2016 PLP 2 (CLCN)

AZIZ-UR-REHMAN, J.

This is a suit for declaration, cancellation of document and permanent and mandatory injunctions filed by the plaintiffs with the following prayers:- i) It be declared that the purported sale deed dated 22nd July 2008 pertaining to bungalow standing on plot bearing Survey No.233 (old Survey No.15/3) Sheet J.M.-2 measuring 709 sq.yds, situated in Hyderabadi Amil Co-operative Housing Society, Jamsheed Quarters, Karachi bearing Registered No.1793 of Book No.1 dated 22.07.2008 of Sub -Registrar-II Jamshed Town Karachi, is void ab initio being bogus, false and fabricated document, and, as such, it is liable to be cancelled and delivered up, and it be so cancelled. ii) Defendant No.2 be directed to make necessary entry or endorsement of the cancellation of the said sale deed in his record, and to do the other needful acts in the matter. iii) Defendant No.2 be directed not to entertain and/or register any instrument of transfer of the aforesaid property, except the instrument presented for registration by the plaintiffs. iv) Defendant No.1 be restrained from acting upon the said bogus sale deed, in any way or manner, and/or to take any step or proceedings on the basis thereof and/or to interfere in the peaceful possession and enjoyment of the suit property by the plaintiffs. v) Any other, further or additional relief, which this Hon'ble Court may deem just and proper, be granted to the plaintiffs. vi) Costs of the suit be awarded to the plaintiffs.

2. The requisite facts in brief arising to the above prayers are as follows:

3. Plaintiff No.1 is a 'charitable and welfare trust' established in February, 1960 amongst others by a popular and renowned business magnate and philanthropist, Seth Ahmed Dawood, with obvious aim, inter alia to promote and aid the care of the aged, retarded, destitute, infirm, orphans and widows. Besides, to foster and promote education and rate of literacy in Pakistan. The Plaintiff No.1 accordingly, was duly registered with the Registrar of Joint Stock Companies, Karachi under Societies Registration Act, 1860. [Act XXI of 1860]. In this regard Certificate of Registration bearing No.1006 of 1959-1960 dated 2nd February, 1960 was also issued.

4. Plaintiff No.2 in the present suit has been joined in his dual capacity as being the 'Chairman' of Plaintiff No.1 and 'MUTWALLI' of the 'suit property'. Plaintiff No.2, is also descendant of the deceased Mst. Hajiani Hanifabai.

5. Per Plaintiffs' assertion, the bungalow situated on plot of land bearing Survey No.233 [old Survey No.15/3], sheet No. JM No.2, measuring 709 sq.yds in Hyderabadi Amil Co-operative Housing Society, Jamshed Quarters, Karachi [hereinafter means the 'suit property , was in fact purchased by Mst. Hanifabai Haji Gani. The 'Sale Deed' in, favour of Mst. Hanifabai Haji Gani is of 19th June, 1948. The said 'Sale Deed' besides duly signed and executed has been registered with Sub-Registrar Karachi bearing Registered No.1309 at pages 202 to 210' in 'volume 838 of Book No.1 dated 14.11.1949.

6. The purchaser of the 'suit property' [Mst. Hanifabai Haji Gani] created/declared the 'suit property' as 'Wakf in the year, 1961 and also appointed the 'Trustees'. Amongst the 'Trustees' so appointed, the plaintiff No.1 at the relevant time was also appointed as 'MUTAWALIS' of the 'suit property'. This factum of creation of Wakf has also been confirmed through an instrument dated 12th April 1961. It is pertinent to mention herein that Hajiani Hanifabai Haji Gani, is the real mother of Seth Ahmed Dawood.

7. Pursuant to the aforesaid dedication and due performance of the Wakf , by Hajiani Hanifabai Haji Gani, the Plaintiff No.1 was accordingly informed about the Wakf so created. Per averments, she also delivered Original Sale Deed dated 19th June, 1948 and other relevant documents/papers pertaining to the 'suit property' to the Plaintiff No.1. The documents and papers relating to 'suit property', since then are in actual possession of plaintiff No.1. Plaintiff No.1 is not only holding original documents/papers etc. but also is in 'physical and peaceful possession' of the 'suit property' without any sort of intervention from any quarter.

8. Per averments in the plaint, Mst. Hajiani Hanifabai Haji Gani had died on 2nd May, 1970. And this factum of her death is quite evident from the 'Death Certificate' bearing No.1797 dated 12.05.1970, duly issued by the Registrar of Births and Deaths, Karachi Municipal Corporation [KMC].

