2010 SCMR 1362 (PLP)

JAWWAD S. KHAWAJA, J.

The petitioner/defendant Haji Libas Khan impugns the judgments concurrently recorded against him, respectively by the learned trial Court, the Appellate Court and by the High Court in revisional jurisdiction. For reasons considered below, we have converted this petition into an appeal and allowed the same. As a consequence, the declaratory suit filed by Mst. Naseem Akhtar respondent/plaintiff has been dismissed.

2. We are fully conscious that the three Courts below had accepted the case set up by Mst. Naseem Akhtar respondent/plaintiff and has passed a decree in her favour. We have examined the record and have taken time to ascertain the correct legal and factual position. As will be apparent from the discussion below, the petitioner/defendant has been deprived of his rights in the suit property as a result of a serious error of law. On 25-2-2010, we also directed the Tehsildar to prepare a report and site plan. This has been done. Both learned counsel agree that the site plan correctly reflects the position prevailing on ground.

3. Although this litigation is long drawn-out having commenced in 1999, the facts of the case are relatively straightforward. However, before considering the facts, it will be useful to give a brief description of the parties. Mst. Naseem Akhtar (respondent No.1) is the wife of Asghar Khan respondent No.2. The petitioner Libas Khan and the said respondents are neighbours who reside in Chughalpura, Garhi Nawab Khan in Tehsil and District Peshawar. The site plan prepared by the Tehsildar which, as noted above, is accepted as correct by both sides, shows the properties owned and occupied by the parties respectively, as well as the passage which is in contention in the case.

4. The dispute between the parties is confined to 1 marla of land (approximately) which has been shown as a passage in the site plan. This passage measuring 244 square feet lies between two properties owned respectively by one Dost Muhammad Khan on its south and a constructed shop and two-storey house on its north, belonging to the wife of the petitioner, Libas Khan. In order to give a complete and proper understanding of the location of the properties owned by the parties and their respective locations in relation to the disputed passage, the site plan is made a part of this judgment.

5. It is not disputed that the residential properties owned by the two respondents Mst. Naseem Akhtar (respondent/plaintiff) and Asghar Khan (respondent/defendant) on the one hand and the residence of Libas Khan petitioner do not abut on the public thoroughfare. It is also admitted between the parties that the respondents Mst. Naseem Akhtar and Asghar Khan have access to the public thoroughfare through the aforesaid disputed passage, by means of a gate at the western end of the passage. Libas Khan also claims access from his house onto the aforesaid passage for the purpose of reaching the public thoroughfare. This claim is disputed by the plaintiff Mst. Naseem Akhtar and forms the basis of her cause of action against Libas Khan.

6. Issue No.6 framed initially, and additional issues Nos.1 and 2 encapsulate the controversy between the parties. These issues were framed by the learned trial Court and are reproduced as under: (6) Whether disputed path is situated on land measuring 1 marla purchased through Mutation No.2517 attested on 15-3-1992? If so, its effect? Additional Issues: (1) Whether plaintiff has sold to defendant No.1, 1/2 marla of disputed path through deed dated 8-6-1994? (2) Whether plaintiff has occupied disputed 1 marla inside her house?"

7. From the discussion below, it will be evident that additional issue No.1 is of crucial significance in the case and is dispositive of the controversy between the parties. Issue No.6 reproduced above is not of material significance because Mutation No.2517 dated 15-3-1992 is not disputed by the petitioner/defendant. Read with additional Issue No.2, Issue No.6 may have some bearing on the outcome of the case but on account of the discussion, which follows, in respect of Additional Issue No.1, it is not necessary to consider Additional Issue No.2 in depth. A brief comment at this stage, about the deed dated 8-6-1994 referred to in Additional Issue No.1, would be in order. This deed which, inter alia, has been signed by the respondent Asghar Khan, has been exhibited in evidence as Exh. D.W.1/1. It will be considered in detail shortly. For the present, however, it will suffice to note that the document records a transaction whereby the petitioner Libas Khan claims to have acquired a half share in the disputed passage. Libas Khan and Asghar Khan are the signatories to Exh. D.W.1/1 but Mst. Naseem Akhtar is not.

