P L D 1960 (W (PLP)

Muhammad Iqbal and Munir Ahmad for Respondent No.

1. Dates of hearing : 4th and 18th January 1960. This second appeal arises out of a suit brought by Subedar Major Muhammad Bakhsh respondent for possession of an open site situated in the, shamilat deh of village abadi Sigh Muafi. The plaintiff claimed that he had purchased this piece of land from Malik Umar Hayat along with other land by means of a registered sale deed dated the 6th of July 1943 for Rs. 25,

500. He further alleged that the defendants had filed a 'suit for possession of the land by pre‑emption, but having failed in that case they obtained forcible possession of the open site on the 8th of September 1950 and he filed a complaint in respect of it but the same was dismissed. He accordingly filed this suit. The defendants‑appellants contested the suit and on the pleadings of the parties the following issues were framed:-- (1) Whether the property described in the plan `C' as A, B, C, D, E, F, G, H, I, J, K, B, L, M, N and N, M, O, P belonged to His Excellency Malik Umar Hayat ? (2) Whether M. Umar Hayat sold the said property together with other property to the plaintiff ? (3) Whether the plaintiff and before him his predecessor‑in -interest occupied the property in dispute within 12 years of the suit? The learned Senior Civil Judge decided all the issues against the plaintiff and dismissed the suit with costs. On appeal by the plaintiff, the learned District Judge reversed the findings of the lower Court on all the three issues and accepted the appeal with costs throughout. As against this decision, Saleh Muhammad, Ghulam Dastgir, Nazar Muhammad, Muhammad Din sons of Ghulam Dastgir and Ahmad Din defendants have come up in second appeal before this Court.

2. Learned counsel for the appellants argued that Malik Umar Hayat was not the owner of the site in dispute and did not sell it to the plaintiff by means of the registered sale deed. A perusal of the sale deed shows that Malik Umar Hayat had sold to the plaintiff 339 kanals and 15 marlas of land. The Khasra numbers and other details of this land are fully set out in the sale deed. But it is nowhere stated in the sale deed that the vendor was the owner or in possession of any open site in the village Abadi, or had sold any open site situated in the village Abadi to the plaintiff. The sale deed is quite silent on the point. It is not claimed by the plaintiff that the site in dispute is included in the Khasra numbers given in the sale deed. The learned District Judge, how ever, relied on the recital in the sale deed to the effect that the land had been sold by the vendor with his share in the shamilat, and concluded that as abadi deh is included in the shamilat, there fore, Malik Umar Hayat had also sold the site in dispute. He also referred to the statements of certain witnesses including that of Malik Umar Hayat in support of the finding that the site in question had been sold by Malik Umar Hayat to the plaintiff.

3. I have very carefully scrutinized the terms of the sale deed and I have no doubt in my mind that the site in question was never sold by Malik Umar Hayat to the plaintiff. He has nowhere mentioned that he was the owner or in possession of any open site in the village Abadi. The language used in the sale deed is plain in itself, and there is no ambiguity in the document. In fact, Malik Umar Hayat had sold only 339 kanals and 15 marlas of land, the details of which are given in the sale deed, and along with it he had also sold his share in the shamilat. As a proprietor in the village there can be no doubt that he had some share in the shamilat and as such he had sold his undivided share in the shamilat along with the land to the plaintiff. But if he was in exclusive possession of the open site in the abadi deh and had intended to sell it to the plaintiff he would have certainly mentioned it specifically in the sale deed. It is indeed very significant that there is no reference to it at all in the sale deed. Learned counsel for the plaintiff had to concede that it could not be spelt out from the sale deed that Malik Umar Hayat had also sold to the plaintiff the open site situated in the village Abadi. He, however, relied on the evidence of Malik Umar Hayat and some other witnesses who had been pro duced by the plaintiff. It is true that Malik Umar Hayat, Rahman (P. W. 3) and Ghulam Ahmad (P. W. 4) have stated that the open site in dispute was also sold along with the other land by Malik Hayat to the plaintiff. The question, however, arises whether this oral evidence is admissible. The plaintiff based his claim on the sale deed itself. Section 91 of the Evidence Act provides that "when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a docu ment, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or any other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained". It is a cardinal rule of evidence that where the terms of a contract or of a grant or of any other disposition of property have been reduced to the form of a document, then the document itself is the best evidence of its contents and oral evidence is excluded from being used either as a substitute for such instrument or to contradict or alter it. The principle embodied in section 91 appears to have been taken from the English law. Tindal, C. J.'s statement of the law on this subject in Shore v. Wilson (9 CI, & Fin. 355) which is reproduced by their Lordships of the Privy Council in Tsang Chuen v. Li Po Kwai (AIR 1932 P C 255), may be quoted here with advantage. It reads as follows :‑ "The general rule", he says. "I take to be, that where words of any written instrument are free from ambiguity in themselves and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or the subject‑matter to which the instru ment relates, such instrument is always to be construed according to the strict plain common meaning of the words themselves and that in such case evidence de hors the instrument for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument is utterly inadmissible. If it were otherwise no lawyer would be safe in advising upon the construction of a written instrument nor any party in taking under it for the ablest advice would be controlled and the clearest title undermined if, at some future period, parol evidence of the particular meaning which the party affixed to his words or of his secret intention in making the instrument or of the objects he meant to take benefit under it might be set up to contradict or vary the plain language of the instrument itself."

