The brief facts out of which the present revision petition arises are that the land inquestion belongs to late Ata Muhammad, who is real brother of the petitioner and father of the respondents. After the death of late Ata Muhammad, Mutations Nos, 1452 and 1485 were sanctioned in favour of the respondents on 19.3.1987. The petitioner being aggrieved filed suit for declaration with possession in the Court of Civil Judge Hafizabad. The contents of the plaint reveal that the petitioner is real brother of late Ata Muhammad, who belongs to Shia sect. The petitioner being aggrieved filed aforesaid suit for declaration to the effect that impugned mutations are patently wrong, against the law and facts, void and inoperative qua the rights of the petitioner/plaintiff, who is entitled to inherit the land from the estate of Ata Muhammad deceased up to the extent of 5/24 shares. The contents of the plaint further reveal that said late Ata Muhammad died about 1-1/4 year before the institution of the suit inquestion and about his estate mutations were attested on 19.3.1987 in which through the collusion with the revenue staff Ata Muhammad deceased was shown to be belonged to Shia sect and the mutations were got sanctioned against the law and facts, who was not Shia by faith and was Sunni. The contents of the plaint further reveal that presence of the petitioner/plaintiff and signatures were wrongly shown in the disputed mutations. The petitioner/plaintiff was not present at that time and the requisite mutations which were attested without notice and knowledge of the petitioner/plaintiff and his signatures are fake and fabricated.
The deceased was the real brother of the petitioner/plaintiff. The respondent filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, learned trial Court framed the following issues:--
1. Whether the Mutation No, 1452 dated 19.3.1987 and Mutation No, 1485 dated 19.3.1987 are collusive, against facts, illegal and ineffective against the rights of the plaintiff? OPP
2. Whether the plaintiff has cause of action or locus standi to file this suit? OPD
3. Whether the plaintiff is estopped by their act and conduct from filing this suit?
4. Whether the defendants are entitled to recover special costs? If so, up to what extent?
5. Relief.
The trial Court decreed the suit vide judgment and decree dated 9.7.1997. The respondents being aggrieved preferred an appeal in the Court of Addl. District Judge, Hafizabad, who reversed the findings of the trial Court on Issues Nos, 1 & 3 and dismissed the suit vide impugned judgment and decree dated 18.5.1998, hence the present revision petition.
2. The learned counsel of the petitioner submits that the First Appellate Court reversed the findings of the trial Court without adverting to the reasoning of the trial Court. He further submits that trial Court has given findings after proper appreciation of evidence on record that late Ata Muhammad is not Shia and is in fact belonging to Sunni Sect. He. further urges that the First Appellate Court reversed the findings by misreading and non-reading of the record whereas the trial Court has given findings after proper appreciation of evidence on record on Issues Nos, 1 and 3. The witnesses produced by the petitioner categorically stated in their statements that late Ata Muhammad is Sunni whereas the respondents failed to produce evidence to rebut the stand of the petitioner/plaintiff. He further urges that the petitioner produced Nawazish Ullah P.W.1, Lal Din P.W. 2 Imam Masjid, the petitioner/plaintiff himself appeared as P.W. 3 and also produced Abdul Hameed P.W. 5 to prove Issue No, 1 whereas respondents have only produced Mst. Mehmooda D.W. 8 and Syed Muhammad Tasleem Alam Zaidi D.W.1, who executed the alleged affidavit of late Ata.
Muhammad. One of the witnesses of the affidavit Abdul Hameed denied the execution of affidavit by late Ata Muhammad, therefore, findings of the trial Court is in accordance with the evidence on record whereas the findings of the First Appellate Court is not in accordance with the evidence on record and is in fact based upon surmises and conjectures. He further urges that the petitioner/plaintiff P.W. 3 Muhammad Yaqoob appeared to prove Issue No, 3, who has categorically denied that he was not present at the time of sanctioning the mutations in favour of the respondents and his signatures are also fake, therefore, findings of the trial Court is in accordance with the evidence on record whereas respondents failed to dislodge this fact, which was not proved by the petitioner/plaintiff whereas respondents/defendants failed to prove the same by producing Arif Hussain Qanungo D.W. 2, Muhammad Shafi Patwari Halqa D.W.3, Lal Din Qanungo D.W.4, Ch. Liaqat Ali Ex-Tehsildar D.W.5, Nasrullah Khan D.W. 6, Amanat Ali D.W.7, and Mst.
