Monday, 22 October 2018

Party cannot improve its case beyond pleadings

PLJ 2018 Lahore 1042
PresentCh. Muhammad Masood Jahangir, J.
Mst. SURRAYA BIBI--Petitioner
versus
IMTIAZ AHMAD etc.--Respondents
C.R. No. 2715 of 2014, decided 25.4.2018.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Specific Relief Act, (I of 1877)--Suit for declaration possession and cancellation of sale deed--Decreed--Appeal--Case was remanded--Suit was dismissed--Appeal Dismissed--Concurrent findings--Ingredients of transaction--Challenge to--It is sine qua non for a vendee to establish; firstly, that transaction was struck with a titleholder or a person having authority to create right; secondly it was settled against consideration, and thirdly such sale was accompanied by delivery of possession--Concurrent findings of Courts below cannot be disturbed by this Court while exercising revisional jurisdiction provided under Section 115 of Code, 1908 is not tenable as both judgments and decrees having been found to be result of misreading and non-reading of evidence as well as non-adherence to law applicable in this regard are not sustainable in eye of law--It is correct that normally this Court does not interfere with concurrent findings of fact recorded by two Courts below, but when there is gross misreading and non-reading of evidence and patent violation of law is floating on surface of such concurrent findings, this Court cannot shut its eyes and is always under obligation to rectify error by interference in such like illegal findings.      [Pp. 1045& 1050] A & F
2004 SCMR 1001 & 2006 SCMR 1238, ref.
Onus to Prove--
----Mere execution and registration of sale deed by itself do not furnish proof of aforenoted ingredients of transaction and whenever such document as well as transaction cited therein is questioned or denied, onus lies on beneficiary to prove both of these.                                                        [P. 1045] B
Pleadings--
----It is settled law that a party has to first assert facts and pleas in pleadings and then it can prove same through evidence--A party is not allowed under law to improve its case beyond what was originally setup in pleadings.       [Pp. 1045 & 1046] C
Qanun-e-Shahdat Order, 1984--
----Arts. 17 and 79--Document--Financial obligation--Attestation of sale deed by identifier--Marginal witness--Violation of mandatory requirement--It was made imperative that a required number of persons must attest any such document being its marginal witnesses and as per requirements of latter provision, such a document can only be used as evidence when two attesting witnesses, at least, have been called for purpose of proving its contents, execution and construction, but nothing short of it can even be imagined for proving same--It is well established by now that any signatory of a document involving financial obligation cannot be treated as its marginal witness, until he has signed it in such capacity--Construing requirement of Articles ibid as being procedural rather than substantive and equating testimony of an identifier with that of attesting witness would not only defeat philosophy of said provision, but it would also be violative of its intent and purpose, which was specifically introduced while re-enacting law on evidence--Attestation of sale deed by identifier, who had an independent role in series of facts and registration of instrument was highly unusual--Such omission was not only significant but was also destructive to case of plaintiffs hence for violation of mandatory requirement of provision under discussion sale deed was inadmissible and was wrongly relied upon by Courts below--C.R. was accepted.  [Pp. 1048 & 1049] D & E
1997 SCMR 459, ref.
Mr. Ghulam Farid Sanotra, Advocate for Petitioner.
Sh. Sakhawat Ali, Advocate for Respondents.
Date of hearing: 25.4.2018
Judgment
The brief facts for resolving the dispute arising out of the Revision Petition in hand were that Mst. Surraya Bibi, present petitioner, was exclusive owner of land measuring 14 Kanals 17 Marlas. Hidayat Ullah, father of the respondents, was her real brother. The property of petitioner lady was transferred to the respondents, sons of her brother vide sale deed No. 807 dated 25.06.2003 (Exh.P1) and the former within next three months brought a suit for declaration, possession and cancellation of Exh.P1 contending therein that actually the property had been leased out to father of the respondents, who in its garb manevoured a sale deed in favour of his sons, which being result of fraud, misrepresentation and without consideration was liable to cancellation. The suit was contested on behalf of respondents/defendants through written statement, but surprisingly without giving any details with regard to time, date, month, year, venue and names of witnesses to disclose that when, where and before whom transaction of sale reflected in impugned sale deed was effected, however, it was only pleaded that subject land was purchashed for value of Rs. 100,000/-, which was paid before the respectables. Facing with the contest, issues were settled, evidence of the parties was collected and as a result of its appreciation, initially the suit was decreed vide judgment dated 16.11.2006, but it could not hold the field as the learned District Court on 12.06.2007 remanded the suit to his subordinate after resettling the issues with slight modification and afforded opportunity to the parties to lead further evidence. Pursuant thereto, one of the beneficiaries, Respondent No. 1 (DW1), Hidayat Ullah and Zafar Ullah the signatories of the sale deed being DW2 and 3 respectively as well as Aftab Ahmed (DW5), the Registering Officer were again examined, whereas the earlier statements of DW1 and 2, recorded prior to remand order were also kept intact. Anyhow, second time, not only learned Trial Court dismissed the suit vide judgment and decree dated 04.06.2012, but appeal of the petitioner before the learned Appellate Court also failed through judgment and decree dated 15.04.2014, hence Petition in hand.
