2016 PLP 118 (CLCN)

M. SOHAIL IQBAL BHATTI, J.

Through this civil revision, the petitioners have challenged the judgments and decrees dated 25.10.2011 passed by learned Civil Judge, Vehari and dated 14.07.2014 passed by learned Additional District Judge, Vehari.

2. Facts of the case are that the respondents/plaintiffs filed a suit for declaration to the effect that they are owners in possession through inheritance of Muhammad Ramzan (deceased) and the judgment and decree dated 21.07.1969 is non-existent, forged and mutation No.6 attested on 27.09.1969 is based upon the non- existent decree, forgery and, fabrication, against the law and facts and is liable to be set aside. Petitioners/defendants filed a contesting written statement and upon the divergent pleadings of the parties, following issues were framed:- 1) Whether the plaintiffs are entitled to get decree for declaration as prayed for? OPP 2) Whether the plaintiffs have no cause of action to file this suit? OPD 3) Whether the suit of the plaintiffs is not maintainable in its present form? OPD 4) Whether the plaintiffs are stopped to file the suit due to their own words and conduct? OPD 5) Whether the suit of the plaintiffs is false and frivolous and the same is liable to be dismissed with special costs? OPD 6) Relief.

3. The learned trial court/Civil Judge, Vehari decreed the suit vide judgment and decree dated 25.10.2011. The petitioners/defendants preferred an appeal which was dismissed by the learned Additional District Judge, Vehari vide judgment and decree dated 14.07.2014, hence this civil revision.

4. Learned counsel for the petitioners argued that the suit of the respondents/plaintiffs was not maintainable in view of the bar contained in section 12(2) of C.P.C. He further argued that mutation No.6 (Ex-P/1) challenged in the suit is a thirty years old document and presumption of truth is attached to it under the provisions of Article 100 of the Qanun-e-Shahadat Order, 1984. The learned counsel for the petitioners argued that the suit is patently barred by limitation as well as barred by law. He further argued that the impugned judgments and decrees passed by both the courts below are based upon surmises and conjectures and also based upon material irregularities, and both the courts below have exercised the powers not vested in them. At the end of his arguments, the learned counsel for the petitioners argued that the mere concurrence of judgments of both the courts below do not make their decision sacrosanct and the revision petition is maintainable against the concurrent findings of the facts by both the courts below.

5. I have considered the arguments and perused the record carefully.

6. As regards the argument of the learned counsel for the petitioners to the effect that an application under section 12(2) of C.P.C. should have been filed. It is observed that the plaintiffs/respondents have not challenged the judgment and decree on the basis of fraud and mis-representation, but they have challenged the so- called judgment and decree, dated 21.07.1969 impugned in the plaint being non-existent, forged and fabricated. At this point, it would be beneficial to reproduce the provisions of section 12(2) of C.P.C.:- "12(2).

where a person challenges the validity of a judgment, decree or order upon the plea of fraud, mis-representation for want of jurisdiction, he shall seek his remedy by making an application to the court which pass the final judgment, decree or order and not by a separate suit."

7. In the present case, the judgment and decree dated 21.07.1969 has been challenged on the grounds of fabrication and forgery. It was further averred in the plaint that the judgment and decree dated 21.07.1969 is non-existent and the mutation is sanctioned on the basis of a decree which is non-existent.

8. Astonishingly, the petitioners/defendants have placed their reliance upon the judgment and decree dated 21.07.1969 but they have failed to produce the said judgment and decree in their evidence. I have also examined the statement of DW-1 who categorically deposed in his evidence that his predecessor in interest obtained the land through allotment in an auction conducted by the Government which negates the version of the petitioners/defendants itself and supports the version of the plaintiffs/respondents.

9. Bare perusal of section 12(2) of C.P.C. clearly manifests that the judgment and decree could only be challenged through an application under section 12(2) C.P.C., if it was in-existence. Whenever the circumstances reveal that the judgment and decree is not available in any record and is non-existent, filing of an application is a futile exercise and proper remedy is to file a suit for declaration, hence this Court is of the view that the application under section 12(2), C.P.C. could not have been filed and was not maintainable in the peculiar circumstances of the case.

10. As regards the arguments of the learned counsel for the petitioners regarding the application of Article 100 of Qanun-e-Shahadat Order, 1984 upon mutation No.6 attested on 27.09.1969 being an old document more than 30 years is misconceived as the same mutation was passed in pursuance to a judgment and decree which was not existing at the time of passing of the mutation. Moreover, whereabouts of the judgment and decree dated 21.07.1969 have not been mentioned in the order of Assistant Collector-II who attested the mutation No.6 dated 27.09.1969. At this stage, it would be beneficial to reproduce Article 100 of the Qanun-e- Shahadat Order, 1984:- "

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."

