' AZIZ-UR-REHMAN, J.---Through this Revision Application under section 115 C. P. C. , the applicants [L.Rs of deceased defendant Muhammad Yousif] have impugned the Judgment and Decree dated 15-4-2010 and 21-4-2010 [Annexures 'A' & 'W to R.A.] passed by learned IInd Additional District Judge Shaheed Benazirabad in Civil Appeal No.23 of 2006 [Muhammad Usman v. Muhammad Yousif, through his L.Rs.], whereby the judgment dated 24-1-2006 and Decree dated 1-2-2006 [Annexures 'C' & 'D' to R.A.] passed by the learned Ist Senior Civil Judge Nawabshah in F.C. Suit No.32 of 2000 [Muhammad Usman v. Muhammad Yousif] was set-aside and respondent's [plaintiff] suit was decreed as prayed.
2. In the present Revision Application [in short R.A.] the prayer sought is to the effect that Judgment and Decree passed in Civil Appeal No.23 of 2006 tAnnexures 'A' & 'B' to R.A.] be 'set aside' and the Judgment and Decree dated 24-1-2006 and 1-2-2006 respectively [Annexures 'C' & 'D' to R.A.], passed by learned 1st Senior Civil Judge, Nawabshah, in F.C. Suit No.32 of 2000 [Muhammad Usman v. Muhammad, Yousif], whereby the suit filed by the respondent [plaintiff] was partly decreed and partly dismissed, be maintained.
3. Succinctly the relevant facts are that:
4. Respondent [plaintiff] allegedly purchased house bearing Custodian No.II/B/906/H area 2241 Sq.
Ft. Situated in Mohalla Issarpura, Nawabshah [Hereinafter referred to as 'subject house'] from one Ghulam Samad son of Abdul Rehman Shaikh in the year, 1966, through a registered sale deed No. 1687 dated 15-2-1966. Per assertions of the respondent [plaintiff] since, the predecessor of the applicants viz Muhammad Yousuf was his real brother and was in a dire need of a house. Half portion of the 'subject house' was, therefore, given to him, however, only for residential purpose.
5. In June 1999. Due to enlargement of respondents' family, Muhammad Yousif/ defendant [predecessor of the applicants] was requested for vacating the half portion of the 'subject house' under his lawful occupation at that particular point of time. The predecessor of applicants [Muhammad Yousif upon such request had promised to deliver the 'vacant peaceful possession' of half portion of the 'subject house' within a few days to the respondent.
6. In August 1999. Nevertheless the respondent [plaintiff] received ,notice from the Court of 1st Senior Civil Judge, Nawabshah. About filing of a suit. Per claim of Muhammad Yousif [predecessor of the Applicants], half portion of the 'subject house' in fact was gifted to him by way of 'IQRARNAMA' ['GIFT DEED'] dated 5-5-1987. The alleged 'IQRARNAMA' ['Gift Deed' ], per assertions, was subsequently also rectified by another 'IQRARNAMA' of 25-5-1999.
7. The case of the respondent [plaintiff] is that both the IQRARNAMAS of 5-5-1987 and 25-5-1999 are forged and fabricated documents. Further the 'subject house' was never purchased by BABOO DIN [Father of Muhammad Yousif and Muhammad Usman]. The claim of the predecessor of the Applicants [Muhammad Yousif] over and regarding the 'subject house' per assertions, is totally false, baseless and without any foundation.
8. According to the respondent [plaintiff], Muhammad Yousif [since died] was in illegal possession of the 'subject house' much less from June, 1999. Muhammad Yousif son of BABOO DIN [predecessor of the applicants], of course, had filed suit for half portion of the 'subject house' in the court of Ist Senior Civil Judge, Nawabshah, but the same was dismissed in limine without allotting any number thereto. After such dismissal of the. Suit, Muhammad Yousif became more antagonized. Thereafter, per averments, forcibly and illegally occupied even the remaining half portion of the 'subject house', which initially was in a lawful occupation of the. Respondent [plaintiff]. The respondent, for seeking assistance and redressal of his grievance, had also approached the concerned Police Station but police avoided to record/lodge the F.I.R. Of the respondent [plaintiff], perhaps due to fear and/or very high influence of the predecessor of the applicants [Muhammad Yousif]. Thus F.C. Suit No.32 of 2000 was filed [Muhammad Usman v.
Muhammad Yousif]. The prayers sought in the suit run as under:--
(a) It be declared that the alleged gift deed and 'Iqrarnama' dated 5-5-1987 and 25-5-1999 is illegal, fraudulent, without any lawful authority, forged and fabricated one, and the same does not bear the signature of plaintiff at all;
(b) Possession of the suit house No.1113/906/R area 2241 Sq. Ft situated in Mohalla Isserpura Nawabshah be delivered to the plaintiff by directing the defendant, boundaries are given in para No.4 of plaint;
(c) Permanent injunction be issued against the defendant, restraining him not to handover the possession of the suit house to any other person, except the plaintiff.
(d) Costs.
(e) Any other relief;
9. Upon service, the predecessor of applicants [defendant], filed his written statement. In the written statement, it was specifically denied that the 'subject house' was either purchased by the respondent [plaintiff] or otherwise, it was purchased with the funds of respondents [plaintiff].
Rather, it was averred, that the 'subject house' purchased in the name of respondent [plaintiff] is a benami transaction. It was emphatically denied by Muhammad Yousif [the predecessor of the applicants] that the respondent [plaintiff] is exclusive owner of the 'subject house'. Per averments, respondent is a 'benamidar' of the 'subject house'. Per respondent/defendant' assertions the 'subject house' was actually purchased by the father of the parties [BABOO DIN] from his own funds. But on account of 'good faith' and 'confidence', the 'subject house' was purchased in the name of respondent [plaintiff] as a benami transaction.