9. Per assertions, from Excise and Taxation Department 'G' Division Karachi, the Plaintiff No.1, received a notice dated 26.08.2008, wherein the change of ownership of the 'suit property' in the name of Defendant No.1 [Ghulam Hasan son of Muhammad Ibrahim] was proposed. The said notice [Form P.T.13], anyhow, was seriously opposed by the Plaintiff No.1 Vide their letter of 24.10.2008. Further, request was also made to the Excise and Taxation Department 'G' Division Karachi, for supplying copies of the documents on the basis whereof notice of 24th October, 2008 has been issued.

10. Upon exchange of letters, nonetheless, in January, 2009, photocopy of the fabricated and forged Sale Deed dated 22.07.2008, allegedly executed by Mst. Hanifabai Haji Gani, was provided to the Plaintiffs. Mere perusal of Sale Deed of 22.07.2008, shows that the same besides, forged and bogus is a fabricated document. Manifestly, such Sale Deed of 22.07.2008 is of no worth, as it has been allegedly executed by Mst. Hanifabai Haji Gani after more than 38 years of her death [Per Death Certificate she died on 2nd May, 1970].

11. The Sale Deed dated 22.07.2008, per assertions, is a forged, fabricated and maneuvered document as under no circumstances, it could be executed by a person died more than 38 years ago.

12. Upon filing of suit on 23.01.2009, summons were issued to the Defendants. Per order dated 04.08.2009, passed by the Additional Registrar [O.S.] Defendants were served but Defendant No.1 did not file any written statement. On 05.10.2009, when the matter came-up before the Court, the following order was passed:- .... Defendant No.1 called absent. In the interest of justice final opportunity is given to defendant No.1 to file his written statement within four weeks. Let a copy of this order be sent by courier service to the defendant No.1 at the given address' ...

13. From the record, it further reflects that in compliance with the aforesaid order, copy of order dated 05.10.2009 was also sent to the Defendant No.1 through 'Courier' at the address given in the title of the plaint. 'Courier receipt' dated 22.10.2009 [in original] is available on record. Per notice of 19.10.2009 next date in court [i.e. 23.11.2009] was also apprised to the defendant No.1. Besides, the Defendant No.1, was again served per bailiff's report dated 23.10.2009 [Bailiff's report also available on record].

14. On 23.10.2009, when the matter again came-up before the Court despite service, neither the Defendant No.1 attended the Court nor any written statement was filed by him. Under circumstances, the following order was passed:- "

1. As per office note defendant No.1 has been served by way of summons, but is called absent. Suit to proceed ex parte against Defendant No. 1. 2 and 3. ............

15. Along with the plaint, the Plaintiffs had also filed two applications under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C. [C.M.A. No.653 of 2009 and C.M.A. No.654 of 2009], for seeking restraining orders against the defendants Nos.1 and 2 respectively. The prayers sought in the afore-mentioned CMAs read as below:- "a. C.M.A. No.653 of 2009.... The Defendant No.1 be restrained, till disposal of the above suit, from acting, in any way or manner of the impugned sale deed dated 22nd July 2008 in respect of banglow No. 232 [old No.15/3] in Amil Cooperating Housing Society, Jamshed Quarters Karachi including taking any proceedings for its mutation'. b. C.M.A. No.654 of 2009.... 'The Defendant No.2, including his subordinates, from restraining and/or registering any instrument of transfer or mortgage in respect of bangalow No.232 [old No.15/3] in Amal Cooperating Housing Society Jamshed Quarters Karachi."

16. On 26.01.2009, inter alia, when the above applications [C.M.A. No.653/2009 and C.M.A. No.654/2009] came-up before the Court besides, issuing notices to the defendants, the following order was passed:- "1. ......... 2. ......... 3&

4. Notice to the Defendants for 18.2.2009. In the meantime, the Defendants are restrained from dealing with the suit property in any manner whatsoever. Possession of the plaintiffs' shall not be disturbed either by the Defendants or by any person claiming through them."

17. Thereafter, on 22.11.2010 when again the above two Injunction Applications [C.M.A. No.653 of 2009 and C.M.A. No.654 of 2009], came-up before the Court, the 'interim order' passed earlier on 26.01.2009 was 'confirmed'. Order passed on 22.11.2010 reads as follows:- "

1. From the perusal of the record it shows that the notices of these applications have been served upon the defendants but no counter affidavits either by defendant No.1 or defendant No.2 has been filed. In the circumstances interim order dated 26.01.2009 is hereby confirmed and C.M.A. No.653/09 is accordingly disposed of.

