' MUHAMMAD KHALID MEHMOOD KHAN, J. --- The appellant filed a suit for possession through partition of property, detail of which is given in the plaint, the respondent Haji Muhammad Tufail (since deceased) filed a suit for specific performance of an agreement dated 21.1.1974, praying that the appellant be directed to execute a sale-deed in his favour of his 1/3rd share in the property detailed in the plaint. Both the suits were consolidated. The learned Trial Court framed the consolidated issues and after recording the evidence vide judgment and decree dated 15.4.1996 decreed the suit of partition and dismissed the suit for specific performance of agreement. The respondent filed two appeals against the judgment and decree dated 15.4.1996. The learned first Appellate Court vide judgment and decree dated 20.1.2000 accepted the appeals, decreed the suit of respondent for specific performance of agreement and dismissed the appellant's suit for partition for possession. Hence the second appeal and Civil Revision No. 493-D of 2000. RSA No. 27/2000 and C.R. No. 493-D of 2000 were decided by this Court vide judgment and decree dated 27.6.2008. The appellants filed an appeal before the Hon'ble Supreme Court of Pakistan No. 34-L and 35-L of 2009. The Hon'ble Supreme Court of Pakistan vide judgment dated 12.3.2013 allowed both the appeals, set aside the judgment of this Court and ordered that the second appeal No. 27/2000 and C.R. No. 493-D/2000 shall be deemed to be pending and these be decided afresh.
2. Learned counsel for appellant submits that the learned first Appellate Court has failed to appreciate that without obtaining permission for leading a secondary evidence no copy of document can be admitted in evidence and can be made the part of record. The party who want to produce secondary evidence has to prove the loss of primary evidence in the first instance and without proving the loss of primary evidence the permission to lead secondary evidence could not be allowed. Learned counsel submits that the learned first Appellate Court has failed to appreciate that in this case even an application for secondary evidence was not filed by the respondent and the first appeal Court illegally relied on the photocopies of the documents. Learned counsel submits that without permission of Court if any evidence has been produced being the secondary evidence that could not be read in evidence. Learned first Appellate Court has wrongly relied on the statement of so-called two marginal witnesses of alleged agreement original of which was never produced in Court. Learned counsel submits that it is an established principle of law that the parties could not lead evidence beyond their pleadings. It is a proven fact on record that Ghulam Muhammad deceased, predecessor-ininterest of the appellant was the owner of 1/3rd share in the immovable property alongwith its structure, the respondents have failed to prove that they purchased the share of deceased against consideration. The judgment of learned first Appellate Court is against the facts and law. Learned counsel for appellant has relied on Sardar Shah and another v. Rasul Bibi, etc. (NLR 1994 UC 63), Abdul Ghafoor and 2 others v. Muhammad Rafique and 13 others (2006 CLC 1796), Mst. Khurshid Begum and 6 others v. Chiragh Muhammad (1995 SCM R 1237), Munawar Hussain Malik v. Saghir Ahmad and 16 others (2007 CLC 257), Niamatullah Shah v.
Farmanullah and another (1980 SCM R 953), Abdul Rehman through L.Rs. v. Haji Muhammad Yousaf through L.Rs. (2007 SCM R 61), Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs (2005 SCM R 152), Ghulam Shabbir and others v. Mst. Bahkat Khatoon and others (2009 SCM R 644), Abdul Rehman and another v. Zia-ul-Haque Makhdoom and others (2012 SCM R 954), Abdul Rahim and others v.
Muhammad Hayat and others (2004 SCM R 1723), Mir Haji Khan and 11 others v. Mir Aijaz Ali and 2 others (PLD 1981 Supreme Court 302), Safdar Ali v. Naveed Sadiq, etc. (NLR 2006 Civil 536), Mukhtar Ahmad through Legal Heirs v. Muhammad Yunus and 4 others (2001 CLC 1796), Mokim Mondal and another v. All Miah Pradhan and others (PLD 1967 Dacca 591), Mehmood Begum, etc. v. Additional District Judge (Ch. Muhammad Sarwar Sidhu), Sialkot, etc. (NLR 2004 Civil 608) and Mehmooda Begum and 4 others v. Additional District Judge, Sialkot and 16 others (2004 YLR 1113).
