Presumption of Correctness: Article 100 of QSO

PLJ 2014 Peshawar 92

Present: Mazhar Alam Khan Miankhel, J.

JEHANZEB, etc.--Petitioners

versus

MUHAMMAD ISRAR, etc.--Respondents

C.R. No. 1211 of 2011, decided on 27.5.2013.

Qanun-e-Shahadat Order, 1984 (10 of 1984)--

----Art. 100--Presumption of correctness attached--Suit for declaration, challenged foundation of ownership of donor--Gift deed was a registered document--Appellate Court while keeping reliance on the dower deed held it be a genuine document being more than thirty (30) years, having presumption of correctness attached to it under Art. 100 ofQanun-e-Shahadat Order, 1984--Alleged dower deed is more than 30 years old but mere such fact alone would not be sufficient to grace a document with presumption of correctness as provided in Art. 100 of Qanun-e-Shahadat Order, 1984--Age of document alone would not amount to a proof about correctness of contents of such document nor would dispense with formal proof--If the genuineness of a document is susceptible to suspicion, Court can refuse to raise presumption and can ask for the proof of its contents--Findings of appellate Court in that regard were not based on proper appraisal of the law on the subject.      [P. 96] A

Civil Procedure Code, 1908 (V of 1908)--

----S. 12(2)--Qanun-e-Shahadat Order, (10 of 1984), Art. 57--Signatures on document was denied--Subsequent proceedings--Reliance on evidence of another cases--Evidence of another case cannot be relied upon in subsequent proceedings, under Art. 37 of Qanun-e-Shahadat Order--Certified copy of that earlier statement of the witness is available on file and Court can take notice of fact regarding which material is available on the file--Clerk of record room appeared in the proceedings under Section 12(2) C.P.C. who produced the register of stamp vendor wherein no entries regarding the sale of said stamp paper--So, High Court can take notice of such evidence.       [P. 97] B, C & D

Gift--

----Gift by way of registered deed--Presumption of correctness is attached to registered document--Beneficiary to prove its genuineness--Sufficient to shatter authenticity of registered gift deed--Basic presumption of correctness is attached to a registered document but when the very execution of the same is under fire then beneficiary of the registered deed is legally bound not only to prove the execution of the same but also the contents of the same--Marginal witnesses were also not produced to support the stance of respondent--Respondent was bound to prove his case on the strength of his evidence and he could not take any advantage of shortcomings of the evidence of other side--Evidence of the respondent is deficient on the question of offer, acceptance and delivery of possession under gift irrespective of the fact that respondent was in possession of the suit house since his births.        [P. 98] F & G

Mr. Ahmad Shah, Advocate for Petitioners.

Mr. Sardar Ali, Arbab-ul-Haq and Abdur Rehman Khan, Advocates for Respondents.

Date of hearing: 27.5.2013.

Judgment

This revision petition under Section 115 C.P.C. by the petitioners is directed against the consolidated judgment dated 30.05.2011 of Additional District Judge-II, Charsaddavide which appeal of the Respondent No. 1 was accepted while that of the present petitioners was dismissed and consolidated judgment/decree dated 18.05.2010 of Civil Judge-III, Charsadda in favour of petitioners was set aside.

2.  Being a case of chequered history has the following concise facts:--

One Muhammad Israr filed a declaratory Suit No. 19/1 against Mst. Kishwara in respect of 4« Marlas house on 09.02.1999. Mst. Kishwara attended the Court and a private compromise was effected between the parties. In pursuance thereof, suit of Muhammad Israr was decreed vide judgment and decree dated 18.02.1999 of the Civil Judge,Charsadda. Mst. Naseem and Marifat Shah challenged the said decree by filing a Petition u/S. 12(2) of CPC. That petition was contested by Muhammad Israr. After recording of pro and contra evidence, petition u/s 12(2) CPC was accepted and judgment and decree dated 18.02.1999 in Suit No. 19/1 was set aside with the direction to Muhammad Israr, Respondent No. 1, to submit amended plaint. Directions regarding filing of amended plaint were complied with by the Respondent No. 1 Muhammad Israrby impleading the L.Rs. of Marifat Shah i.e. Jehanzeb etc. In the meanwhile, Jehanzeb also filed a suit for declaration-cum-possession through partition on 08.10.2008. Both the suits were consolidated.

According to the averments of plaint submitted by Muhammad Israr, suit house was the ownership of Mst. Kishwara (who died during the pendencey of suit). She was the maternal grand mother of Muhammad Israr who had allegedly gifted the suit house in his favour vide registered gift deed dated 29.11.1997. That the defendant/ respondents had got no concern with the suit house. That a dispute arose in between Muhammad Israr and his grand mother; therefore, a suit was filed and with the consent of parties it was decreed.

