MUHAMMAD NAEEM ANW AR, J. The petitioner has questioned the judgment and decree of the learned Additional District Judge-IV , Swabi, dated 24.03.2017, whereby her appeal against the judgment and decree dated 07.01.2012, was dismissed.
2. Relevant facts for disposal of the instan t petition are that the petitioner has broug ht a suit for declaration claiming therein her ownership in possession in Khasra No.451 and 473 of the estate of Adina, Tehsil and District Swabi, on the strength of deed dated 03.11.1972, executed by Syed Zainoor Shah, thus the inheritance mutation No.14751, dated 28.02.2009 of Zainoor Shah and thereafter entries in revenue papers in favour of respondents are wrong, against the law, facts, sharia and are ineffective upon her right. The suit was resisted only by respondent No. 1, by filing written statement, whereas, rest of the defendants have submitted their cognovit before the learned trial Court. After recording of evidence suit of the petitioner was dismissed vide judgment and decree dated 07.01.2012 by the learned trial Court. The petitioner has preferred an appeal before the learned appellate Court, but failed.
3. Arguments heard and record perused.
4 Learned counsel for the petitioner mainly contended that suit of the petitioner is based upon a 30 years old document, to which a presumption of truth is attached in accordance with "Qanon-e-Shahadat" Order , 1984; the stance of the petitioner was admitted by all the defendants except defendant No.1 and in such an eventuality the petitioner was entitled for decree in term of Order-XII Rule 6 of CPC (1908). In this respect he placed reliance on 2012 CLC 41 1, PLD 1988 Karachi 393 and 2007 SCMR 433 .
5. It is not disputed that petitioner 's claim is that the suit property is her ownership in possession on the strength of Ex.PW2/1 dated 30.11.1972. Which was controverted by contesting respondents through their written statement, in such circumstances the petitioner was required to prove that since 1972 she is in possession of the disputed property and the same was transferred to her by Zainoor Shah 03.11.1972. It is strange enough that Syed Adnan Ali Shah, who happened to be her attorney , when entered into witness box has not uttered even a single word regarding the petitioner 's possession. It is also worth mentioning that he has not corroborated the facts alleged in the plaint. It is settled principle of law that mere pleadings cannot be made basis of a decree and similarly only evidence cannot be considered for grant of decree vice versa. Pleadings are required to be proved in term of provision of "Qanon-e-Shahadat Order , 1984". It has been held by the apex Court in case titled Muhammad Nawaz Chandio Vs Muhammad Ismail Raho etc ( 2016 SCMR 875 ), wherein it is held that: "The status of pleadings needs to be identified by this Court in case reported as Sardar Muhammad Naseem Khan v . Returning Of ficer, PP-12 and others ( 2015 SCMR 1698 ) has observed as follows: "3. ... The importance of the pleadings and its legal value and significance can be evaluated and gauged from the fact that it is primarily on the basis thereupon that the issues are framed; though the pleadings by themselves are not the evidence of the case, the parties to litigation have to lead the evidence strictly in line and in consonance thereof to prove their respective pleas"
6. Adverting to the age of document qua the arguments of the learned counsel for petitioner , though the presumption of truth of 30 years old document is attached with Article 100 of the Qanun-e-Shahadat Order , 1984 but the presumption is not imperative, it is satisfaction of the Court to assume the contents thereof and signatures appearing thereon were of the particular person or persons. The Article provides that 30 years old document, if produced from the proper custody and was free from any suspicion, Court could presume signature and any part thereof which purported to be in handwriting of the particular person. Moreover , the document relied upon by the plaintif f was executed on 03.11.1972, which is deficient to the effect that no description of the properties along with field numbers (Khasra Numbers) was found mentioned in the document. No credible evidence was placed of file pertaining to the alleged 30-year-old document. Needless to mention that the document is 30 years old, but the same cannot be taken as gospel truth simply for the reason, as period has been elapsed, at least the plaintif f was supposed to prove it in the evidence as the oral evidence produced by the plaintif f is not sufficient regarding the proof of this document. It is pertinent to mention since 1972 this document was never produced for giving effect in revenue papers. The document has not been acted upon and has been kept, if at all, it is presumed that it was executed in the year 1972, remained unattended as such, the plaintif f/petitioner cannot be given benefit under Article 100 of Qanun-e-Shahadat, being 30 years old document in view of the principle laid down by the apex court in Nazir Ahmad' s case ( 2017 SCMR 1734 ) wherein it was held that:- "We find that the argument that a presum ption of truth was attached to the docum ent in question because it was allegedly more than 30 years old is misco nceived. It is settled law that the conditio n precedent for grant of benefit of presumption of truth to a document which is more than 30 years old is that there is no doubt about the valid execution of the same. It is clear from the record that the Respondents had categorically stated in their written statement that the alleged agreement to sell was a forged document. In these circumstances, onus was on the petitioners to prove execution of the document in accordance with law. Having failed to do so, the petitioners were not entitled to rely on the age of the docu ment to claim the benefit of a presumption of truth in terms of Article 100 of the Qanun-e-Shahadat Order , 1984.
