' This Civil Revision has been filed to challenge the judgment and decree, dated 10-11-2004 passed by learned Additional District Judge, Bahawalpur whereby two separate appeals titled "Khushi Muhammad and others v. Mst. Noor Bibi and others" and "Mst. Rahim Bibi and others v. Khushi Muhammad and others" filed against the judgment and decree of the learned trial Court, dated 10- 12-2004 were decided and the learned Appellate Court through the said judgment dismissed the appeal titled "Khushi Muhammad and others v. Mst. Noor Bibi and others", however, accepted the second appeal titled "Mst. Rahim Bibi and others v. Khushi Muhammad and others". Both the above mentioned judgments and decrees of the learned two Courts below were passed in a suit filed by Mst. Noor Bibi, Mst. Rashidah Bibi and Mst. Rahirn Bibi (hereafter to be called as plaintiffs/ respondents) against their brothers namely Khushi Muhammad, Shah Muhammad and Abdul Majeed (hereinafter to be referred as defendants/petitioners) claiming themselves as owner in possession of the property measuring 29-Kanal, 5-Marla situated in Chak No.9/BC Tehsil and District Bahawalpur (hereinafter to be called as the property in dispute).
2. The reasons for filing the said suit as disclosed in the plaint are that on the death of 'their mother namely Mst. Rabia Bibi the said property devolved upon them according to their legal shares, whereas on the death of their father Omar Din the entire agricultural land left by him in Chak No.96-A/15-L Tehsil Mian Channu District Khanewal was firstly mutated in the name of defendants as well as plaintiffs according to their Islamic share but the plaintiffs voluntarily gifted away their share in the said property in favour of the defendants. However, neither any bargain was struck nor the plaintiff ever agreed to sell the disputed property situated in Chak No.9/BC Tehsil and District Bahawalpur or ever appointed Inayat Ullah present respondent No.9 as their General Attorney for the transfer of disputed property to the defendants/petitioners and they continued and still continue to be owners in possession of the same. It was further alleged in the plaint that plaintiff being Paradah-observing illiterate and simpleton ladies having never appeared in public were trapped by their brothers Khushi Muhammad and others defendants/ petitioners in the garb of gifting away the property situated in Mian Channu and by taking advantage of their illiteracy and other infirmities they gOt the entire proceedings conducted for completion of gift in a clandestine manner and without imparting them they were also getting the disputed land transferred in their favour, rather the defendants/petitioners had regularly been paying the lease money of the disputed property to the plaintiffs/ respondents. However, suddenly about 20/25 days before the institution of the suit when they came to Chak No.9/BC at Bahawalpur with the intention of selling the disputed property, the defendants informed them that the plaintiffs were not owners of the suit property as same stood transferred in favour of the defendants. The above said disclosure of information, led the plaintiffs to approach the Patwari Halqa from whom they came to know that defendants/ petitioners in league with present respondent No.9 and through a forged, fraudulent and fictitious registered General Power of Attorney, dated 20-2-1986 got registered from Sub- Registrar, Mian Channu in favour of respondent No. 9 and thereafter the said respondent alienated the disputed land to the defendants/petitioners. It was finally averred in the plaint that appointment of respondent ,.Ib.9 as General Attorney on behalf of the plaintiffs was result of fraud, collusion between the defendants, Field Staff of Sub-Registrar Mian Channu well as the person who allegedly identified the plaintiffs before the Sub-Registrar, whereas the plaintiffs never appeared before him for the purpose of appointing respondent No.9 as General Attorney. In fact they were only brought to the office of Sub-Registrar, Mian Channu for the purposes of gifting the property left by their father in Mian Channu and that the defendants being their brothers by taking undue advantage of their relationship with the plaintiffs prepared forged power of attorney and then got the disputed property alienated in their favour through the said power of attorney by way of three different sale-deeds, dated 20-4-1986 Exh.P-1, Exh.P-2 and Ex.P-3.