2. This application under XXXIX, Rules 1 and 2, C.P.C. has been filed by the Plaintiffs seeking interim relief to the effect that defendant No.2 be restrained from entertaining or registering any instrument of transfer or mortgage in respect of bungalow bearing survey No.233 (old survey No.15/3) admeasuring 709 sq.yds, situated in Hyderabadi Amil Cooperative Housing Society, Jamshed Quarters, Karachi. Notice of this application has been served upon the defendant No.1 but no counter affidavit has been filed. In the circumstances this application is allowed as prayed."

18. In the written statement filed by the defendant No.2, almost all the paras/averments made in the plaint were replied as 'neither admitted nor denied'. Seemingly the averments made in the plaint thus remained un denied/un-rebutted much-less specifically. Besides, the denials in written statement of Defendant No.2 are vague and evasive. Nonetheless, parties went on trial and out of pleadings of parties, the 'proposed issues' filed on behalf of the plaintiffs were adopted. The issues so adopted on 14.02.2011 read as follows:- "

1. Whether the suit property was owned by Mst. Hanifa Bai Haji Gani having purchased through sale deed dated 19.06.1948?

2. Whether the suit property was donated by the lady to the Plaintiff-Trust as per written confirmation dated 12.4.1961, if so, its effect?

3. Whether the lady (Mst. Hajiani Hanifa Bai) died on 2nd May 1970?

4. Whether the alleged sale deed dated 22nd July 2008 in favour of defendant No.1 (annexure P/8 of the plaint) is a genuine document, if not its effect?

5. Whether the plaintiff is entitled to the reliefs claimed in the above suit?

6. What should the decree be?"

19. Under the same order [14.02.2011], Mr. Dilawar Hussain, Advocate was appointed as 'Commissioner' to record evidence of the parties and consequently, the matter was referred to the learned Commissioner for recording evidence of the parties.

20. Before the learned Commissioner in order to prove the case, the plaintiffs produced and examined their duly constituted Attorney viz. Muhammad Anis Dayala son of Muhamamd Bashir Dayala as 'PW-1'. He also filed his 'affidavit-in-evidence' along with other documents. The 'deposition' of the said witness [PW-1] was recorded on 31.03.2011. In his examination-in-chief the said witness of Plaintiffs [PW-1] besides, producing the 'affidavit-in-evidence' as Exh.'P-1' and Special Power of Attorney in his favour as Ex.'P-2' also produced other documents as Ex.'PW-1/1' to Ex.'PW-1/6'.

21. Before the learned commissioner neither the defendants and /or their counsel appeared either to 'cross-examine' PW-1' and/or otherwise, lead any evidence. As such the evidence led and documents produced by the plaintiffs' witness [PW-1] have gone un-rebutted/un-challenged.

22. The report submitted by the learned Commissioner after recording of evidence reads as follows:- "In compliance of this Hon'ble Court's order dated 14.02.2011, the undersigned Advocate was appointed as Commissioner to record evidence of the parties to the instant suit and thereafter the undersigned issued notices to all the concerned. After notice, Mr. H.A. Rehmani, learned counsel for the plaintiffs, appeared and filed the affidavit-in-evidence of the plaintiffs' attorney as a witness along with the supporting documents. The matter was coming up regularly for recording evidence of the plaintiffs' witness on various dates i.e. 1/3/2011, 26/3/2011 and finally on 31/3/2011 the examination-in-chief of Mohammad Anis Dayala son of Muhammad Bashir Dayala was recorded by Mr. H.A. Rehmani, advocate and all the supporting documents laid before the undersigned were exhibited. It is pertinent to mention here that twice notices were issued to the defendants but nobody had appeared on their behalf to cross -examine the above-named witness. In view of the above position, the task assigned by this Hon'ble Court to the undersigned has not been fully completed on account of absence of the defendants. Therefore, the undersigned has no option but to file the instant report along with the recorded material of evidence and exhibited documents in the concerned branch to bring the notice of this Hon'ble Court. It is requested that this report may be taken on record and the same may be placed before the Hon'ble Court for passing appropriate orders."

23. On 25.04.2011, when the commissioner's report dated 02.04.2011 came up before the court the same was taken on record and the matter was ordered to be posted for final arguments.