8. To give context to the three issues reproduced above, the relevant aspects of the pleadings of the parties can now be briefly stated. The case set up by the plaintiff can be gathered from the contents of her plaint. Reference has been made therein to the purchase by the plaintiff Mst. Naseem Akhtar, of. 1 marla comprising the disputed passage, by means of mutation No.2517 dated 15-3-192. It has been averred in the plaint that the passage is exclusively owned by the plaintiff and that Libas Khan petitioner/defendant has no right to open a gate ' from his house onto the said passage or to use the same. There is, however, one telling slip appearing in the heading of the plaint. We note that even though exclusive title to the passage has been claimed by the plaintiff and though there is no acknowledgement or mention of the deed Exh. D. W.1/1, it has nonetheless been stated in the plaint that defendant No.2 (husband of the plaintiff) had no right to allow the petitioner/ defendant to use the disputed passage. The significance of this observation is that if indeed, the deed Exh. D.W.1/1 dated 8-6-1994 was not authorized by the plaintiff or was not within her knowledge at the time when the plaint was filed on 4-12-1997, then there would have been no occasion for making any reference to a permission being granted to the petitioner/defendant by the husband of the plaintiff.

9. The defence set out in the written statement filed by the petitioner may be considered at this stage. In the preliminary objections, it has been averred that the suit has been filed on account of collusion between the plaintiff and her husband (defendant No.2). In paragraph 3, on merits, some important averments have been made. It has been stated that the petitioner/defendant had constructed his house and had been using the disputed passage since 1986 and that the respondents (husband and wife) had constructed their house 8 years later, in 1994. On this basis a claim was made by the petitioner asserting a right to use the disputed passage. However, it was also pleaded that the respondents/ defendants had obstructed the petitioner from using the said passage but in order to resolve the matter amicably, the petitioner had paid an amount of Rs.4,000 to the respondent through the notables of the area who had recorded this decision in Exh. D.W.1/1. The written statement filed by the defendant Asghar Khan (husband of the plaintiff) is also relevant. He admitted and conceded every para of the plaint filed by his wife. It was also conceded in his written statement that he would not have any objection if a decree as prayed for is passed in favour of the plaintiff.

10. In order to have a proper understanding of the case and to reach a just conclusion in respect of the issues reproduced above, we have examined in detail the evidence adduced on record, both oral and documentary, and have also gone through the impugned judgments. We first take up for consideration, Exh. D.W.1/1 because it lays the foundation of the petitioner's defence in the case. It is recorded in Exh.D.W.1/1 that one half of the disputed passage has been sold to the petitioner. The said document has been described by the witnesses examined by the petitioner and also by the learned trial and the appellate Courts as a decision of a Jirga. The existence or execution of Exh.D.W.1/1 is not seriously in question. The petitioner and the witnesses examined by him have proved that it was executed by Asghar Khan. Asghar Khan has not been examined in Court to deny its execution and Mst. Naseem Akhtar also has not appeared as a witness, either to deny knowledge of the document or to state that she had not authorized her husband to sign it on her behalf.

11. The dispute in relation to Exh. D.W.1/1 has arisen, because as noted above, it has been executed by,Asghar Khan (respondent No.2) husband of Mst. Naseem Akhtar respondent/plaintiff and not by the said Naseem Akhtar herself. The learned trial Court has examined the document and has noted that it shows the sale of one half marla in the disputed passage to the petitioner defendant by the husband of the respondent/plaintiff through a local Jirga. The learned trial Court has thereafter considered the question as to whether Asghar Khan respondent/defendant was competent to sell one half of the disputed passage to the petitioner/defendant. This question has been answered somewhat superficially by holding that although Asghar Khan is the husband of the respondent/plaintiff, he was neither the owner of the disputed passage nor was he authorized by the plaintiff to sell any portion of the passage to the petitioner.

