah Juma Khan, Kohat City. The record would show that the said marriage proved a failure and consequently Mst. Lofrin was divorced by said Saadullah Khan respondent. In order to secure her interest in the said house, Mst. Lofrin filed against respondent Khushdil and his son Saadullah, civil suit in the Court of Senior Civil Judge, Kohat, which in due course was decreed. This decree of the learned Civil Judge was challenged by Khushdil in the Court of District Judge, Kohat. But on 7‑2‑1972 his appeal was dismissed. The learned counsel says that no further proceedings were resorted to by Khushdil. And so the matter rested there. "On 29‑4‑1972, that is to say, only two months after the appeal of Khushdil was dismissed by the District Judge, Kohat, the petitioner, the mother and wife of Khushdil and Saadullah Khan respectively, fled in the Court of Civil Judge, Kohat, suit for declaration that she was the owner in possession of house No. 118‑T eversince 18‑7‑1925; when in lieu of her dower it was transferred to her by Khushdil through registered Kabin‑Nama, and consequently the decree passed in favour of Mst. Lofrin (to the extent of 1/4th share in that house), was ineffective against her rights. The suit was contested only by Mst. Lofrin who in her written statement denied the claim of petitioner on various grounds which gave rise to the framing of nine issues by trial Court. On these issues the parties produced their respective evidence and thereafter the learned trial Judge dismissed the suit of petitioner. Against the decree of trial Court, the petitioner went in appeal to the Court of District Judge but her appeal was dismissed. Finally she filed in the High Court revision application but it was also dismissed. "Mr. Masood Kausar, the learned counsel for petitioner argued before the Court only issue No. 1, which is as under:‑‑ "

1. Whether plaintiff is owner in possession of the suit house and defendants have got no right with it, therefore, decree dated 7‑2‑1972 passed by Additional District Judge, Kohat, is void and ineffective on plaintiff s rights?" "In order to discharge the burden under this issue, the petitioner produced in trial Court an attested copy of Kabin‑Nama from the Office of Sub‑Registrar, Kohat, saying that she had lost the original of it. The learned trial Judge, however, disregarded the said document, observing that being in the nature of secondary evidence it could not be produced without the permission of the Court. The learned Judge was also influenced by the fact that the contesting respondent had in her evidence asserted that the petitioner was in possession of the original Kabin‑Nama but was deliberately withholding it from the Court. But in this respect he was evidently mistaken. On the record of the case the petitioner had produced an attested copy of the said document, and that too from the Office of the Sub‑Registrar, Kohat, and so what would be the point to withhold the original document. However, proceeding in his own way, the learned trial Judge disbelieved the petitioner's case and non‑suited her. "In appeal before the District Judge, Kohat, however, the said finding of learned trial Judge was set aside. The learned District Judge, took note of section 90‑A of the Evidence Acct, as added by the Law Reforms Ordinance, 1972, and rightly held as under:‑‑ "A plain reading of this section would show that a certified copy of a document which is not less than thirty years old, can be tendered in evidence in proof of the contents of the document. Therefore, the copy Ex. P.W. 1/1 which has been ignored by the trial Court due to the fact that the original had been deliberately withheld and the copy brought on the record without permission of the Court for secondary evidence could not be considered in proof of the contents of the dower deed of which it was a copy, because it was duly certified and the document was more than twenty five years old." "Having reached this conclusion, however, the learned District Judge, held that the said dower deed had not been acted upon for all these years "because all along the defendant No. 2 had dealt with the house as sole owner and it was never disclosed that the plaintiff too had the right in it. In the year 1958, there was an application moved by defendant No. 2 to the Municipal Committee seeking permission to re‑build the house claiming it to be exclusively of his own. There was an affidavit filed by him later before the Excise and Taxation Officer, Kohat, on 19‑9‑1969 and therein too, he showed the house to be his. In this affidavit the defendant, No. 2 also admitted having transferred 1,/4th share in favour of defendant No. 1 and did not deny to have made the affidavit as a witness before the trial Court". Leave was granted to examine the effect of the afore‑stated circumstances in the light of the arguments that even though the appellant's husband and son might have been