' QALANDAR ALI KHAN, J._--Abdul Qayyum and Abdus Sattar sons of Abdul Khaliq, petitioners, moved this revision petition under section 115 of the Code of Civil Procedure, 1908, against their three brothers, namely, Abdus Salam, Abdul Malik and Abdur Rehman, respondents, therein calling in question the judgment and decree of the learned lower appellate court/Additional District Judge-IV Haripur, , dated 31.10. 2009 , whereby judgment and decree of the learned trial court/Civil Judge-I, Haripur, dated 7.7.2009,was set aside; and on the acceptance of the appeal of the respondents, suit of the respondents against the petitioners was decreed while suit of the petitioners was dismissed.
2. The background of the two rival suits by the parties, briefly stated, is that Abdur Rahim predecessor/grand-father of the parties was owner of a house (haveli) comprising four rooms, courtyard and two shops situated in Mohallah Soha in the limits of Municipal Committee, Haripur, which devolved to the extent of 2/3 share upon his son Abdul Khaliq, father and predecessor of the parties and the remaining 1/3 share on his daughter, namely, Muhammad Jan. The respondents, in their suit, claimed transfer of her 1/3 share by Mst. Muhammad Jan in their favour vide registered gift deed dated 3.12.1981, which is not disputed herein. However, dispute erupted between the parties when the respondents claimed 2/3 share in the property on the basis of its transfer by the owner Abdul Khaliq in their favour vide unregistered sale deed dated 31.12.1969, which, according to averments in the suit of the respondents, was acknowledged by Abdul Khaliq in his written statement dated 05.12.1982 in Suit No,479/1 titled Mst. Sakina Jan v. Abdul Khaliq. The respondents further claimed that after transfer of 2/3 share in the suit property in their favour by Abdul Khaliq, they made improvements worth millions of rupees on the suit property. While claiming ownership of the, entire suit property, the respondents challenged, in their suit, the registered gift deed No,854 dated 7.8.1991 by Abdul Khaliq in favour of the petitioners as fake, forged, unauthorized, without lawful right and, therefore, ineffective and inoperative on the rights of the respondents. The respondents also prayed for possession of the suit property, in the alternative, in their suit lodged on 27.01.1999.
3. In their written statement, the petitioners resisted suit of the respondents by setting up a rival claim to a shop in the suit house on the basis of registered gift deed No,854 attested on 7.8.1991 in their favour by their father. They also disputed claim of the respondents with regard to improvements over the suit property. The petitioners along with others also filed a suit against the respondents and another on 28.02.2005, wherein not only their claim to the shop on the basis of registered gift deed No,854 attested on 7.8.1991 was reiterated but they also prayed for possession of their share to the extent of 79/156 share out of 2/3 share from the inheritance of their predecessor as well as recovery of Rs,3,000/- per month from 07.11.1996 till possession of the shop on account of its use and occupation. It was contended in the plaint of the petitioners that the shop in question along with another adjacent shop was rented out by their father to Arshad Mehmood against whom an eviction petition was moved in the court of Rent Controller but during eviction proceedings the said Arshad Mehmood denied the relationship of landlord and tenant between him and father of the petitioners, however, on establishment of the relationship of landlord and tenant an order of eviction was passed in favour of father of the petitioners on 28.07.
1994. The appeal of the said Arshad Mehmood was also dismissed by the Additional District Judge, Haripur, on 20.12.1995; but during execution proceedings initiated by their father, the respondents forcibly took possession of the shop and on the application of the judgment-debtor regarding his handing over possession of the shop, the execution proceedings were filed on 07.11.1996; whereafter the respondents were enjoying the usufructs of the shop. It was contended in the plaint by the petitioners that the respondents had earlier lodged a suit for declaration with regard to the suit property which was dismissed under Order XVII, Rule 3 on 11.02.2005.
4. In their written statement, the respondents contested suit of the petitioners by raising the same plea of transfer of the suit property vide deed dated 31.12.1969 in their favour by their predecessor, which was statedly acknowledged by the latter in his written statement in Suit No,479/1 instituted on 21.10.1982 and decided on 27.02.1985. They also questioned registered deed No,854 dated 7.8.1991 in favour of the petitioners. They again raised the claim of improvements over the suit property; and stated that their appeal against the order of the court dated 11.02.2005 was still pending.
