Petitioners being aggrieved of the Judgment and Decree dated 29.06.2007 of the learned Civil Judge- Nowshera and that of the learned Additional District Judge-III, Nowshera, dated 29.03.2008, whereby their suit as well as appeal were dismissed, have present Civil Revision.
2. A brief background of the present Civil Revision is that petitioners have instituted a suit seeking therein declaration to the effect that they are owners in possession of the property, fully described in the head-note Alif of the plaint and they are also owners to the extent of 1/7th share in the property described in the sub-note (ii).
They sought possession in respect of the property mentioned in prayer Alif while the separation of 1/7th share through partition from the property mentioned its sub-note (ii). They have also sought -grant of permeant injunction restraining respondents from interfering in the possession of petitioners over the suit land. It was averred in the plaint that petitioners/plaintiff are owners in possession of the property mentioned in the prayer Alif according to Jamabandi for the year 1997-98, whereas, the Petitioner No. 2 is the shareholder in the house per sub-note (ii) of prayer Alif which was purchased by Zaman Khan s/o Lashkar Khan through registered deed No. 465 dated 22.09.1951 from one Zaman Khan s/o Sher Khan. They contended that respondents are claiming their ownership on the said property which is illegal and ineffective upon their rights. Respondents No. 1 to 4 appeared before the learned trial Court and controverted the stance of petitioners by filing their written statement wherein they contended that the house as mentioned in the sub-note (ii) of Prayer Alif was the ownership of Zaman Khan son of Lashkar Khan who during his lifetime transferred some of his property in favour of Defendants No. 1 & 2 vide documents dated 12.11.1998 while a portion of dwelling house was given to Mst. Marhama by the said Zaman Khan in lieu of the dower vide document dated 13.12.1998.Initially the suit, after recording pro and contra evidence of parties was dismissed vide Judgment/decree dated 22.10.2004, however, in the appeal from petitioners the learned ADJ-IV Nowshera allowed the same and the case was remanded back to the trial Court to implead Mst. Marhama in the panel of defendants and to re-frame issues in view of the pleadings. The following issues were framed by the learned trial Court after receiving the case file after remand by the appellate Court.
1. Whether plaintif fs have got a cause of action?
2. Whether the suit of plaintiffs is time-barred?
3. Whether instant civil Court has got no jurisdiction?
4. Whether plaintiffs are estopped to sue?
5. Whether the suit is not maintainable in its present form?
6. Whether suit in hand is based on malafide?
7. Whether the suit in hand is bad for misjoinder and non-joinder of necessary parties?
8. Whether suit in hand is liable to be dismissed with compensatory cost under Section 35(A), CPC?
9. Whether proper Court fee has not been affixed?
10. Whether plaintif fs are owners in possession of land measuring 17 Kanals 10 Marlas in disputed Khasra numbers?
11. Whether Plaintif f No. 1 is owner in possession of land measuring 2 Kanals 4 Marlas 6 Sirsai in disputed Khasra numbers?
12. Whether Plaintif f No. 2 is entitled to 1/7 share in disputed houses detailed in part 2 of Para Alif of plaint?
13. Whether part of disputed property has been purchased by Defendants No. 1& 2 vide Mutation No. 2690 dated 01.12.1980?
14. Whether Zaman Khan sol 1 Kanal 15 Marlas 5 Sarsai to the Defendants No. 1& 2 through a deed in consideration of Rs. 15,00,00/- which was later on constructed by Defendants No. 1 & 27?
15. Whether Zaman Khan transferred part of suit land and a constructed house to Defendant No. 5 vide Mutation No. 2501 dated 07.09.1975 and deed dated 13.12.1998 in lieu of dower?
16. Whether plaintiffs are entitled to possession as prayed for?
17. Whether plaintiffs are entitled to declaration as prayed for?
18. Whether plaintiffs are entitled to decree as prayed for?
19. Relief.
3. After processing the suit in accordance with the law, the learned trial Court of Civil Judge-VI, Nowshera, dismissed the suit of petitioners vide Judgment and Decree dated 29.06.2007. The appeal of petitioners too was dismissed by the learned Additional District Judge-III Nowshera vide Judgment and Decree dated 29.03.2008. Now petitioners have filed this petition against concurrent findings of the two Courts below .