dealing with her property in other instances there was nothing on the record to show that the appellant had acquiesced through her conduct and thus she could not be bound by it; as also further argument, that if the appellant's husband and son were living in the same house which had been the subject‑matter of transfer to the other side then, "what other evidence she could have produced in support of her claim that she was "an owner in possession of the property in addition to the production of the attested copy of the deed of Kabin‑Nama executed and registered in her name". The High Court had while dismissing the appellant's revision made the following observations:‑‑ "The dower deed in favour of the petitioner does not appear to have been acted upon and never saw the light of the day after its execution. Khushdil Khan, husband of the petitioner has all along posed himself as the owner of the premises in question particularly when a portion from it was given to the respondent Mst. Lofrin at the time of her marriage with the son of the petitioner. It is not believable that during the litigation between Mst. Lofrin daughter‑in‑law of the petitioner on one side and husband and son of the petitioner on the other side, the petitioner was not aware of it, right from the beginning till the appeal against the decree in favour of the respondent Mst. Lofrin was dismissed. All these facts taken together dovetail in the direction of collusion between the petitioner and her husband so as to deprive their daughter‑in‑law of the property. The revision petition, therefore, does not merit further consideration." The foregoing resume of the facts and circumstances in favour of the one or the other party gives rise to certain admitted positions which cannot be denied. One, that the transfer in favour of the respondent No. 1 which had come as daughter‑in‑law, also in lieu of her dower, stands established through sufficient material. There is neither any misreading nor non‑reading thereof. Two, that there was a similar transfer of the same property about half a century before in favour of the appellant, through a Kabin‑Nama. As to whether it was acted upon and what was its nature and whether the appellant surrendered her right created by the said Kabin‑Nam a, is in dispute. Three, the original Kabin‑Nama has not been produced nor there is any reasonable explanation as to why it has not been produced. There must be some reason thus for, its non‑production which if produced would have demolished the case of the appellant as its existence is not denied. The said assumption made with regard to the non‑production of the Kabin‑Nama is further supported by the conduct of the appellant which was highlighted in the order of the High Court. A prolonged litigation had taken place in the first round on this "house" in which the in‑mates of the "home" of the appellant were deeply involved. They are not strangers to her nor there is any evidence that their interest had clashed with the appellant. They are her son and husband and in that very litigation the property which she claimed to be hers was being claimed by her daughter‑in‑law and with whom the two male members of the family were fighting the Court battle. Without explaining the non‑production of Kabin‑Nam a in the present litigation a possibility cannot be excluded that at the time of the transfer in favour of the respondent some endorsement was made on the original Kabin‑Nama with regard to it. Although there is no direct evidence in this behalf but under the definition of "proof" such like high probabilities can be taken note o Otherwise too when trying to discover the reasons for non‑production of the Kabin‑Nama such like probabilities cannot be ignored. The reasoning by the lower Courts in support of the supposition that there was collusion between the appellant on one side and her son and father on the other is valid. Indeed after the latter's failure in the earlier litigation, the present second round was started only 2 months after the failure of the appellant's family in the earlier litigation, collusively. Accordingly, the points raised by the appellant at the time of grant of leave to appeal, lose all force. Learned counsel also tried to take benefit of the judgments in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi P L D 1990 SC 1 and Muhammad Isa Khan v. Muhammad Hussain Khan P L D 1954 Pesh.

39. None of the said cases are of any help to the appellant. The resume of facts and circumstances of this case are such that they would benefit the respondent lady rather than the appellant lady. After hearing the learned counsel we do not find any justification to interfere with the concurrent findings of fact rendered against the appellant which were upheld by the High Court in its Revisional jurisdiction. Accordingly, this appeal is dismissed. There shall be no order as to costs. AA./Q‑34/S Appeal dismissed.