PLJ 2022 Quetta 112
Specific Relief Act, 1877 (I of 1877)--
----Ss. 39 & 42--Suit for declaration and cancellation of sale of land--
Decreed--Concurrent findings--Obligation to petitioner--Burden of proof--Petitioner in his deposition stated that he purchased property from Waqar and Yasir--Both have taken responsibility of other shareholders--Petitioner has not produced witnesses of sale-deed, even failed to produce Defendants No. 1 & 12 in order to prove factum of sale purchase--Petitioner has failed to point out any illegality or irregularity in impugned judgments and decrees--Petition dismissed. [Pp. 113 & 117] A, B & E
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 79--Execution of document--Beneficiary of a document is required to establish transaction by producing two attesting/marginal witnesses, on failure to prove such factum of transaction will operate negatively against alleged beneficiary.
[P. 115] C
2018 SCMR 2080, 2010 SCMR 1370 and 2004 SCMR 1043 ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--The scope of revisional jurisdiction of High Court is limited--Usually High Court could not interfere in concurrent findings of fact recorded by Courts below unless and until there was misreading or non reading of evidence and violation of law--The revisional jurisdiction only applies to cases involving non existence or irregular exercise of jurisdiction--High Court in its revisional jurisdiction cannot/travel beyond scope of Section 115 CPC--The power under) Section 115 CPC should not be considered analogies to power exercise in appeal. [P. 117] D
PLD 2000 Quetta 8 ref.
Mr. Farooq Ahmed Mastoi Advocate for Petitioner.
Mr. Maqbool Ahmed, Advocate for Respondents No. 5 to 7.
Date of hearing: 25.3.2022.
PLJ 2022 Quetta 112
Present: Abdul Hameed Baloch, J.
SANAULLAH--Petitioner
versus
Mst. RAZIA BIBI and others--Respondents
C.R. No. 274 of 2012, decided on 31.3.2022.
Judgment
The petitioners assailed judgments and decrees dated 28th June, 2011 and 19th June, 2012 (impugned judgments and decrees) passed by Additional Qazi Kharan and Majlis-e-Shoora Kharan (trial and appellate Courts), whereby the suit filed by the respondents/plaintiffs was decreed and appeal filed by the petitioner/Defendant No. 11 against the same was dismissed.
2. Precise facts of the case are that the Respondents No. 1 & 2/plaintiffs filed a suit for declaration, cancellation of sale of land executed between Defendants No. 1, 11 and 12 stating therein that the suit land, description whereof mentioned in Para 2 of the plaint, was owned by Bibi Naz Jan and Bibi Rabia daughters of Yaqoob Khan Nausherwani. The plaintiffs and Defendants No. 1 to 10 are successors of Bibi Naz Jan, whereas Defendants No. 12 to 23 are successors of Bibi Rabia. Each shareholder is in possession of their respective shares. On 21st April, 2005 the Defendant No. 1 and 12 sold out the suit property without consent/permission of legal heirs of Defendant No. 11. He transferred the land to his name in the record of right. The other legal heirs approached the Settlement Officer Mastung by filing application, on which the Settlement Officer pleased to cancel the transfer mutation.
3. The petitioner/Defendant No. 11 contested the suit on legal as well as factual grounds by filing written statement stating that being attorney of brothers and sisters the Defendants No. 1 & 12 sold out the property on 21.4.2005 in sum of Rs. 2,800,000/- (Rupees two million and eight hundred thousand). The suit property is purchased property of petitioner/Defendant No. 11. He prayed for dismissal of the suit.
4. On divergent of pleadings the trial Court framed issues on which the parties led evidence in support of their respective contentions. On conclusion the trial Court vide judgment and decree dated 28th June, 2011 decreed the suit. Being dissatisfied the petitioner/Defendant No. 11 filed appeal before Majlis-e-Shoora Kharan which was dismissed vide judgment and decree dated 19th June, 2012, hence this revision -petition.
5. Heard and perused the record. The record transpires that the petitioner/Defendant No. 11 claimed ownership on the basis of sale purchase by stating that he purchased the property from Defendants No. 1 & 12 being attorney of parties meaning thereby that the petitioner/Defendant No. 11 claimed right over the suit property on the basis of sale purchase. The petitioner/Defendant No. 11 in his deposition stated that he purchased the property from Waqar and Yasir. Both have taken responsibility of other shareholders’. In cross-examination the petitioner/Defendant No. 11 admitted that the suit property is in the name of Bibi Naz Jan & others in the record of right. He further admitted that he could not produce any witness of sale deed.