5. The pleadings of the parties were reduced to the following consolidated issues:-- "1. Whether plaintiffs of respective suits have got causes of action?
2. Whether suits are liable to be rejected for non-joinder of necessary parties?
3. Whether suits are incompetent in their present forms?
4. Whether suits are within time?
5. Whether the plaintiffs of respective suits are estopped by their conducts?
6. Whether suits are properly valued for the purpose of court fee and jurisdiction?
7. Whether Suit No,366/1 is hit by res-judicata under section 11, C.P.C.?
8. Whether deed dated 31.12.1969 created valid title in favour of plaintiffs of Suit No,167/I ?
9. Whether deed No,854 dated 7.8.1991 is genuine and validly created gift in favour of plaintiffs of Suit No,366/1?
10. What is effect of Suit No,479/I decided on 27.02.1985 on present suits?
11. Whether plaintiffs of Suit No,366/1 made any improvements in suit house, if so to what extent?
12. Whether plaintiffs in Suit No,366/1 are entitled for Rs, 3000/- per month for use and occupation of shop under registered deed No,854 dated 7.8.1991?
13. Whether the plaintiffs in suit No,366 are the sole owners of a shop under the cover of registered gift deed No,854 dated 7.8.1991?
14. Whether in suit file No,366/1 both the parties are co-sharer in suit haveli fully described in para
(B) of plaint and plaintiffs are entitled to get 79/156 share i,e, 2/3 share out of same?
15. Whether parties are entitled for decree as prayed for?
16. Relief".
' The parties adduced evidence in support of their respective claims and counter claims, and statement of one of the witnesses, namely, Mir Zaman son of Ghulam Ali was also recorded through commission, and on the conclusion of proceedings in the trial court/Civil Judge-I, Haripur, suit of the respondents was dismissed; while decree, as prayed for, was granted in favour of the petitioners, but relief Jeem with effect from 26.02.2002 instead of 07.11.1996. The petitioners were further held entitled to the costs of suits.
6. The respondents preferred appeal, which was decided by the learned appellate court/Additional District Judge-IV, Haripur, vide judgment dated 31.10.2009; and while accepting the appeal, the consolidated judgment of the learned trial court dated 7.7.2009 was set aside, while granting decree in favour of the respondents against the petitioners and at the same time dismissed suit of the petitioners; hence this revision petition.
' Arguments of learned counsel for the parties heard, and record perused.
7. The perusal of record, in the light of submissions made at the bar by the learned counsel for the parties, would show that there was no disagreement between the parties to the extent of ownership of the suit property/haveli, which according to both the parties, belonged to their grand- father, Abdur Rahim, and that his inheritance devolved on their father, Abdul Khaliq, to the extent of 2/3 share and daughter of Abdur Rahim, namely, Mst. Muhammad Jan to the extent of 1/3 share. It is also not disputed that the said Mst. Muhammad Jan transferred her 1/3 share in favour of the respondents vide registered deed dated 3.12.1981. The dispute between the parties centers around two transfer deeds, one unregistered dated 31.12.1969 whereby Abdul Khaliq purportedly transferred his 2/3 share in the suit property in favour of the respondents and the other registered gift deed No,854 attested on 7.8.1991 in respect of a shop in the suit property transferred by the said Abdul Khaliq in favour of the petitioners.
8. Both the said two deeds were made available on record by the parties, showing the unregistered deed dated 31.12:1969 signed by marginal witnesses namely Mir Taman and Mehboob Ilahi pertaining to transfer of 2/3 share in the suit property by Abdul Khaliq for sale consideration of Rs,99. Needless to say that the respondents were the first to lodge suit and claim ownership of the suit property on the basis of the unregistered deed dated 31.12.1969, in their suit instituted on 27.01.1999; but neither the deed writer nor the stamp vendor were known even to the respondents; while, on the other hand, both the marginal witnesses to the unregistered deed dated 31.12.1969, namely., Mehboob Ilahi and Mir Zaman were got examined as witnesses of the petitioners, the former as D.W-2 in the court and the latter through local commission as D.W3; and they both disowned/ denied their signatures on the unregistered deed dated 31.12.1969. Although they were subjected to cross-examination by the respondents; yet neither disowning their signatures on the sale deed in favour of the respondents was seriously challenged nor any attempt was made on behalf of the respondents to get their signatures compared through handwriting expert so as to falsify their assertion with regard to forgery of their signatures on the deed dated 31.12.1969. It is noteworthy that the said two witnesses had also furnished their separate affidavits on 11.10.1999, whereby they had categorically stated that their signatures on the deed dated 31.12.1969 were forged. In such a situation, the respondents were left with the limited plea of the deed being (i) himself admitted by the owner Abdul Khaliq in his written statement in the suit against him by Mst.