2.  Mr. Ghulam Farid Sanotra, Advocate, learned counsel for petitioner/plaintiff has submitted that impugned sale deed being a document of financial liability was required to be attested at least by two marginal witnesses, whereas it was only witnessed by Hidayat Ullah, the father of the respondents and Zafar Ullah put his thumb impressions on it being identifier of the vendor, who could not be equated with a marginal witness; that the alleged vendor was illiterate, folk lady and sale deed on her behalf had been executed/sanctioned without any independent advice with her; that no convincing and reliable evidence was examined on behalf of beneficiaries to prove alleged transaction, whereas available evidence being full of contradictions was neither believable nor persuasive and that the impugned judgments being tainted with misreading and non-reading of evidence were liable to be set aside. In contra, Sh. Sakhawat Ali, Advocate, learned counsel for respondents refuted the arguments of his counterpart while accentuating that although sale deed being a registered instrument was clothed with strong presumption of correctness, which was not required to be formally proved, yet each and every signatory of the sale deed (Exh.P1) was examined to prove its construction as well as transaction reflected therein and that on the basis of minor contradictions or infirmities the statements of DWs could not be discarded, whereas substances and gist of their depositions fully proved the case of respondents. He further argued with great concern that concurrent finding of fact rendered by two Courts below could not be disturbed while invoking jurisdiction available to this Court under Section 115 of the Code, 1908.
3.  Heard and record perused.
4.  In order to enforce a sale, it is sine qua non for a vendee to establish; firstly, that transaction was struck with a titleholder or a person having authority to create right; secondly it was settled against consideration, and thirdly such sale was accompanied by delivery of possession. Mere execution and registration of sale deed by itself do not furnish proof of aforenoted ingredients of the transaction and whenever such document as well as transaction cited therein is questioned or denied, onus lies on the beneficiary to prove both of these.
At the cost of repetition written statement of the contesting respondents was silent with regard to essential details of transaction and it is settled law that a party has to first assert facts and pleas in the pleadings and then it can prove the same through evidence. A party is not allowed under the law to improve its case beyond what was originally setup in the pleadings.
Anyhow, as per available record the lady herself while appearing being PW1, explicitly worded in her statement-in-chief that Hidayat Ullah was her real brother to whom the property was leased out, but with him neither any sale transaction was settled nor any consideration was received and that she never executed the sale deed, whereas Hidayat Ullah procured her thumb impression on some papers to accomplish lease deed. The petitioner examined Zafar Iqbal (PW2), her son, who seconded her mother to that extent and also denied to have received any amount from the respondents. The moment PWs denied the transaction and execution of sale deed, onus was shifted to the persons claiming benefit of disposition of the land and to discharge it, Imtiaz Respondent No. 1, one of the beneficiaries being DW1, for the first time, exposed the details of transaction while stating therein that on 25.06.2003 the transaction was settled against Rs. 100,000/-, which was paid, then they came to Narowal where stamp paper was purchased, scribed and registered as per desire of his aunt. In response to a specific question, DW1 categorically nominated that Riaz Cheema, family member of the vendor and son of the latter were present during entire proceedings, but surprisingly none of them witnessed the sale deed despite their availability nor any of them was summoned by the respondents to affirm that some independent advice was with her to have understood the import and magnitude of the transaction for which instrument was executed. Regardless of it, the beneficiary (DW1) failed to point out particular persons, who being witnesses thumb marked the sale deed. The perusal of impugned instrument left no doubt that Zafar Ullah, one of its signatories, did not sign it being its marginal witness, rather he being identifier of the vendor, thumb marked it in such capacity. He as DW3 did not depose that after execution of the sale deed by the Deed Writer it was signed/thumb marked before him, rather he indeed stated in his statement-in-chief that the document was thumb marked after accomplishment of its registration by the Sub-Registrar. This witness completely failed to pinpoint that the lady was known to him or that she was identified by him before the concerned officer. He was the sole independent witness, who even failed to identify his thumb impression over the sale deed with the pretext to have lost eyesight, however, his deposition in cross-examination to the following effect:
"ہمیں بھٹی کا تب سب رجسٹرار کے دفتر لے کر گیا تھا۔ درست ہے کہ بھٹی نے سب رجسٹراروں کے کلرکوں کو کہا اور انہوں نے تمام کاروائی کی۔"
has left an impression that Sub-Registrar did nothing on his part to attest the sale deed. Then comes the statement of Hidayat Ullah (DW2), the signatory of Exh.D1 being its marginal witness. He being father of the beneficiaries was the most interested person, whose statement could not be given due weight, however he also did not state that sale deed after its execution was read over to the vendor or that the parties along with him as well as DW3 put their signatures/thumb marks before the Deed Writer, rather he was also of the view that they did so before the Attesting Officer. The Deed Writer, Muhammad Azam (DW4) in his cross-examination stated that Riaz Cheema, a relative of the lady/vendor was also available at the time of execution of sale deed, but due to non-availability of his CNIC, he was not added as marginal witness of the sale deed. Although Registering Officer (DW5) was examined too, but he did not utter a single word that petitioner had appeared before him for the execution of sale deed or that she made a statement before him, rather he simply stated that sale deed (Exh.D1) was registered by him. Some of the glimpses of his cross-examination given below would be relevant to expose his irresponsible attitude towards discharge of his official duty:-
"Ex:D1 پر میرے دستخط ہیں باقی تحریر میری نہ ہے۔ از خود کہا کہ روٹین کے مطابق ہم نشانی طور Initial کرتے ہیں۔ گواہان کو ظاہر ہے میں ذاتی طور پر نہ جانتا ہوں ۔۔۔۔ یہ نوٹ میں نے اپنے ہاتھ نہ لکھا ہے کہ رجسٹری بائع کو پڑھ کر سنائی گئی اور اس نے درست تسلیم کیا۔"
5.  There is no denying of the fact that a document involving financial obligation has to be executed, constructed and proved as per mode provided under Articles 17 and 79 of the Qanun-e- Shahadat Order, 1984. What are requisites can be understood by reading said provisions, which are reproduced hereunder:--
17.  Competence and number of witness.--
(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Quran and Sunnah.
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law,
(a)      in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly; and
(b)      in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant.
79.  If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the executant of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
As per former provision, it was made imperative that a required number of persons must attest any such document being its marginal witnesses and as per requirements of the latter provision, such a document can only be used as evidence when two attesting witnesses, at least, have been called for the purpose of proving its contents, execution and construction, but nothing short of it can even be imagined for proving the same. As observed supra, the document under challenge was thumb marked only by Hidayat Ullah (DW2) being its marginal witness, whereas Zafar Ullah (DW3) put his thumb mark as an identifier, hence the document was not constructed as per requirement of Article 17 ibid, as such was not admissible in evidence. The emphasis of Mr. Sakhawat Ali, learned counsel for the respondents that DW3 proved the transaction as well as execution of sale deed and merely for the elision on the part of Deed Writer, that he was written as identifier could not be made basis for not treating him as marginal witness, was misconceived. It was not a case where judicial discretion of the Court could be invoked to treat identifier being attesting witness. It is well established by now that any signatory of a document involving financial obligation cannot be treated as its marginal witness, until he has signed it in such capacity. Construing the requirement of Articles ibid as being procedural rather than substantive and equating the testimony of an identifier with that of attesting witness would not only defeat philosophy of the said provision, but it would also be violative of its intent and purpose, which was specifically introduced while re-enacting the law on evidence. The attestation of sale deed by the identifier, who had an independent role in the series of facts and registration of the instrument was highly unusual. Such omission was not only significant but was also destructive to the case of the plaintiffs hence for violation of mandatory requirement of the provision under discussion sale deed was inadmissible and was wrongly relied upon by the Courts below.
