SHAHID BILAL HASSAN, J. This single judgment will decide the captioned revision petition as well as connected C.Rs. bearing Nos. 64972 of 2020, 9062 of 2021 and 4430 of 2021, as one and the same judgments and decrees have been called into question in all the revision petitions.
2. Succinctly, the present respondents Nos. 1 to 4 instituted a suit for declaration and partition on 05.07.1997. The present respondents Nos.7 to 10 also instituted another suit for declaration and partition on 13.05.1998 with regards to the suit property. In both the suits, the respondents/plaintiffs have sought declaratory decree with partition of the suit property: movable and immovable of late Tahawar Ali Khan and also sought revocation of succession certificate dated 12.12.1997 regarding movable property of the said Tahawar Ali Khan. The petitioners in all revision petitions contested the suits and prayed for dismissal of the same. Both the suits and application for revocation of succession certificate were consolidated by the learned trial Court and out of divergent pleadings of the parties consolidated issues were framed. Both the parties led their oral as well as documentary evidence in pro and contra. On conclusion of trial, the learned Trial Court vide impugned judgment and decree dated 19.06.2007 decreed the suits as such:- 'In view of the facts discussed above, suit of the plaintiffs as well as defendants Nos.9 to 12 are hereby decreed in their favour to the effect that all of the gift deeds allegedly executed by Tahawar Ali Khan deceased in favour of Kaman Tahawar, Sohail Nasir and Jamal Nasir, Sultan Tahawar and Aalam Tahawar are false and baseless documents as the same have been fabricated by them by way of fraud, forgery and misrepresentation with the active assistance of Shaiq Siddiquee Advocate, who acted as local commissioner without proof or any justification for his appointment as such. Therefore, all of the aforementioned documents are hereby cancelled.
Moreover the registered gift deed in favour of Azam Tahawar too has been proved to be false and baseless as the aforesaid Azam Tahawar has failed to prove its execution in accordance with law.
However, no evidence has been produced to prove that the document was prepared by way of forgery or fraud; and the aforesaid Azam Tahawar cannot be made criminally liable for fabricating a false gift deed merely on the ground of his failure to prove the document because proof of involvement in fabricating a document is one thing while failure to prove the execution of a document is another. Therefore, criminal proceedings against the defendants Nos.2 to 5 and 7 and the aforesaid Shafiq Siddiqui Advocate may be initiated under relevant provisions of Pakistan Penal Code as it has become evident that all of them got false and fabricated gift deed executed by way of fraud and forgery and used the document to get monetary gains as well as to deprive the plaintiffs and defendants Nos.9 to 12 of their due share in the suit-property. Therefore, all of the gift deeds in favour of defendants Nos.2 to 7 are hereby cancelled and they will have no legal effect upon the rights of the plaintiffs and defendants Nos. 9 to 12.
However, the plaintiffs claim on the basis of legal status of Mst. Akbari Khanum as one of the Directors of International Publishers is not tenable in view of the evidence on the record, therefore, the part of the plaintiffs suit relating to their claim regarding ownership of a share of the suit-land as one of the Directors is hereby dismissed.
While deciding issue No.9 it was proved that the succession certificate issued on 12.12.1997 was based on fraud and misrepresentation, therefore, the application filed by defendants Nos.9 to 12 for revocation of the aforementioned succession certificate under section 383 of Succession Act, 1925 is hereby accepted and the impugned succession certificate is hereby revoked and the defendants Nos. 9 to 12 are entitled to get the share of the movable assets bequeathed by the deceased. Therefore, both Sohail Nasir and Jamal Nasir defendants Nos.3 and 4 are hereby required to deposit the remaining sum of the amount drawn by them from the account of Tahawar Ali Khan at Grindlays Bank and the amount drawn from the court which was deposited by Sohail Shafique as arrears of rent, after deducting their share as one of the heirs of Tahawar Ali Khan. Since all of the gift deeds in favour of defendants Nos.2 to 7 are hereby declared as null and void and in-operative upon the rights of the plaintiffs as well as defendants Nos.9 to 12, and in the course of determination of issue No.10 it was proved that Late Tahawar Ali Khan was owner of movable as well as immovable property which included the residential portion of the suit- property comprised in plot No.129-E.1 Gulberg III Lahore, commercial portion of the suit-property known as Tahawar Plaza comprised in plot No.129-B/E.1 Gulberg III Lahore, an amount of Rs.85, 715/- deposited by the deceased in his account No.1161638556 at Grind Lays Bank Gulberg Lahore, a sum of Rs.300,000/- deposited by Sohail Shafique as arrears of rent during the proceedings of ejectment petition titled Tahawar Ali Khan v. Sohail Shafique, the royalty of books Biographical Encyclopedia of Pakistan and Man eaters of Sunder bens, therefore, the plaintiffs as well as the defendants Nos. 9 to 12 are entitled to get their share in the movable as well as immovable assets left by the deceased according to law of inheritance.
