Ch. Muhammad Masood Jahangir , J: Inessential detail apart, the precise history of the case was that subject house had been transferred to Mst. Zubaida Begum and Mst. Rashida Begum, respondents No.1 and 2 along with their mother Mst. Zainab by the Settlement Department vide Permanent Transfer Order , which was subsequently alienated through impugned registered Gift Deed dated 05.08.1984 (Exh.D2) to present petitioners, who were nephews as well as maternal grandsons of the purported donors. In 1998, respondents No.1 and 2 at their end instituted two independent suits for the cancellation of afore-noted instrument contending therein that neither they had offered the gift nor executed instrument to such effect, which was managed by their brother Fakhar-ud-Din in favour of his sons to deprive his mother and sisters from their property and it being forged, fictitious and having been obtained through misrepresentation was illegal as well as ineffective upon their rights. Both the suits were contested with the defence that respondents No.1 and 2 along with their mother had voluntarily transferred the house through the instrument genuinely constructed on their behalf. It was also pleaded in the written statements that Mst. Rashida Begum respondent No.2 was compensated with some other property , whereas in favour of Mst.
Zubaida, respondent No.1, the rooms of House No.706 were transferred vide registered instruments No.1543 and 1544 executed/attested on the day when impugned deed was attested. As both the suits pertained to the same subject matter and parties, the learned Trial Court was perfect to consolidate it through formulation of joint issues and after examination as well as appreciation of evidence brought on record by the respective parties, learned Trial Court dismissed both the suits vide common judgment and decrees dated 25.06.2005, which could not hold the field for any considerable period when two independent Appeals of the respondents were allowed and through consolidated impugned judgment dated 19.07.2006, not only the verdict of the subordinate Court was set aside, but the suits were also decreed cancelling the Gift Deed, hence Civil Revision in hand and connected one bearing No.785-D-2006. As did the Courts below , this Court is also inclined to decide both these jointly through this single judgment.
2. Syed Tajjamal Hussain Bokhari, Advocate for the petitioners/donees emphasized with great vehemence that property had been transferred through registered instrument, which under the law attained strong presumption of correctness and learned Trial Court was perfect to honour its authenticity , wherea s learned lower Appellate Court without considering that on the same day, some other property had also been alienated in favour of respondent No.1/donor through registered instrument s, but those were never challenged at any forum erred in law to undo one of the transactions and other two attested in her favour were kept solemn. Added that suit was badly time barred, but this aspect of the case was not considered in its true perspective. It was next argued that despite the fact that plaintif fs had denied their thumb impress ions over the questioned document, but they did not tender a request to refer the specimens of their thumb impressions for comparison to the Finger Print Bureau and their silence in this regard was sufficient proof to hold that their imprints over the questioned document were identical. It was finally pleaded that impugned judgment being classic example of misreading and non-reading of evidence was liable to be set aside and prayed for acceptance of Civil Revisions and restoration of judgm ent and decrees of learned Trial Court.
In contra, M/s. Rana Muhammad Aslam, Advocate for respondent No.1 and Muhammad Saleem, respondent No.2
(b) on behalf of remaining respondents submitted that Stamp Vendor, Deed Writer, Registry Moharrar, Sub- Registrar and the Attesting Witnesses despite their availability were deliberately withheld, as such learned lower Appellate Court was perfect to draw a hostile inference against the beneficiaries. It was next added that the petitioners did not refer the essential details with regard to time, date, month, year, venue and names of witnesses in their written statement to disclose that when, where and before whom the original transaction was settled. It was further pleaded on their behalf that evidence of the petitioners was also lacking to confirm the basic three ingredients of the transaction of gift. They also argued that impugned document was surreptitiously engineered through fraud and misrepresentation by Fakhar-ud-Din father of the petitioners for his greed, which could not be perpetuated on the score of limitation or for some other legal infirmity. It too was their stance that the judgment of the learned lower Appellate Court has to be preferred over that of its subordinate Court and lastly prayed for the dismissal of Petitions in hand.