12. The following observations/findings of the learned trial Court are useful in showing the reasoning which prevailed with the Court for the purpose of deciding the Additional Issues in favour of Mst. Naseem Akhtar respondent/plaintiff and against Haji Libas Khan petitioner/ defendant: -- "Additional Issues Nos.1 and

2. The burden to prove these issues was obviously on defendant No.1. The defendant No.1 namely Haji Libas Khan appeared as D.W.4 in the witness box and stated that he has purchased the 1/2 marla of the way/path from the husband of the plaintiff for a sum of Rs.4000 through a local Jirga, (the decision of the-Jirga is Ex. D.W.1/1) reveals that both defendant No.1 and defendant No.2 (who is the husband of the plaintiff) entered into an agreement to the effect that defendant No.1 has purchased the 1/2 marla of the disputed path from defendant No.2 for a sum of Rs.4000. Now this question arises that whether the defendant No.2 was competent to sell' the 1/2 marlas of the disputed path, the answer is obviously in negative because nor [sic] the defendant No.2 was the owner neither authorized by the plaintiff to sell the 1/2 marla of the disputed path to defendant No.1. It was the plaintiff' only, who could do the same. Neither the plaintiff participated in the Jirga nor any authorized person in this behalf was present in the Jirga, hence, defendant No.2 has got no authority under the law to dispose of the 1/2 marla of the disputed path/way. P.W.3, the attorney of the plaintiff has stated in his examination-in-chief that no other person except the plaintiff has got any right to sell the disputed path. During cross-examination nothing adverse was brought from the mouth of the P.W.3, to rebut his examination-in-chief. Both these issues are decided in favour of plaintiff" (Underlining for emphasis is ours).

13. The above reasoning has been followed uncritically by the learned Additional District Judge in appeal, without proper appreciation of the conduct of the parties and the circumstances of the case or the evidence of the petitioner's witnesses. The High Court while exercising revisional jurisdiction has simply followed the same reasoning without adverting to the circumstances surrounding the execution of Exh. D.W.1/1 as brought on record by the evidence adduced by the parties. We may, with respect to the Courts below, observe that the above .reasoning and conclusions are a result of failure to notice and apply the relevant provisions of the Contract Act, 1872, relating to contracts of agency, particularly Sections 186 and 187 of the said Act. These sections stipulate as under:-- (186) The authority of an agent may be expressed or implied." "An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case."

14. It is of utmost significance in this case that neither Mst. Naseem Akhtar (respondent/plaintiff) nor her husband Asghar Khan (respondent No.2) appeared as witnesses to testify on oath and submit themselves to cross-examination by the other side. On the other hand, the petitioner not only appeared as his own witness but also produced Haji Abdul Qadir D.W. 1 and Naseem Gul D.W.2, as credible, relevant and independent witnesses in support of his case. The petitioner deposed that the document Exh. D.W.1/1 had properly been executed by the husband of the respondent/plaintiff, who had received consideration for the same with her full knowledge and concurrence. This testimony was not rebutted by the plaintiff or her husband as they chose not to appear as witnesses at the trial.

15. We are unable to understand and accept the reasoning adopted by the learned Courts below which has been reflected in the extract from the judgment of the learned trial Court reproduced above. It is not conceivable that the plaintiff Mst. Naseem Akhtar could have participated in the jirga herself, keeping in view the prevalent social customs where transactions for sale and purchase of immovable property are entered into by parda nashin ladies, through male relatives. Although the Courts could have and ought to have taken judicial notice of the social norms prevalent in Peshawar, we have also found direct evidence to show that the standards of societal behaviour were adhered to in the present case. We would, in particular, refer to the testimony of Muzaffar Khan, who was examined by the plaintiff as PW