3. Learned counsel for respondents submits that the respondents have fully proved their case by producing Exh.P-1 and Exh.P-2 which are the copies of the register of deed writer. The two marginal witnesses of the agreement appeared and categorically deposed that the deceased Haji Muhammad Tufail had paid Rs. 53,333.34 to Ghulam Muhammad being the price of his 1/3rd share in the property. Learned counsel submits that once the document is exhibited without any objection, the same could not be disregarded or ignored while delivering the judgment. It is an admitted fact that all documents have been exhibited without any objection on the part of appellant and as such all the documents will be read in evidence and the learned first Appellate Court has rightly passed the decree in favour of respondents. Learned counsel for respondents has relied on Malik Din and another v. Muhammad Aslam (PLD 1969 Supreme Court 136), Noor Muhammad v. Nazar Muhammad (2002 SCM R 1301), Mirza Muhammad Sharif and 2 others v. Mst.
Nawab Bibi and 4 others (1993 SCM R 462), Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs (2005 SCM R 152), Bashir Ahmed and others v. Akbar All and others (2005 M LD 283), Muhammad Zafaryab and 2 others v. Malik Muhammad lqbal and another (2000 YLR 1468), Abdul Karim v.
Muhammad Sughram and 2 others (2001 CLC 1115) and Khan Bahadur (Deceased) through his Legal Heirs and 2 others v. Ahmed Khan and another (1992 SCM R 1362).
4. Heard. Record perused.
5. The appellants' suit is that their predecessor-in-interest Ghulam Muhammad was the owner of 1/3rd share alongwith superstructure and machinery installed in the properly detailed in the plaint (hereinafter referred to as suit property). The respondents have not purchased his share nor paid any amount to him, hence he is entitled for a decree of partition, possession and declaration to the extent of 1/3rd share in the suit property, whereas the case of respondents is that their predecessor-in-interest Haji Muhammad Tufail purchased the share of appellants' predecessor- in-interest in the year 1974 against consideration of Rs. 53,333.34 on his disassociation with joint business, in addition to Rs. 53,333.34 the respondents have paid Rs. 110,000/- the share of deceased Ghulam Muhammad in the business through a cheque of Rs. 75,000/- and Rs. 35,000/- in cash.
6. The case of respondents as per their pleadings is that their predecessor-in-interest has purchased 1/3rd share of Ghulam Muhammad deceased in an immovable property less the machinery as the machinery was owned by Muhammad Ismail which is evident from the redemption deed Exh.P-3, but in evidence the respondents have introduced a new case which is not mentioned in their pleadings that they have paid Rs. 110,000/- to Ghulam Muhammad being his share in the business, surprisingly it is no where claimed nor admitted by the respondents that there was a partnership between Ghulam Muhammad and Haji Muhammad Tufail, hence the respondents have to restrict themselves to the extent of their own pleadings i.e. 1/3rd share of Ghulam Muhammad in immoveable property, further the appellants are also claiming a decree for partition, possession and declaration to the extent of 1/3rd share in the suit property including the machinery installed therein. The appellants' case is not that Ghulam Muhammad was the partner of Haji Muhammad Tufail in the business and he remained partner till his death and their suit also include a suit for rendition of account. In these circumstances in the first instance, one thing is very clear that the parties have restricted their claim to the extent of suit property, now it has to be seen what was the suit property? The case of respondents is that the agreement to sell dated 29.1.1974 entered into between Haji Muhammad Tufail and Ghulam Muhammad was reduced into writing by the deed writer Sheikh Muhammad Yahya, Haji Muhammad Tufail died on 14.5.1978 and the original agreement was in his possession which is not traceable to respondents. According to respondents the agreement was that Haji Muhammad Tufail has paid Rs. 53,333.34 to Ghulam Muhammad at the time of entering into the agreement dated 21.1.1974 and Ghulam Muhammad agreed to execute the sale-deed of his 1/3rd share in the immovable property in favour of Haji Muhammad Tufail immediately after redemption of property which was mortgaged with United Bank Limited against consideration of Rs. 400,000/-. The respondents have not filed any application before the learned Trial Court for obtaining the permission for adducing secondary evidence regarding an agreement to sell as according to them the agreement to sell is not traceable after the death of Haji Muhammad Tufail, the respondents in the first instance have to prove the loss of original document and after proving the loss of original document, the respondents could rely on the extract of the deed writer register, the respondents have not bothered even to file application for allowing secondary evidence in this Court. The respondents without the permission of adducing secondary evidence has examined P.W-1 Muhammad Nawaz who is the Munshi of deed writer Barkat Ali, he appeared in witness box and deposed that he was working with Sheikh Muhammad Yahya deed writer who has died, he recognize his signatures and writing, he is retaining the deceased's record, he brought his register of deed writing for the year 1974, in the register at Sr. No. 100 the document was shown to be written by Khawaja Ghulam Muhammad in favour of Muhammad Tufail and at Sr.