6. Admittedly the suit property is not in the names of Defendants No. 1 & 12. The petitioner had purchased the property from Defendants No. 1 & 12. The petitioner/Defendant 1 No. 11 was under obligation to prove the factum of sale. The petitioner/Defendant No. 11 has not produced witnesses of sale-deed, even failed to produce the Defendants No. 1 & 12 in order to prove the factum of sale purchase. The Defendants No. 1 & 12 were important witnesses but without any reason they have not been produced. Under Article 124 of the Order 1984 presumption can be drawn that production of document will not support the contention of petitioner. The petitioner has contended that he has purchased the property in question on 21.4.2005. The burden of proof lies on the petitioner to prove his contention by cogent and consistent evidence.
7. Under Article 79 of Qanun-e-Shahadat Order, 1984 (Order 1984) the document to be proved by producing two attesting witnesses. None of the witness has stated that in lieu of sale consideration was paid in their presence at time of sale deed. The burden of proof lies on beneficiary of a document. Even wrong placement of burden on opposite party would not absolve the beneficiary from proving the sale deed is valid. When a party pleaded execution of a document, the executant of such document will be under heavy onus to prove the same. Under the law the beneficiary of a document is required to establish the transaction by producing two attesting/marginal witnesses, on failure to prove such factum of transaction will operate negatively against the alleged beneficiary. Reference can be made on the cases of Wali Muhammad Khan v. Mst. Amina, 2018 SCMR 2080, Khaliq Dad Khan v. Zeenat Khatoon, 2010 SCMR 1370 and Fida Hussain v. Murid Sakina, 2004 SCMR 1043.
8. The execution of a document can be proved only in accordance with the mode provided under Article 79 of Qanun-e-Shahadat Order, 1984, which reads as under:
“79. Proof of execution of document required by law to be attested: 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 given Evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution 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.”
9. Under the above referred Article the document can be used as evidence by producing two attesting witnesses. For the purpose of proof of a document the attesting witnesses have to be compulsorily examined otherwise cannot be considered as evidence. Reliance is placed on case Muhammad Andleeb Raza v. Muhammad Nazar, 2019 YLR 1974, wherein it was held:
“9. The epitome of above discussion would be that the contract having been executed after promulgation of Order 1984, ibid, its execution ought to have been proved in accordance with Article 79 ibid, but the evidence on record is restricted to only one attesting witness, which does not meet the requirement of the referred provision. The apex Court in a recent case reported as Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044) has elaborately defined Article 79 and finally concluded that its requirement was mandatory and without its strict compliance such a document cannot be used as evidence. The ratio of this judgment being all four corner applicable in the case in hand, as such the relevant conclusion for ready reference is given below:
This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words “shall not be used as evidence” unmistakably show that such document shall be proved in such and no other manner. The words “two attesting witnesses at least” further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such.
So, the statement of Scribe, report of Expert and the Attorney Deed could only be given weight as corroborative evidence, but it cannot be treated as a substitute of the required number of attesting witnesses. It would not be out of context to realize the well established principle of law that where law provides a procedure for doing a thing in a particular manner then it has to be done in prescribed manner and in no other etiquette or should not be done, as such both the Courts handed down their views without considering the material in its true perspective and especially the relevant law in this behalf, which are vulnerable. “
10. The scope of revisional jurisdiction of the High Court is limited. Usually the High Court could not interfere in concurrent findings of fact recorded by the Courts below unless and until there was misreading or non reading of evidence and violation of law. The revisional jurisdiction only applies to the cases involving non existence or irregular exercise of jurisdiction. This Court in its revisional jurisdiction cannot/travel beyond the scope of Section 115 CPC. The power under Section 115 CPC should not be considered analogies to the power exercise in appeal. Reliance is placed on case Sawali v. Gul Muhammad, PLD 2000 Quetta-8, wherein it was held:
“11. The observations made by the Hon’ble Supreme Court in the authority reported in 1997 SCMR 1139 are noteworthy and the relevant portion of which is reproduced below for the sake of facility:
“Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent findings of fact by the High Court in exercise of its revisional jurisdiction under Section 115. C.P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise of its bower under Section 115, C.P.C. cannot upset a finding of fact, however, erroneous it may be on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under Section 115, C.P.C. if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under Section 115, C.P.C. if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record.”
In the above circumstances the petitioner/Defendant No. 11 has failed to point out any illegality or irregularity in the impugned judgments and decrees dated 28th June, 2011 and 19th June, 2012 passed by Additional Qazi Kharan and Majlis-e-Shoora Kharan, as such the same are upheld accordingly and instant revision petition being devoid of merit is hereby dismissed with no order as to costs.
(Y.A.) Petition dismissed
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