2004 PLP 690 (MLD)

Ch. Jehangir Wahia for Respondent No.

1. Respondent No.2: ex parte. Dates of hearing: 9th and 16th December, 2003. A declaratory suit was instituted by the petitioner, Muhammad Aslam, that he was owner-in-possession of the suit house and that the registered sale-deed dated 13-1-1973 (Exh.D-2) purported to have been executed by Mst. Anwari Begum in favour of Liaqaf Ali, respondent No.1, was fictitious, without consideration and ineffective qua him. His suit was grounded on an unregistered sale-deed dated 7-9-1972 (Exh.P 1). After due trial the suit was dismissed by the learned trial Court vide judgment dated 22-1-1981 whereagainst the appeal preferred by the petitioner was dismissed by the learned District Judge, Mianwali on 7-2-1982. Then, this revision petition was field by him, which petition was disposed of in view of compromise dated 22-1-1994/ 7-6-1994. The petitioner herein, however, agitated the matter before the Honourable Supreme Court of Pakistan and Civil Appeal No. 1253 of - 1996 was accepted setting aside order dated 22-1-1994 and 7-6-1994 observing that the revision petition will be deemed pending and will be decided on merits in according with law. The petitioner herein had been appearing in person and was also representing through his learned counsel. The matter was heard on 9-12-2003 it was adjourned for today. Two applications have been filed by him; one under Order VI rule 17, C.P.C. for amendment of the plaint (Civil Miscellaneous No. 1462-C of 2003) and the other under Order XIV rule 5 C.P.C. for framing of an additional issue (Civil Miscellaneous No. 1463-C of 2003). Today the petitioner has appeared himself, as according to him he was not satisfied with the performance of his learned counsel. Be that as it may, both these applications have been heard and dismissed by separate orders.

2. The concurrent judgments of the Courts below whereby the declardtory suit of the petitioner has been dismissed are sought to be assailed, attributing misreading and non-reading of evidence by the Courts below. The judgment of the learned District Judge has been criticized that the same proceeds on an erroneous view of the matter. It is contended that the sale deed in favour of the petitioner was executed by Mst. Anwari Begam which could not be declared as fictitious and a forged document. Reference has been made to Fazla v. Mehr Din and others (1997 SCMR 837), Naib Subedar Taj Muhammad v. Yar Muhammad Khan and others (1992 SCMR 1265), Usman v. Haji Omer and others (PLD 1966 SC 328) and Inayat Ullah and other v. Shah Muhammad and others (PLD 1961 (W.P.) Lahore 372). The learned counsel for the respondent No.1 has support the findings recorded by the leaned District Judge that the same are fully borne out by the evidence on the record and cannot be interfered with in revisional jurisdiction in view of Nazir Ahmed through L.Rs. v. Umra and others (2002 SCMR 1114). It is further contended that the registered sale-deed dated 13-1-1973 (Exh.D-2) had preference and overriding effect qua any other alleged disposition in view of sections 17, 49 and 50 of the Registration Act, 1908 and section 54 of Transfer of Property Act, 1882.

3. As mentioned above, it was a suit for declaration that had been filed by the petitioner claiming to be the owner of the property on the strength of sale-deed dated 7-9-1972 which was an unregistered document and also assailed registered sale-deed dated 13-1-1973 existing in favour of respondent No.1. An issue of comprehensive ambit was framed by the trial Court "whether the sale-deed in favour of the plaintiff gives him any right of ownership in the suit property? If the issue fails, the effect of the same on the suit?" In support of the issue, the petitioner appeared himself as P.W.2 and produced Mst. Anwari Begum as P.W.1. The learned trial Court did not believe their testimony. On consideration of the evidence, the trial Judge came to the conclusion that the version of the petitioner and Mst. Anwari Begum as to the transfer of possession did not coincide whereas the possession of respondent No. l was proved. It was thus, found that no title could be claimed by the petitioner on the basis of such a document to view of section 54 of Transfer of Property Act, 1882 and sections 17 and 49 of the Registration Act, 1908. In appeal, the learned District Judge thrashed out the matter by going through evidence and analyzing the same threadbare and reached the conclusion that the sale-deed claimed by the petitioner (Exh.P.1) was a fictitious and forged document which was sought to be proved by producing false evidence. After such appreciation of the evidence, coupled by coget reasoning germane to the controversy, the appeal was dismissed by him. Such an in depth scrutiny and consideration of the evidence as has been undertaken by the learned District Judge would simply justify the finding recorded and conclusions drawn. However, I have perused Exh.P.1 and find that besides that none of the attesting witnesses was produced by the petitioner in order to prove due execution of sale-deed dated 7-9-1972, the defects pointed out and infirmities noted by the learned District Judge for non-suiting the petitioner cannot be ignored nor overlooked. Needless to emphacise that the plaintiff in particular when the onus of the issue is upon him; is to produce reliable evidence in support of his plea and to succeed on the strength of the facts established by proving his case. The petitioner had failed to produce cogent and convincing evidence to discharge the burden. He therefore, could not succeed. The appreciation of the evidence thus, undertaken by, the Courts below and their conclusion drawn therefrom hardly justifies any interference by this Court in revisional jurisdiction. The object of R citing precedents about the implications of section 53-A of Transfer of Property Act, 1882 cannot be achieved by him inasmuch as he has not been found in possession. Moreover, such a plea according to the settled law can betaken as a shield/defence and not used as sword. Reference in this context may beg made to Muhammad Yousaf v. Munawar Hussain and 65 others (2000 SCMR 204). The concurrent finding and the view taken by the Courts below is amply supported by the evidence on the record, no illegality has been committed by the Courts below which could warrant interference by this Court. As a result of the above, this petition is bereft of merit and is dismissed accordingly. No order as to costs. M.A.W./M-16/L Revision dismissed.