3.  On the other hand, defendants Jehanzeb and others denied the claim of the plaintiff Muhammad Isar and they also filed a suit for declaration and possession through partition. In their plaint, they alleged that the suit house was the ownership of one Masaib Shah, who was survived by a widow, four daughters and a brother Marifat Shah (predecessor of respondents namely Jehanzeb etc.) He, therefore, requested for partition of the suit house in accordance with the Sharai shares of all the owners. Both the parties contested the suits and submitted their respective written statements. Both the suits were consolidated. Evidence pro and contra was recorded. On conclusion of trial and after hearing the learned counsel for both the parties, the learned Civil Judge-III, Charsadda vide her consolidated judgment dated 18.05.2010 dismissed Suit No. 13/1 filed by Muhammad Israr and decreed Suit No. 12/1 filed by Jehanzeb etc. Both the parties feeling themselves aggrieved filed their separate appeals before District Judge,Charsadda. Again both these appeals were consolidated and learned Additional District Judge-II, Charsadda by way of a consolidated judgment dated 30.05-2011 accepted Civil Appeal No. 65/13 titled Muhammad Israr vs Jehanzeb etc. by setting aside the judgment and decree of the learned trial Court and decreeing suit of Muhammad Isar and dismissed Civil Appeal No. 74/13 titled Jehanzeb vs. Muhammad Isar. Hence this revision petition.

4.  Learned counsel appearing on behalf of the petitioners contended that the impugned judgment and decree of the appellate Court is illegal, against the facts and law and is based on surmises and conjectures; that the impugned judgment and decree is the result of misreading and non-reading of the material evidence. The learned counsel further argued that the evidence of plaintiff/Respondent No. 1 regarding the suit house is self contradictory but the learned appellate Court while reversing the finding of the trial Court has lost sight of this aspect of the case. The learned counsel asserted that the judgment and decree is not maintainable in the eye of law and thus is liable to be set at naught by restoring that of the trial Court. In support of his contention, the learned counsel placed reliance on the cases of Fida Hussain and others vs. Abdul Aziz (2005 CLC 180), Mst. Azmat-e-Bibi vs. Noor Muhammad and 3 others (2012 YLR 1765), Hidayatullah Khan vs. Ajmal Khan (2006 CLC 35), Sultan Muhammad and another vs. Muhammad Qasim and others (2010 SCMR 1630), Allah Ditta vs. Aimna Bibi (2011 SCMR 1483) and Badar Zaman vs. Sultan (1996 CLC 202).

5.  As against that, the learned counsel for Respondent No. 1 argued that the petition writer who had scribed the deed fully supported the claim of Respondent No. 1. The learned counsel further argued that the gift-deed in favour of Respondent No. 1 Muhammad Isar is a registered document and presumption of correctness is attached to the same and there is no evidence in its rebuttal. The learned counsel also argued that the dower deed in favour of Mst. Kishwara was scribed in the year 1960 and according to Article 100 of Qanun-e-Shahadat Order, presumption of truth was also attached to it. He argued that all the three ingredients qua the gift were properly complied with and admittedly Muhammad Israr has been residing in the suit house since his birth. The learned counsel argued that the judgment and decree of the appellate Court is based on cogent reasons and proper appraisal of evidence requiring no interference by this Court in its revisional jurisdiction and prayed for dismissal of the revision petition. The learned counsel to support his stance placed reliance on the cases of Noor Din and others vs. Khushi Muhammad and another (2000 MLD 1427), Muhammad Arif vs. MalikMuhammad Farooq and 4 others (2002 CLC 1361), Muhammad Bashir and 6 others vs. Muhammad Ashraf and 26 others (2004 CLC 1180), State Life Insurance Corporation of Pakistan through Chairman and 3 others vs. Safia Begum (2001 CLC 408), Hidayatullah Khan vs. Ajmal Khan (2006 CLC 35) and Badar Zaman vs. Sultan (1996 CLC 202).

6.  Arguments of the Mr. Ahmad Shah Khan, learned counsel for the petitioner, Mr. Sardar Ali, Advocate, for Respondent No. 1, Mr. Ibrar-ul-Haq, Advocate, for Respondents No. 8 and 9, and Mr. Abdur Rehman Khan, Advocate, for Respondents 17 to 20, were heard and record of the case perused with their valuable assistance.

7.  Perusal of the record would reveal that the Respondent No. 1 in his plaint has claimed ownership of the suit house on the strength of registered gift-deed dated 26.11.1997 by one Mst. Kishwara, the donor, who died during pendency of the suit. The source of the ownership of the lady donor is a dower deed in her favour by her husband namelyMasaib Shah vide deed dated 24.6.1960. Said Masaib Shah was the real brother of Marifat Shah, the predecessor of present petitioners, Masaib Shah had no male issue and he was survived by his widow Mst. Kishwara, daughters, sisters and brother Marifat Shah.

The present petitioners in their suit for declaration have challenged the very foundation of ownership of the donor of Respondent No. 1 and then the registered gift-deed in hisfavour. Respondent No. 1 being the beneficiary of the gift-deed was legally bound not only to establish and prove the genuineness of the gift-deed in question but also the foundation of ownership of his donor, Mst. Kishwara, widow of Masaib Shah.