No. 101 Muhammad Tufail got prepared a document in favour of Khawaja Ghulam Muhammad. The signatures of Ghulam Muhammad in Urdu are also available at Sr. No.
100. Sheikh Muhammad Yahya was not obtaining the signatures of witnesses in his register. Copy of register of deed writing Sr. No. 100 and 101 are correct as per the record. Sr. No. 100 is Exh.P-1 and Sr.
No. 101 is Exh.P-2, both the writings at Sr. No. 100 and 101 are of Sheikh Muhammad Yahya. Both the parties signed before him. In cross-examination he admits that he is not the marginal witness of Exh.P-1 and Exh.P-2, Sheikh Muhammad Yahya was holding deed writing license but he is not having the said license. He further admitted that he is not a deed writer but he is Munshi of deed writer. He remained Clerk of Sheikh Muhammad Yahya from 1969 to 1985. All writing in the register are of Sheikh Muhammad Yahya. According to Sr. No. 100 an amount of Rs. 53,333.34 was paid to Ghulam Muhammad being his 1/3rd share in suit property and according to document at Sr. No. 101 again an amount of Rs. 53,333.34 was shown to be paid to Ghulam Muhammad, he could not say whether two amounts were paid or one amount was paid. It is wrong to suggest that payment was not made before him. The payment was made before him in winter season. It is correct that at the time of execution of agreement a receipt was also executed, the receipt was written by Sheikh Muhammad Yahya, he is not aware who is the attesting witness of receipt and agreement It is correct that the contents of Sr. No. 100 and 101 did not bear the signatures of Sheikh Muhammad Yahya. P.W-2 Rana Muhammad Akram deposed that Haji Muhammad Tufail and Ghulam Muhammad purchased the building against consideration of Rs 160,000/- 1/3rd share was of Ghulam Muhammad and 2/3rd share was of Muhammad Tufail. The parties availed loan from United Bank Limited of Rs. 400,000/- and mortgaged the property. Haji Muhammad Tufail installed the latest machinery in the building, Ghulam Muhammad withdrew his share in consideration of Rs.
53,333.34 in favour of Haji Muhammad Tufail, Ghulam Muhammad received Rs. 53,333.34 his share before him and one Muhammad Athar. Haji Muhammad Tufail paid this amount before them to Ghulam Muhammad. It was agreed that Ghulam Muhammad will execute the sale-deed after issuance of clearance certificate on redemption of property by the bank, the agreements in this regard were also executed between the parties, he and Muhammad Athar was the attesting witness of the agreement. Muhammad Tufail and Ghulam Muhammad signed before them. In cross-examination he was asked when the agreements were written? The witness replied that agreements were written in January 1974, again in question of respondents he replied that Haji Muhammad Tufail paid Rs. 53,333.34 before him, all notes were of Rs. 100/- each. Muhammad Athar appeared as P.W-3, he also deposed the same facts which P.W-2 deposed.
