' MUHAMMAD HUMAYON KHAN, J.--- This civil revision under Section 115, C.P.C. Is filed against the Judgment dated 26.11.2009 and Decree dated 01.12.2009 passed by the learned IInd Additional District Judge, Khairpur, in Civil Appeal No.112 of 2009, whereby, the learned Additional District Judge dismissed the appeal of the applicant and upheld the Judgment dated 21.10.2009 and Decree dated 24.10.2009 passed by the learned find Civil Judge, Gambat, in Suit No.17 of 2009.
2. The relevant and material facts of the case for the disposal of this revision application are that the applicant filed suit for declaration, possession and permanent injunction against the respondents. The case pleaded in the plaint is that the applicant is a bona fide, rightful and exclusive owner of residential Sikni House No.51/B-1, situated at Khuhra, Taluka Gambat (hereinafter referred to as "the suit property"), which is entered in the name of the applicant in the record of Taluka Municipal Administration and such property certificate has also been issued in his name by the Taluka Nazim, Taluka Municipal Administration, Gamhat. It is further pleaded that since the date of purchase of the suit property, the applicant has been paying necessary taxes to TMA Gambat regularly. It is further pleaded that about twenty-five years back, the applicant restored possession of half portion of the suit property from his brother Nebahoo towards eastern side to the father of respondents at his request for temporary dwelling till he arrange for any other residential accommodation anywhere else, who promised and assured in presence of witnesses that he will vacate the said 1/4th portion of the suit property and restore its possession to the applicant on his demand. It is further pleaded that the applicant had demanded possession from the respondents, who kept him on hopes and promises while Nikah of applicant's son Manzoor Hussain alias Mumtaz was performed with respondent No.3 Mst. Noor Jahan and therefore the applicant was lenient towards the respondents and did not force them to vacate the portion of the suit property. It is further pleaded that there arose right and disharmony between the applicant and respondents, who moved false applications against the applicant to harass him and usurp the suit property. It is further pleaded that one month back, the respondents point blank refused to deliver vacant possession of the suit property and therefore the applicant filed the instant suit against the respondents, wherein, the applicant claimed the following reliefs:---
(i) This Hon'ble Court may be pleased to declare that plaintiff is bona fide and exclusive owner of the house in suit being No.51/B-1, situated at Khuhra Taluka Gambat, and possession on 1/4th portion of suit house by the defendants is illegal and unauthorized and they are liable to dispossession.
(ii) To direct the defendants by decree of this Hon'ble Court to vacate 1/4th portion of suit house and hand over its possession to the plaintiff being rightful and exclusive bona fide owner of the same.
(iii) To grant permanent injunction thereby restraining the defendants from handing over or transferring the possession of 114th portion of suit house to anybody else excepting the plaintiff.
(iv) To award cost of the suit.
(v) To award any other relief deemed fit and proper.
3. The respondents filed their written statement, wherein, the respondents raised legal objections regarding limitation and maintainability of suit. The respondents denied the entire case of the applicant and pleaded that the suit property as well as Plot No. 52/B-1, are actually the property of the elder Pir Bux son of Mango Ujjan (father of the applicant and grand-father of the respondents) and such certificate was also issued in his name and record of UC Office is also showing the ownership of the said Pir Bux over both the plots. It is further pleaded that total area of the suit property is measuring 7936 square feet which was after the death of said Pir Bux distributed in three shares among his three sons namely the applicant, father of the respondents and Nebahoo (step brother of the applicant and father of respondents) in the manner that an area of 2368 square feet came in the share of the applicant, an area of 1600 square feet came in the share of the father of the respondents and an area of 3968 square feet came in the share of the said Nebahoo. It is further pleaded that since the said distribution, the respondents are residing in the said area of only 1600 square feet. It is further pleaded that the applicant has suppressed the facts of actual ownership of the suit property. It is further pleaded that the applicant has fabricated forged documents to show his ownership over the suit property. It is further pleaded that the applicant has not come in Court with clean hand as he has not joined the other co-sharers Nebahoo as party in the instant suit. In the end, the respondents prayed for the dismissal of the instant suit.
4. The learned Civil Judge framed the following issues:--
(i) Whether plaintiff is exclusive owner of residential sikni House No. 51/B-1, situated in Khuhra Town, Taluka Gambat?
(ii) Whether defendants have forcibly and illegally occupied the 1/4th portion of Plaintiffs property No.51/B-1?
(iii) What suit is not maintainable?
(iv) Whether plaintiff is entitled for relief prayed?
(v) What should the decree be?