7. At the same time the petitioner has not been able to prove her possession of the disputed property for giving effect the document allegedly executed in her favour (other than the age of document) within the meaning of section 53-A of Transfer of Property Act, 1877, but unfortunately she could not brought on record any convincing or reliable evidence with the four corner of which unregistered document could be given any weight within the exception of section 50 of the Registration Act, 1908 is reproduced as under:- "Section 50. Certain registered documents relating to land to take effect against unregistered documents.-
(1) Every document of the kinds mentioned in clauses (2)(a),(b)(c) and (d) of Section 17, sub-section (1), [ and every document register able under section 18, in so far as such document affects immovable property or acknowledges the receipt or payment of any consideration in respect of any transaction relating to immovable property], shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property , and not being a decree or order , whether such unregistered document be of the same nature as the registered document or not.
[Provided that the person in possession of the property under an unregistered document prior in date, would be entitled to the rights under Section 53-A of the Transfer of Property Act, 1882 if the conditions of that section are fulfilled.
Provided further that the person in whose favour an unregistered document is executed shall be entitled to enforce the contract under the unregistered document in suit for specific performance against a person claiming under as subsequent registered document, subjec t to the provisions of clause (b) of Section 27 of the Specific Relief, Act, 1877].
Nothing in sub-section (1) applies to leases exempted under the proviso to sub-section (1) of Section 17 or to any document mentioned in Sub-section (2) of the same section, or to any registered document which had not priority under the law in force at the commencement of this Act.
Explanation.--.In cases where Act No.XVI of 1864 or the Indian Registration Act, 1866 was in force in the place and at the time in and at which such unregistered document was executed, "unregistered" means not registered according to such Act, and, where the document is executed after the first day of July, 1871, not registered under the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act."
8. The petitioner has not bothered to prove her contention through convincing and positive evidence, as such, case of the petitioner is not falling within the exception of Section 50 of the Registration Act 1908 and Section 53-A of the Transfer of Property Act, 1882. Similarly , no advantage of the principle laid down, in case title Fazla Versus Mehr Din ( 1997 SCMR 837 ) wherein it is held that: - "It may be noted that first proviso to section 50(1) of the Registration Act gives protection to person in possession of the property under an unregistered docum ent, be it an agreement for sale or a contract of sale. It does not make any such distinction. The only condition is that it should be an unregistered document by a person in possession of the property under it and that he fulfils the conditions laid down in section 53-A of the Transfer of Property Act.
Applying this principle on the facts of the case, it is clear that the receipt/contract was a document of sale of the disputed property which was unregistered. The appellant was, therefore, entitled to the protection and rights under section 53-A of the Transfer of, Property Act."
9. Learned Courts bellow has rightly reached to the conclusion that the petitioner has not been able to prove her case on the basis of EX.PW2/1.
9. Another intriguing aspect of the instant revision petition is the non-impleadment of the parties who were arrayed before the trial Court as defendants. Though no decree was passed in their favour but when petitioner is seeking decree in term of order XII rule 6 CPC, 1908, then those were necessary party in appeal as well as in revision in absence of whom no decree could be granted against them. Reliance can be placed on the ratio of judgment of the august Supreme Court in case of Mst. Zubaida Imran versus Ch. Abdul Sattar and others (1994 SCMR 1134).