Sakina Jan for possession of the suit house on the basis of sale deed dated 07.12.1971 and (ii) the same being 30 years old. However, the deed dated 31.12.1969 was neither 30 years old at the time of institution of the suit of the respondents on 27.01.1999, nor its acknowledgement in the written statement of Abdul Khaliq submitted in the suit of his wife Mst. Sakina Jan could make it a valid transfer deed in favour of the respondents; as the suit was subsequently withdrawn by Mst.Sakina Jan, and, as such, the suit dismissed as withdrawn without recording evidence, meaning thereby Abdul Khaliq was never subjected to cross-examination with respect to the deed in question. It is by now well settled that written statement filed by a deceased cannot be treated as evidence and further that pleadings of the parties could not be taken as evidence, particularly when its maker was not even examined in its support and cross-examined by his opponent (PLD 1972 SC 25 (b), 2007 SCM R 870(b), 2008 SCM R 236 (c) and PLD 2004 SC 465 (a)).
9. The respondents claimed their ownership in respect of 2/3 shares in the suit property on the basis of the unregistered deed dated 31.12.1969; but once the deed is proved invalid and not creating any right in respect of the suit property in favour of the respondents, the claim of the petitioners to the shop in the suit property on the basis of registered deed No,854 attested on 7.8.1991 would stand proved as not only the shop, part of 2/3 share of Abdul Khaliq in the house, was available for transfer and was still the ownership of Abdul Khaliq so as to vest in him a right to transfer the same by way of gift to his two sons and the petitioners through a registered gift deed, which was even otherwise proved on record through supporting evidence. There was, no doubt, an objection on behalf of the respondents with regard to delivery of possession of the property which is subject of the gift by Abdul Khaliq in favour of the petitioners; which, indeed, has been shown in possession of the respondents; but answer to non-delivery of possession can be had from the judgment of the august apex court reported as PLD 2014 SC 331 (Appellate jurisdiction).
10. The gift deed was executed and registered in the year 1991 and the donor Abdul Khaliq died somewhere in the year 1997; but he never challenged the registered gift deed by him in favour of the petitioners during his life time stretching over around six years after registration of the gift deed and his death. Above all, a registered deed would always have precedence over a prior unregistered deed in the light of judgment reported as 1995 SCM R 1407.
11. In short, the respondents failed to prove the unregistered transfer deed dated 31.12.1969 in their favour thus paving way for the establishment of the rights of the petitioners to the shop in question on the basis of registered gift deed No,854 dated 7.8.1991 and also their shari share in the remaining property out of 2/3 share of their deceased father Abdul Khaliq, also survived by them beside the respondents. Besides, the respondents failed to establish on record the so-called improvements worth millions of rupees.
12. In the above stated scenario, it was uncalled for on the part of the learned appellate court to herself compare the signatures of the marginal witnesses and draw conclusion on the basis of such comparison and grant the impugned decree in favour of the respondents, particularly when the respondents had never asked for comparison of the signatures through a handwriting expert so as to establish truth or falsehood of the statements of the marginal witnesses with regard to their signatures on the unregistered deed dated 31.12.1969, notwithstanding the fact that the comparison was made on the basis of copies of the documents and not the original deeds. As such, the judgment and decree of the learned appellate court/ Additional District Judge-IV, Haripur, dated 31.10.2009, whereby, the judgment and decree of the learned trial court/Civil Judge-I, Haripur, dated 7.7.2009, was set aside, is not sustainable in law.
' Consequently, on the acceptance of the instant revision petition, the impugned judgment and decree dated 31.10.2009 of the learned appellate court/Additional District Judge-IV, Haripur, is set aside and that of the learned trial court/Civil Judge-I, Haripur, dated 7.7.2009 restored, with costs.