--Denial of exchange mutation--Non-production of scribe--Non-production of original exchange deed--Evidentiary value of a certified copy of exchange deed-

 PLJ 2021 Lahore 328

Specific Relief Act, 1877 (I of 1877)--

----S. 42--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration--Dismissed--Denial of exchange mutation--Non-production of scribe--Non-production of original exchange deed--Evidentiary value of a certified copy of exchange deed--Withholding of witnesses--Challenge to--There is categorical denial on behalf of plaintiff that neither he had exchanged his property nor he appeared before any forum in this regard, nor he had seen property and even he had not been given possession of said property--During cross examination, assertion of plaintiff could not be shaken by petitioners while giving suggestions rather plaintiff stood on his feet qua his claim--Petitioners could not produce witnesses of mutation--Identifier as well as scribe of document has also not been produced before Court--Petitioners were duty bound to produce two marginal witnesses of deed as required under Art.  79 of Order to prove deed, however, they remained failed in this regard--Production of certified copy of a registered document may prove contents of original document, but merely showing as to what were contents of original document, is not sufficient in absence of proof of execution of original document--Defendants did not produce original exchange deed and have tendered attested copies of same without seeking permission of Court and evidentiary value qua certified copy of exchange deed would lose its importance and copy would not be sufficient to prove execution of original! documents--Judgment of appellate Court below is in accordance with law which does not call for any interference by High Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction--Petition dismissed.                                                                                                      

                                                          [Pp. 331, 332 & 333] A, B, C & D

2005 SCMR 152, 1990 SCMR 1259, PLD 2005 SC 418 and
PLD 2011 SC 241 ref.

Mr. Shahid Qayyum Chaudhry, Advocate for Petitioner.

Mr. Athar Ali Bhinder, Advocate for Legal Heirs of Respondent No. 1 for Respondents.

Date of hearing: 19.11.2020.

 PLJ 2021 Lahore 328
Present: Atir Mahmood, J.
MUHAMMAD SHAFI--Petitioner
versus
ALLAH YAR, etc.--Respondents
C.R. No. 1645 of 2010, decided on 19.11.2020.

Judgment

Brief facts of the case are that Respondent No. 1 filed a suit against the Petitioner No. 1 and others before the learned Civil Judge, Depalpur for declaration to the effect that he was owner of the property detail of which is well mentioned in the plaint, whereas, registered Mutation No. 941/1 dated 31.03.79 in favour of Petitioner No. 1 was false and illegal; that transaction under alleged exchange Mutation No. 432 dated 07.05.1979 by respondent in favour of predecessor in interest of petitioners No. 1 to 4 as well as Mutation No. 257 dated 17.05.1979 by predecessor in interest of petitioners No. 1 to 4 in favour of Respondent No. 1 was also void and ineffective; that the registered Hiba Nama No. 1655/1 dated 01.07.1979 and subsequent Mutation No. 443 dated 19.08.79 as well as registered Tamleek Nama No. 601/1 dated 26.02.1983 and its subsequent Mutation No. 568 dated 06.03.1983 were also void and against the law and facts. Suit was contested by the Petitioner No. 1 and Haleema Bibi (deceased) by filing written statements whereas, Respondents No. 2 and 3 had not contested the suit. The learned trial Court framed the issues out of the divergent pleadings of the parties. Thereafter, the parties were directed to produce evidence which was adduced accordingly.

Learned trial Court after collecting the oral as well as documentary evidence led by the parties and hearing the arguments dismissed the suit vide judgment and decree dated 20.06.2006. Respondent No. 1 being dissatisfied with the said judgment and decree filed an appeal and vide judgment and decree dated 16.04.2010 passed by the learned lower appellate Court, the same was allowed and suit was decreed. Being aggrieved by judgment and decree passed by learned lower appellate Court, the petitioners have filed the instant revision petition.

2. The learned counsel for the petitioners has argued that learned lower appellate Court has wrongly passed the impugned judgment and decree against petitioners and failed to appreciate the material available on record in true perspective; that suit of Respondent No. 1 was barred by the time, however, learned lower appellate Court had overlooked this aspect of the case; that impugned judgment and decree is result of misreading and non-reading of evidence available on record, therefore, same is liable to be set aside.

3. On the other hand, learned counsel for respondents has seriously controverted the contentions raised by learned counsel for the petitioners and supported the impugned judgment while asserting that learned appellate Court has not committed any illegality or irregularity by passing the impugned judgment which has rightly been passed. Lastly, contended that impugned judgment is in accordance with law, therefore, no interference is called for, however, this petition being not maintainable is liable to be dismissed with cost

4. Arguments heard. Record perused.

5. Perusal of the record reveals that the plea of Respondent No. 1 is that he had not entered in any exchange transaction with regard to the property owned by him measuring 40-kanals 11-Marlas with the property of Mst. Haleeman, whereas, the stance of the petitioners is that the mutation of exchange was rightly entered in the year 1979 which was duly in the knowledge of respondent.