5. The applicant examined himself and two witnesses namely (i) Ghulam Qadir and (ii) Gulsher, and produced documents. On the other hand, the respondents examined their attorney Pir Bux and one witness Bhalay Dino only.
6. The learned Civil Judge by his Judgment dated 21.10.2009 dismissed the instant suit.
7. Against the aforesaid Judgment, the applicant filed Civil Appeal No.112 of 2009, which was dismissed by the learned Additional District Judge vide Judgment dated 26.11.2009.
8. Against the concurrent findings of both the Courts below, the applicant has filed this revision application under Section 115, C.P.C.
9. I have heard the learned counsel for the parties and perused the material available on the record.
10. The learned counsel for the applicant raised the following contentions:---
(i) Sale Deed in favour of the Applicant is oldest documents of more than 30 years and accordingly there is presumption of truth is attached. In support of this contention, he relied upon the case of Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996);
(ii) Registered Sale Deed in favour of the applicant is a public document and therefore presumption of correctness is attached to the said document. In support of this contention, he relied upon the case of Ms. Uzma Masood and another v. Orient Communication (Pvt.) Ltd. And another (2013 YLR (Sindh) 284);
(ii) Oral evidence of the respondents cannot be given preference over documentary evidence produced by the applicant. In support of this contention, he relied upon the case of Shamshad v.
Arif Ashraf Khan and others (2010 SCMR 473);
(iii) Revision application is maintainable against the concurrent findings of both the Courts below and the High Court has power to re-appraise the evidence and can set-aside the concurrent findings of both the Courts below. In support of this contention, he relied upon the case of Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.W.F.P. Peshawar and others (2015 SCMR 799).
11. On the other hand, the learned counsel for the respondents raised the following contentions:---
(i) Neither original sale deed was produced by the applicant in evidence nor any witness was examined to prove the genuineness the said sale deed, which on the face of it, is invalid as the age of the applicant at the relevant time was 9 years only and silent regarding sale consideration.
Accordingly, both the Courts below have rightly dismissed the instant suit after taking into consideration all the aspects of the instant case;
(ii) Revision application against the concurrent findings of both the Courts below is not competent and the High Court has no power to re-appraise the evidence and cannot set aside the concurrent findings of both the Courts below. In support of this contention, he relied upon the cases of (i)
Muhammad lnayat Khan v. Mst. Rehmat Khatoon and others (2001 MLD (Karachi) 1083 (ii) Fayyaz Ali v. Syed Islam Ahmed Kalimi (PLD 2001 Karachi 403) and (iii) Muhammad Feroze and others v.
Muhammad Jamaat Ali (2006 SCMR 1304).
12. The first important point for determination in this revision application is that whether the applicant is the lawful owner of the suit property by virtue of sale deed dated 14.04.1940. To resolve this vital point, it is necessary to discuss relevant facts, which are as follows:---
(a) Admittedly, the applicant filed instant suit for declaration, possession and injunction against the respondents on the footing of exclusive ownership. It is pertinent to mention here that neither the said sale deed dated 14.04.1940 was pleaded in the plaint nor copy of the same was annexed with the plaint;
(b) In his evidence, the applicant deposed that the suit property was purchased by him and his brother collectively. It is pertinent to mention here that the applicant produced photocopy of the said sale deed dated 14.04.1940 in his evidence;
(c) In his cross-examination, the applicant admitted that when the suit property was purchased his age was about 9 years. However, he denied that the said sale deed is managed one;
(d) The evidence of applicant's witness Ghulam Qadir is hearsay and thus not admissible in law;
(e) Admittedly, the applicant's witness Gulsher, is son of the applicant. However, his evidence is, even otherwise, is of no relevancy;
(f) Sale deed dated 14.04.1940 does not show the description of property nor sale consideration;
(g) Neither original sale deed dated 14.04.1940 nor its certified copy was produced by the applicant in evidence;
(h) Neither independent witness nor official witness was examined to prove the said sale deed;
(i) Neither applicant joined his brother Nebahoo as plaintiff nor examined him as witness to support his version, who is, according to the said sale deed, joint owner of the suit property;
(j) It has not been brought on record by the applicant that his name was mutated in the record of rights by virtue of the said sale deed.