10. Per assertions of Muhammad Yousif [Predecessor of the applicants], the 'subject house' was actually purchased by BABOO DIN [Father of the parties to the suit] and the entire 'sale consideration', therefor, was also paid from the funds of BABOO DIN in the year, 1966. For this Obvious reason, 'IQRARNAMAS' [whereby half portion of the 'subject house' admeasuring 1120 1/2 Sq.Fts equal to 83 x 13 1/2 towards' southern side was given to the defendant] were voluntarily signed and executed by the respondent [plaintiff]. From the time of execution of 'Iqrarnama' dated 5-5-1987 predecessor of the applicants as owner remained in peaceful and lawful occupation of the half portion of the 'subject house'.
11. Besides, Muhammad Yousif [predecessor of the applicants] on the aforesaid half portion of the 'subject house' has also raised construction by spending huge amounts. Per stand taken in written statement both 'IQRARNAMAS' of 25-5-1999 and 5-5-1987 [Exh.47 and Exh.48] are genuine, lawful and binding documents. In the written statement, it was further asserted that possession of the predecessor of the applicants [defendant] is/was legal and lawful. Per averments, Muhammad Yousif [Predecessor of the applicants] is lawful and absolute owner of the half portion of the 'subject house'. His ownership, per assertions, cannot be denied by the respondent [plaintiff], at this belated stage.
12. In view of 'pro' and 'contra' averments, parties went on trial. Out of the pleadings, the following issues were settled on 30-5-2002 vide Exh.23:--
(1) Whether the plaintiff is owner of the house bearing Custodian No.II-B/906/H . Area 2241 Sq. Ft.
Situated in Mohalla Isserpura, Nawabshah since December, 15, 1966?.
(2) Whether defendant is -real brother of the plaintiff and the said half portion of the house was given by . The plaintiff to the said defendant for the residential purpose on the basis of licence, if yes, what is its effect?
(3) Whether the defendant is a real owner and the plaintiff is a simply benamidar, if yes, what is its effect?
(4). Whether the defendant had taken inconsisting plea in his written statement, if yes, what is its effect?
(5) Whether the plaintiff is entitled for possession of suit house?
(6) What should the decree be?
13. In support of the issues, both parties led their evidence. Muhammad Usrnan [plaintiff] examined himself at 'Exh.28'. After his 'cross-examination' plaintiff/respondents' side was closed vide 'Exh.29'.
From the Applicants/defendants' side, in rebuttal, Muhammad Yousif [Predecessor of the applicants] 'examined' himself at 'Exh.46'. During his 'deposition', he produced 'IQRARNAMA' dated 5- 5-1987 at 'Exh.47'. Another 'IQRARNAMA' dated .25-5-1999 at 'Exh.48'. Other documents were also produced and exhibited at 'Exh.49' to 'Exh.57'. The predecessor of the applicants [defendant] in support of his claim also examined other witnesses named below:--
(a) Parties father viz. Vide Exh.49. BABOO DIN
(b) Muhammad vide Exh. 52 Yameen
(c) Muhammad vide Exh.54. Ibrahim
(d) .Abdul Ghaffar vide Exh.55.
(e) Syed Ishtaique vide Exh.56 Ahmed Bukhari
14. Thereafter, on conclusion of 'examination-in-chief and 'cross-examination' of witnesses 'defendants' side of evidence was closed vide Exh.57.
15. Upon hearing of arguments advanced by the learned counsel for .The parties, the learned Ist Senior Civil Judge, Nawabshah, thereafter partly decreed the S.C. Suit No.32 of 2000 filed by Muhammad Usman [plaintiff] against Muhammad Yousif [defendant]. The operative part of the Judgment dated 24-12006 [Annexure c' to R.A.] reads as follows:-- "Consequently it is held that gift deed/lqrarnama' dated 5-5-1987 and 25-5-1999, are not illegal, fraudulent, forged and fabricated and similarly plaintiff is entitled for possession of half portion of house which deceased defendant and after his death his L. Rs are in occupation of the house in question i.e. IIB/906/H area 2241 Sq. Ft. Situated in Mohalla Issarpura Nawabshah, consequently suit of the plaintiff partly decreed in the above manner".
16. Respondent [plaintiff] being aggrieved by the Judgment and Decree[Annexures 'C' & 'D' to R.A.] passed by learned 1st Senior Civil Judge, Nawabshah, preferred Civil Appeal No.23 of 2006 [Muhammad Usman v. Muhammad Yousif [through L.Rs.] before the Court of District Judge, Nawabshah, however, the same was subsequently transferred to the Court of Ilnd Additional District Judge, Shaheed Benazirabad.
17. Upon hearing of arguments by the learned find Additional District Judge, Shaheed Benazirabad, the aforesaid appeal was allowed and consequently by setting aside the Judgment and decree passed by Ist Senior Civil Judge, Nawabshah, respondents' [plaintiffs] suit was decreed as prayed.
The legal heirs of deceased Defendant [Muhammad Yousif] nevertheless, were declared as entitled for getting compensation from the respondent [plaintiff] for raising of Pacca construction' by their predecessors on the, 'subject house'. The operative part of the Judgment [Annexure 'A' to R.A.] passed by the learned 'Ind Additional District Judge, Shaheed Benazirabad/appellate Court reads as follows:- "In the light of above circumstances, I am not agree with the findings of learned trial, Court that the defendants/respondents are entitled for possession of half portion of house. Therefore, the impugned judgment and decree is hereby set-aside and the suit of plaintiff/applicant is decreed as prayed. However, the defendant/ respondent will be entitled to get compensation from plaintiff/ appellant as it was admitted in evidence by the appellant that the defendant has raised pacca construction of suit house after demolishing katcha construction. The appeal is allowed and parties are left to bear their own costs".