6.  The other glaring backdrop of the case was that the sale deed under litigation in hand was executed on behalf of an illiterate lady and as per judgments of the apex Court rendered in cases reported as Taleh Bibi and others vs. Mst. Maqsooda Bibi and another (1997 SCMR 459), Mian Allah Ditta through LRs vs. Mst. Sakina Bibi and others (2013 SCMR 868), Ghulam Farid and another vs. Sher Rehman through LRs. (2016 SCMR 862) and Phul Peer Shah vs. Hafeez Fatima (2016 SCMR 1225), the legal protection is to be extended to her, which is available to a pardanashin woman and in such situation, it was sine qua non for the beneficiaries to have proved that not only independent advice was available with her, but she had settled the bargain with conscious mind of transferring the property in dispute to the respondents. The Deed Writer (DW4), Identifier (DW3) and the Attesting Witness (DW2) admitted in their testimonies that either son or a relative of the lady/vendor was available, but non-signing of the document on their part raised serious question about its genuineness. The disputed transaction on behalf of lady was effected in favour of siblings of her brother. The latter was in a position to exert his pressure or had got a relation of great confidence to wield influence upon her and in such situation that was to be seen with doubt and care. The submission of Mr. Sakhawat, learned counsel that each of the DWs specifically deposed in his statement that the Scribe as well as the Registering Officer confirmed from the lady with regard to receipt of sale amount, who thereafter scribed and registered the sale deed, hence there was no further requirement for making the document and transaction understandable to her was not well founded. It was the defence of the lady that the property was never sold out, rather it was leased out, as such it was imperative upon the beneficiaries to have proved that the consideration, if any paid, was for the sale.
7.  The argument of learned counsel for the respondents that thumb mark upon Exh.D1 having already been admitted by the petitioner/plaintiff, the respondents were no more required to prove its valid construction, was not plausible. Admittedly the lady pleaded and deposed that her brother procured her thumb impression for the execution of lease deed, so in such situation, her admission would not ipso facto prove the sale deed as well as transaction reflected therein to raise presumption of it being a genuine document having legal value. The other emphasis of learned counsel that sale deed was a duly registered document and it being a public document attained presumption of correctness, as such Courts below were perfect to rely upon it, was not persuasive. As per reference to Article 85 (e) of the Order ibid, whenever the execution or validity of a purportedly registered document is denied, such registered document loses sanctity of being presumed to be correct, but its lawful veracity will depend upon quantum and quality of evidence to be produced to prove its lawful execution. Reliance can be placed upon judgments reported as Abdul Ghafoor and others vs. Mukhtar Ahmad Khan and others (2006 SCMR 1144) and Abdul Majeed and 6 others vs. Muhammad Subhan and 2 others (1999 SCMR 1245). In the latter case, the apex Court concluded in the following words:--
It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction of which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness of document.
Additionally, under Section 60 of the Registration Act, 1908, only a restricted presumption is attached that registration proceedings were regularly and honestly carried out by the attesting officer, but the said presumption attached to its certificate is always rebuttable.
8.  The argument of learned counsel for the respondents that the concurrent findings of the Courts below cannot be disturbed by this Court while exercising revisional jurisdiction provided under Section 115 of Code, 1908 is not tenable as both the judgments and decrees having been found to be the result of misreading and non- reading of evidence as well as non-adherence to the law applicable in this regard are not sustainable in the eye of law. It is correct that normally this Court does not interfere with the concurrent findings of the fact recorded by two Courts below, but when there is gross misreading and non-reading of evidence and patent violation of the law is floating on the surface of such concurrent findings, this Court cannot shut its eyes and is always under obligation to rectify the error by interference in such like illegal findings. Reliance can be placed upon the judgments reported as Ghulam Muhammad and 3 others vs. Ghulam Ali (2004 SCMR 1001) and Mushtari Khan vs. Jehangir Khan (2006 SCMR 1238).


9.  Corollary of the appreciation of evidence and legal aspects discussed hereinabove is that this Civil Revision is accepted, impugned judgments and decrees are hereby set aside and suit of the petitioner/ plaintiff is decreed. No order as to costs.
(M.M.R.)         C.R. accepted

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