4. Counsel for the petitioner argued that that the Petitioner No. 2 and the Respondents No. 1 to 4 are brothers and sisters inter-se while the Respondent No. 5 is their mother while Petitioner No. 1 the cousin of Respondents No. 1 to 4. He argued that Respondents No. 1, 2 and 5 in order to deprive the Petitioner No. 2 of the major portion of the property of Zaman Khan, the predecessor in interest of parties, devised some fabricated unregistered documents and thereby succeeded to get the same transferred in their names.
Whereas only remaining chunk of the land could be devolved upon the Petitioner No. 2. He maintained that the property of Petitioner No. 1 is also lying in a joint piece of land with the Respondents No. 1 to 5, and respondents are also claiming the same as their ownership. He maintained that the Petitioner No. 2 is entitled to get her due from the entire estate of Zaman Khan and its partition to the extent of her share while whereas, the Petitioner No. 1 is also entitled to the decree of declaration of the ownership out of the joint property.
5. Learned counsel for Respondents No. 1, 2 & 5 argued that the Petitioner No. 2 has already got her share from the legacy of Zaman Khan through inheritance mutations and she cannot claim any further property . He argued that the Respondents No. 1, 2 have successfully proved the execution of sale deed dated 12.11.1998 in their favour whereas, the execution dower deed dated 13.12.1998 in favour of Respondent No. 5 has also been proved; therefore, being old documents and established documents same are not open to any exception or objection.
6. Arguments heard and record minutely perused in view of the arguments advanced at the bar .
7. It is evident from the record that Respondents No. 1 & 2 purchased certain property vide Mutation No. 2690 dated 01.12.1993(Ex.P.W.2/9 and Ex.RPW.1/15) and it is not disputed in the present lis nor petitioners have any objection on this purchase of land. In-fact the main bone of contention between parties is the legacy of Zaman Khan son of Lashkar Khan and Petitioner No. 2 and Respondents No. 1 to 5 are legal heirs of said Zaman Khan.
8. The claim of Petitioner No. 2 is that, she is entitled to the extent of her 1/7th share in the entire estate of Zaman Khan, whereas, respondents claimed that Zaman Khan had transferred some of his landed property in favour of Petitioners No. 1, 2 & 5 on the basis of documents dated 12.11.1998 and 13.12.1998 and at the time of his death in the year 2002, he was owner of the remaining chunk of the land. Thus, the said remaining area which later-on became legacy of Zaman Khan was devolved upon his surviving legal heirs including Petitioner No. 2 through inheritance Mutation No. 4404 dated 20.08.2002 (Ex.RP.W.2/10). Record further transpired that there is an entry of inheritance Mutation No. 2991 dated 28.06.2002 in respect of the legacy of Zaman Khan son of Lashkar Khan in favour of his legal heirs including the Petitioner No. 2 and this entry with a red pen is clearly visible on the Ex.RP.W.1/8 i.e. Jamabandi for the year 1998-99. Besides, Petition No. 1 has also inherited the property from his father namely Gulab Khan son of Lashkar Khan on the basis of inheritance Mutation No. 4405 dated 20.08.2002 (Ex.RP.W.2/11). Thus,, rights of the petitioners to this extent are very much clear on record which respondents/defendants admit without any hesitation.
9. Perusal of plaint reveals that in the Para No. 4 petitioners have impliedly challe nged the sale deed and dower deed .executed in the year 1998. The relevant para of the plaint runs as under: {{URDU TEXT}}
10. Although parties are at one page to the extent of supra Mutation No. 4404, 4405, 2991 and 2690, nevertheless, plaintiffs in the ibid Para-4 of plaint have impliedly questioned the veracity of documents dated 12.11.1998 (regarding alleged sale by Zaman Khan to Respondents No. 1& 2 in lieu of Rs.
15,00,0001-) and 13.12.1998 (regarding dower in favour of Respondent No. 5). Now, therefore, these documents are to be brought into focus for the ascertainment of its veracity at judicial scales.
11. The sale deed in favour of Respondents No. 1& 2 was allegedly executed on 12.11.1998 and produced as Ex.D.W .1/1. This document claimed to be scribed by Misal Khan Rahi Advocate and Ali Haider and Muhammad Zaman are cited its marginal witnesses. On the other hand, the dower deed in favour of Respondent No. 5 produced as Ex.D.W .1/2 was reportedly executed on 13.12.1998, scribed by Misal Khan Rahi Advocate and witnessed by Bazaid Khan and All Haider .