18. Being aggrieved by the judgment and decree [Annexures 'A' and 'B' to R.A.] passed by learned find Additional District Ridge, Shaheed Benazirabad, the instant Revision Application bearing No.158 of 2010 has been filed by L.Rs. Of deceased defendant viz. Muhammad Yousif with a prayer for setting aside the impugned judgment and decree (Annexures 'A & 'B' to the instant R.A.].
19. Heard Mr. Abdul Aziz Shaikh learned counsel for the applicants [L.Rs. Of Muhammad Yousif [defendant] and Mr. Rana Muhammad Siddique Khan learned counsel for respondent [plaintiff] and perused the available record with the valuable assistance of learned counsel for the parties.
20. Mr. Abdul Aziz Shaikh, learned counsel for the applicants vehemently argued that the Judgment and decree [Annexures 'A' &'B' to R.A.] passed by the learned Hnd Additional District Judge, Shaheed Benazirabad, beside opposed to law and equity, suffer from material irregularities and illegalities having been committed by the appellate court inter alia, not properly appreciating the evidence in its true perspective produced by Muhammad Yousif [predecessor of the applicants] in support of his claim. Per learned counsel, the impugned Judgment and Decree of the Appellate court are also in violation of mandatory provisions of Order XLI, Rule 31. C.P.C. [Act V of 1908].
21. Learned counsel for the applicants [L.Rs of Muhammad Yousuf defendant] further contended that admittedly the predecessor of the applicants was in possession of the 'subject house' since the month of June, 1999. Besides, had also raised pacca construction over the half portion of the 'subject house', of course, out of his own earned money. Raising of Pacca construction by Muhammad Yousif [Predecessor of the Applicants] is a prima facie proof of his ownership. Per learned counsel such Pacca construction could not have been raised without permission of the respondent [plaintiff].
22. Per Mr. Abdul Aziz Shaikh, the appellate Court by ignoring 'IQRARNAMAS' [in the nature of Gift Deeds], no doubt, has committed material illegalities and/or irregularities while, passing the impugned judgment and decree of 15-4-2010 and 21-4-2010 [Annexures 'A' & 'B' to R.A.]. The Judgment and decree so passed, beside erroneous, illegal also suffer from misreading and non- reading of evidence available on record. Per learned counsel, the Appellate Court omitted to give findings on the important and necessary issues. Not only this, the Appellate Court in a calculated manner has over looked the evidence available on record.
23. The judgment and decree [Annexures 'A' & 'B' to R.A.] passed by the Appellate Court are fanciful, and result of misreading of material evidence. Per learned counsel, the Appellate Court has failed and/or avoided to give any reasons for setting aside the well reasoned judgment and decree [Atmexures 'C' & 'D' to R.A.1 passed by the trial Court. The judgment and decree passed by the Appellate Court without considering the evidence and materials available on record are thus liable to be set aside.
24. In support of his contention Mr. Abdul Aziz Sheikh, learned counsel for the applicants, placed reliance on the following case laws
(a) Mst. Umer Bibi and 3 others v. Bashir Ahmed and 3 others (1977 SCM R 154).
(b) Maulvi Abdullah and others v. Abdul Aziz and others (1987 SCM R 1403).
(c) Mst. Jan Rana v. Commissioner of Income Tax, Peshawar (2006 PTD 529).
(d) Juma Khan v. Mst. Shamim and 3 others (1992 CLC 1022).
(e) Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum (1993 CLC 109).
(t) Reham Hussain v. Abdul Rahim and 2 others (2007 M LD 1110)
(g) Muhammad Ibrahim v. Mst. Mehmooda (1991 CLC 1795)
(h) Raja Humayun Sarfraz Khan and others v. Noor Muhammad (2007 SCM R 307),
(i) Abdul Razzak v. Sabar Khan (2004 CLC 950).
(i) Syed Farzand Raza Rizvi v. Syed Zaheer Mustafa (1988 M LD 463).
25. Conversely, Mr. Rana Muhammad Siddique Khan, learned counsel for the respondent [plaintiff] strenuously argued that Judgment and decree [Annexures 'A' & 'B' to R.A.] passed by learned IInd Additional District Judge, Shaheed Benazirabad, beside legal and lawful having been passed after due exercise of judicial mind, indeed, after properly considering all aspects of the case. As such the impugned Judgment and decree do not call for any interference whatsoever much-less under the exercise of Revisional Jurisdiction of ,this court. Per learned counsel, the jurisdiction vested in the appellate court below has properly been exercised. There is no excess of jurisdiction and/or otherwise, the appellate court has committed any illegalities and/or material irregularities while, passing the impugned judgment and decree. The impugned judgment and decree [Annexures 'A' & 'B' to RA.] thus do not suffer from any infirmity, jurisdictional. Error and/or any other defect whatsoever. No interference as wished by the applicants, is warranted under law. Per learned counsel though Exh.18 is in the nature of gift deed but the same being not a registered document as required under section 123 of the Transfer of Property Act, 1882 [IV of 1882] besides not a binding document is void ab initio and of no legal effect.
26. Mr. Rana Muhammad Siddique Khan learned counsel for the respondent [plaintiff], next urged that the judgment and decree passed by the appellate court are neither improper or otherwise, having been passed in violation of mandatory provisions of Order XLI Rule 31 C.P.C. [Act V of 1908].
The Appellate Court nevertheless has discussed the crucial points/issues. As such, the judgment and decree passed do not call for any interference of this court on any ground whatsoever. Per learned counsel, in fact, the impugned judgment-and decree beside comprehensive/well reasoned, have been passed competently. Learned appellate court, indeed, has applied its judicial mind while, setting aside the judgment and decree [Annexures 'C' & 'D' to .R.A.] passed by the trial Court.