Since the suit-property of the buildings comprised in plots No.129/E.1 (residential portion) and plot No.129-B/E.1 (commercial portion-Tahawar Plaza), therefore, a preliminary decree of the partition is hereby issued in favour of the parries holding them entitled to the ownership as well as possession of their share of the suit property as prescribed by law of inheritance.
The record shows that the defendants have produced Ex./P.W.8/D.1 and Ex./P.W.8/D.2 which is copy of an agreement to sell executed by Tahawar Ali Khan in favour of Mian Ahmad Irfan and a registered sale deed in favour of Raziq International through its Chief Executive namely Mr. Nadeem Khan. Both of the documents shall have no legal effect upon the rights of the parties as discussed while deciding issue No.10. However, Mian Ahmad Irfan will have an option of filing a suit for specific performance of an agreement to sell, while Nadeem Khan Chief Executive of Raziq International is hereby directed to get his right declared by filing a suit for declaration on the basis of the alleged sale deed. Moreover, the money deposited by Tradex Private Limited as rent shall he distributed among the parties according to their lawful shares while the amount deposited by Mian Ahmad Irfan or Tradex are hereby entitled to get the amount deposited by him in pursuance of the alleged agreement to sell, refunded, in accordance with law. While all of transfers of different portion of the suit property made after filing of the main suit titled Mst. Mumtaz Tahawar and others v. Liaqat Sultan and others on 05.07.1997 shall be considered as null and void and in- operative upon the rights of the plaintiffs as well as defendants Nos.9 to 12 by virtue of the doctrine of lis-pendence as envisaged in section 52 of Transfer of Property Act.
Therefore Mr. Sajjad Aslam Virrak Advocate, Butar Law Chambers, 105-Al-falah Building, The Mall, Lahore is hereby appointed as local commissioner. He is hereby directed to conduct a local inspection of both residential as well as commercial part of the suit-property and to prepare a detailed report regarding his proposals as to the partition of both of the portions of the suit- property. The report must include the site-plans enumerating the separate schemes of partition of both residential as well as commercial areas. His fees is hereby fixed as Rs.48,000/- which shall be paid by all the parties at the rate of Rs.3000/- each. The record shows that the plaintiffs as well as defendants Nos.9 to 12 were kept deprived of their due share of the suit-property by the malicious acts of defendants Nos.1 to 8 and the latter had been receiving rent of different portions of the suit-property, even in excess to the area mentioned in the aforementioned forged gift deeds. The record shows that the aforesaid defendants were directed to deposit the rents of different portions of the suit property received by them individually, in the court and in this regard specific directions were issued by the Civil as well as District Courts but no such order was complied with. Moreover, the court appointed Receiver for the said purpose on 10.10.2000 but the Receiver prayed for the revocation of his appointment vide his statement dated 17.04.2001 and once again the matter was ignored. Therefore, the aforesaid Sajjad Aslam Virrak Butar Law Chambers 105 Al-falah Building, The Mall, Lahore shall also act as a receiver of commercial part of the suit-property under Order XL of C.P.C. and whole of the building of the Tahawar Plaza is hereby committed to the possession, control as well as management of the Receiver. Learned Receiver shall be entitled to collect rentals of different portions of Tahawar Plaza by 5th of each month and shall be bound to deposit the same in the Court along with Statement of accounts by 10th of every month and all of the shareholders shall be entitled to draw their share of the monthly rent of the suit-property in accordance with law and the Receiver shall be entitled to the monthly remuneration which shall be equal to 2 per cent of the amount of rent recovered each month. Robkar be issued to the local commissioner requiring him to do the needful. Receiver shall exercise the same powers and perform the same functions as may be performed or exercised by a landlord appointed for collection of rent under the Punjab Urban Rem Restriction Ordinance. The arrangement shall remain till the issuance of final decree of partition of the suit property.......