8.  The ownership of Mst. Kishwara was allegedly a dower deed dated 24.6.1960 in her favour by her husband. The appellate Court while keeping reliance on the said dower deed held it be a genuine document being more than thirty (30) years, having presumption of correctness attached  to  it  under  Article 100 of the Qanun-e-Shahadat Order, 1984. The findings of the appellate Court would reveal that the appellate Court lost its sight to consider the evidence available on the record in this regard. The Respondent No. 1 to support his version, produced one Saleemullah, APW-2 who was shown to be the scribe of dower deed dated 24.6.1960, Ex.PW 2/1. This document was not referred to by the Respondent No. 1 in his plaint nor was mentioned in the list of witnesses and on the other side was questioned in the connected suit of Jehanzeb etc. The parties were the residents of Charsadda whereas this deed was allegedly executed in Peshawar by APW-2 without assigning any reason in this regard in spite of the fact that such set up was there in Charsadda which was a sub-division at that time. Besides, the above said witness was also produced as APW-1 during proceedings under Section 12(2) CPC between the same parties wherein he had denied the execution and his signatures on the said document. The argument of learned counsel for Respondent No. 1 that the evidence of another case cannot be relied upon in subsequent proceedings, under Article 57 of the Qanun-e-Shahadat Order, 1984 and placed reliance on the case of Muhammad Arif vs. Malik Muhammad Farooq and 4 others (2002 CLC 1361) and Noor Elahi vs. The State (PLD 1966 Supreme Court 708). In the opinion of this Court, it is not the reliance on the evidence of another cases but a statement recorded in the offshoot of the dispute between the same parties and with regard to the same fact. The certified copy of that earlier statement of the said witness is available on the file and the Court can take notice of the fact regarding which material is available on the file. So, the judgments referred to cannot be relied upon and are distinguishable in the circumstances. Besides, the above said APW-1, yet another witness being Clerk of Record Room appeared as APW-2 in the proceedings under Section 12 (2) C.P.C. who produced the register of stamp vendor wherein no entries regarding the sale of said stamp paper by Masaib Shah in favour of Mst. Kishwara were there. So, this Court can take notice of this evidence.

No doubt, the alleged dower deed is more than 30 years old but mere this fact alone would not be sufficient to grace a document with presumption of correctness as provided in Article 100 of Qanun-e-Shahadat Order, 1984. The age of document alone would not amount to a proof about correctness of contents of such document nor would dispense with formal proof. If the genuineness of a document is susceptible to suspicion, the Court can refuse to raise presumption and can ask for the proof of its contents. So, the findings of the appellate Court in this regard are not based on proper appraisal of the law on the subject. Reliance in this regard can be laced on the case of AllahDitta vs. Amina Bibi (2001 SCMR 1483) and Fida Hussain vs. Abdul Aziz (2005 CLC 180).

9.  Now comes the question of gift by way of registered deed. The basic presumption of correctness is attached to a registered document but when the very execution of the same is under fire then the beneficiary of the said registered deed is legally bound not only to prove the execution of the same but also the contents of the same. The Respondent No. 1 claiming benefit from Ex.APW 2/1, authenticity of which was questioned by the petitioners, then Respondent No. 1 being beneficiary was supposed to prove its genuineness. The evidence in this regard is that of APW-1, the Registration Clerk and the Respondent No. 1 himself who appeared as APW-3. The very cross-examination of APW-1 would make this document doubtful. He in his cross-examination has stated that no document of the ownership of the donor was produced at that time. Similarly the thumb impression/signatures of Mst. Kishwara and Muhammad Israr were also not there. The signatures of the marginal witnesses were also not available on the register maintained by the Sub-Registrar Office. All the above replies would be sufficient to shatter the authenticity of the registered gift-deed. The marginal witnesses were also not produced to support the stance of Respondent No. 1. The Respondent No. 1 was bound to prove his case on the strength of his evidence and he could not take any advantage of the shortcomings of the evidence of other side. The evidence of the Respondent No. 1 is deficient on the question of offer, acceptance and delivery of possession under gift irrespective of the fact that Respondent No. 1 was in possession of the suit house since his birth. Reference can be made to Sultan Muhammad and another vs. Muhammad Qasim (2010 SCMR 1630) and Badar Zaman vs. Sultan (1996 CLC 202). The trial Court has rightly granted decree to the petitioners by dismissing the suit of Respondent No. 1 whereas the findings of the appellate Court are against the law and cannot be left to remain in the field.

10.  So, the findings of the appellate Court are the result of misreading and non-reading of the material evidence on the record and the jurisdiction so exercised is against the law cannot be sustained. Hence, this revision petition is allowed. Suit of present petitioners is decreed as prayed for and the suit of Respondent No. 1 strands dismissed with costs.

(R.A.)  Petition allowed