27. The Second Class suit [in short S.C. Suit] No. Nil of 1999 [Muhammad Yousif v. Muhammad Usman], filed by Muhammad Yousif [Predecessor of Applicants] for declaration and permanent injunction regarding 'subject house', per learned counsel was also based on 'IQRARNAMAS' of 26-5- 1999 and 5-5-1987 [Exh.47 and Exh.48] but nonetheless, the same was dismissed for NON- PROSECUTION. Such Order, per Mr. Rana Muhammad Siddique Khan, has already attained the finality. Neither the Appellate Court has committed any illegality nor otherwise any question of ignoring the 'IQRARNAMAS' [Exh. 47 and Exh.48] and/or any part of evidence led from the applicants' side [i.e. Exh.18, Exh.52, Exh.54, Exh.55 and Exh.56] arises. Learned counsel, lastly urged, that the instant Civil Revision Application. Bearing No.158 of 2010 filed by the L.Rs. Of ' the defendant [Muhammad Yousif] merits no consideration and is liable to be dismissed with costs.
28. In support of his contention, Mr. Rana Muhammad Siddique Khan, learned counsel for the respondent has placed reliance on the case of Ghulam Samdani v. Faqeer Khan PLD 2007 Pesh.
11.
29. At this juncture and before proceeding further, I would like to reproduce herein, the 'IQRARNAMA'
[Exh.48] duly signed and executed by respondent. The 'English translation' of ' IQRARNAMA' [Exh.48] placed on record reads as follows:-- "786 ' IQRARNAMA'
' I, Muhammad Usman son. Of Babooudin, Qureshi, Mulsim, adult, r/o near Primary School Haji Naseeruddin Mohalla Aseer Poora Katchi Abadi Nawabshah, under sense, affirm that from my house No.C.H.II. B. 906, measuring 83 x 27/83x27=2241 Sq. Ft situated near Haji Naseeruddin Primary School Aseer Poora Nawabshah, half area 83 x 13 1/2 =1120 1/2 Sq. Ft on southern side given to my real brother Muhammad Yousif son of Baboouddin Qureshi, Mulsim, adult, r/o Nawabshah given to him for ever. From today my or my legal heir have no any kind of right on the said half portion of house. Possession has been handed over to Muhammad Yousif. Muhammad Yousif has right to raise construction on half portion. Whenever Brother Muhammad Yousif shows his intention for registration the same will be done. Before this on 30-1-1987 writings was made previously which will be also remain intact. I have written this new stamp as on half portion there was right of my brother Muhammad Yousif I along with my all legal heirs accepted this writing. If I expired then this writing will be binding upon my legal heirs. Therefore, today i.e. 26-5-1999 at Nawabshah this indenture is being made with my signature for proof. [Underlining is mine].
Sd/ Muhammad. Party of the First Usma n part. Sd/ Muhammad Party of the second Yousif part.
Witnesses
(1) . Sd/ Abdul Ghaffar son of. Abdul Hakeem Qureshi Hyderabad, presently at Nawabshah.
(2) Sd/ Zahoor Ahmed son of Safdar Mohalla Gharibabad Nawabshah.
(3) Sd/ Muhammad Ibrahim son of Muhammad Siddik Qureshi Hyderabad.
(4) Sd/ Shamim Ahmed Qureshi son of Illahi Bux Qureshi Gharibabad, Nawabshah."
30. The above 'IQRARNAMA' of 26-5-1999 was duly produced and exhibited. The IQRARNAMA [Exh.48] also bears the signatures of Muhammad Yousif [defendant] and Muhammad Usman [plaintiff].
Besides, another IQRARNAMA of early date i.e. 5-5-1987 [Exh.47] has also been produced in evidence. The 'IQARARNAMA' [Exh.47] has also been duly signed and executed by the parties and witnessed by witnesses. The contents if both the Exh.47 and 48 beside self-explanatory speak for themselves. The 'IQRARNAMA' of 26-5-1999 [Exh.18] lefts no doubt viz-a-viz ownership of the applicants' predecessor viz Muhammad Yousif [defendant].
31. As far as, registration of 'IQRARNAMA'/GIFT DEED [Exh.48] is concerned, section 129 of the Transfer of Property Act, 1882 [IV of 1882] excludes the applicability of section 123 of the Transfer of Property Act, 1882 [IV of 1882] to gifts made under Muslim Law. Regarding this aspect of the matter, learned counsel for the applicants has placed reliance on the case of Umer Bibi and 3 others v. Bashir Ahmed and ,3 others [1977 SCM R 154] wherein while, dilating upon the requirement of Registration of Gifts made under Muslim Law, it was observed as follows:- "The objection founded on section 123 of the Transfer of Property Act is also misconceived. Vide section 129 ibid the provisions of the Transfer of Property Act, gifts made under Muslim Law, are expressly excluded from the operation of the Act. It is firmly established proposition that under Muslim Law a valid gift could be effected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of gift is not registered. See Muslim Law by Soksena, 3rd. Edn.; pp. 368-369 and the precedent cases noticed at the foot of these pages. Among these formalities are, the passing of the possession from the donor and the acceptance of the same by the donee.
These are amply satisfied in the instant case.", [Underlining is mine].
32. Likewise, in the case of Moulvi Abdullah and others v. Abdul Aziz and ,ethers (1987 SCM R 1403) the apex Court at page 1406 observed as follows:-- "The objection founded on section 123 of the Transfer of Property Act is also misconceived. Vide section 129 ibid the provisions of the Transfer of Property Act, gifts made under Muslim Law, are expressly excluded from the operation of the Act. It is firmly established proposition that under Muslim Law a valid gift could be effected orally if the formalities prescribed by the Muslim Law are complied with even if the instrument of gift is not registered. See Muslim Law by Soksena, 3rd Edn.
Pp. 368-369 and the precedent cases noticed at the foot of these pages. Among these formalities are, the passing of the possession from the donor and the acceptance of the same by the donee.
These are amply satisfied in the instant case." [Underlining is mine].
' Same is the position in the present case. All the conditions of a Muslim gift of immovable property are satisfied in this case. Therefore, the rule is fully attracted here."