3. Being aggrieved of the said judgment and decree, the defendants/petitioners and other defendants preferred nine (9) appeals. The learned appellate Court vide impugned consolidated judgment and decree dated 16.09.2020 modified the judgment and decree passed by the learned trial Court to the extent that sale deed in favour of Raaziq International (Pvt.) Limited through its Chief Executive Mr. Muhammad Nadeem Khan cannot be cancelled without impleading him as party to the suit, therefore, judgment of learned trial Court to this extent was set aside. One appeal titled "Liaquat Sultana and others v. Mst. Mumtaz Tahawar and others", two appeals titled "Kamran Tahawar and others v. Akbari Khanum and others", two appeals titled "International Publishers and others v. Kamran Tahawar and others" were dismissed whereas appeals titled "Messrs Raaziq International and others v. Naushaba Akhtar and others" and "Raaziq International and others v. Mumtaz Tahawar and others" were accepted.
4. Feeling aggrieved by the said judgments and decrees, the revision petition in hand as well as connected C.Rs. Nos.64972 of 2020, 9062 of 2021 and 4430 of 2021 have been filed by the petitioners.
5. Heard.
6. Status of the defendants Nos.9 to 12 being legal heirs of the late Tahawar Ali Khan is an undisputed right now because the same has been established from the orders of this Court dated 02.03.2001, available on the record as Ex.D10, which divulges that all the parties have admitted and accepted the status of the said defendants Nos.9 to 12 as legal heirs of late Tahawar Ali Khan in C.R.
No.261 of 2001; therefore, keeping in view the said factum as well as other evidence in the shape of admission of the P.W.8 and D.W.1, the learned Courts below have judiciously and rightly adjudicated upon the, matter on this issue, so the findings on this score are upheld and maintained.
7. So far as the second question that Mst. Akbari Khanum was one of the Director of International Publishers is concerned, it is observed that when evidenee of the parties has been pondered upon, it has surfaced that Tahawar Ali Khan (late), during his life time, used the letter head pad of the said company for the purpose of correspondence with various department and he used to run the same solely. No documentary proof has been brought on record depicting or showing that any portion of the suit property was in the name of the said company i.e. International Publishers and Mst. Akbari Khanum with Maqsood Ali Khan were Directors whereas the late Tahawar Ali Khan was Managing Director, because the documents Ex.P3/3 and Ex.P.W.8/D-1 do not support the said stance, rather it has emerged that the said documents were executed by late Tahawar Ali Khan in his personal capacity and not as a Managing Director of the said company. Moreover, no rules of business or any resolution, appointing the said Akbari Khanum and Maqsood Ali Khan as Directors has been brought on record. In this regard, the learned Courts below have rightly appreciated the document Ex.D12, certified copy of order dated 23.12.2000 passed by the learned Addl. District Judge, Lahore during proceedings of an appeal, wherein one of the alleged Director appeared and recorded his statement that he had no concern and interest with the suit property, so his name was deleted as one of the promoter of the International Publishers by the said Court. Apart from this, not an iota of evidence has been brought on record showing that said Akbari Khanum and Maqood Ali Khan ever made any investment in the said alleged Company and nothing has been brought to show that the said persons ever performed their duties as Directors of the said alleged company. In this view of the matter, the learned Courts below have rightly reached to a conclusion that the said company was only in papers and was used as a reference during correspondence with the third parties and no portion of the disputed property i.e. Tahawar Plaza was in the name of the said Company/International Publishers (Pvt.) Limited. In this view of the matter, the findings recorded by the learned Courts below after evaluating evidence of the parties in a minute manner on this issue are upheld and maintained.