3. The suit was contested by the present petitioners/defendants who in their written statement while controverting the allegations of the plaintiffs, fully stuck to their stand by claiming the general power of attorney, dated 20-2-1986 and sale-deeds, dated 20-4-1986 having been validly executed in their favour. However, Inayat Ullah present respondent No.9 in his separate written statement supported the version of the plaintiffs and filed consenting written statement on 8-2- 1999.
4. Keeping in view the divergent pleadings of the parties the learned trial Court framed the following issues and put the parties at trial:-- ' ISSUES:
(1) Whether the suit is not competent in its present form? OPD.
(2) Whether the suit has not been correctly valued for the purposes of court-fee and jurisdiction. If so, what is the correct valuation? OPD.
(3) Whether the plaintiffs are estopped by their words and conduct to bring this suit? OPD.
(4 Whether the plaintiffs have no cause of action and locus standi to bring this suit? OPD.
(5) Whether the contesting defendants are entitled to recover the special costs under section 35-A, C.P.C., if so, to what amount? OPD.
(6) Whether the defendants had sold the suit-land in favour of defendants Nos.1 to 3 against the Consideration of Rs.45,000 through registered sale-deeds, dated 20-4-1986? OPD.
(7) Whether the impugned sale-deed, dated 20-4-1986 and impugned general power of attorney, dated 20-2-1986 are illegal, void, against facts, inoperative against the rights of the plaintiffs and liable to be cancelled on the grounds as contained in the body of the plaint? OPP.
(8) Whether the impugned Mutations Nos.2322 to 2324 are also illegal, void, against facts, inoperative against the rights of the plaintiffs and liable to be cancelled on the grounds as contained in the body of the plaint? OPP.
(9) Whether the plaintiffs are entitled to a decree for declaration and permanent injunction as prayed for? OPP.
(10) Relief.
5. The plaintiffs namely Mst. Noor Bibi etc., besides appearing herself as P.W.1 also produced Inayat Ullah as P.W.2, the alleged General Attorney and closed evidence by placing on record certified copies of all the three disputed sale-deeds Exh. P-1 to Exh.P-3. In rebuttal the defendants/petitioners produced Muhammad Sharif Deed-Writer D.W.1, Abdul Sattar from the office of Sub-Registrar, Mian Channu as D.W.2, Muhammad Aslam son of Tufail Ahmad Khan as D.W.3, Abdul Majeed one of the defendants appeared as D.W.4, Muhammad Ahmad D.W.5 and one Salmat Ullah from the office of Deputy Commissioner, Khanewal was produced as D.W.6. The statement of Mst. Rashidah Bibi one of the plaintiffs was also recorded as C.W.1 on 17-7-1997.
6. On the conclusion of the trial the learned trial Court vide judgment and decree, dated 10-10-2004 decreed the suit in favour of Mst. Noor Bibi and Mst. Rashidah but dismissed the same to the extent of Mst. Rahim Bibi plaintiff in terms of his findings on Issue No.7. Against the said judgment and decree of the learned trail Court, one appeal was filed by the present petitioners i.e. Khushi Muhammad, etc. Whereas the second appeal was moved by the legal heirs of Mst. Rahim Bibi. Both these appeals were heard by a learned Additional District Judge, Bahawalpur who on 10-12-2004 by his separate judgments dismissed the appeal filed by Khushi Muhammad etc. Present petitioners maintaining the judgment and decree of the learned trial Court in favour of Mst. Noor Bibi and Mst. Rashidah, however allowed the appeal filed by the legal heirs of Mst. Rahim Bibi with the result that the suit filed by Mst. Rahim Bibi also stood decreed jointly with Mst. Noor Bibi and Mst.
Rashidah Bibi. This civil revision has now been filed by Khushi Muhammad, etc. To challenge the legality/validity of both the judgments of learned Additional District Judge, Bahawalpur.