4. Learned counsel for the plaintiff, however, called my attention to section 92 of the Evidence Act and urged that in view of the provisions of that section the plaintiff was entitled to produce oral evidence in respect of the sale of the site in question to him. In support of this contention he mainly relied on Maung Kvin v. Ma Shwe La (I L R 45 Cal. 320) where their Lordships of the Privy Council held that "the language of the section in terms applies and applied alone `as between the parties to any such instrument or their repre sentatives‑in‑interest'. Wherever accordingly evidence is tendered as to a transaction with a third party, it is not governed by the section or by the rule of evidence which it contains, and in such a case accordingly the ordinary rules of equity and good conscience come into play unhampered by the statutory restrictions". He also referred to the case of Talakchand v. Atmaram (A I R 1924 Bom. 58) where the effect of the observations of their Lordships of the Privy Council in the above‑mentioned ruling was considered. I have very carefully gone through the facts of both these cases. In my opinion, these rulings have no bearing on the question involved in the present case. Section 92 of the Evidence Act comes into operation only when the terms of any contract, grant or any other disposition of property, a or any matter required by law to be reduced to the form of a docu ment, have been proved in accordance with section 91 by the production of the document or by secondary evidence, where such evidence is admissible. In that case it is provided that no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives‑in‑interest for the purpose of contradicting, varying, adding to, or subtracting from the terms of the document. It is, no doubt, true that under section 92, parol evidence is not inadmissible where the proceedings are between strangers, or between a party and a stranger, because the rule embodied in section 92 applies to the parties to an instrument and their representatives‑in‑interest. This, however, does no mean that when a party to an instrument bases his claim on thinstrument itself against a stranger, then the party to the instrument is entitled to give oral evidence for the purpose of contra ducting, varying, adding to, or subtracting from the terms of the instrument. In such a case, if it is claimed that besides incorpo rating the terms of the contract in the instrument, some other oral agreement had also been made, then in that case such oral agree ment may be proved by other evidence. In the present case, however, the plaintiff relied on the sale deed itself and did not allege that there was any other oral agreement regarding the sale of the open site situated in the village Abadi. As such, I am of the view that section 91 of the Evidence Act is applicable which excludes oral evidence altogether. If there had been any ambiguity in the description of the property, then in that case extrinsic evidence would have been admissible to prove the identity of the property. But in the instant case the language used in the document is plain in itself and applies accurately to existing facts and there is no ambiguity or misdescription of the property sold. In this view of the matter, I am clearly of the opinion that oral evidence was inadmissible to prove the alleged sale of the site in dispute. The evidence which is excluded by the statute as inadmissible, cannot be admitted merely because it is necessary for the ascertainment of truth. In my opinion, the learned District Judge has erred in placing reliance on the oral evidence and has also misconstrued the sale deed as regards the alleged sale of the site in dispute.

5. For the reasons given above, I hold that the plaintiff has failed to establish that Malik Umar Hayat was the owner of the property in dispute or that he had sold it to him. I would, there fore, accept the appeal and setting aside the judgment and decree passed by the learned District Judge, dismiss the plaintiff's suit with costs throughout.

6. In conclusion, I would like to add that the evidence of Malik Umar Hayat was not recorded in accordance with the pro visions of law. At the relevant time, Malik Umar Hayat was holding the post of an Ambassador in Germany, and interrogatories for his examination were sent to the competent judicial Authority in Germany. For some unknown reasons, he was not examined by the competent judicial Authority, and he himself wrote down the answers to the questions and forwarded the same to the Court concerned. This procedure is not warranted by law and as such the evidence of Malik Umar Hayat should not have been taken into consideration at all. Had 1 not excluded the oral evidence in respect of the alleged sale of the open site, then in the interest of justice I would have examined Malik Umar Hayat myself, but in view of the aforesaid finding, the question of examin ing him at this stage does not arise. K.M.A. Appeal accepted.