P L D 2016 Lahore 383 (PLP)

CH. MUHAMMAD MASOOD JAHANGIR, J: By filing the instant civil revision, the petitioners have challenged the judgment and decree dated 21.2.2004 passed by the learned trial court, whereby, suit for declaration and possession through partition filed by Abdul Majeed, the original plaintiff, was dismissed and the judgment and decree dated 16.5.2006 delivered by the learned lower appellate court by virtue of which the appeal filed by Abdul Majeed (plaintiff) was also dismissed.

2. The brief facts of the case are that Abdul Majeed, the original plaintiff, brought a suit for declaration and possession through partition regarding the house measuring 4-1/2 Marlas bearing No.1/411 situated at Mohallah Chitian Hattian, Rawalpindi with the assertions that the said house was owned by Muhammad Ismail, the father of plaintiff, who died in the year 1972 and being legal heirs the parties became co-sharers in the suit property, hence Abdul Majeed, petitioner/plaintiff was entitled for his due share in the suit house. It was further pleaded in the plaint that defendant No.1/respondent No.1 to obtain NOC for the sanction of site plan got executed a document in the shape of affidavit from all the legal heirs, which was only executed in his favour for getting sanction of site plan. The said suit was resisted by respondent No.1/defendant No.1 on two fold-grounds, who on the one hand claimed that Muhammad Ismail, the father of the parties was only Benami owner of the disputed house but he (respondent No.1) was the actual owner and on the other hand he set up the defence that all other legal heirs of Muhammad Ismail had surrendered their rights in his favour regarding the suit house by executing affidavit. The learned trial court in the light of the divergent pleadings of the parties framed the following issues:-

1. Whether the plaintiff is estopped by his words and conduct to file the suit? OPD

2. Whether the suit is not maintainable in its present form? OPD

3. Whether the proper court fee has not been affixed? OPD

4. Whether the suit is bad by mis-joinder and non-joinder of necessary parties? OPD

5. Whether the suit is time barred? OPD

6. Whether the suit has been filed with mala fide intention, hence liable to be dismissed? OPD

7. Whether the plaintiff is entitled to the decree as prayed for? OPP 7-A. Whether the predecessor of the parties laid Muhammad Ismail was Benami owner and defendant No.1 is real owner? OPD 7-B. Whether the defendant No.1 Abdul Rasheed has made construction of the suit house except walls of the two rooms? If so, its effects?OPD

8. Relief.

3. Both the parties produced their evidence in pros and cons and ultimately the suit of the plaintiff was dismissed and the appeal filed by Abdul Majeed the petitioner/plaintiff was also dismissed vide judgments and decrees referred in Para-1 ante. Hence, the instant civil revision.

4. It is argued by the learned counsel for the petitioners that both the courts below erroneously dealt with issue No.7-A while relying upon the oral statement of D.Ws.; that neither any motive was pleaded in the written statement nor asserted in the evidence by the defendant No.1 to prove that the transfer of disputed property in favour of father of the parties was a Benami transaction; that defendant No.1 took contradictory defence in the written statement, one on the point of Benami title in the name of Muhammad Ismail and in the same breath in total disregard thereto respondent No.1 alleged that rest of the parties through an affidavit had surrendered their shares in the suit property in his favour; that the alleged affidavit was only obtained for getting sanction of the new site plan, which could not be termed as a sale deed, but the courts below without appreciating the fact that either there should be a surrender deed in favour of respondent No.1 or property should have been partitioned with metes and bounds because the same was valuing more than 100 rupees and required to be transferred through registered document and not otherwise and that the impugned judgments and decrees passed by the courts below being result of misreading and non-reading of evidence available on the file are liable to be set aside by allowing this civil revision.

5. Conversely, the learned counsel for the respondents has supported the impugned judgments and decrees passed by the courts below and argued that no error of law and procedure has been pointed out in the impugned judgments and decrees by the learned counsel for the petitioners which could justify interference by this Court and that the disputed property was transferred in the name of Muhammad Ismail real father of the parties as an ostensible owner and while acknowledging the said transaction as Benami, all his legal heirs including Abdul Majeed plaintiff had surrendered their rights regarding the disputed house in favour of respondent No.1/defendant No.1. He has lastly prayed for dismissal of the instant civil revision.