3. He was also the special attorney of the plaintiff Mst. Naseem Akhtar. He expressly deposed as under:-- In the light of such testimony, which obviously was over-looked by the learned Courts below, we can only say that they were not justified in basing their judgments, in important part, on the plaintiff's absence the jirga which led to the execution of Exh. D.W.1/1. P.W.3 denied a suggestion put to him that Asghar Khan had put his signatures on Exh.D.W.1/1 on behalf of his wife. He, however, admitted that the two respondents live in the same house and that Asghar Khan bears all expenses of the household. P.W.3 also expressly stated that the husband and wife act in consultation with each other in respect of their domestic issues and that at the time the suit was filed by Mst. Naseem Akhtar, her relationship with her husband was not strained. With this testimony coming on record through the special attorney of the respondents plaintiff, it is quite evident that there was sufficient affirmative material and evidence available on record to suggest the existence of an implied agency in favour of Asghar Khan, authorizing him to deal with Libas Khan in respect of the disputed passage and to participate in a jirga on behalf of the plaintiff. When the foregoing circumstances are coupled with the fact that the plaintiff and her husband have not taken the witness stand to deny such relationship between them, we can safely infer that Asghar Khan clearly had the authority to execute Exh. D.W.1/1 on behalf of his wife and to receive the sum of Rs.4,000 from Libas Khan.

16. From the testimony of P.W.3 discussed above, the only conclusion to be drawn is the one noted above. At this point, we may note that Muzaffar Khan P.W.3 was the plaintiff's own witness and special attorney. He did depose that the disputed passage is the personal property of Mst. Naseem Akhtar and that her husband Asghar Khan has no right to allow use of the property. This statement, however, is belied by the actions and conduct of the respondents. The learned trial Court in the extract from its judgment reproduced in paragraph 12 above, has given weight to and has accepted the statement of P.W.3 that no person other than the" plaintiff had any right to sell the disputed path. It has further been observed by the learned Court that "during cross-examination nothing adverse was brought from the month [sic] of the P.W.3 to rebut his examination-in-chief." We may state that this observation appears to have been made as a result of non-reading of the evidence of P.W.3 which establishes and amply demonstrates the authority vested in Asghar Khan by his wife Mst. Naseem Akhtar, to enable him to participate in the jirga and to execute the document Exh.D.W.1/1.

17. Whether or not Asghar Khan had implied authority on behalf of his wife, to sell one-half marla out of the disputed passage, is a question of fact while the question if agency can be created by the conduct of the parties or the circumstances of the case, is one of law. The answer to the latter question is to be found in Sections 186 and 187 ibid. It is implicit from the judgments of the learned Courts below that, perhaps on account of inadequate assistance at the bar, they proceeded in ignorance of the aforesaid provisions of the Contract Act. This also led to a failure on their part, to examine if the circumstances of the case, brought or record through oral and documentary evidence, were sufficient to justify inferring the existence of an agency in favour of the plaintiff's husband in respect of Exh. D.W.1/1. Considering the law and the circumstantial evidence discussed above; .we hold that the learned Courts below fell in error which was material and as a consequence of such error, granted the judgment and decree sought by the respondent-plaintiff.

18. We would also like to record an observation on another aspect of the case. If, at all, the learned trial Court was justified in its conclusion that the plaintiff herself should have participated in the jirga then by the same token, it should have held that her failure to appear personally as a witness was fatal to her case. What is equally important is that her husband Asghar Khan also did not appear in the witness box to deny that he had authority to act on behalf of his wife. These are material circumstances. On the other hand, Haji Libas Khan produced the witnesses named above, the most important of whom was Nasim Gul D.W.2. He was not only the original owner of the disputed passage having sold the same to the respondent/plaintiff, but was also member of the jirga whereby one half of the passage was transferred to the petitioner against a consideration of Rs.4,000 received by the plaintiff's husband Asghar Khan. D.W.1 Haji Abdul Qadir and D.W.2 Nasim Gul were members of the jirga which had resolved the controversy between the parties, relating to the disputed passage. Both of them also signed D.W.1/1 as witnesses.

19. Having considered the various aspects of this litigation as detailed above, it is quite clear to us that the learned Courts below proceeded on the erroneous premise that Asghar Khan respondent No.2 had no authority to act on behalf of his wife respondent No.1. It is equally evident from the impugned judgments that the provisions of Sections 186 and 187 of the Contract Act were not taken note of and were not in the contemplation of the learned Courts below and this resulted in the judgments which were rendered by them in favour of the respondent/plaintiff. It is for these reasons that we have converted this petition into an appeal, and have set aside the judgments of the three Courts below by allowing the appeal. S.A.K./L-10/SC Appeal accepted.