The learned counsel for the petitioner vehemently contended that the Courts below were required to pass a decree in term of Order-XII Rule 6 of CPC (1908). For convenience the provision of Order-XII Rule 6 of CPC is reproduced as under:- Order-XII Rule-6:- Judgment on admission.--Any party may, at any stage of a suit, where admissions of fact have been made, either in the pleadings, or otherwise, apply to the Court for such judgment or order as upon such admission she may be entitled to, without waiting for the determination of any other question between the parties; and the Court may upon such application make such order , or give such judgment, as the Court may think just.
10. No doubt, on the admission of the either of the parties, during pendency of the suit or at any stage, the plaintif f could apply for the decree on the basis of the admission so made during the proceedings. When all the defendants have accepted/admitted the claim of petitioner then there was no restriction imposed on them to get mutate the disputed property in petitioner 's favour . Even today the petitioner can get attest the mutation in her favour on the basis of the statement/cognovit of defendants' No. 2 to 8 and 12 to 25. Apart from the above the plea of the petitioner could be entertained before this Court if the parties who have submitted their cognovit would have been impleaded as respondents. By non-impleading/arraying all those who were parties before the trial Court, the revision petition to that extent is incompetent. Not only before this Court but even before the appellate Court, the rest of the defendants were not impleaded as respondents, as such, the appeal was not competently filed. It has been held by Lahore High Court in case titled Muhammad Siddique Versus Khuda Bakhsh (2007 YLR 2328 ), wherein it is held that: Here it may be reiterated that the petitioners in Civil Revision No.1185 of 2005 being the L.Rs. of Mehran Bibi were the beneficiaries of the decree of the trial Court and were also defendants in the declaratory suit, referred to above.
They were, therefore, necessary parties. Consequently , the omission of respondent' s Nos.l to 5, 9 and 10 to implead them as 1 respondent in their appeal rendered the appeal incompetent. If any support for this conclusion is required, reference may be made to the judgment in the case titled Shoaib Ahmad Faridi v. UBL (RFA No.244 of 2006) decided on 2-3-2007 and the case law referred to in the said judgment.
11. Moreover , one of the arguments of the learned counsel for the petitioner was that issues were not properly framed as inheritance mutation was challenged but no issue was framed to this effect by the learned trial Court.
This controversy has been laid to rest by the Supreme Court of Pakistan that after recording of evidence of the significance of framing or non-framing of issue losses its value. As the parties is aware of their pleadings then they could lead their best evidence before the Court. It has been held by the apex Court in case titled Fazal Muhammad Bhatti and another V ersus Mst. Saeeda Akhtar and 2 others ( 1993 SCMR 2018 ) wherein it is held;
4. The pleadings and the issues as origin ally framed show that the parties were fully aware what was the subject- matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non-fram ing of a specific issue in such circumstances is inconsequential. It was held by this Court in the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82) that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the " issues is not illegal. That has been the established law in the sub-continent as would appear from Sayed Muhammad v . Fatteh Muhammad (22 Indian Appeals 4).
12. There are concurrent findings of the Courts below without any misreading and non-reading of evidence, recently in Cantonment Board' s case ( 2014 SCMR 161 ) the apex court ruled that: "The scope of revision is narrow and requires the High Court to examine whether the courts below have failed to exercise jurisdiction so vested in them or have acted in exercise of its jurisdiction illegally or with material irregularity and have misread the evidence brought on record by the parties. In other words, the provisions of section 115, C.P.C. under which a High Court exercises its revisional jurisdiction, confer an exceptional and necessary power intended to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities. The revisional jurisdiction of the High Court cannot be invoked against conclusions of law or fact, which do not, in any way, affect the jurisdiction of the court which could only be set at naught when any misreading and non-reading would have been pointed out, which is lacking in the instant petition.
13. For the reasons stated above, the instant petition stands dismissed in limine, however , the petitioner would be at liberty to get attest mutation in her favour by producing the respondents before the revenue officer, if she so desire.