12. Misal Khan Rahi Advocate, the alleged scribe of sale deed and dower deed appeared in the witness box as DW-1.
The document of sale has been produced as Ex.D.W.1/1 while that of the dower has been produced as Ex.D.W.1/2. His entire examination in chief purports that both the documents were scribed on the same date i.e. 13.12.1998. It is the very first contradiction regarding the supra documents appearing from the mouth of scribe which has been ignored by the two learned Courts below.
13. It pertinent to mention that during the year 1998, the witness DW-1 was a petition writer in Nowshera. Kacheri and nowadays, after graduation in law, he is an Advocate in District Courts Nowshera. DW-1 in his cross- examination admitted that he had not entered these documents on his register of petition writer . {{URDU TEXT}} This fact casts further doubt on the execution of both the documents as scribing any document by the petitioner without maintaining its record at the relevant serial of his register washes away the veracity of these documents.
The DW-ladmitted that payment was not made before him rather its payment was acknowledged by the vendor.
The relevant excerpt from his cross-examination runs as under: {{URDU TEXT}} Yet there is another devastating aspect of the defendants' case i.e. the stamp papers were purchased from Peshawar despite the fact that stamp papers were available in the Nowshera District. The relevant cross- examination of DW-1 is as under: {{URDU TEXT}}
14. This statement of DW-1 is not appealing to mind because parties, property, deed writer (DW-1), and the place of execution of alleged documents, all belong to District Nowshera then what extraneous circumstances prevented him from purchasing the stamp papers from Nowshera. Though witness has tried to justify his act of purchasing stamp papers from Peshawar on the ground that he had to attend the Court at Peshawar; but justification so advanced is without any supportive documents particularly when the same were purchased from Stamp Vendor and the backside of said stamp papers is blank and no purpose of the sale/purchase has been mentioned there despite the fact it is the bounden duty of stamp vendors to write the purpose of stamp paper on its reverse. It is very important to note that the DW-1 has not uttered even a single word about the presence and putting signature by the second marginal witness of the dower document Ex.D.W.1/2 namely Bazaid Khan.
15. DW-3, Ali Haider , is seemingly the marginal witness of sale deed Ex.D.W .1/1 and dower deed Ex.D.W .1/2. He stated in his examination in chief: {{URDU TEXT}}
16. Both the documents bear different dates and how the DW-3 had witnessed the execution of both the documents at the same time; and as such, this contradiction too is incurable. It is also very important to note that in-fact the dower deed is Ex.D.W.1/2 and not. Ex.D.W.1/1 whereas, the sale deed is in-fact Ex.D.W.1/1 not Ex.D.W.1/2 and here again witness failed to give exact particulars of both the deeds. Thus, the witness is again contradicting the version of defence.
17. ADW -2, Muhammad Zaman son of Farid Khan, claimed to be the marginal witness of Ex.D.W .1/2 (dower deed).
I feel it necessary to mention here again that both the exhibits, per the date mentioned there-on, were scribed on different dates, i.e. Ex.D.W .1/1 (document of sale) was written on 12.11.1998 while Ex.D.W .1/2 (document of dower) was written on 13.12.1998. His examination in chief is as under: {{URDU TEXT}}
18. The said ADW-2, is reportedly the second marginal witness of sale deed, and hein his examination in chief stated that the vendor had acknowledged the receipt of sale transaction meaning thereby the payment was not made before him. In order to ascertain the veracity of ADW-2, his cross-examination is worth perusal which is reproduced hereunder: {{URDU TEXT}}
19. From above it has become more obvious that no payment was made before the witnesses ADW-2 nor the documents were scribed before him. He stated that vendor, vendees, other marginal witness, deed writer and a lady were present at the relevant time, meaning thereby both the documents were scribed on the same date which fact cuts the roots of both the documents as these documents portray different dates of its execution. The ADW-2 has not stated about the presence of Bazid Khan who is the second marginal witness of the dower deed (Ex.D.W.1/2).