11. It is established from the pleadings of the parties that the plaintiffs/respondents from the very outset pleaded that civil court never passed any decree in favour of the predecessor of the petitioners/defendants. The mutation No.6 which shows on the basis of a decree of the civil court, said mutation has been sanctioned; but interestingly neither title of the suit is mentioned nor name of the court is mentioned in column 12 of the said mutation. Tariq Masood Patwari while appearing as PW 2 failed to justify the presence of any decree and stated that no decree is available in his record. It is an established law that presumption under Article 100 of the Qanun-e-Shahadat Order, 1984 is attached only to those documents which are free from suspicion. Moreover, the presumption mentioned in Article 100 of the Qanun-e-Shahadat Order, 1984 is permissive and not imperative. Even if a document is 30 years old and is produced from proper custody, the Court is not bound to presume its genuineness. The Article says that the Court "may presume" and not that it "shall presume" a document 30 years old and produced from proper custody to be genuine. This Court is of the considered view that where the trial court in peculiar circumstances of the case has exercised its discretion in not drawing o presumption in favour of the petitioners/defendants a respect of a document and the first appellate court finds no reason to interfere with it, the High Court should not interfere in the matter in its revisional jurisdiction.

12. It is settled principle of law when the basic document on the basis of which the mutation was passed, was not in existence, all the superstructure and consecutive mutations falls to ground. A duty was cast upon the beneficiary when the opposite party challenged very genuineness of the document. Reliance in this regard can be safely placed upon 2010 SCMR 5 (Muhammad Idrees and others v. Muhammad Pervaiz and others).

13. When a party is a beneficiary of a document allegedly based upon forgery and fraud, the onus to prove the authenticity of the said document would shift upon the beneficiary. In the present case, the petitioners/defendants are the beneficiary of the documents but their evidence i.e. mutation No.6 shows that the property was transferred on the basis of judgment and decree, but DW-1/Saeed Iqbal himself stated that his predecessor in interest obtained the land in year 1969 through allotment in an auction conducted by the Provincial Government. Hence, the stance taken by the petitioners/defendants is contradictory and unreliable. Being the beneficiary of the document, the defendants/petitioners have failed to prove the mutation No.6 attested on 27.09.1969 in accordance with law and any other right transferred to them through the mutation which has been challenged in the civil suit.

14. With due deference to the case law produced by the learned counsel for the petitioners PLD 1993 Karachi 631 (Ardeshir Cowasjee and 9 others v. Muhammad Naqi Nawab and 5 others) and PLD 2004 Lahore 305 (Seeds High School through Project Director v. Government of Pakistan through Secretary of Ministry of Law and Justice, Islamabad and 2 others) this court observes that the above said case law is not applicable in the present case. The petitioners/defendants have failed to point out any misreading and non-reading of evidence by both the courts below.

15. The jurisdiction of High Court under section 115 of C.P.C. is very limited to disturb the concurrent findings of fact unless the decisions suffer from jurisdictional defect, illegality or material irregularity. The Honourable Supreme Court of Pakistan in a judgment reported in 2007 SCMR 870 (Hakim-ud-Din through L.Rs. and others v. Faiz Bakhsh and others) has observed as under:- "It is established proposition of law that finding on questions of law or fact, howsoever, erroneous the same may be recorded by a court of competent jurisdiction, cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. unless such findings suffer from jurisdictional defect, illegality or material irregularity".

16. The Honourable Supreme Court of Pakistan in the judgment referred above has laid down the principles as under:- "This section empowers the High Court to satisfy itself upon three matter; (i) that the order of the subordinate court is within its jurisdiction; (ii) that the case is one in which the court ought to exercise jurisdiction; and (iii) that in exercising jurisdiction, the court has not acted illegally, i.e. in breach of some provision of law, or with material irregularity, i.e., by committing some error of procedure in the course of trial which is material in that it may have effected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusions of the subordinate courts upon the question of fact."

17. This view is also re-affirmed by the Honourable Supreme Court of Pakistan in a judgment reported in 2010 SCMR 5 (Muhammad Idrees and others v. Muhammad Peraiz and others).

18. For what has been discussed above, petitioners/ defendants have failed to point out any illegality, material irregularity or defective exercise of jurisdiction by both the courts below while passing the impugned judgments and decrees, resultantly; this civil revision is dismissed in limine. ZC/Z-37/L Revision dismissed.