7. Miss Samina Qureshi, Advocate representing the petitioners/defendants has disputed the judgments of two Courts below by maintaining:--
(A) That the suit filed by Mst. Noor Bibi and others was barred by time:
(B) That the suit was not maintainable having been filed without seeking prayer for possession;
(C) That the findings of the two Courts below are result of misreading and non-reading of evidence on the point of appointment of Inayat Ullah as attorney by the plaintiffs;
(D) That issues were not properly framed;
(E) That the two Courts below while recording findings against the petitioners failed to take notice of the fact that registered Power of Attorney carried presumption of truth;
(F) That Mst. Noor Bibi miserably failed to prove the allegations of fraud and fabrication; and finally
(G) That the plaintiffs were estopped by their words and conduct to file the suit.
' In support of her contentions, the learned counsel has placed reliance on the cases reported as "Rana Muhammad Ramzan v. Malik Saeed Hussain and another" (2001 YLR 2567); "Mst. Hameeda Bibi and 3 others v. Ch. Atta Ullah, Advocate" (PLD 1998 Lahore 183); "Rashid Ahmad v. Haq Nawaz and others" (1982 CLC 9) and "Dwarka Prasad and others v. Mst. Jasoda Kunwar and others" (AIR 1933 Allahabad 958).
8. I have considered the arguments of learned counsel for the petitioners, perused the record made available on the file, have minutely gone through the evidence produced by the respective parties and further thrashed the case-law cited.
9. At the very outset, I would like to deal with the point raised by the learned counsel with regard to improper framing of issues. The contention of the learned counsel is that since the plaintiffs/ respondents have challenged the general power of attorney as well as the sale-deeds by claiming the same as outcome of forgery and fabrication, hence it was mandatory for the plaintiffs to have proved that said documents were result of forgery or fabrication but they have failed to discharge the onus and in case if the two Courts below were of the view that the petitioners were beneficiary of these documents and onus to prove validity of these documents would have been on the petitioners then specific issues should have been framed.
' I am afraid this contention of the learned counsel is maintainable at this stage. It is an established principle of law that objection with regard to non-framing of issues, framing of wrong issues or placing a wrong onus of issues, should be raised at the very early stage and in case no such objection is raised, the same is deemed to have been abandoned or despite non-framing of issues, framing of wrong issues or wrong onus of issues, if the parties know the controversy and lead their evidence for and against then the same becomes superfluous and no decree can either be interfered with or set aside on this score alone provided no prejudice has been caused to the parties and the same at the best be a procedural irregularity which is curable under section 99 of the Civil Procedure Code. As it is established from the evidence on record that petitioners did know the controversy and produce entire evidence in their support hence, they were now debarred from taking such a plea at this stage, when the two Courts below have passed concurrent findings against them. This contention of the learned counsel, therefore, is turned down being not sustainable.
10. The learned next contention of the learned counsel is that disputed Power of Attorney and sale- deeds were executed in the year, 1986, whereas the suit was filed on 21-2-1994, hence the same was hit by Article 120 of the Limitation Act, which provides a maximum period of six years for such-like suits. This contention of the learned counsel is also not based on proper legal premises. The plaintiff in para.5 of the plaint have specifically asserted that they had regularly been receiving their lease money from the petitioners/defendants and that it was 20/25 days before the institution of the suit when they came to know about the said documents. They have further contended that neither they were party to these documents nor they ever executed these documents, hence the same had no binding effect qua their rights of ownership. Hence, they were well within their right and time to file the suit from the stage they lastly acquired the knowledge about said transaction. Admittedly the plaintiffs being sisters of the petitioners were co-sharer in the Khata and now law on the point is very much clear that a co-sharer cannot be ousted by another co-sharer on the ground of limitation because possession of one is always deemed to be the possession of all. Since the petitioners have not successfully proved the execution of these documents on the part of the plaintiffs hence the plaintiffs not being party to these documents, the suit filed by them was well in time and the findings of two Courts below are maintained.
11. Similarly there is no force in the contention of the learned counsel that without seeking relief for possession the suit filed by the plaintiffs was not maintainable being hit by proviso to section 42 of the Specific Relief Act. It is now well-recognized principle of law that a declaratory suit filed by a co- sharer without seeking relief of possession is always maintainable on the well-known principle "possession of one is possession of all". Therefore, the two Courts below have committed no illegality by holding the suit of the plaintiffs as maintainable.