3. Arguments heard and record perused.
4. First of all, this Court deems it apposite to attend to inaugural as well as sweeping and wide argument of Mr. Bukhari that impugned instrument being registered by an Authority while performing its official functions attains presumption of truth might have substance, but only in the cases where authenticity and genuineness thereof is not challenged. I must endorse that public documents are the acts of public functionaries in Executive, Legislative and Judicial Departments of the Government including those under the general head the transactions, which official persons are required to enter in Books and Registers in the course of their public duties and which occur within the circle of their own personal knowledge and observations, however, as per sub clause (e) of Article 85 of the Qanun-e-Shahadat Order, 1984 whenever the execution or contents of any such document are disputed, the presumption so attached to it loses its significance and it becomes sine qua non for the beneficiary thereof to have it proved through mode requires to prove a private document. Article 78 of the Order ibid prescribes that if any document is alleged to be signed/ thumb marked or to have been written by any person, the signatures/imprints or writing must be proved in that person's handwriting. Although this provision does not lay down any particular manner for proving it, but any mode of proof recognized by this statute can be availed by the party upon which onus probandi is rested. The pivotal aspect of provision ibid is that, it addresses to prove the identity of its scribe as well as other signatories, but mere proof of handwriting, signatures and imprints will not be sufficient to prove transaction couched therein. Reliance can be placed upon judgments reported as Muhammad Sher and 2 others versus Muhammad Azim and another (PLD 1977 Lahore 729), Abdul Majeed and others versus Muhammad Subhan and 2 others (1999 SCMR 1245), Abdul Ghafoor and others versus Mukhtar Ahmad Khan and others (2006 SCMR 1144), Mrs. Khalida Azhar versus Viqar Rustam Bakhshi and others (2018 SCMR 30) and Fareed and others versus Muhammad Tufail and another (2018 SCMR 139).
The conclusion drawn by the apex Court in Abdul Majeed' s case (supra) in this regard being directly applicable in the situation discussed herein above is reflected below:- "It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right. Similarly, a mutation although acted upon in Revenue Record, would not by its own force be sufficient to prove the genuineness of the transaction to which it purports unless the genuineness of the transaction is proved. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of document."
In this view of the matter , when not only through various paras of the plaint as well as deposition of the plaintif f (PW-1) the construction of impugned Gift Deed as well as transaction referred therein was attacked with serious allegations, the onus was shifted on the petitioners to prove those facts, but surprisingly from the day first, the petitioners failed to assert and prove the ingredients of their purported transaction to the effect that when, where and before whom declaration of gift was offered by the donors, which was accepted by them and the possession changed hands in lieu thereof. Moreover , minute appraisal of copy of impugned Gift Deed divulged that its Stamp Paper was not purchased by any of the purported donors, rather it was issued to Fakhar-ud-Din, the father of the donees, who admittedly had no authority on their behalf. Important that Gift Deed was scribed on that very day when Stamp Paper was issued and if the donors were present at the time of its writing, then what was the fun that its paper was not personally purchased by any of them. The purchase of Stamp Paper by an unauthorized person despite availability of the ladies on whose behalf it was written, made its dubious from the day of its inception. Over and above, the petitioners did not succeed to establish the authenticity and veracity of impugned document because none among the Stamp Vendor , Petition Writer, Registry Moharrir , Sub-R egistrar and Attesting Witnesses was examined. Only Muhammad Nazir , Lumberdar (DW-2), the alleged identifi er was produced, but his sole deposition was insuf ficient to fulfil the requirement for proof of document, especially keeping in mind his answers uttered during the test of cross-examination, which being relevant are referred as under:- {{URDU TEXT}} It left no iota in mind that the ladies allegedly identified by him were not person ally known to him, as such, his identification lost its significance.
5. The emphasis of learned counsel for the petitioners that both the marginal witnesses of the Gift Deed were sons of the plaintif fs/donors and there was a risk that had they been summoned for exam ination in the witness-box, they might have supported their mothers is fallacious. In recent era, the apex Court in a case reported as Hafiz Tassaduq Hussain Vs. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241) has already dealt with this situation while concluding therein that irrespective of fear and risk the beneficiary of a document has to produce its signatories even if related with his adversary and the moment he/they depose(s) inimical to its examiner , the latter may extend a request for declaring him/them hostile. The relevant Para-12 of this esteemed judgment is given below:- "12. For the argument that as the second attesting witness of the agreement was the son of the respondent, therefore, the appellant cold not take the risk of examining him, it may be held that as ordained above the mandatory provisions of law had to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of the Order, 1984, relating to hostile witness take its own course. Before parting it may be mentioned that the judgment reported as Abdul Wali v. Muhammad Saleh (1998 SCMR 760) which find mention in the leave granting order is not relevant for the proposition in hand as it relates to a document before the enforcement of the Order, 1984 when Article 17 was not there."