33. Moreover, the important evidence [Exh.49] adduced is by BABOO DIN [who is father of Muhammad Usman and Muhammad Yousif] is very very important and cannot be ignored. The said witness was also 'cross-examined' by the learned counsel for the respondent [plaintiff]. His 'examination-in-chief and 'cross examination' being more relevant and important are reproduced herein as follows:-- ' A. EVIDENCE OF BABOO DIN EXH.49 "Plaintiff and defendant are both my sons. I had purchased disputed house from Ghulam Samad for a sum of Rs.5000. Ghulam Samad delivered physical possession to me. And I, myself paid sale consideration amounting to Rs.5000. About 50 years back this transaction took place. 1 had made family settlement that a half portion is to be given to plaintiff and defendant equally. Plaintiff also executed such 'Iqrarnama' in favour of defendant. I have inducted the defendant in the house in question. The property was transferred in a family settlement in the name of plaintiff as a banami transaction. Subsequently plaintiff , became dishonest and refuse to transfer half portion to defendant. Plaintiff and the defendant being my son are equally entitled in the house in question as per family settlement arrived between the parties." [Underlining is mine].
CROSS TO MR. S. NASIR ALI SHAH ADV. FOR PLAINTIFF.
"It is incorrect to say that my deceased father had purchased house in question from his fund' which was also a grandfather of both the parties. It is fact that I am not a witness in lqrarnamas'
Exhs.47 and 48 respectively. I have four sons, and one daughter. Defendant was already in possession of the house in question. Prior to registered sale deed as initially there was a sale agreement with his family. It is incorrect to say that 1 am wrongly deposing that house in question had been purchased by me. It is incorrect to suggest that property was purchased by my father for plaintiff. It is incorrect to say that when plaintiff shifted to some other house, my father just to accommodate the plaintiff purchased house in question in his name just to accommodate him.
However, it is ,a fact that plaintiff started living separately after his marriage to some other accommodation." [Underlining is mine].
34. BABOO DIN was duly 'cross-examined' by the learned counsel for the respondent. The age of the father of Muhammad Yousif [predecessor of the applicants] and Muhammad Usman [respondent] at the time of recording of his evidence was about 90 years [NINETY. YEARS]. His evidence, indeed, is OF GREAT importance as far as the 'dispute' over the 'subject house' between the two sons is concerned. Father of the parties to the suit also gone through the regress of 'cross examination' but nothing 'adverse' to the interest of Muhammad Yousif [predecessor of the applicants] came on record. The evidence led by BABOO DIN in fact totally belies the respondents' [plaintiff] case.
35. Not only this, brother of the predecessor of the applicants [defendant] and respondent [plaintiff] was also examined [DW-3]. His 'Examination-inchief' and 'Cross-Examination' read as follows:-- B. EVIDENCE OF MUHAMMAD YAMEEN EXH.52 [D. W-3] 'Plaintiff and defendant are my real brother. The house in dispute had been purchased by our father. However, it was transferred in the name of plaintiff being as a elder son of our father. It was decided amongst the family members that later on house in question will be mutated/transferred equally in the name of plaintiff and defendant. However, other brothers and sisters will relinquish their right over the house in favour of plaintiff and defendani. Presently the house is in possession of the defendant since about 40 years. It has been constructed by defendant and also being repaired from time to time by him. Previously we all were residing jointly but now plaintiff is residing separately from all of us. There was also document in respect of the family settlement having a equal share having both the parties. However, I have not signed any such document.
However, plaintiff have not transferred the house in favour of defendant as per family settlement and has kept him on hopes and ultimately refused. Suit filed by plaintiff is false as the house belongs to our father Mohd Ishaque, Illahi Bux and Saleemuddin are died, which, are witnesses of the family settlement of document." [Underlining is mine].
CROSS TO MR. S. NASIR ALI - SHAH ADVOCATE FOR PLAINTIFF.
"It is fact that I was 10 years old however, it is incorrect to say that the house in question has been purchased by plaintiff. It ' is incorrect to say that being a tender age I was not aware who has purchased the house in question. It is incorrect to say that I am deposing falsely about family settlement.. The witness of the family settlement namely Zahoor, Mohd Ibrahim, Abdul Ghaffar Shamim are alive. Who are the witnesses of the family settlement. It is incorrect to say that plaintiff has allowed defendant to occupy house in question on humanitarian ground being as a brother. It is incorrect to say that plaintiff on which house is residing has been given to him by our father. It is fact that our father has given me house where I am residing. Vol: , says that two brothers have been given house in which I am residing and two brothers which the house in dispute. It is fact that no share had been given by our father to our sister. It is fact that I am not a witness of the lqrarnama'. It is incorrect to say that family settlement is a bogus and forged document. It is incorrect to say that I am deposing falsely about repair and construction. It is incorrect to say that plaintiff never consented to give half portion of the house to defendant. It is incorrect to say that I have no talking terms with plaintiff and I am deposing falsely. It is incorrect to say that plaintiff has purchased the house from his own pocket. It is incorrect to say' that at the time of purchasing of house he had been earning money. It is incorrect to say that when plaintiff asked the defendant to vacate the house due to shortage of accommodation defendant refused to do so. It is incorrect to say that I am deposing falsely." [Underlining is mine] 36.' DW-3 viz. Muhammad Yamin has also supported the case of Muhammad Yousif [predecessor of the applicants]. In 'cross examination' nothing much-less favourable to the respondents' case has come on record. DW-3 has fully supported the case of Muhammad Yousif [predecessor of the applicants] in all respect.
37. Another witness viz. Muhammad Ibrahim [DW-4] was also 'examined' and 'cross-examined'. He also supported the case of the predecessor of the 'applicants [defendant]. The said witness, it is worth to note, is also witness of Exh. 18 , [IQRARNAMA]. 'Examination-in-chief and 'cross- examination' of the said witness [D.W.-4] read as follows:-- ' C.. EVIDENCE MUHAMMXD IBRAHIM EXH.54.