20. The ADW -3 is the second marginal witness of the dower deed (Ex.D.W .1/2) but he was confronted with the document of sale i.e. Ex.D.W .1/1 and in his examination in chief endorsed Ex.D.W .1/1 which was not relevant to him nor the Ex.D.W .1/1 is the deed of dower . Thus, all the deposition of ADW -3 being alien to the dower deed does not inspire confidence.
21. Yet there is another surprising aspect of the case. The alleged sale deed bears the thumb impression of the vendor over each page in the same sequence at the bottom of page from the top and right margins and not just below the end of writing. Rather the scribe has stretched the writing to take it till bottom of the page to connect the writing with the thumb impression of the vendor. It seems that the thumb impressions of vendor were obtained hurriedly at blank papers in one sequence by turning over the pages one after the other which resulted into the difference of spaces between writing and thumbs impression. It is also notable that the marginal witnesses only signed on the right margin of the first page of sale deed and not at the end of sale deed. This was so because there was an already affixed thumb impression of the vendor in the end/bottom of paper leaving no space to enter names of marginal witnesses. Admittedly the payment of RS.15 lac has not been made before any of the witnesses. There is also no denial of the proposition that the vendor, Zaman Khan, was an aged and illiterate person. There is nothing to suggest that he was having any independent advice, or that he was fully conscious about the execution of sale and dower deed, or that the contents of sale and dower deed were read over and explained to him, or that he was fully aware of the transfer of. his ownership. Zaman Khan was illiterate and therefore, Respondents No. 1, 2 & 5 being beneficiary were bound to establish by furnishing strong and most satisfactory proof that not only document was executed, but the illiterate person had fully understood what was contained in the document. Absence of duress, protest, lack of misunderstanding or want of comprehension would not in itself be the real proof of true understanding mind of the executant. The intent and purpose of law is that evidence should be brought on record to prove that document was read over and explained to the executant. It is incumbent upon the beneficiary of the transaction to bring on record all available evidence to show that the onus of proof placed on him was fully discharged as required by law.Guidance derived from the case of Abdul Hameed vs. Mst. Aisha Bibi and another 2007 SCMR 1808 and reliance is also placed on the case of Mst. Nishata vs. Muslim Khan alias Musali etc NLR 2011 Civil 507.
22. So far as the plea of possession by Respondents No. 1, 2 & 5 over the suit property is concerned, the same is of no use for them as it is very much common that the possession of joint land usually rests with the brothers.
Therefore, respondents cannot take advantage of the provisions of Section 53-A of the Transfer of Property Act, 1882 and this section cannot create any title in favour of Respondents No. 1, 2 & 5. Even if the execution of sale and dower deeds are admitted to be correct, the same does not bestow any title upon the respondents. In a case reported as Ch Liaqat Ali v. Mirza Abdul Aziz and 3 others 2001 CLC 1502 Supreme Court (AJ&K) it was observed that the mere execution of an agreement-to-sell does not bestow any title unless and until further steps are taken in pursuance of agreement-to-sell. In a case reported as Abdullah Bhatti and another v. Muhammad Din PLD 1964 SC 106 it was observed that the provisions of Section 53-A of the Transfer of Property Act does not create any right or interest in violation of provisions of Section 17 of the Registration Act, 1908.
23. The admissibility of the document in question has to be determined only if the document is one of the descriptions referred to in Section 49, Registration Act, 1908. The Registration Act, Section 49, makes documents that are compulsorily registrable under the provisions of Section 17, Registration Act, inadmissible in evidence, for certain purposes. Although no objection, at the time of exhibition of sale deed and dower deed was raised but being a law-point, it can be agitated at any stage of the case. Non-registration invalidates the transaction altogether and the document cannot be looked at in view of the provisions of Section 49 of the Registration Act, 1908. It is also mandated in the second part of Section 54 of the Transfer of Property Act, 1882, that such an agreement would not confer any right to the property. Possession of lard with Respondents No. 1, 2 & 5 being a joint ancestral property does not provide any backing to the unregistered documents. Guidance derived from 2017 SCMR 367, Muhammad Iqbal and others versus Mst. Baseerat and others. In a case reported as 2013 YLR 344 (Sindh) titled, 'Muslim Commercial Bank Ltd. vs. Abdul Ghaffar and two others' it was held that registration of document is compulsory under the law when it shall be used as proof for creating, declaring, transferring, limiting or extinguishing in present or in future right, title or interest in any immovable property .