Although Feroze-ud-Din, one of the donees (DW-3), Abdul Rasheed (DW-4), Muhammad Tayyab (DW-5) and Fakhar-ud Din (DW-6) father of the petitioners were examined on behalf of the latters, but none of them was signatory of Exh.D2, as such, their testimony was of no importance.
6. The emphasis of Mr. Bukhari that on the crucial day, on one side, Exh.D2 was attested, whereas on the other side, two rooms of the other house were transferred to respondent No.1 through documents of similar nature, but the latters were not challenged, as such, respondent No.1 was estopped to challenge Exh.D2 was without merit.
The plaintif f (PW-1) in her cross-examination unequivocally denied that any document was executed in her favour with regard to said rooms. In such situatio n to counter PW-1, the petitioners were required to have examined their mother , the alleged transferor/executant of those instruments or these were confronted to PW-1, but none of the modes was followed, hence the Court was perfect to draw an adverse inference. Moreover , Feroze-ud-Din (DW-3), one of the petitioners in his cross-examination stated as below:- {{URDU TEXT}} Had in lieu of subject property , the two rooms been actually transferred to respon dent No.1, there was no fun to retain its original deeds despite losing their title by the executant. The purported documents registered in favour of respondent No.1 might have been executed for the days to come to guard the impugned document (Exh.D2).
7. The next argument on behalf of petitioners that to prove that questioned document was not thumb marked by the ladies, it was obligatory for them to have requested for referring the specimen of their imprints for comparison to the Finger Print Bureau is not tenable. The onus as discussed earlier was shifted upon the petitioners and in such eventuality , they being beneficiaries especially when no direct evidence to prove the questioned document was examined, could avail this alternative mode while making a prayer for the matching test, but no such effort at their end was made and by not resorting to this exercise, they themselves incurred a presumption against them. See Muhammad Qayyum and 2 others Vs. Muhammad Azeem Through Legal Heirs and another (PLD 1995 SC 381 ).
8. The emphasis of Advocate for the petitioners that Gift Deed was executed in 1984 and the suit was subsequently filed with the delay of 14 years in 1998, which was badly time barred, is misconce ived. In the case in hand, it was specifically pleaded by the plaintif fs that alleged transfer of property had been kept secret from them and for the first time, it came into their knowledge one and half month prior to institution of the suit that through disputed instrument they had been defrauded. There can be no right to sue until an accrua l of right is asserted in the plaint and its infringement or clear unequivocal threat to injure that right by the defendant against whom the suit is instituted is also pleaded and in clear terms, it was in the plaint by the plaintif fs, who also prayed for declaring the Gift Deed in dispute as illegal besides that it was fictitious, forged as well as fabricated and on having been proved as such, the same could not be perpetuated, but could be assailed at any point of time. Reliance in this respect can be placed on the case law reported as Abdul Rahim and another Vs. Mrs. Jannatay Bibi and 13 others (2000 SCMR 346 ) and Khair Din Vs. Mst. Salaman and others (PLD 2002 SC 677 ).
9. The additional setback of the controversy would be that the alleged donors had their siblings as well, but no reason was ever furnished in the memo of gift or pleadings that for what evil deeds they were deprived of the said benefit.
See Sadar Abbas Vs. Province of Punjab and others (2015 CLC 822), Barkat Ali through Legal Heirs and others Vs. Muhammad Ismail through Legal Heirs and others (2002 SCMR 1938), Mst. Manzoor Begum (deceased) through L.
Rs. versus Mst. Fateh Bibi, etc. (2016 SCMR 1596), and Allah Ditta and others Vs. Manak alias Muhammad Siddique and others (2017 SCMR 402).
10. All it germanes that while dismissing the suit, learned Trial Court failed to appreciate the evidence available on record as well as law on the subject, but his Appellate Court perfectly accumulated and thrashed it in its true perspective to decree the suit, whose judgment being based on reasoning has to be preferred especially when learned counsel for the petitioners was not able to persuade that any wrong was committed and this Court being sanguine feels no hesitation to confirm the impugned judgment and decrees, hence, these Civil Revisions having no merit are bound to fail, which are dismissed accordingly with no order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.