Mehmooda D.W.8. He further urges that none of the relations of late Ata Muhammad is belonging to Shia sect and his "Namaz-e-Jinaza" was also performed in accordance with Sunni sect as stated by P.W.2 Imam of Mosque of the village inquestion. He further submits that there are two mosques in the village and none of the mosque is in the possession and under the control of any person, who is belonging to Shai sect, therefore, judgment of the First Appellate Court is result of misreading and non-reading of the record. He further submits that none of the witnesses has any knowledge about the faith of late Ata Muhammad, who were produced by the respondents/defendants. This fact was not considered by the First Appellate Court in its true perspective.
3. The learned counsel of the respondents supported the judgment of the First Appellate Court and submits that the First Appellate Court has compared the signatures of the petitioner/plaintiff himself and found similarity of the signatures of the petitioner/plaintiff on the mutations inquestion, which is valid in accordance with Article 84 of Qanun-e-Shahadat Order, 1984. He further submits that the petitioner has submitted application before the trial Court for comparison of the signatures but subsequently he has withdrawn his application for comparison. He further urges that affidavit of late Ata Muhammad was exhibited without objection of the petitioner/plaintiff, therefore, the First Appellate Court was justified to take notice of the affidavit of late Ata Muhammad according to which Ata Muhammad is not belonging to Sunni sect. He further urges that the petitioner himself intimated the Halqa Patwari to enter the mutations qua late Ata Muhammad who belongs to Shia sect as is stated by Mst. Mehmooda D.W. 8 in her examination in chief. The petitioner failed to cross-examine her on this material point. He further submits that the First Appellate Court rightly reversed the findings of the trial Court on Issues Nos, 1 and 3. The petitioner has no right to agitate the matter with regard to sect of late Ata Muhammad after signing the mutations inquestion on the well-known principle of estoppel and waiver. He further urges that mutations were duly approved by producing the official witnesses, who had signed and entered the mutations inquestion in favour of the respondents. They had categorically stated in their statements that the petitioner/plaintiff has signed the mutations and those were sanctioned in his presence, who have no enmity against the petitioner, therefore, First Appellate Court was justified to reverse the findings of the trial Court. He further submits that the petitioner failed to point out any irregularity committed by the First Appellate Court, therefore, revision petition is liable to be dismissed. In support of his contention, he relied upon Ashiq Hussain vs. Prof Muhammad Aslam & 9 others (2004 MLD 1844). He further urges that mutations were sanctioned in presence of the petitioner/plaintiff on 19.3.1987 whereas the petitioner has filed suit on 24.5.1993 after the prescribed period of six years, therefore, suit of the petitioner was time barred. In support of his contention, he relied upon Hakim Muhammad Buta and another vs. Habib Ahmad and others (PLD 1985 S.C. 153).
4. The learned counsel of the petitioner in rebuttal submits that both the Courts below have given concurrent findings of fact with regard to the issue of limitation in favour of the petitioner and the respondents have not filed any cross objection challenging the vires of the findings of the Courts below, therefore, respondents' counsel is not within his right to agitate this matter at this stage with regard to the limitation. Coupled with the fact that respondents had not raised objection with regard to limitation in written statement.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is admitted fact that mutations were sanctioned in favour of the respondents on 19.3.1987. The contents of the mutations reveal that the petitioner/plaintiff was present and signed the mutations.
The petitioner has not challenged the mutations that the petitioner/plaintiff was not present at the time of sanctioning the mutations and his signatures are forged one. The petitioner has submitted the application for comparison of his signatures before the trial Court, which has been withdrawn by the petitioner/plaintiff subsequently. The First Appellate Court has compared the signatures of the petitioner himself and has given findings against the petitioner in the following terms:-- "I have myself compared the signatures of Muhammad Yaqoob respondent/plaintiff available on Ex. P.1 and Ex. P.2 with the sale deeds Ex. D. 1 to Ex. D.3 and found that these signatures are similar from every angle."
It is settled proposition of law that by virtue of Section 73 of the Evidence Act, or Article 84 of the Qanun-e-Shahadat Order, 1984, the Court can itself compared the signatures alongwith the other relevant material to effectively resolve the main controversy as is evident from the first part of the said section. In arriving to this conclusion. I am fortified the law laid down by the superior Courts in the following judgments:-- M/s Waqas Enterprises case (1999 SCMR 85). Syed Iftikhar Hussain's case (1990 ALD 570). S.M.
Zaheer's case (1974 SCMR 490).
Haji Muhammad Khan's case (1992 SCMR 2439).