Reliance is also placed on the case titled Bakhtiar vs. Nasrullah and 12 others, 2015 CLC 385 (Baluchistan).
24. In-fact the purpose of registering a document compulsorily is to ensure fulfilment of all the legal requirements necessary for the transfer of land by a Registrar or Registering Officer. Section 34(1) of the Registration Act, 1908 stipulates that a document shall not be registered unless the persons executing such document or their representatives appear before the Registering Officer within the time allowed for presentation. If the document so presented is for the sale of a property, the person claiming under the document should also appear before the Registering Officer, along with the executants. The appearance of all the executants and the person claiming under the document need not be simultaneous. Sub-section (3) of Section 34 further shows that the Registration Officer shall enquire, whether, such document was executed by him or not and satisfy himself about the identity of the person appearing before him as, to whether he is the same person who has executed the document and also satisfies himself of the right of representative, assign or agent. Non-producing the sale and dower deed for registration before the Registrar to pass the text of Section 34 of Registration Act, rendered these documents nullity in the eyes of law. Reliance is placed on 2000 CLC 419(Lahore) case titled Manzoor Ahmad vs. Haji Hashmat Ali through Legal Heirs.
25. Moreover, it is also on record that the marriage between the Respondent No. 5 and Zaman Khan was much before the execution of dower deed dated 13.12.1998 (Ex.D.W.1/2). There is nothing on the record to suggest that marriage of Respondent No. 5 with Zaman Khan was registered as per Section 5 of the Muslim Family Laws Ordinance,1961 with the Nikah Registrar duly licensed for .the area where the Nikah took place. If a marriage is solemnized and registered per requirement of law, and if any property is given to bride in lieu of her dower and effect of same is entered in her Nikah Nama in line with the provisions of Muslim Family Laws Rules, in such an eventuality there remains no need to execute a dower deed separately rather the property stands transferred to bride automatically. Registration of marriage per Nikah Nama fully in line with Muslim Family Laws Rules is a legal and authentic document and any property transferred through such a document, do not need any further registration. In the present case neither there is any Nikah Nama, nor the property was mentioned in the Nikah Nama, nor the dower deed executed much after the marriage was registered as required by the Registration Act as discussed in the preceding Para. Therefore, the dower deed Ex.D.W.1/2 does not confer any right to the Respondent No. 5. Reliance is placed on the case titled Umar Bakhsh vs. Mst. Zamrut Jan and 9 Others (PLD 1973 Peshawar 63) and the case titled Mst. Hussana and others vs. Mst. Ghufrania and others (2003 YLR 250 Peshawar).
26. Although the. Petitioner No. 2 being sister, was given her share out of the legacy of Zaman Khan through inheritance Mutations No. 4404 dated 20.08.2002 and No. 2991 dated 28.06.2002 but she was deprived to inherit her due share from a major portion of land on the basis of alleged dower and sale deeds. It was held in the reported cases of Apex Court 2018 SCMR 2080 titled Wali Muhammad Khan and another us. Mst. Amina and others, that bothers use to deprive their sisters of their inheritance by contrived means. There was no reason why a father would want to exclude his daughter of her inheritance, particularly when the share of each son was twice that of each daughter. Allah, the almighty, commands us in the Holy Qur'an: {{URDU TEXT}} (English Translation:) Unto the men (of a family) belongeth a share of that which parents and near kindred leave, and unto the women a share of that which parents and near kindred leave, whether it be little or much a legal share.
27. For what has been discussed above, both the learned Courts below have not correctly appreciated the evidence and law regarding sale and dower deeds. The current finding of the Courts below are thus not tenable. The Civil Revision is therefore, allowed, the sale deed dated 12.11.1998 and the dower deed dated 13.12.1998 are declared to be ineffective upon rights of Petitioner No. 2. Consequently, a decree for declaration of ownership as prayed for in the Prayer-Alif and its sub-note-ii is hereby passed in favour of petitioners. A preliminary decree for partition of the house and other ' residential property is also passed in favour of the petitioners, however, in respect of the property having agricultural nature they are at liberty to approach the proper forum for its partition. The rest of the prayers of petitioners also stood decreed as prayed for. No order as to cost.