6. Heard and record perused.

7. Abdul Majeed, petitioner/plaintiff by producing attested copy of PTD (Exh.P3) fully proved that the disputed house had been permanently transferred to Muhammad Ismail (deceased) predecessor-in-interest of the parties by the Settlement Authorities in the year 1970. Admittedly, defendant No.1 never filed any suit against his father in his life time to get declared the same as a Benami transaction. In a case of Benami, the following factors are to be fulfilled by a party, who alleges the transaction as ostensible:- i. Source of consideration. ii. From whose custody original title deed came. iii. Who is in possession of the property and iv. Motive of Benami. The essential elements must exist for proving Benami transaction between ostensible owner and the purchaser for purchase of property in the name of ostensible owner for the benefit of person who has to make payment of consideration and importantly existence of motive for creation of Benami title is relevant. For purpose of determining that whether title vesting with the opposite party in the disputed property was merely Benami, absence of motive always goes against claimant. It is straightaway noticed that defendant No.1 failed to plead any specific motive in the written statement that why the disputed property had been got transferred in favour of Muhammad Ismail deceased.

8. In the present case as per PTD (Exh.P3), the disputed property had been transferred by the Settlement Authorities to Muhammad Ismail deceased and the said document did not disclose that any price/consideration was passed on against the said transfer. No doubt, defendant No.1 has produced oral evidence to prove that sale consideration was paid by him, but the same cannot be given preference over the documentary evidence in the shape of PTD (Exh.P3) to which a strong presumption is attached. Neither any agreement to sell nor any mode of payment has been brought on record by defendant No.1 to prove his stance that the disputed property had been actually purchased by him. Even the figure of sale consideration is not mentioned in the written statement nor deposed by defendant No.1 in his statement being D.W.2 against which it was purchased. Even Mst. Mumtaz Begum widow of Niaz Muhammad (D.W.1) could not tell the name of previous owner from whom the suit house was purchased by defendant No.1, whereas Mumtaz Begum (D.W.3) deposed in her cross-examination that the disputed house was purchased in the year 1967-68, but the perusal of Exh.P3 reveals that the disputed house was transferred by the Settlement Authorities in the year 1970 to Muhammad Ismail deceased. Moreover, Abdul Hameed (D.W.4) contradicted the stance of D.W.3 when he deposed in cross-examination that the disputed property had been purchased in the year 1968-69. Furthermore, there is nothing on record to establish that what had persuaded defendant No.1 to transfer the disputed house in favour of his father. Even the original PTD was not produced by defendant No.1 on the record of the suit file. The onus was on defendant No.1 that he was the actual owner, who failed to produce the previous owner as well as any documentary evidence regarding the purchase of the disputed property to prove that sale consideration was paid by him. So the necessary element as enumerated above could not be proved by defendants.

9. The other stance of defendants that the plaintiff along with other legal heirs had surrendered their rights in the disputed house in favour of defendant No.1 could also not be proved. The mere production of copy of affidavit (Exh.D1) on the file is insufficient to hold that through the said affidavit the rights of the plaintiff were transferred or surrendered in favour of defendant No.1. It is an admitted fact that affidavit Exh.D1 was procured by the defendants at the time of sanctioning of site plan and definitely the said document was submitted by the defendants before the Municipal Authorities. Neither the said original affidavit (Exh.D1) was got summoned from the official custody of said Municipal hierarchy nor it was confronted to the plaintiff when he appeared as P.W.1. Though in the cross-examination, it was suggested to the plaintiff that an affidavit was executed by him but on his denial that he did not intend to surrender his rights, it was required under the law that he should be confronted with the writing of the said affidavit. According to Article 140 of the Qanun-e-Shahadat Order, 1984 which corresponds to Article 145 of the Evidence Act, 1872, such confrontation is mandatory. In Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 SC 730), it was ruled that:- "Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party. Where the statements relied on as admissions are ambiguous or vague, it is obligatory on the party who relies on them to draw in cross-examination the attention of opponent to the said statements before he can be permitted to use them for the purpose of contradicting the evidence on oath of the opponent." The same view has also been fortified by the apex Court in the judgment reported as Ghulam Rasool through LRs v. Muhammad Shafi and another (2013 SCMR 1501), wherein, it is held that a document can be used against a person if it is confronted to him under Article 145 of the Evidence Act. On the touchstone of such discussion, it can safely be held that the non-confrontation of affidavit (Exh.D1) to the plaintiff while appearing in the witness-box as P.W.1 has damaged the case of the defendants.