13. In view of the above position, all the contentions of the learned counsel for the applicant as mentioned in paragraph 10 hereinabove are misconceived and cannot be accepted in view of the following provisions of law and well settled principles of law:---
(a) Order VI, Rule 2, C.P.C. Provides that every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim. Whereas, Rule 9 of Order VI, C.P.C. Provides that wherever the contents of any document are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible;
(b) Order VII, Rule 7, C.P.C. Provides that every plaint shall state specifically the relief which the plaintiff claim either simply or in the alternative. Whereas, Rule 14 of Order VII, C.P.C. Provides that where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint. On the other hand, Rule 18 (1) of Order VII, C.P.C. Provides that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced, or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit;
(c) Article 72 of the Qanun-e-Shahadat Order, 1984 (hereinafter to as "Qanun-e-Shahadat") provides that the contents of documents may be proved either by primary or by secondary evidence. Primary evidence is defined in Article 73 of the Qanun-e-Shahadat as the document itself produced for the inspection of the Court. Whereas, secondary evidence is defined in Article 74 of the Qanun-e-Shahadat which means and includes copies made from or compared with the original;
(d) Article 78 of the Qanun-e-Shahadat provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand writing of so much of the document as is alleged to be in that person's hand writing must be proved to be in his hand writing. Whereas, Article 79 of the Qanun-e-Shahadat provides that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution. On the other hand, Article 80 of the Qanun-e- Shahadat provides that if no such attesting witness can be found, it must be proved that the witnesses have either died, or cannot be found and that the document was executed by the person who purports to have done so;
(e) Article 100 of the Qanun-e-Shahadat provides that where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person; is in that person's handwriting and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Whereas Article 101 of the Qanun-e-Shahadat provides that the provisions of Article 100 shall apply to such copy of a document referred to in that Article as is certified in the manner provided in Article 87 and is not less than thirty years old; and such certified copy may be produced in proof of the contents of the document or part of the document of which it purports to be a copy;
(f) Proviso (1) of Article 103 of Qanun-e-Shahadat provides that any fact may be proved which would invailidate any document or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want of failure-of consideration, or mistake in fact or law. Whereas, Article 105 of Qanun-e-Shahadat provides that when language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense;
(g) Article 117 of Qanun-e-Shahadat provides that whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists. Whereas, Article 118 of Qanun-eShahadat provides that the burden of prove in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
On the other hand. Article 122 of Qanun-e-Shahadat provides that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him;
(h) Article 129(g) of Qanun-e-Shahadat provides that the Court may presume that evidence which could be and is not produced would, if produced, be uniavorable to the person who withholds it;
(i) Party cannot be allowed to lead evidence contrary to his pleadings nor could a party be permitted to take a plea different than the plea which he has taken in his pleadings and any part of evidence which is beyond the pleadings is ought to be overlooked and ignored. Even no relief could be granted beyond pleadings and Judgment cannot be based upon on un-pleaded case. Reliance can be placed upon the cases of (i) Zahida Mahmood v. Muhammad Sabir Khan and 5 others (2000 YLR (Supreme Court (AJ&K)) 1011), (ii) Muhammad Naib v. Amirullah and 39 others (2002 MLD (Supreme Court (AJ&K)) 1243), (iii) Ehteshamuddin Qureshi v. Pakistan Steel Mills Corporation Ltd.
And another (2004 MLD (Karachi) 361), (iv) Ehtezaz Asgher and another v. Ch. Muhammad Sajawal and 2 others (2012 YLR 1580), (v) Muhammad Iqbal v. Mehboob Alain (2015 SCMR 21), (vi) Sardar Muhammad Naseem Khan v. Returning Officer, PP-12 and others (2015 SCMR 1698) and (vii) Hafiz Muhammad Abid v. Azad Government of the State Jammu and Kashmir through Chief Secretary and 4 others 12015 PLC (C.S.) (Supreme Court (AJ&K)) 232);
(j) If transaction itself is invalid, evidence can be led to establish its real nature which will not be hit by Article 103 of Qanun-eShahadat, but covered by the first proviso which is an exception to the rule. Rule of evidence does not fetter the powers of the Court to unveil the real transaction where the validity of the document itself is challenged and to ascertain the real nature of C transaction.
Reliance can be placed upon the cases of (i) Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 (Supreme Court) 519) and (ii) Fakhar-ud-Din through L.Rs. v. Muhammad lqbal and others (2015 CLC (Lahore) 994);
(k) Admissibility of document is to be distinguished from proof required by law for determining the execution and genuineness of document. A registered sale deed by itself, without proof, would not confer any right. If neither original sale deed is produced nor permission was obtained for production of D secondary evidence nor any witness was examined then the sale deed is not proved. Reliance can be placed upon the case of Abdul Maieed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245);
(1) No steps were taken to prove the contents of document by leading primary or secondary evidence in terms of Articles 75 and 76 of Qanun-e-Shahadat, therefore, such document cannot be taken into consideration as mere tendering a document in evidence gets no evidentiary value unless its contents are proved according to law. Reliance can be placed upon the case of Hyderabad Development Authority through M.D., Civil Centre, Hyderabad v.. Abdul Majeed and others (PLD 2002 Supreme Court 84);
(m) Court is competent to look into the document and to command upon its true nature or otherwise, as, such power is inherent in every Court, much less the High Court. Non-production of witness to prove document is fatal to the case of the party with the legal consequence that the recitals of document cannot be said to have been proved in terms of Article 78 of Qanun- eShahadat and simply because no objection was raised to the production of document would not render the document as proved. Reliance can be placed upon the case of Anwar Ahmad v. Mst.