"I know the parties in suit. I have also seen disputed house which is in possession of defendant since 1966. The house was purchased by the father of the parties, from his own money. However it was transferred/ mutated in the name of plaintiff and plaintiff had executed Iqrarnama dt. 26-5- 1999, in favour of the defendant pertaining to the ..House. Was also a witness amongst the other witnesses upon the said Iqrarnama vide Exh.48. It is same correct and bears the signatures of all the concerned. The legally the father of the parties is owner, however, regtd. Sale deed is in favour of plaintiff" [Underlining is mine].
' CROSS TO MR. S. NASIR ALI SHAH ADV. FOR PLAINTIFF.
"It was told to me by the Yousif that he is residing in the disputed house, since 1966. Vol. Stated that I also use to visit and observed that he is residing therein, Iqrarnama was written in the office of petition writer. It was a time 12.30 noon. Ghaffar, perhaps Usman, Yaseen, Zahoor, Shamim, myself were present. I do not remember the name of petitioner writer as I am residing at Hyderabad. Since the Iqrarnama was already written in 1987, as such thereafter Exh.48, was executed according to the said iqrarnama and all the concerned were present at that time. I admits the contents of Exh.48.It is fact that I came to know through father of the plaintiff who is my maternal uncle, that he had purchased house in question. It is incorrect to say that I am deposing falsely at the instance of defendant who is related to me, specifically that sister of defendant is my wife. It is incorrect to say that I am deposing falsely about the presence of the witnesses at the occasion of execution of Exh.48. It is fact that there is no name of subscriber or signature who were written Exh.48, so also it has not been attested by the Notary Public. It is incorrect to say that Exh.48 has been prepared collusively, and is fabricated document." [Underlining is mine].
38. The evidence adduced by Muhammad Ibrahim [Exh.54] besides confirming .The purchase of the. 'subject house' by BABOO DIN [Father of the predecessor of the applicants-defendant and respondent-plaintiff] has also 'confirmed' the factum of execution of Iqrarnama [Exh.18] by respondent-plaintiff in favour of Muhammad Yousif [predecessor of the applicants-defendant].
39. From the defendant's side Abdul Ghaffar [D.W-5] was also examined. The said witness was also 'cross-examined' by the learned counsel for the plaintiff. This witness Abdul Ghaffar [Dw-5] is also witness of Iqrarnama [Exh.18]. In his 'cross-examination' noting much-less favourable to respondent's [plaintiff] case has come on record.
40. From the applicants' [defendant]. Side Syed Ishtiaque Ahmed Bukhari [D.W-6] was also examined. This witness was also 'cross examined' by the learned counsel for the plaintiff. The evidence adduced by the D.W.6 reads as follows:- ' D. EVIDENCE OF SYED ISHTIAQUE AHMED BUKHARI EXH.56 "I see Exh.47 i.e. Igrarnama of gift. I have attested the same and. Such endorsement also has been made by me upon the same. Parties admitted execution of Exh.47 before me in presence of the witnesses. Even the parties were known to me. Both the parties admitted the contents of the documents before me. It is same correct and bears my signatures as well as the witnesses and other concerned. 1 also put my official seal upon Exh.47." [Underlining is mine] ' CROSS TO MR. S. NASIR ALI SHAH ADV. FOR PLAINTIFF.
"It is fact that I am also enrolled Advocate besides Notary Public. I use to maintain register in my office for record purposes, the document being written and attested by me. I see the same and say that there is not mentioned such number on Exh.47. Exh.47 was written in my presence. It is fact that there is not mentioned in endorsement that the witnesses were also present at the time of execution of Exh.47. It is incorrect to say that Exh.47 was brought to me and I have affixed my stamp over it. Vol: says that Mr. Ali Sher Chohan petition writer has written the same in my office in my presence. I do not know if the stamp has been purchased at the movement or not of Exh.47. It is incorrect to say that plaintiff was not present when Exh.47 was attested." [Underlining is mine].
41. From the pleadings and evidence led by both the parties, it clearly transpires that there is no dispute at all regarding purchase of the 'subject house' in the name of respondent [plaintiff] through registered sale deed. However, it is worth to note the so-called sale deed has not been produced in evidence. The version of the predecessor of the applicants [defendant] to the effect that the 'subject house' was purchased in the name of the respondent [plaintiff] has not been seriously disputed. The transaction in the light of evidence has been proved. As benami transaction. The sale consideration in the sum of Rs.5000 paid by the father of Muhammad Yousif [defendant] and Muhammad Usman [plaintiff] has also not been rebutted by the respondent [plaintiff] in vehemence. The benami nature of transaction, in view of evidence, has been fully established.
42. For this obvious reason, subsequently, the respondent signed and executed IQRARNAMAS [Exhs.47 and 48] whereby half portion' of the subject house admeasuring 1120 1/2 Sq.Fts equal to 83x13 1/2 towards southern side was denied given to Muhammad Yousuf [predecessor of the applicant]. Signatures upon the IQRARNAMAS [Exhs.47 and 48] have not been denied. In view of any none denied of signatures, the contents of IQRARNAMAS [Exhs.47 and 48] cannot be denied and/or disputed by the respondent [plaintiff]. Under law one cannot approbate re-approbate.
43. The very material witness i.e. BABOO DIN [Father of the parties to the suit] has also corroborated the contents of IQRARNAMAS [Exhs.47 and 48]. The evidence led by BABOO DIN confidence inspiring and there seems no reason to believe the same as 'false'. In his evidence BABOO DIN has specifically deposed that 'subject house' was purchased by him in the year, 1996 from one Ghulam Samad for total sale consideration of Rs.5000 who upon payment of sale consideration delivered physical possession to him. Per BABOO DIN'S version/evidence the entire sale consideration was paid by him to the seller.