12. So far as the contention of the learned counsel that plaintiffs were estopped by their words and conduct to bring the suit, is concerned, needless to say that as the execution of General Power of Attorney and sale-deeds on their behalf is not proved, hence, the plaintiffs were not estopped from filing the suit especially when the petitioners/defendants have produced no evidence on record tending to establish estoppel on the part of the plaintiffs/respondents. Hence, the contention of the learned counsel is repelled.
13. Now coming to the findings of the learned Courts below on Issues Nos.6 and 7, the onus of Issue No.6 was placed on the petitioners/defendants whereas the plaintiffs/respondents were burdened to prove Issue No.7. Although the findings of learned Courts below on Issue No.7 are subject to findings on Issue No.6, yet it would not be out of place to mention here that the onus of Issue No.7 was wrongly placed on the plaintiffs whereas the same should have been on the petitioners/ defendants, as to prove the exemption of a document is always duty of the person beneficiary under the said documents. Since it is claim of the petitioners that they purchased the disputed land from the plaintiffs, hence, it was their liability to have proved that they purchased the said land from a validly appointed/constituted general attorney. To discharge onus of valid execution of document whatever evidence has been produced by the petitioners, has been properly examined, appraised and duly scanned by the two IE Courts below.
14. The following findings of the learned Additional District Judge are worth-mentioning and clinch the entire controversy:-- "It is the basic law that the appellants/defendants being beneficiaries of the transactions from the illiterate Parda-observing ladies were under legal obligation to prove bbyond doubt the execution and registration of general powei of attorney by their sisters. In favour of Inayat Ullah. One of the marginal witnesses of general power of attorney is the defendant himself. Therefore, his statement to establish the transaction is of no value. Another witness of the general power of attorney is Tufail Ahmad Khan who has since died. His attestation of the document has not been proved in accordance with law. No doubt his son appeared in the Court and has testified that power of attorney Exh.D-1 bears thumb-impression of his father but the statement of the witness is of no legal value as the thumb-impression cannot be identified to be of his father. The beneficiaries did not take any step to prove the attestation of document by Tufail Ahmad Khan by resorting to other mode of proof of attestation. The statement of D.W.3 in the cross-examination that his father had affixed his thumb-impression in his presence is of no consequence because in his chief examination he had not stated that he accompanied his father when Inayat Ullah had taken his father along and further that he has also disclosqd in the cross-examination that his father had come back late in the night but did not utter a word about himself."
' There are concurrent findings recorded by the learned Courts below supported by evidence to this effect and the learned counsel for the petitioner has not been able either to cause any dent in these findings or to point out any illegality or irregularity having been committed by the two Courts below.