Naffs Bano through Legal Heirs (2005 SCMR 152);
(n) There is no cavil with the proposition that a presumption of truth is attached to registered document but if its contents are challenged then the onus shifts on the beneficiary to prove its G contents by examining attesting witnesses. Reliance can be placed upon the case of Abdul Ghafoor and others v. Mukhtar Ahmad Khan and others (2006 SCMR 1144);
(o) Evidentiary value of the certified copy of the sale deed without seeking prior permission from the Court loses its importance and such a copy would not sufficient to prove the same and therefore no presumption of correctness could be attached to the certified copy of the sale deed, which was not admissible in evidence as the condition precedent to the admission of the secondary evidence had not been fulfilled. Reliance can be placed upon the case of Mst. Akbar Jan through L.Rs. And 9 others v. Mst. Kalsoom Bibi and 6 others (2015 CLC (Lahore) 549);
(p) The beneficiary of a sale deed is bound to examine marginal witnesses, identifier and sub- registrar to prove valid execution of the disputed sale deed and in absence of such best evidence, it cannot be assumed that the beneficiary had succeeded to prove his case and the principle of presumption of truth attached to the registered document is not applicable in such circumstances in as much as where the execution of registered document is disputed, no such presumption attaches to it and its valid execution has to be proved by production of relevant and material evidence. If the best evidence was withheld by the beneficiary, the inference under Article 129(g) of the Qanun-e-Shahadat has to be drawn against the beneficiary. Reliance can be placed upon the case of Farzand Ali and others v. Bashir Ahmad (2016 YLR (Lahore) 1233).
14. In view of the above referred provisions of law and settled principles of law, the cases (i) Mst.
Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996) and (ii) Ms. Uzma Masood and another v. Orient Communication (Pvt.) Ltd. And another (2013 YLR (Sindh) 284) relied upon by the learned counsel for the applicant are distinguishable and not applicable to the facts and circumstances of the instant case.
15. I have very carefully gone through the pleadings and evidence of the parties and came to the conclusion that the entire case of the applicant was based upon the said sale deed but the applicant neither pleaded the said sale deed in his plaint nor produced the same with his plaint nor claimed any specific relief on the footing of the said sale deed and therefore his evidence on un-pleaded case cannot be looked into and should be ignored. Apart from this, the original sale deed was neither produced nor certified copy of the same was tendered in evidence nor any relevant and material witness was examined to prove the said sale deed, which remained unproved. Even otherwise, the said sale deed on the face of it appears to be doubtful and managed one and hence no presumption of its truth can be taken.
16. Apart from this, to attract the provisions of Section 115, C.P.C., the applicant has to satisfy this Court that the sub-ordinate Courts have:
(a) exercised a jurisdiction not vested in them by law, or
(b) failed to exercise a jurisdiction so vested, or c) acted in the exercise of the jurisdiction illegally or with material irregularity.
The learned counsel for the applicant has not been able to point out any illegality or irregularity committed by both the Courts below. However, I have carefully gone through both the judgments of the Courts below and I came to the conclusion that both the Courts below have exercised jurisdiction vested in them on sound reasons, which is neither perverse nor arbitrary nor inequitable. In these circumstances, both the Courts K below have exercised their jurisdiction in accordance with law and have not committed any illegality and irregularity in deciding the instant suit and accordingly my considered view is that this revision application under Section 115, C.P.C. Is not competent against the concurrent findings. My this considered view finds support from the cases of (i) Muhammad Bux v. Muhammad Ali (1984 SCMR 504), (ii) Haji Muhammad Zaman v.
Zafar Ali Khan and others (PLD 1986 Supreme Court 88), (iii) Muhammad Nawaz and others v.
Muhammad Sadiq and another (1995 SCMR 105), (iv) Abdul Hakeem v. Habibullah and 11 others (1997 SCMR 1139), (v) Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304) and (vi) Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984).
17. In view of the above discussion, this revision application along with listed application is dismissed with costs.