24. On 22.10.2013, when the case came-up for arguments I heard Mr. H.A. Rehmani, learned counsel for the Plaintiff and with his able assistance, scanned the available record before me.

25. Before proceeding further, it is worth to mention herein, that in the case of Malik Umar Aslam v. Sumaira Malik and another [reported in PLD 2007 SC 362 the Hon'ble Apex Court while, dilating upon the verification of the pleadings on oath, on page 365 made the following observations:- "It may not be out of context to note that the verification of the pleadings on oath was introduced by the Law Reforms Ordinance (XII of 1972) read with Section 6 of the Oaths Act, 1873, by adding the words "on oath or solemn affirmation" after the words verified in Rule 15(i) of Order VI, C.P.C. It is also pertinent to note that after the said importance of the same amendment in presence of verified pleadings on oath the court has been empowered to proceed case ex parte against the opponents and pass a decree, under Order IX, Rule 6(1), C.P.C. without calling for an affidavit in ex parte proof." [underlining is mine].

26. Mr. H.A. Rehmani, Learned counsel for the Plaintiffs vehemently argued that the Sale Deed dated 22.07.2008 [ PW-1/6 ] is a false and forged document as the same has been allegedly executed by Mst. Hajiani Hanifabai Haji Gani, who died 38 years ago on 02.05.1970. Mr. H. A. Rehmani, learned counsel for the Plaintiffs in this regard made reference to the 'Death Certificate' of Hajiani Hanifabai [Exh.'PW-1/5] and urged that from the 'Death Certificate', it is quite evident that Hajiani Hanifabai has died on 22nd May, 1970. Mr. H.A. Rehmani, learned counsel for the Plaintiff further contended that the 'Suit Property' was purchased by Mst. Hajiani Hanifabai Gani through a registered sale deed of 19th June 1948 [Exh.'PW-1/2']. Being a registered document presumption of correctness is attached to it. Per learned counsel, even otherwise, the Sale Deed of 19th June, 1948 [Ex.'PW-1/2'] has not been challenged by the Defendant No.1 and/or Defendant No.2 or anybody else. Per learned counsel the subsequent Sale Deed of 22.07.2008 [Ex. 'PW-1/6'] is a forged and bogus document and liable to be declared as such.

27. Mr. H.A. Rehmani, learned counsel for the Plaintiff further contended that sometime in April, 1961, Mst. Hajiani Hanifabai Haji Gani had declared the 'suit property' as 'Wakf and also appointed the Trustees. Amongst the 'Trustees' the Plaintiff No.1 was also appointed as 'Muttawali' of the 'suit property' per Ex.'PW-1/3'. Per Mr. H.A. Rehmani, learned counsel for the Plaintiff, the said Wakf was subsequently confirmed through instrument of 12.04.1961 [Ex.'PW/1/4'].

28. Mr. H.A. Rehmani, learned counsel for the Plaintiff further submitted that Mst. Hajiani Hanifabai Haji Gani was the real mother of Seth Ahmed Dawood. Per learned counsel, the Plaintiff No.2 besides one of the trustees was/is a 'Muttawali' of the 'suit property' and direct descendant of said Hajiani Hanifabai after her death [i.e. 2nd May, 1970]. Per learned counsel besides averments made in the plaint, the evidence adduced on behalf of the Plaintiff has thus gone un-rebutted. Not only this the various documents produced and exhibited [Ex.'PW-1/3 to PW-1/6] have also gone un-challenged. According to the learned counsel, since defendant No.1 is 'ex parte' and there is no opposition/evidence on the part of Defendants, therefore, the Plaintiffs suit deserves to be decreed as prayed.