6. I have minutely perused the judgment and decree dated 16.04.2010 passed by learned Additional District Judge, Depalpur. An operative part of said judgment is reproduced herein below:

"12. Perusal of the record reveals that it is admitted by Halima Bibi that property of Mst. Haleeman Bibi measuring 40-kanals 11-Marlas was cancelled from her name and subsequently Mutation No. 15 dated 25.09.1956 in her favour stood cancelled by the order of the Civil Court. Basic conception of exchange of property lies in giving possession of exchanged properties to the parties so that they may enjoy fruits of possession. Admittedly Mst. Haleeman Bibi has never delivered possession of land measuring 40 Kanals 11 Marlas to the appellant, instead she had continuously been enjoying possession of the land owned by the appellant. By operation of law by i.e. by the decree of Civil Court the property of Mst. Haleeman Bibi was cancelled from her name. It is settled law that one cannot pass better title than he himself possesses. Mst. Haleeman Bibi, therefore, has never been in a position to pass title of her property measuring 40 Kanalas 11 Marlas to the appellant."

I am in consonance with the above findings and there is no plausible reason to differ with it. However, in addition to it is observed that while appearing as PW-1 in the witness box during examination in chief, Respondent No. 1/plaintiff asserted that:

"میں نے اراضی متدعویہ کا تبادلہ کبھی بھی حلیمہ بی بی سے نہ کیا تھا۔ میں ایسے تبادلہ کے لئے کہیں بھی پیش نہ ہوا تھا۔ مجھے تبادلہ والی کوئی زمین نہ دکھائی گئی تھی۔ مجھے تبادلہ میں کسی زمین کا کوئی قبضہ نہ دیا گیا تھا۔"

There is categorical denial on behalf of plaintiff that neither he had exchanged his property with the Mst. Haleema Bibi nor he appeared before any forum in this regard, nor he had seen the property in question and even he had not been given possession of the said property. During cross examination, the assertion of the plaintiff could not be shaken by the petitioners while giving suggestions rather the plaintiff stood on his feet qua his claim. When the respondent specifically denied the execution of exchanged deed and petitioners claiming themselves beneficiary of said deed, therefore, the onus to prove this fact shifted upon the petitioners. Under Article 79 of Qanun-e-Shahadat Order, 1984, the petitioners were required to prove the execution of document by production of two attesting witnesses. In the instant case, petitioners could not produce the witnesses of mutation namely Jalal Din son of Noor Ahmad Bhatti and Muhammad Din son of Qamar Din. The identifier as well as the scribe of the document has also not been produced before the Court. The petitioners were duty bound to produce the two marginal witnesses of the deed as required under Article 79 of the Order ibid to prove the deed, however, they remained failed in this regard. Reliance has been placed upon the case reported "Hafiz Tasadduq Hussain vs. Muhammad Din" through Legal Heirs and others" (PLD 2011 SC 241) wherein the purpose, scope and requirements of Article 79 of the Qanun-e-Shahadat Order, 1984 have been the subject matter of. Moreover, the mode of proving in such like cases was to lead secondary evidence like comparison of signature/thumb impressions of the executant with the deeds or documents on which he impressed his thumb or signed the same but said exercise has not been made. It is also settled law that when a thing is provided to be done in a particular manner, it must be done in that particular manner and if done otherwise, will be a nullity in the eye of law. In a case reported as 2005 SCMR 152, the apex Court has held as under:

"Reverting to the production and exhibition of said document, it was incumbent upon the appellant to examine attesting witness Syed Azizul Hassan Notary Public to prove its execution, as according to the appellant himself, this document was written in the City Courts. Non-production of this witness to prove the contents of the document was fatal to the case of the appellant with the legal consequence that the recitals of this document cannot be said to have been proved in terms of Article 78 of Qanun-e-Shahadat 1984. It was stated at the Bar that the attesting witness had died before his evidence could be recorded at the trial but mere statement would not exonerate the appellant of his legal obligation to prove the contents of a disputed document. This fact should have been pleaded before the trial Court and having established non-availability of the witness by reason of his death, steps should have been taken to adduce secondary evidence with the leave of the Court. Simply because no objection was raised to the production of document would not render the document as proved. "

7. Another aspect of this case is that defendants/petitioners had produced certified copies of the document. The production of certified copy of a registered document may prove the contents of the original document, but merely showing as to what were the contents of the original document, is not sufficient in absence of the proof of execution of the original document Defendants did not produce the original exchange deed and have tendered attested copies of the same without seeking permission of the Court and evidentiary value of a certified copy of exchange deed would lose its importance and said copy would not be sufficient to prove execution of original! documents. Defendants had failed to produce the witnesses, identifier and scribe before the trial Court to prove the contents and execution of exchange deed and said witnesses were available to defendants but they withheld said witnesses that if witnesses were produced they would not support their version. To support this version, reliance can be placed on case reported as "Syed Mansoor Ahmad v. Mst. Maqbool Begum and others "(1990 S C M R 1259). It has been held in the case reported as "Imam Din and 4 others v. Bashir Ahmed and 10 others" (PLD 2005 S.C. 418) that in absence of original document, its certified copy is not admissible in evidence and notwithstanding the presumption of correctness being attached with certified copy of a document pertaining to the official record, if the availability or existence of document is disputed and original is not produced, its certified copy would not be admissible in evidence without proving the non-availability of the original. Onus was on the defendants to prove that valid exchange deed had been executed and defendants in this case have failed to prove the execution of exchange deed while producing witnesses as well as original document.

8. Above discussion makes it abundantly clear that the judgment of learned lower appellate Court below is in accordance with the law which does not call for any interference by this Court in

exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction.

9. For what has been discussed above, this revision petition being devoid of any merit is hereby dismissed. No order as to cost.

(Y.A.)  Petition dismissed