15. Besides approving the findings of the learned Courts below on Issue No.7, I would also like to add a very important point with regard to Issue No.7. It is now an established principle of law that where the executant of document has denied its execution by disowning his/her signatures/ thumb- impressions, it becomes duty of the beneficiary under the document to at once apply to the Court for getting the thumb-impressions compared from Handwriting Expert. In the instant case, throughout the proceedings either before the trial, before the Appellate Court or even before this Court, no effort was made by the petitioners/defendalits to have the thumb-impressions of the plaintiffs/respondents compared from the Handwriting Expert. Similarly, Inayat Ullah the alleged general attorney also appeared before the trial Court as P.W.2 and denied that he was ever appointed as general attorney by the plaintiffs or he ever sold the disputed property to the petitioners/defendants. Thumb-impressions on the disputed sale-deeds Exh.P-1 to Exh.P-3 are very much visible and petitioners by getting these thumb-impressions compared could very well disprove the case of the plaintiffs/ respondents. Although report of the Finger Print Expert is not conclusive evidence but as held by the Hon'ble Supreme Court of Pakistan in "Hamid Qayyum and 2 others v. Muhammad Azeem through Legal Heirs and another" (PLD 1995 SC 381) the report of Finger/Handwriting Expert is one of the modes of producing evidence and if the said report is property proved the same can be used as corroborative piece of evidence. By not resorting to this exercise at any stage, the petitioners have themselves incurred a presumption against them that in case if the thumb-impression of either the plaintiffs or Inayat Ullah had been got compared from Handwriting Expert, the report of the Expert would have been against them. The evidence presently produced by the petitioners on the question of execution of General Power of Attorney by the plaintiffs in favour of Inayat Ullah is not only meagre and insufficient but also do not fulfil the accepted principles/ requirements of law. The plaintiffs admittedly being illiterate ladies, the legal protection available to Parda-observing ladies has rightly been extended to them. There is a chain of judicial pronouncements by the superior Courts that while entering into transaction with Parads-observing ladies especially regarding alienation of immovable property from sisters to brothers or widows to the other members of the family, a heavy onus lies on the transferee to prove execution of sale-deeds as well as the fact that illiterate lady thumb-marked the said documents after understanding its contents and the consequences flowing therefrom. It has also been held by the superior Courts that mere acknowledgement in the sale-deed regarding payment of consideration without proving the surrounding requirements of transactions, execution of the document cannot be presumed.
"Muhammad Nazir v. Khurshid Begum" (2005 SCMR 941) and "Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others" (2001 SCMR 1591) are few of those judgments.
I am therefore, satisfied that the findings of two Courts below on Issue No.7 are proper and in accordance with evidence as well as.
16. Now I would like to say few words about the judgments cited by the learned counsel for the petitioners. In "Rana Muhammad Ramzan v. Malik Saeed Hussain and another" (2001 YLR 2567) the executant had not denied his signatures on the sale-deed and it was held that simple oral statement without giving detail of fraud in the plaint could not take place of proof. There is no cavil to the proposition laid down in the cited judgment but in the present case the plaintiffs ladies have strenuously disputed their thumb-impressions on the General Power of Attorney and have denied the execution of the same. Hence, the said judgment is not applicable to the facts and circumstances of the present case.
' In "Mst. Hameeda Bibi and 3 others v. Ch. Atta Ullah, Advocate" (PLD 1998 Lahore 183) the question was with regard to limitation for cancellation of document and dispute was whether suit for cancellation of document was covered by Article 120 or 90 of the Limitation Act. But in the present case there is no such dispute. The very case of the plaintiffs is that they never executed the documents, hence, they were not party to the same. It is now established principle of law that a party to the document is bound to seek its cancellation but a person who is not privy to a document or is a stranger is not bound to file suit for cancellation and suit for mere declaration of his/her title can be filed at any time after denial of the same. Hence, this judgment has also got no bearing on the facts and circumstances of the present case.
' Now coming to the judgment referred as "Rashid Ahmad v. Haq Nawaz and others" (1982 CLC 9) the same relates to question of affixation of valuation of suit for the purposes of court-fee when the plaintiff has sought cancellation of documents but as in the present case it is established that plaintiffs never executed General Power of Attorney as well as sale-deed, hence the suit was correctly filed under section 42 of the Specific Relief Act and same was not covered by section 39 of the said Act dealing with the cases of cancellation of document.
' Lastly in "Dwarka Prasad and others v. Mst. Jasoda Kunwar and others" (AIR 1933 Allahabad 958) which was cited to canvass that as the plaintiffs were out of possession, hence they could not file suit for declaration only but they were obliged to ask for relief of possession as well. Legally the rule laid down in this authority is correct but it is an established principle of law in Pakistan at-least that a co-sharer need not file a suit for possession and simply a suit for declaration can be competently filed and such type of suit is covered by section 7(iv)(c) of the Court Fees Act.
17. The net result of above discussion is that the findings of two Courts below neither suffer from any illegality or irregularity nor are opposed to the record and that the suit of the plaintiffs has been rightly decreed in their favour, hence, this civil revision has no force and the same is dismissed in limine.