29. Regarding written statement of the Defendant No.2, Mr. H.A. Rehmani, learned counsel for the Plaintiffs, forcefully contended that such written statement filed on behalf of Defendant No.2 merits no consideration. Per learned counsel the assertions made in the written statement of Defendant No.2 are of no worth as the person who filed the written statement has not been examined in support thereof. Nevertheless, the learned counsel inter alia made reference to paras-6 and 11 of the written statement filed on behalf of the Defendant No.2 and urged that reply of Defendant No.2 besides evasive seems an attempt to escape from discharging its legal obligations. Per learned counsel, the allegedly executed 'Sale Deed' of 2.07.2008 [Ex.'PW-1/6] by a person died 38 years ago besides surprising call for wisdom of the Defendant No.2 in particular. For ready reference Paras-6 and 11 of Defendant No.2' s written statement are reproduced as below: "Para-6 That the contents of para 11 of the plaint of the above suit are not admitted, denied accordingly, in this respect it is submitted that the executants of the said document of Sale Deed were identified, presented before the Defendant No.2 who do not know the persons personally, in case if anyone has been produced before him in place of a dead person then the person who has identified the said person is responsible for the consequence whereof. It is further submitted that if the person who has got the said Sale Deed executed, has produced anyone else other than the actual persons then the person who has identified him is responsible for facing the consequences whereof . Para-11 That the contents of prayer clauses of the plaint of the above suit not admitted, for want of knowledge as such in these circumstances the plaintiff themselves requires to put strict proof thereon. In this respect in addition to whatever has already been stated in the above paras most respectfully it is submitted that the defendant No.2 has got the said Sale Deed registered in accordance with the procedure for getting the documents registered, If any of the executant of the same has committed fraud, then the defendant No.2 has no any objection for getting the said document cancelled, the defendant No.2 undertakes to obey all of the orders passed by this Hon'ble Court in respect whereof." [Underlining is mine].

30. Apart from the above, per learned counsel all documents produced and exhibited [i.e. Ex.'P-1, Ex.'P-2', Ex.'PW-1/3' to Ex.'PW-1/6' in the evidence of Plaintiffs' witness [PW-11] have gone un-challenged. Even 'PW-1' was not 'cross-examined' by the Defendants or any of them.

31. Heard Mr. H. A. Rehmani, learned counsel for the Plaintiff and also gone through the record available before me. Now, I proceed and deal with issues one by one. My issue-wise findings are as under:

32. ISSUE NO.1: Whether the suit property was owned by Mst. Hanifabai Haji Gani having purchased through Sale Deed dated 19.06.1948. The burden of proof of this issue lies upon the plaintiffs and the Plaintiffs have fully discharged such burden viz-a-viz proving the purchase of the 'suit property' through registered Sale Deed of 19.06.1948 [Ex.'PW-1/2']. In this regard Plaintiffs' witness [PW-1] has also produced in his 'examination-in-chief, Sale Deed dated 19.06.1948 [Exh. PW-1/2]. The 'deposition' of the said witness 'PW-1' [Muhammad Anis Dayala] as well as the documents produced and exhibited [Ex.'P-1', Ex.'P-2' and Ex.'PW-1/2' to 'PW-1/6'] and contents of the plaint have gone un rebutted/unchallenged. None of the Defendants has 'cross-examined' PW 1' as such the deposition of 'PW-1' and documents inter alia Sale Deed of 19.06.1948 [Ex.'PW-1/2'], averments made in the plaint remained un rebutted/un-questioned.

33. Non-'cross-examination' of a witness, indeed, gives/creates a positive presumption of correctness regarding evidence adduced by a witness. In this regard reliance can be placed on the case of Mst. Zareena and 5 others v. Syeda Fatima Bi [PLD 1995 Kar. 388] wherein it was held as under: "In the case of Muhammad Yasin v. Shabbir Ahmed 1985 CLC 2111 Sajjad Ali Shab, J. (as his Lordships then was) in an identical case held that if there was no cross-examination on fact deposed in examination-in-chief the presumption is that the same is deemed to have been accepted by the party against whom it was given."'

34. Besides, the registered Sale Deed of 19.06.1948 [Ex.'PW-1/2'] is more than 30 years old document attaches itself the 'presumption of truth' under section 100 of Qanun-e-Shahadat, 1984 [P.O.No.10 of 1984]. It will be appropriate and convenient to reproduce herein section 100 of Qanun-e‑Shahadat, 1984 [P.O.No.10 of 1984] hereinbelow: "

100. Presumption as to documents thirty years old. Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and, in 'the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.

For the purposes of this Article and Article 92, documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable."

35. In the case of Muhammad Idrees and others v. Muhammad Pervaiz and others [2010 SCMR 05] it was observed as under: "4...... Under the law (as laid down by the apex Court in (1991 SCMR 703) the burden of proof is on the party, who alleges that an ostensible owner is "Benamidar" for him. Keeping in view the above criteria and factors involved, it may be observed that Muhammad Younas, the predecessor of petitioners, was elder brother of Muhammad Ayub, the predecessor of respondents Nos.1 to