44. In a 'Family Settlement' BABOO DIN has further 'deposed' that 'half portion' of the 'subject house' was given to the plaintiff and other 'half portion' to the defendant. Respondent in consequence of 'Family Settlement' thus signed and executed 'IQRARNAMAS' in favour of Muhammad Yousif [predecessor of the applicant-defendant]. Per evidence of the father of the parties to the suit. The 'subject house' as being a 'benami transaction' was transferred in the name of the respondent [plaintiff] merely out of love and confidence. The respondent, per evidence of his father, has become 'dishonest' and as such refused to transfer 'half portion' of the 'subject house' to Muhammad Yousif [Predecessor of the applicants]. From the perusal of the 'cross-examination' it reveals that the father of both the parties viz BABOO DIN has specifically denied the 'suggestion' that 'subject house' was purchased by his father [grandfather of both the parties to the suit].
45. The IQRARNAMAS [Exhs.47 and 48] have also been supported by other witness. Muhammad Yameen [DW-3], Muhammad Ibrahim [DW-4], Abdul Ghaffar [DW-5], Syed Ishtiaq Ahmed Bukhari [Exhs.DW-6] in their evidence have not only supported the 'IQRARNAMAS' [Exhs.17 and 18] but have also 'deposed' that the 'subject house' is in possession of the defendant [Predecessor of the applicants] since 1966. Per evidence, adduced by the aforesaid witnesses the 'subject house' was purchased by BABOO DIN [Father of . The parties to the suit] from his own money. However, it was transferred in the name of the plaintiff as 'benami' transaction. Almost all the witnesses in their evidence adduced, have corroborated inter alia the contents of 'IQRARNAMAS' [Exhs.47 and 48] and signature thereon. The perusal of the 'cross examination' of witnesses shows that the 'suggestion' made to them about deposing falsely in favour of the defendant [Predecessor of the applicants] has been denied forcibly.
46. The 'subject house' per evidence was purchased by BABOO DIN from his own funds. Respondent, upon becoming dishonest viz-a-viz ownership of the 'subject house', the matter was resolved between both the brothers by their father and other family members by way of Family Settlement.
Resultantly, settlement took place and respondent thereafter, executed two 'IQRARNAMAS' [Exhs.47 and 48]. The said IQRARNAMAS till filing of the S.C. Suit No.32 of 2000 [Muhammad Usman v.
Muhammad Yousit] were never challenged and/or otherwise, protested. Exhs. 47 and Exh. 48 have thus been proved genuine and lawful documents.
47. The 'Family Settlement' attaches with it, presumption of correctness, as at its backing there is always support of family members. The case of Walid Bin Nawaz and others v. Malik Muhammad Akram and others [2003 M LD 140], in this regard is helpful. The relevant para therefrom is reproduced as under:-- "Furthermore, Exh.P.1 was a document of family settlement which, in fact and in essence, implemented a pre-agreed scheme. And division between the parties. - Wherefore, I, am inclined to hold that this was not a kind, of document which was compulsorily registerable and bore deficient stamp paper."
48. Of course, IQRAINAMAS [Exh.47 and Exh.48] cannot be denied or questioned at this belated stage much-less when the respondent acquiesced into insistence of Exh. 47 and Exh.48. The 'doctrine of promissory estoppel' is also attracted. Under Article 114 of the Qanune-Shahadat, 1984 [PO Nb.10 of 1984] when one person has by his . Declaration, act or omission, intentionally caused or permitted another person's to believe or think to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceedings between himself and such person or his representative, to deny the truth of that thing.
49. In this regard the following cases can be referred:--
(a) 2005 CLC 564 [Arfan Hameed, S.D.O. Mirpur and 42 others v.Secretary, Education, AJ&K Government Civil Secretariat, Muzaffarabad and 3 others].
"The rule of promissory estoppel is that where one party has, by his word or conduct made to the other party, a clear promise which is intended to create a legal relationship or effect a legal relationship to arise in future knowing or intending that it would be acted upon by the other party to whom promise is made and it is, in fact so acted upon by the other party; that promise would be binding on the party making it and he is not entitled to resile from it."
(b) PLD 1971 376 (390) jHaji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan] "The doctrine of estoppel is not confined to the matters deal 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 (I L R 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 Halsbury's Laws of England (2nd Edn.), Vol. 13, "as a disability whereb.y 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 this 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) where it was held that if a person had "held out and represented to the Hindu public that the temple was a public temple" he cannot resile from that position. Similarly in the case of Jai Dayal v. Dewan Ram Sam Das (AIR 1938 Lah.686) the Lahore High Court also held that "where a person with full knowledge of the facts in unmistakable terms admitted the wakf nature of a house, he cannot subsequently be allowed to resile from that position".
(c) PLD 1994 Kar. 194 Karachi, Catholic Cooperative Housing Society Ltd. v. Mirza Jawad Baig] "In Krothapalli Satyanarayan's case, the prayer of plaintiff for removal of encroachment after 9 years was declined.
' Lord Chancellor on the Principle of Estoppel by Conduct observed as follows : "I am of opinion that generally speaking, if a party having an interest to prevent an act being done has full notice of it being done, and acquiesces in it so as to induce a reasonable belief that he consents to its, and the position of others is, altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous licensee. In the case in hand, in view of the circumstances mentioned earlier, we hold that, prima facie, the principle of estoppel by conduct, would apply."
