SAIF-UR REHMAN, J. --- The land constituting subject-matter of this controversy is admittedly owned by respondent No. 1. The petitioner filed suit for declaration contending therein that he obtained lease of this land for a period of four years w.e.f. May, 1998 to May, 2002. An amount of Rs.
54,840/- was settled as lease money which was paid in lump sum to respondent No. 1 who executed lease deed in favour of petitioner. Later on respondents changed their mind and started causing interference in the rights and possession of the petitioner through illegal means.
2. The suit was resisted by the respondents.
3. Learned Trial Court framed following issues:---
(1) Whether the plaintiff had got no cause of action to file the instant suit? OPD
(2) Whether the instant suit is not proceedable in its present form? OPD
(3) Whether the instant suit is -deficient in Court-fee? OPD
(4) Whether the instant suit is not maintainable in its present form? OPD
(5) Whether the instant suit is false and frivolous and as such, the defendants are entitled to recover special costs u/s. 35-A, CPC? OPD
(6) Whether the plaintiff has been holding the suit land as a lessee under defendants Nos. 1 to 3?
OPP
(7) Whether the plaintiff is entitled to get decree for declaration as prayed? OPP
(8) Relief.
4. On conclusion of the trial, suit filed by the petitioner was dismissed with special costs of Rs.
5000/- by learned Civil Judge vide his judgment dated 04-06-2002. Appeal against the said decree was dismissed by the learned Additional District Judge on 22-10-2004.
5. Learned counsel for the petitioner contended that learned Courts below had failed to appreciate the evidence in accordance with law. The petitioner proved execution of lease deed Ex.P-1 by examining its scribe and the marginal witnesses. Respondents had failed to rebut the evidence.
The controversy was decided against the petitioner mainly on the point that lease deed was not a registered document. The petitioner could not be non-suited merely on this ground. At the most it could be treated as lease from year to year and since the total lease amount bad been received by the respondents, therefore, under the doctrine of holding over incorporated in Section 116 of the Transfer of Property Act, 1882, the petitioner could hold possession of the land in dispute till expiry of the lease period and the document of lease could , be .Used for collateral purpose. It was further contended that no ground for granting special costs had been mentioned in the impugned judgments which were liable to be set aside on this short ground. Reliance was placed on the authorities reported as AIR (30) 1943 Madras 286, PLD 1962 Dacca 126, PLD 1962 (WP) Karachi 368, 1994 CLC 1687, 1986 CLC 770, 1995 CLC 43, 1998 M LD 53 and 2002 CLC 1244.
6. Conversely, Abdul Majeed/respondent No. 1, present in Court, contended that land in dispute had been in possession of father. Of the petitioner as lessee/tenant. Later on this land was given on lease only for one year to the petitioner who, however, started cutting the trees from the said land and causing damage to it. Thereafter he approached the police for registration of case against the petitioner who had failed to pay lease money as well. It was after initiation of proceedings by the respondents that the petitioner filed this suit or the basis of forged and fabricated document. Forgery by the petitioner had been proved as a result of which a case had been registered against the petitioner: The above-referred' lease deed, in addition to being forged document was also void being unregistered Its execution could not be proved. This revision having been filed against the concurrent findings of the learned Courts below was not maintainable.
7: I have considered the respective contentions of the parties in the light of relevant law and facts on record.
8. In order to prove the lease, the petitioner produced document described as lease deed Ex.P-1 and examined Niaz Ahmad .PW-2 its scribe, Manzoor Ahmad PW-3 and Kamal Din PW-4 to prove the same. Both PW-3 and PW-4 deposed that they had signed Ex.P-1 as marginal witnesses. Kamal Din PW-4 did not mention any thing about the signing of Ex.P-1 by respondent No. 1 in his presence.
Likewise PW-3 also remained silent about this fact during his examination-in-chief, however, during his cross-examination he deposed that respondent No. 1 was also present and he had also signed Ex. P-1.
9. Section 107 of the Transfer of Property Act, 1882 requires:--- "A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments, than one each such instrument shall be executed by both the lessor and the lessee: Provided that the Provincial Government may, from time to time, by notification in the official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession."
