PLJ 2024 Lahore (Note) 30
Present: Asim Hafeez, J.
Mst. ZAHIDA NASEEM, etc.--Appellants
versus
MUHAMMAD ANWAR--Respondent
R.S.A. No. 240 of 2015, decided on 11.10.2022.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Qanun-e-Shahadat Order, (10 of 1984), Art. 79--Oral gift--Denial of execution of Sale-Deed--Suit for declaration—Dismissed--Concurrent decisions--Non-fulillment of requirements of law--No direct evidence regarding payment of sale consideration--Misapplication of law--Appellant were also legal heirs of deceased--Challenge to-- No direct and convincing evidence is available on record to prove alleged payment of consideration or underlying alleged transaction--Decisions impugned are contrary to law and Courts have misapplied law, failed to determine questions of law, violated mandate and requirements of Qanun-e-Shahadat Order, 1984, which established effectiveness of instant second appeal--Appellants failed to prove factum of oral gift but rights of legal heirs of deceased Ahmad Sarwar, with respect to suit property, are fully established--Paternity of Appellants No. 2 to 6, being sons and daughters of Ahmad Sarwar, is not disputed--Appeal allowed.
[Para 8 & 10] A, B & C
2022 YLR 1284, 2015 YLR 1800 and PLD 2006 Lahore 140 ref.
M/s Rana Muhammad Arif and Ch. Tanveer Ahmad Hanjra, Advocates for Appellants.
Mr. Abdul Ghaffar Ch., Advocate for Respondent.
Date of hearing: 11.10.2022.
Order
This Regular Second Appeal (‘Appeal’) is directed against judgment and decree dated 28.09.2015 of learned first appellate Court, which affirmed the decree of learned trial Court, dated 11.03.2013, which dismissed appellants’ suit for declaration and permanent injunction.
2. Facts of the case are simple. Mst. Zahida Naseem, Appellant No. 1, claiming to be ex-wife of deceased Ahmad Sarwar--alleged owner of the property--pleaded rights for her children, in subject matter property, by virtue of alleged oral gift by their father Ahmad Sarwar, comprising of house measuring 6-Marla. Appellants sought declaration of invalidity against registered Sale-Deed No. 592/1 dated 31.03.2006, through which respondent claimed purchase of suit property from his brother, Ahmad Sarwar, against claimed consideration of Rs. 200,000/-. Issues were framed and evidence recorded, whereafter learned Court of first instant dismissed appellants’ suit. Appellants were unsuccessful before the first appellate Court. Hence, this second appeal.
3. Learned counsel for appellants contends that Courts misread the evidence and misapplied the law, while disregarding the mandate and requirements of Articles 78 and 79 of The Qanun-e-Shahadat Order, 1984. Submits that beneficiary of registered Sale-Deed failed to prove execution of the deed under challenge and underlying consideration. Adds that no effort was made to prove signature/thumb impression of deceased Ahmad Sarwar and no witness was produced to identify purported signatures of the deceased on impugned Sale-Deed. Submits that concurrent decisions are erroneous and contrary to the law. Reliance was placed on following decisions, reported as Muhammad Amin and 2 others v. Muhammad Rafique through L.R’s (2022 YLR 1284), Rasool Bakhsh and others v. Muhammad Yaqoob and others (2015 YLR 1800) and Muhammad Siddique through Legal Representatives v. Mst. Noor Bibi through Legal Heirs and others (PLD 2016 Lahore 140).
4. Conversely, learned counsel for respondent submits that appellants admitted factum of registered document and mutation recorded on the basis thereof, who referred to paragraph 5 of the earlier suit of the appellants – Exh.D-6. Adds that earlier suit was filed and withdrawn, which bars institution of subsequent suit. Further submits that stamp vendor and sub-registrar appeared as DW-1 and DW-6, whose evidence established the legality and valid execution of the deed. Adds that one of the attesting witnesses appeared-Qaiser Ishtiaq (DW-2) and respondent appeared as its own witness – DW-5. Lastly states that concurrent findings recorded cannot be examined and re-appraised while adjudicating second appeal, in the absence of any question of law.