7. Now it has to be seen what is the effect of the statement of two witnesses who claimed themselves to be the marginal witnesses in the absence of an agreement to sell. It is an admitted fact that agreement to sell is not available on record. In fact two agreements were allegedly executed between the parties, in one agreement the parties agreed to sale and purchase the share of Ghulam Muhammad and the other agreement was that Ghulam Muhammad will execute the sale-deed in favour of Haji Muhammad Tufail as and when United Bank will redeem the suit property. According to respondents, one agreement was in possession of Haji Muhammad Tufail and after his death they are unable to locate the document and the other was with Ghulam Muhammad but Ghulam Muhammad and his legal heirs have not produced the same. The question is, what efforts the respondents made to bring on record the document in possession of Ghulam Muhammad, whether they filed application for production of original document or issued any notice for admission or denial of the photocopies of the extract of alleged agreements which were subsequently exhibited as Exh.P-1 and Exh.P-2, whether the respondents issued any interrogatories in terms of Order XI of the Code of Civil Procedure. The answer of all the questions is in negative. The respondents have not filed any application for proving the loss of original document nor obtained any permission for adducing secondary evidence. The argument of respondents is that once the document Exh.P-1 and Exh.P-2 are admitted on record it will be read in evidence. The admission of document on record did not mean that the document stands proved, the parties have to prove the document according to law. The respondents have failed to prove the loss of original agreement to sell, hence it will be deemed that the original agreement is in possession of the respondents, if executed between the parties, and inference in these circumstances will be that the respondents have intentionally withheld the document. In the absence of the document, how the statement of marginal witnesses can be accepted or believed specially when the signatures of both. The parties are not available on Exh.P-1 and Exh.P-2, hence in my humble opinion the statement of P.W-2 and P.W-3 are not helpfull specially when in the plaint the respondents have not claimed that the agreement was witnessed by two witnesses i.e. P.W-2 and P.W-3 nor their signatures are available in the register of deed writer, if for the sake of arguments it is accepted that the register of deed writer is the substitute of lost agreement, even then the statements of P.W-2 and P.W-3 are not helpful for respondents as their names are not mentioned in the plaint. Another document in the statement of P.W-1 was shown to be written between the parties i.e. Receipt of Rs. 53,333.36, the respondents have not claimed that receipt signed by Ghulam Muhammad is also not available, there is no explanation on record why this receipt has not been produced on record. In these circumstances the logical Conclusion is that respondents have failed to discharge their onus to prove that Haji Muhammad Tufail paid Rs.
53,333.34 to Ghulam Muhammad. The respondents claim that they have paid Rs. 110,000/- to Ghulam Muhammad being his share in the business, meaning thereby the parties were doing business jointly but even any books of account of the business has not been produced showing that a sum of Rs. 53,333.34 was paid to Ghulam Muhammad. Admittedly Ghulam Muhammad and Haji Muhammad Tufail were partners, may be through an oral partnership and they were maintaining the account books but all these links in the present case are missing, hence it can safely be- assumed that the amount of Rs. 53,333.34 was not paid to Ghulam Muhammad.
7-A. As far as the payment of Rs. 110,000/- to Ghulam Muhammad is concerned in connection with his exclusion from the business, is not the part of pleadings, hence that is not a matter in issue between the parties rather it goes against the respondents as the respondents claims that they paid Rs. 75,000/- to Ghulam Muhammad through cheque, if the respondents were so conscious that they are paying the amount to Ghulam Muhammad against cheque why they have not obtained receipt of Rs. 53,333.34 or paid the said amount through cheque or even have not mentioned the said amount in the account books. The entire evidence on these issues is silent. In these circumstances the upshot of the above-said discussion is that the appellants have successfully proved their case that they are still owner of 1/3rd share in the immovable property and construction only as per sale-deed as the appellants have failed to prove that they have any share in the machinery installed in the premises.
8 . In view of the above, the judgment and decree of learned first Appellate Court is set aside, the appellants' suit to the extent of 1/3rd share in the immovable property alongwith construction as per the sale-deed is decreed and a preliminary decree for partition is passed in appellants' suit for possession through partition and respondents' suit for specific performance is dismissed. The learned Civil Judge to whom the case will be assigned, will appoint a local commission for preparing his report about the partition of property and the learned civil Court will proceed further in accordance with law. R.S.A. Allowed.