10. Precisely, since it was shown to be a lease of more than one year, the same was essentially required to be registered and its execution by both lessor and lessee was mandatory . Admittedly Ex.P-1 is not a registered document and the same was not signed by respondent No. 1.
11. The document definitely involved future-financial obligations, therefore, according to Article 17 of the Qanun-e-Shahadat Order, 1984 it was to be proved essentially by examining two attesting witnesses. For proper appreciation of the proposition Article 17 is reproduced as under:--- "(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Quran and Sunnah
(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law.
(a) in matters pertaining to financial or future obligations, if reduced to writing the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly, and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."
12. Since PW-4 did not make any statement that document was singed in his presence by respondent No 1-, therefore, petitioner was left with testimony of only one attesting witness i.e. Manzoor Ahmad PW-3 which was not sufficient to prove execution. The deposition of scribe who was not an attesting witness could not substitute the requirement of attesting witness.
13. Even otherwise respondent No. 1 was not got confronted with document Ex.P-1 to admit or deny his signatures on the same when he was in the witness-box. This lapse on the part of the petitioner was also fatal for his case. In addition to this after denial of execution of lease deed by respondent No. 1 it was incumbent upon the petitioner to prove that the contents of documents were read over to respondent No. 1 who had signed the same in token of its correctness. No note, however, to this effect was found on Ex.P-1 and statement of Muhammad Tufail, PW-1 to this effect was not sufficient to prove that contents of the document were read over to respondent No. 1 or that he had signed the same after admitting the contents as correct.
14. For the said reasons it is found that execution of document had not been proved by the petitioner according to parameters prescribed in 1995 CLC 43 (Mst. Noor Jehan and others v.
Muhammad Rafique and others) and (2002 CLC 1244) Ghulam Siddique v. Mst. Ajaib and others)
15. The contention of the petitioner that the lease in question could be treated as month to month or valid for the first year enforceable under the concept of holding over is also devoid of force.
Before discussion is taken up on this subject, it is essential to have a look through Section 116 of the Transfer of Property Act which reads:- "If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month according to the purpose for which the property is leased, as specified in section 106.
According to Section 106:- "In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the -part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any -other purpose shall be deemed to be a tease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy .. ..
16. The ratio arrived at in case-law reported in PLD 1962 (WP) Karachi 368. (Haji Dawood & Co. v. Haji Muhammad iqbal and others); PLD 1962 Dacca 126 (Bashir Ullah and others v. The Province -of East Pakistan and others) and 1994 CLC 1687 (Muhammad Nazir and others v. Malls) is also in consonance with the said provisions of law.
17. It is pertinent to note that Section 49 of the Registration Act, 1908 relates to effect of, non- registration of document required to be registered according to which no document could operate to create, declare, assign, limit or extinguish, whether in present or in future, right, title or interest, whether vested or contingent, to or in immovable property or confer any power to adopt, unless it has been registered None of the above-mentioned authorities declares that an unregistered document, essentially required to be registered may create or extinguish any title.. The only exception, in such cases, shall be that such document could be used for co-related purposes and the lessee could avail of the benefit of the lease if his case fell under Section 106 of the Transfer of Property Act.
18. The petitioner, however, confined himself only. To the proof of lease deed, the execution of which for the foregoing reasons could neither be proved nor could it be proved that the same was being used by him for any co-related purpose referred in the authorities.
19. The learned Courts below clearly held that the petitioner had filed suit to get his possession prolonged. The findings to this effect are sufficiently supported by the evidence on record and circumstances of the case. An independent issue to this effect had also been framed by the learned Trial Court. In the cases of V. Swarnam lyer v. Veeragu Ammal (AiR (30) 1943 Madras 286) and Saeed Ahmad and others v. Mst. Khatoon Begum and others (1998 M LD 53), special costs had not been claimed and no issue regarding special costs stood framed, whereas in the present case issue regarding special costs had been framed and conclusion was drawn by learned Courts below on the authorities provide no help to the petitioner.
2n In view of the above discussion, this revision is held to be without any force which, is hereby dismissed with costs. Civil revision .