6. Exh. P.W./1 is the copy of the sale-deed, according to which the bargain was struck with the two brothers jointly. The sale-deed being thirty years old, presumption of truth is attached to it under Article 100 of the Qanun-e-Shahadat Order 1984 and attesting witnesses are not, required to be called and as such it is proved that the suit shop was purchased by the predecessors of the parties jointly and thus, the respondents Nos.1 to 6 are owners thereof to the extent of 1/2 share. ............. ............. It is an admitted fact that predecessor-in-interest of the petitioners and respondents are real brothers. Registered sale-deed executed and registered in favour of both the brothers. It is a settled principle of law that registered document has sanctity attached to it and strong evidence is required to cast a aspersion on its genuineness. See Mirza Muhammad Sharif case 1993 SCMR

462. It is also settled fact that sale-deed was executed in the year 1952. Therefore, it is 30 years old document. Under Article 100 of the Qanun-e-Shahadat Order, presumption is attached to 30 years old documents which is rebuttable presumption." [Underlining is mine]. In view of the above the Plaintiff has established that the 'suit property' was owned by Mst. Hanifabai Haji Gani having purchased by the Hanifabai Haji Gani through Sale Deed dated 19.06.1948 Exh.PW-1/2. The issue No.1 thus answered in affirmative.

36. ISSUE NO.2: Whether the suit property was donated by the lady to the Plaintiff-Trust as per written confirmation dated 12.04.1961 if so its effect. The burden of proof of this issue also lies on the shoulder of the Plaintiffs. With regard to this issue the Plaintiffs have fully discharged their burden. To establish that the 'Suit Property' was donated by Mst. Hanifabai Haji Gani to the Plaintiffs-Trust has been duly proved by producing inter alia the document dated 12.04.1961 [Ex.'PW-1/3]. This document has been duly signed and executed by Hanifabai Haji Gani which, of course, confirms the dedication. This document [Exh. PW-1/3] as well as the 'deposition' of 'PW-1' and averments made in the 'plaint' and 'affidavit-in-evidence' filed by Muhammad Anis Dayala son of Muhammad Bashir Dayala duly constituted attorney for Plaintiffs [Ex.'PW 2'] have also gone un-rebutted/un-challenged.

37. Apart from the above Ex. 'PW-1/4' also establishes the factum of donation of the 'Suit Property' to the Plaintiff No.1-Trust. Both documents [Ex.'PW-1/3' and Ex.'PW-1/4] are more than 30 years old attach themselves the presumption of correctness under section 100 of the Qanun -e-Shahadat, 1984 [P.O.No.10 of 1984]. Reliance is placed on the case-laws supra. Issue No.2 accordingly answered in affirmative. The effect of answering the Issue No.2 in 'affirmative' is that even otherwise, the 'Suit Property' could not have been sold by Mst. Hajiani Hanifabai as being no more owner of the 'Suit Property'.

38. ISSUE NO.3: Whether the lady [Mst. Hajiani Hanifa Bai] died on 2nd May 1970. The burden of proving of this issue also lies on the shoulder of the plaintiffs to prove that Mst. Hajiani Hanifabai died on 2nd May 1970. The Plaintiffs witness ['PW-1'] has produced in his 'deposition' the 'Death Certificate' dated 12.05.1970 [Ex. PW-1/5] duly issued by Registrar of Births and Deaths, KMC. Such 'Death Certificate' [Ex.PW 1/5] produced in Plaintiffs' evidence is also 30 years old attaches itself the presumption of correctness under section 100 of Qanun-e-Shahadat, 1984 [P.O.No.10 of 1984] plus supra case-laws. Defendants beside not leading any evidence, chosen to remain absent and did not lead any sort of evidence. Even the Defendants and/or their counsel failed and/or avoided to 'cross-examine' the Plaintiffs witness viz. Muhammad Anis Dayala son of Muhammad Bashir Dayala. In view of this position on record, issue No.3 also answered in 'affirmative'.

39. It is worth to mention that pleadings of parties in no way are substitute of evidence unless proved by leading evidence or otherwise, assertions made therein are admitted by the opposite side. On this aspect of the matter reliance is placed on the cases below: a. Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others [PLD 1972 SC 25] "Written statements cannot be the exhibit in the case without the person who filed the same being examined in the Court. They are only verified and therefore, they cannot be treated as evidence in the case. This view finds support from the case of J. B. Ross & Co. v. C. R. Seriven and others (AIR 1917 Cal. 269 (2)) and Muhammad Siddique v. Bhupendra Narayan Roy Chowdhury (PLD 1962 Dacca 643). It was held in the former case as under:

"A verification is required with a view to discourage, if not to prevent, the institution of false suits; the Legislature never contemplated that verified statements should be treated as evidence on behalf of a plaintiff against a defendant. 'The inference may legitimately be drawn from the language used in section 191 read with section 193, I.P.C., that a verified statement would not be "evidence" but for the special provision of section 191 which has been enacted for a special purpose." In the latter case it was held that written statement cannot be an exhibit if defendant dies without being examined. The learned counsel for the appellants was unable to cite any authority in support of his contention that the written statement is an evidence in the case. In view of this the denial by deceased Mohammad Hussain Shah in the written statement is of no avail and cannot be of any assistance in the discharge of the onus which lay on the appellants to prove that the deceased was a transferee for valuable consideration in good faith and without notice." [Underlining is mine] b. Mrs. Anis Haider and others v. S. Amir Haider and others [2008 SCMR 236] "9....... This was a novel procedure adopted by the trial Court and endorsed by the higher Courts, in that, the pleadings of parties could never be taken as an evidence particularly when the arbitrator was not even examined in Court in support of his written statement muchless his cross-examination by the party desiring so to do. A mere written statement by a respondent has not at all been a valid ground for guillotining a serious application filed by the ladies and by-passing the order, dated 10-4-2003 of the Supreme Court. The trial Court did not exhibit a judicial behaviour and the higher Courts endorsed it with no application of mind". [Underlining is mine] c. Hakim-ud-Din through L.Rs. and others v. Faiz Bakhsh and others [2007 SCMR 870] "5......It is an admitted fact that respondent did not appear before the trial Court to prove the contents of the plaint. It is a settled law that pleadings of the parties are not substitute of evidence and it being not a substantive evidence, the averments made in the pleadings would carry no weight unless proved from the evidence in Court or admitted by the other party. The respondent No.1 failed to prove the factum of his superior right of pre-emption, therefore, trial Court as well as learned High Court had erred in law to decree the suit of the respondent. It is also settled law that initial burden of proof is on the party who alleges in the plaint or written statement of its claim. See Muhammad Sajjad Hussain's case 1991 SCMR 703 and Muhammad Siddique's case 2001 SCMR 1443. It is a settled law that written statement/plaint is not substitute of evidence. The aforesaid principles are supported by the following judgments: (i) Mst. Khair-un-Nisa's case PLD 1972 SC 25, (ii) Mst. Zarina's case PLD 1995 Kar. 388, (iii) Noor Muhammad's case PLD 1989 Lah, 31, (iv) Mst. Sakina's case 1986 CLC 288, (v) Falak Sher's case 1992 MLD 1879, (vi) Mst. Sakina's case 1986 CLC 288, (vii) Nizam-ud-Din's case 1991 CLC 1937 and (viii) Faqir Muhammad's case PLD 2003 SC 594. [Underlining is mine]

40. ISSUE NO.4: Whether the alleged sale deed of 22nd July, 2008 in favour of Defendant No.1 (annexure P/8 of the plaint] is a genuine documents, if not its effect? The burden of this issue is on the Defendant No.1. The Defendant No.1, however, has absolutely failed and/or avoided to file any written statement or otherwise, lead any evidence.

41. On the other hand Plaintiffs have fully established that Sale Deed of 22.07.2008 [Ex.'PW-1/6'] is a forged, and bogus document. If, the alleged Sale Deed of 22.07.2008 is seen and read in juxtaposition of 'Death Certificate' of 12.05.1970 [Ex. PW-1/5] then it would become quite clear that the Sale Deed of 22.07.2008 [Ex. PW-1/6] is not a genuine document because of the fact that the alleged vendor viz. Mst. Hanifabai has died 38 years before such alleged execution of Sale Deed [Ex.'PW-1/6 ]

42. Not only this much prior to her death [i.e. on 2nd May, 1970], the 'Suit Property' was declared as 'Wakf and was transferred to Plaintiff No.1 through Trustees [see Ex.'PW-1/3 and Ex.'PW-1/4'] which means even otherwise, not being owner of the suit Mst. Hanifabai Haji Gani could have sold the 'Suit Property' to Defendant No.1 as alleged.