It is admitted fact in this case that the petitioner has submitted an application before the trial Court for comparison of the signatures from the Hand-Writing Expert, which was subsequently withdrawn by the petitioner. In such situation the First Appellate Court was justified to compare the signatures itself, which is in consonance the law laid down by this Court in Mr. Arif Beg's case (PLD 1992 Lahore 366). The relevant observation is as follows:-- "When the parties had not brought forward any expert witness to give opinion about the genuineness of the signatures inquestion, the learned trial Court was competent to form its opinion by comparing the disputed signatures with the admitted signatures. The opinion which it had formed in the present case appears to be quite justified."
It is pertinent to mention here that the Honourable Supreme Court has compared the signatures at the level of apex Court in Waqas Enterprises case aforementioned. The Karachi High Court has also considered the effect of Article 84 of the Qanun-e-Shahadat Order, 1984 in Muhammad Din's case (1991 MLD 1070) and laid down the following principle:-- "In the present case, however, the learned Judge simply failed to apply his mind in spite of the admission made by the respondent that a number of documents on record bear his signatures. He certainly was in a position to form his own opinion on the basis of the material before him without recourse to handwriting expert. I have looked into the signatures of the respondent on the document before me and I am of the view that the signatures as appearing on Ex. P.3 is not different from his signatures on the other documents as admitted by him."
It is pertinent to mention here that in cited case the Appellate Court has compared the signatures like in the present case the First Appellate Court has compared the signatures itself and material irregularity committed by the trial Court was rectified by the First Appellate Court. The question of law was also considered in Abdul Hameed alias Ladai Mia (PLD 1956 Dacca 14). The relevant observation is as follows-- "(1) By proof of signature and handwriting of person alleged to have signed or written the document Section 67; (2) By the opinion of experts who can compare hand writing Section 45; (3)
By a witness who is acquainted with the handwriting of the person by whom it is supposed to be written and signed Section 47; (4) By comparison of signatures or writing with others admitted and proved signature or writing. Under line is mine."
A further observation was made in that case which is as follows:-- Here in the present case the document having been proved by a person who was present at the time of its execution, the appellant's grievance on this score is absolutely senseless."
The First Appellate Court has given findings of fact against the petitioner by comparison that signatures on Ex. P.1. and Ex. P.2 are exactly of the petitioner as is evident from the operative part of the judgment of the First Appellate Court reproduced above as held in Ahsanullah Chowdhury's case (PLD 1958 Dacca 57). The Dacca High Court has considered this proposition of law in Ahsanullah Chowdhury vs. Haji Abdul Jabbar Chowdhury 9 DLR 543). The relevant observation is as follows: "The question of law in this case is thus quite clear. Comparison of a writing or signatures with admitted writings or signature is a legal mode of determining the genuineness or otherwise of the writing or signature. In certain circumstances it is unsatisfactory and dangerous to base a decision on the correct determination of the genuiness of a handwriting or a signature by more comparison with admitted handwriting or signature without the aid in evidence of microscopic enlargements or expert advise. Nevertheless, since it is a legal mode of coming to a conclusion with regard to the genuineness or otherwise of a document by comparison of handwriting and signature it cannot be said that the Court which bases its decision on such comparison and examination acts illegally or improperly. Besides it is a question of fact and the High Court will not interfere with the decision based on such comparison by the lower appellate Court. Under line is mind."
It is pertinent to mention here as mentioned above that three revenue officials/officers appeared as Muhammad Shafi Halqa Patwari D.W. 3, Lal Din Qanungo D.W.4, Ch. Liaqat Ali Ex-Tehsildar D.W.5, who also endorsed and proved the contents of the mutations to the extent that the petitioner was present and signed the mutations in their presence, therefore, principle of estopple is attracted in all respects. In arriving to this conclusion, I am fortified the law laid down by the Division Bench of the Karachi High Court in Haji Muhammad Younas's case (PLD 1959 Karachi 755). The relevant observation is as follows: "The principle which is incorporated in Section 115 of the Evidence Act is a simple and equitable doctrine which lays down that if a person has acted to his detriment or altered his position on the basis of any declaration, act or omission of another person, that other person will not be allowed in any suit or proceedings between himself and the other person or his representative to go back upon it to the detriment of the opposite party. The Privy Council said as far back as (1892) 19 A.P.
203 at P. 215 that: "What the law and the Indian statute mainly regard is the position of the person who was induced to act; and the principle on which the law and the statute rest is, that it would be most inequitable and unjust to him that if another, be a representation made, or by conduct amounting to a representation, has induced him to act as he would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his formal statement, to the loss and injury of the person who acted on it."