50. Significantly, the sale deed in favour of the respondent has not been produced in evidence. A document it is worth to note, if not part of a judicial record, its judicial notice cannot be taken. The appellate court, without properly appreciating the evidence, on record contrarily taken into consideration the sale deed in favour of the respondent as an 'absolute document of title'. The Appellate Court, nonetheless failed to properly appreciate the nature of transaction. The transfer in favour of respondent [plaintiff] if seen and judged in juxtaposition of evidence available on record including 'IQRARNAMAS' [Exh. 47 and Exh.48] then explicitly such transfer in the name of respondent [plaintiff] is benami. Even otherwise, the respondent failed to prove their absolute ownership. The findings of the Appellate Court, under circumstances, besides erroneous are also in violation of mandatory provisions of Order XLI, Rule 31, C.P.C. [Act V of 1908].
51. In the case of FEDERATION OF PAKISTAN through Secretary Ministry of Defence and another v.
JAFFAR KHAN and others [PLD 2010 SC 604]. It was held as under:-- "12. The document which has not been brought on record through witnesses and has not duly exhibited, cannot be taken into consideration by the Court. A party having produced no evidence on its own would have to abide by it, and be bound by such evidence as had come on record.
Written statement cannot be exhibited in the case without the person who filed the same being examined in the Court and cannot be treated as substantive evidence except where such statement amounts to admission of plaintiff's plea. The contention of the learned counsel for the petitioners that the Court has to fake into consideration the document on which the petitioners relied upon, has no force as neither the copy of such document was brought on record nor during their cross-examination the witnesses of the respondents were confronted with the said document."
52. As far as dismissal of Second Class No. Nil of 1999 [Muhammad Yousif v. Muhammad Usman for Non-prosecution is concerned the same has no bearing on the present proceedings in F.C.Suit No.32 of 2000 [Muhammad Usman v. Muhammad Yousif] because the was even not registered as regular suit.
53. As regards the point of noncompliance of mandatory provisions Order XLI, Rule 31, C.P.C. [Act V of 1908] is concerned it will be appropriate to reproduce herein the provisions of Order XLI, Rule 31, C.P.C. [Act V of 1908].
"31. Contents, date and signature of judgment. ---The judgment of the Appellate Court shall be in a writing and shall state--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reserved or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
54. In the present case the Appellate Court has neither dilated upon material issues nor has set points for determination in terms of Order XLI, Rule 31, C.P.C. Or otherwise, has given any decision on the core issues/nucleus point involved. This is a material violation of mandatory provisions of Order XLI Rule 31 C.P.C. In the case of Syed Hassan Shah v. Syed Malok Shah [1987 CLC 2281], it was held as below:-- "As the learned first appellate Court did not decide any of these issues which were decided by the learned trial Court except issue No.9, 1 accept this Revision Application, set aside the judgment of the first appellate Court and remand the case back with the direction that the learned first appellate Court should re-hear the appeal and decide the same issue wise. There will be no order as to costs in the circumstances of the case. As the appeal was instituted in the year 1974 the learned first appellate Court will make every effort to dispose of this appeal within three months from the date of receipt of R and P."
55. Similarly in the following cases it was observed as follows:--
(a) Juma Khan v. Mst. Shamim and 3 others [1992 CLC 1022], "The provisions of Order XLI, Rule 31 of the Code of Civil Procedure are mandatory. The judgment of the first appellate Court has to set out points for determination, record the decision thereon and give its own reasons for the said decision. The legislature has laid down these rules so that either the second appellate Court or the revisional Court should be in position to find out the track traversed by the appellate Court. It cannot run away from its onerous duties of recording the finding of fact and/or discussing the evidence. Strictly speaking and with due respect to the learned Additional District Judge, as one reads the judgment, it cannot be said to be .a judgment of the first appellate Court at all within the meaning of Order XLI, Rule 31 of the Code of Civil Procedure.
However, as I read the judgment of the learned Additional District Judge, nowhere he has ventured to consider the documentary evidence adduced by the parties." [Underlining is mine].
(b) Manzoor ul Haq and 3 others v. Mst. Kaneez Begum [1993 CLC 109] "10. Under Order XLI, Rule 31 of the Code of Civil Procedure, the first appellate Court is bound to decide each and every issue separately by objective apprasial of evidence in consonance with law. The perusal of the judgment of the first appellate Court shows no independent exercise was made by the first appellate Court. The question for decision is "as to whether in such a circumstance, this Court had the power under section 100, C.P.C. To review the evidence and decide the case or remand the case for decision afresh on merits to the first appellate Court." It is a settled principle of law that all the roads in the procedural law lead to sacred task of dispensation of justice. There is abundant authority in support of the proposition that the second appellate Court and even the revisional Court had a power to decide the lis by taking into consideration the whole oral as well as documentary evidence on record if it is sufficient for the purpose of deciding the case."
56. Apart from the above the learned Appellate Court has absolutely failed and/or ignored to consider the evidence on record. As such, manifestly, the Appellate Court has erred in passing the impugned judgment and decree. Upon reading the judgment and decree [Annexures 'A' and 'B' to R.A.] passed by the Appellate court in conjunction with the evidence led by Muhammad Yousif [Predecessor of the applicants] and defence witnesses, the same ex-facie are erroneous thus cannot be allowed to remain intact. It is worth to note, that respondent [plaintiff] in support of his contentions except himself does not 'examine' any other witness to controvert and /or belie defendant [Predecessor of the applicants] viz-a-viz 'IQRARNAMAS' [Exh. 47 and Exh.48].
57. The case-law PLD 2007 Pesh.l1 cited by the learned counsel for the respondent besides distinguishable is not relevant in the facts and circumstances of the instant case.
58. In view of the above position this Revision Application is allowed, the judgment and decree of 15-4-2010 and 21-4-2012 (Annexure 'A' and 'B' to R.A.1 Passed by the Appellate Court are set aside and in consequence thereof the judgment and decree dated 24-1-2006 and 1-2-2006 (Annexure 'C' and 'D' to R.A.) passed by Ist Senior Civil Jduge, Nawabshah, in F,C. Suit No.32 of 2000 are restored/upheld, Parties to bear their own cost.
Revision, allowed.