43. In the evidence from the Plaintiffs side 'Death Certificate' of 12.05.1970 has been produced and exhibited as Exh.PW-1/5. Per Death Certificate date of death of Mst. Hajiani Hanifabai is 2nd May, 1970. The Death Certificate [Ex.'PW-1/5], the 'examination-in-chief of 'PW-1', the averments made in the 'plaint/affidavit-in-evidence' have gone un rebutted. The Sale Deed allegedly executed by Mst. Hajiani Hanifabai Haji Gani in favour of Ghulam Hussain son of Ibrahim [Defendant No.1] after about 38 years of her death, of course, cannot be a genuine document. Rather it is a fake, forged and bogus document, as such besides having no sanctity is also of no legal effect. Issue No.4 is answered accordingly.

44. ISSUE NO.5: Whether the Plaintiffs are entitled to the reliefs claimed in the above suit? As far as this issue is concerned, the plaintiffs have fully succeeded in establishing their claim as setup in the suit. The defendant No.1 notwithstanding service failed and/or avoided to file any written statement. Moreover, the defendant No.1 and/or his counsel also failed to 'cross-examine' Plaintiffs witness [PW-1']. The evidence [Ex.'P 1 ], documents exhibited [Ex.'P-2', and Ex.'PW-1/1' to Ex.'PW-1/6'] and averments in the plaint have also gone re-butted/un-challenged. Likewise, the Defendant No.2 has also failed to come forward and adduce evidence in support of the written statement filed.

45. Under law, once a document is produced in evidence and marked exhibited without any objection then the same cannot be questioned and/or challenged at any stage of proceedings. In the case of Muhammad Yasin v. Shabbir Ahmed [1985 CLC 2111], it was held as under: "that if there was no cross-examination on fact deposed in examination-in-chief the presumption is that the same is deemed to have been accepted by the party against whom it was given".

46. Plus from the case of Mst. Tahira Parveen and 3 others v. Mst. Saba Jamil and 3 others [2008, CLC 484] the relevant extract viz-a-viz non-appearance of witness after filing of 'affidavit-in-evidence' is reproduced as under: "Regarding the contention of Mr. S. Ansar Hussain that the affidavit-in-evidence of Mst. Sultana is protected under Article 46 of the Qanun-e-Shahadat Order, 1984, and can be considered without test of cross-examination appears to have no force. The Article do not provide protection to the deposition made in the Court without cross-examination. Article 46 simply provides that statements written or verbal of relevant fact made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without any amount of delay or expenses which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts. Article 46 deals with the conditions mentioned in eight clauses. The non-appearance of witness after filing of the affidavit -in-evidence till her death is not covered by the eight conditions of Article 46. [Underlining is mine].

47. Apart from the above the averments made by the Defendant No.2 in the written statement are vague and evasive. Under law evasive denial is no denial. On the aspect of the matter reliance is placed on the case of Muhammad Nazir Khan v. Muhammad Ameer [2012 CLC 644] wherein it was observed as follows: "

7. The law on the point is settled that Rule 5 of Order VIII, C.P.C., provides that if the allegation in the plaint is not denied by the defendant in clear terms or by necessary implication and if there is evasive denial, such denial cannot be considered and allegation in the plaint is considered to be correct. A perusal of the plaint and written statement shows that the defendant- respondent, herein, categorically denied the allegation in the plaint. The argument of the learned counsel for the appellant is without any foundation.

8. Under Article 133 of the Qanun-e-Shahadat Order, 1984, cross-examination of witness is a right of adverse party and if a particular portion of the statement of a witness is not cross-examined, that is deemed to be admitted true. The rule of law laid down in the case reported Islamuddin and others v. Ghulam Muhammad and others [PLD 2004 SC 633] is correct. Similar view has been expressed by this Court in number of cases that if the statement of any witness goes against the defendant and he fails to cross-examine on that point, then the point will be deemed to be admitted but there is nothing stated in the statement of plaintiff which was not cross-examined." [Underlining is mine].

48. Likewise, in the case of Ghulam Rasool through L.Rs. and others v. Muhammad Hussain and others [PLD 2011 SC 119] it was observed as follows: "6...... rather made an evasive denial in their written statement expressing their lack of knowledge in this regard, which is no denial as per the provisions of Order VIII, Rules 3, 4 and C.P.C., rather such a denial may be constructed as an admission on their part."

49. From the evidence and documents duly exhibited, the plaintiffs are entitled for the reliefs as claimed in the suit. Issue No.5 thus answered in affirmative.

50. ISSUE NO.6 What should the decree be. After considering the materials available on record, above discussions and case laws I have reached the conclusion that the ends of justice would meet, if the suit of the plaintiffs is decreed as prayed. Accordingly, the Plaintiffs' suit is decreed as prayed. MH/D-16/Sindh Suit decreed.