The aforesaid proposition of law is also considered by the Honourable Supreme Court in Hqji Ghulam Rasool's case (PLD 1971 S.C. 376) and laid down the following principle:-- "It is true that entries in the mutation registers are by themselves not conclusive evidence of the facts which they purport to record but they are, nevertheless, not an "unimportant part of the testimony as to a fact which is available", as observed by the Judicial Committee in the case of Nageshar Baksh Singh v. Mt. Ganesh (AIR 1920 PC 46). The weight and importance to be attached to them, is in no way, diminished by the fact that they have been allowed by those who were going to be adversely affected by them to remain unaltered for such a large number of years, even though they were aware of the entries in the records.
The doctrine of estoppel is not confined to the matters dealt with under Section 115 of the Evidence Act, for, as pointed out by Garth, C.J. in the case of Ganges Manufacturing Co. v. Sourajmull (ILR 5 Cal. 669) "estoppels in the sense in which the term is used in the English legal phraseology are matters of infinite variety and are by no means confined to the subjects dealt with in Chapter VIII of the Evidence Act". It has been defined in Halasbury's Laws of England (2nd Edn.), Vol. 13, "as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability". It is in these sense that it has often been held that even as a rule of evidence or pleading a party should not be allowed to approbate and reprobate. This principle was acted upon by the Judicial Committee in the case of Lakshmana Goundan v. Subramania Aiyar (AIR 1924 PC 44).
Muhammad Shafi Halqa Patwari D.W.3, Lal Din Qanungo D.W.4, Ch. Liaqat Ali Ex-Tehsildar D.W. 5, who stated in their statements that the . mutations were entered and sanctioned in presence of the petitioner, who has also signed the mutations in presence of them. It is settled principle of law that man can tell a lie but the documents cannot. The documents were proved by the revenue officials, who have no enmity with the petitioner/plaintiff and no love with the respondents. This fact brings the case in the area that the petitioner has no right to wriggle out from this situation on the well known principle of estoppel and waiver as the law laid down by the Honourable Supreme Court in Haji Ghulam Rasool and others vs. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 S.C.
376). The material issue between the parties is Issue No,
3. In case Issue No, 3 is decided in favour of the respondents then question of belonging to faith of late Ata Muhammad is irrelevant as the petitioner himself signed the documents wherein it is mentioned that late Ata Muhammad is Shia.
It is also admitted fact that E. D/4 affidavit was exhibited without objection by the petitioner although the petitioner has produced Abdul Hameed P.W.5, who is attesting witness of the affidavit, who has taken a stand that it was not executed whereas the scriber has admitted that he has executed the affidavit as the affidavit was exhibited without objection of the petitioner. The document is on the record, therefore, Courts are bound to look into it. According to the affidavit submitted by late Ata Muhammad shows that Ata Muhammad belongs to Shia sect. Coupled with the fact that some of the land is also sold out through registered sale-deeds. The petitioner has not challenged the same till date and also filed the present suit after considerable delay i,e, after six years, which is prescribed to file a suit for declaration. It is also settled principle of law that First Appellate Court has all the powers to reappraisal evidence while deciding the appeal exercising power under Section 96 of C.P.C. The Privy Council has laid down the parameter to interfere in the findings of the First Appellate Court while exercising powers under Section 115 of CPC, in "N.S. Vankatagiri Ayyangar and another vs. The Hindu Religious Endowments Board Madrass" (PLD 1949 P.C. 26). The relevant observation is as follows: "This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no powers to interfere because it differs, however profoundly. From the conclusion of the subordinate Court upon questions of fact or law"
It is pertinent to mention here that the judgment of the Privy Council is followed by this Court in "Board of Intermediate & Secondary Education, Lahore vs. Syed Khalid Mehmood" (N.L.R. 1985 Civil 114), which was upheld by the Honourable Supreme Court in C.P. No, 1146 of 1984 vide Judgment dated 31.3.1985, which was again re-affirmed and approved by the Honourable Supreme Court in Ghulam Qadir's case (PLD 1988 S.C. 625). The learned counsel of the petitioner fails to bring the case within the parameter prescribed by the Privy Council in the aforesaid judgment.
In view of what has been discussed above, I do not find any infirmity or illegality in the impugned judgment and decree of the First Appellate Court, therefore, the revision petition has not merit and the' same is dismissed with no order as to costs.