5. Arguments heard. Record perused.
6. When confronted, learned counsel for appellants contends that even if alleged claim of oral gift was not established and repelled, still the Appellants No. 2 to 6, being the sons and daughters of deceased Ahmad Sarwar, are entitled to claim deceased’s inheritance once alleged Sale-Deed is declared void and ineffective qua their rights.
7. Appellants alleged fraud against Sale-Deed, claiming that purpose whereof was to deny rights of the appellants--heirs of Ahmad Sarwar. Respondent was the beneficiary of alleged Sale-Deed, execution whereof was denied, who was required to fulfill the requirements prescribed for proof of execution of documents in terms of Article 79 of Qanun-e-Shahadat Order, 1984, which requirements were not fulfilled. One of the attesting witnesses, Khizar Hayat, was not produced, nor any explanation provided for non-production of said material witness. Contention that appellants admitted factum of Sale-Deed in earlier suit is misconceived, which misconception is evident from the perusal of paragraph 5 of the suit, earlier filed by the appellants--Exh.D-6. Suit earlier filed was withdrawn with permission to refile in terms of the statement dated 08.06.2009, whereafter appellants challenged the registered Sale-Deed, claiming rights based on claim of oral gift through fresh suit, instituted on 14.07.2009. It is evident from perusal of paragraph 5 of plaint in earlier suit that legality of Sale-Deed was categorically disputed and same was termed as a fraudulent document, allegedly procured to deny claims of the Appellant No. 1 before the Family Courts. Learned counsel for the respondent was asked to show whether contents of the plaint in earlier suit was confronted to the Appellant No. 1, who appeared as PW-1, to ensure compliance of Article 140 of the Qanoon-e-Shahadat Order 1984, learned counsel conceded that no exercise to confront was done. Hence, no adverse inference could be drawn in the context of contents of paragraph 5 of plaint, in earlier suit. On account of evident non-compliance of Article 140, ibid.
8. When confronted, learned counsel for respondent conceded that none of the brothers of deceased Ahmad Sarwar was produced as a witness to substantiate alleged transaction between Ahmad Sarwar and Muhammad Anwar. Execution of the Sale-Deed was denied, still no effort was made to prove alleged signature /thumb impression of Ahmad Sarwar on alleged Sale-Deed, nor comparison thereof was sought. No person was produced, having acquaintance with the signature of deceased to prove alleged signatures/execution. Requirements of Article 78 of Qanun-e-Shahadat Order, 1984 were not fulfilled. No direct and convincing evidence is available on record to prove alleged payment of consideration or underlying alleged transaction. No protection qua registered Sale-Deed could be claimed in terms of Article 85 of the Qanun-e-Shahadat Order 1984, when execution of said registered document was denied. In view of the Above, it is evident that decisions impugned are contrary to the law and Courts have misapplied the law, failed to determine the questions of law, violated mandate and requirements of Qanun-e--Shahadat Order, 1984, which established effectiveness of instant second appeal in terms of Section 100 of the Code of Civil Procedure 1908.
10. Appellants failed to prove factum of oral gift but rights of the legal heirs of the deceased Ahmad Sarwar, with respect to suit property, are fully established. Paternity of the Appellants No. 2 to 6, being sons and daughters of Ahmad Sarwar, is not disputed.
11. Therefore, instant appeal is allowed. Judgments and decrees passed by learned trial Court and first appellate Court to the extent of upholding the validity and effectiveness of the registered Sale-Deed are set aside. Impugned Sale-Deed No. 592/dated 31.03.2006 is declared void and ineffective. Since appellants have failed to prove the factum and execution of oral gift, therefore relief sought in the suit to that extent is declined and dismissed. No order as to the costs.
(Y.A.) Appeal allowed
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