10. Admittedly, affidavit (Exh.D1) was not a public document and the same was to be proved in accordance with Article 79 of the Qanun-e-Shahadat, Order 1984. The onus to prove the same was on the defendants. Neither the stamp vendor nor the scribe/notary public/oath commissioner was produced to prove the contents of said affidavit (Exh.D1). It was also not confronted to the plaintiff when he appeared in the witness-box as P.W.1. It is strange that when Ijaz Ahmed P.W/2 appeared, then during his cross-examination the said affidavit was put to him and was got exhibited on the record of the suit in spite of that neither he was the attesting witness nor he was the signatory of the said document. The document was got exhibited as Exh.D1 under Order XIII rule 4 of C.P.C. during the cross-examination of P.W.2. There is no denial with the proposition of law that admittance of document under Order XIII, rule 4, C.P.C. is not binding on the parties and unproved document cannot be regarded as proved merely that it was so admitted in evidence by the Court without any objection. Order XIII, rule 4 of C.P.C. must be strictly complied with. In this view of the matter, when the affidavit (Exh.D1) was not proved under the provisions of Qanun-e-Shahadat Order, 1984, it could not have been made basis for the dismissal of the suit filed by the plaintiff. Hence, the findings of courts below on the basis of said affidavit (Exh.D1) being not based on correct appreciation of the evidence available on the file cannot be sustained in the eye of law.

11. The argument of learned counsel for the defendants that the document once was got exhibited in evidence without objection by the opposite party, then the said party subsequently cannot challenge its admissibility in the Court is without any substance. It is settled law that a document once brought on record and exhibited, even if no objection was taken from the other side when the document was exhibited, the court was not prevented from adjudicating its nature to ascertain that whether it is valid or not, or whether it is fake or not. The burden was on defendant No.1 to prove his claim that plaintiff had surrendered his rights in the disputed property by executing the affidavit, therefore, the relevant witnesses were required to be summoned by him for proof of affidavit (Exh.D1). It is also well settled principle of law that a party relying on the affidavit must produce the deponent for cross-examination and if the deponent fails to submit to the cross-examination, the affidavit shall lose all its force as a probative piece of evidence and cannot be acted upon. Safe reliance in this respect is placed on the judgment reported as The President -Referring Authority v.. Mr. Justice Shaukat Ali (PLD 1971 Supreme Court 585).

12. In the light of the above said discussion, it is borne out that defendant No.1 badly failed to prove any of the defences set up by him while producing cogent and convincing evidence, but both the courts below without appreciating the evidence available on the file and especially ignoring PTD (Exh.P3) fell in legal error while dismissing the suit of the plaintiff in spite of that he fully proved his case that the disputed property was owned by Muhammad Ismail deceased, predecessor-in-interest of the parties and after his death the same was to be devolved upon his legal heirs according to their respective Shari shares. Hence, the instant civil revision is accepted, the impugned judgments and decrees passed by the courts below are set aside and the suit for declaration and possession through partition filed by Abdul Majeed plaintiff remanded to the learned trial court with a direction to pass preliminary decree after determining legal shares of the joint owners/parties in the suit property. The parties are directed to appear before the learned District Judge, Rawalpindi on 17.4.2015, who will entrust the file of the main suit to a court of competent jurisdiction for further proceedings. SL/A-46/L Case remanded.