8. The question with regards to gifting of some portions of the disputed property i.e. Tahawar Plaza is concerned, it is observed that ingredients for a valid gift are: offer, acceptance and delivery of possession. When sanctity of a gift is challenged or called into question especially on the basis of fraud and misrepresentation, the beneficiary has not only to prove the valid execution of gift deed or mutation but also the original transaction. Reliance is placed on judgment reported as Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417). The gift deeds Ex.D2 dated 18.01.1997 and Ex.D3 dated 17.09.1996, allegedly executed in favour of Kamran Tahawar and Sohail Nasir, though are registered documents and presumption of correctness are attached to them, but it is a settled principle of law, as observed above, that when sanctity of such a document is challenged, the beneficiary has not only to prove the said document but also the original transaction. However, in the present case, it is observed that the beneficiaries i.e. Karman Tahawar, Sohail Nasir, Jamal Nasir, Sultan Tahawar and Aalam Tahawar have not only miserably failed to prove the original transaction of gift but also the subsequent transaction of registered gift deeds because late Tahawar Ali Khan admittedly died on 06.01.1997 (Ex.D.W.8/4, whereas alleged gift deed in favour of Kamran Tahawar was executed on 13.01.1997 through Muhammad Shaiq Siddiqui Advocate as local commission and the said document has signatures and thumb impressions of late Tahawar Ali Khan, which cannot be said anything but a fraud and misrepresentation because when a person has died on 06.01.1997, how he can make his signatures and put his thumb impressions on 13.01.1997. Ex.D3 is the alleged gift deed in favour of Sohail Nasir but he also could not prove the original transaction as well as the execution of registered gift deed by producing the marginal witnesses and the revenue officer. Same remained the position with documents Ex.D19 and Ex.D27 to Ex.D29, gift deeds in favour of Jamal Nasir, Sultan Tahawar, Azam Tahawar and Aalam Tahawar. Only one marginal witness namely Khursheed Alam with regards to gift deed in favour of Azam Tahawar and Haroon Shafique marginal witness germane to gift deed in favour of Aalam Tahawar besides Muhammad Shaiq Siddiqui, Advocate, local commission have been produced, whereas law requires that in order to prove valid execution of a document, at least two truthful witnesses are to be produced, as has been enunciated under Article 79 of the Qanun-e-Shahadat Order, 1984. Even, Azam Tahawar, alleged donee of Ex.D16 did not enter into the witness box so as to corroborate his stance and also did not produce the local commission in whose presence the document was executed and the marginal witnesses signed it. The alleged marginal witness of Ex.D16 namely Khursheed Alam D.W.5 deposed that the alleged gift deed was not written down in his presence. Same remained the situation with Ex. D17 and Ex. D18, gift deeds in favour of Jamal Nasir and Sultan Tahawar, because M. Shaiq Siddiqui Advocate not only purchased the stamp papers for execution of gift deeds but also was an identifier and one of the marginal witness of the said documents. The other marginal witness was clerk of the said M. Shaiq Siddiqui Advocate, meaning thereby the 'documents have been executed with active collusion of the said M. Shaiq Siddiqui Advocate in order to deprive of other legal heirs of Tahawar Ali Khan (late), for some worldly gains. In this view of the matter, the learned Courts below after evaluating and discussing evidence of the parties, oral as well as documentary, in a minute manner have reached to a just conclusion that the gift deeds in favour of Kamran Tahawar, Sohail Nasir, Jamal Nasir, Sultan Tahawar, Azam Tahawar and Alam Tahawar were based on fraud and have rightly been declared as illegal, forged and fabricated documents. The findings on this point, being upto the dexterity, are also upheld and maintained.
9. Question with regards to alienation of a portion of his property measuring 2456' 11" Sq. feet of the commercial building for a construction of Rs.800,000/- in favour of Raaziq International (Pvt.)
Limited through its Chief Executive Mr. Muhammad Nadeem Khan in the year 1994 by late Tahawar Ali Khan vide Ex.D.W.8/D-2, has rightly been adjudicated upon by the learned appellate Court vide impugned judgment and decree dated 16.09.2020, because when the said Raaziq International (Pvt.) Limited through its Chief Executive Mr. Muhammad Nadeem Khan has not been impleaded as party to the suit and has not been provided with an opportunity to defend himself, no adverse order can be passed against him, as it would amount to condemn him unheard, which is not requirement of law, rather free and fair opportunity of defending and presenting one's case has to be provided.
10. Matter germane to revocation of succession certificate issued on 12.12.1997, keeping in view the factum that defendants Nos.9 to 12 are also legal heirs of late Tahawar Ali Khan, has also rightly been adjudged by the learned Courts below, because the said succession certificate was obtained by concealing true facts from the Court, seized of the matter. In this view of the matter, no illegality and irregularity has been committed by the learned Courts below while passing the impugned judgments and decrees.
11. In addition to the above, the concurrent findings on facts cannot be disturbed when the same do not suffer from any misreading and non-reading of evidence, howsoever erroneous in exercise of revisional jurisdiction under section 115, Code of Civil Procedure, 1908; reliance is placed on Mst.
Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Cantonment Board through Executive Officer, Cantt Board Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Muhammad Farid Khan v. Muhammad Ibrahim and others (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21) wherein it has been held:- `There is a difference between the misreading, non-reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.'
12. Pursuant to the above, when there appears no illegality and irregularity as well as wrong exercise of jurisdiction, the revision petition in hand as well as connected C.Rs. bearing Nos. 64972 of 2020, 9062 of 2021 and 4430 of 2021 being without any force and substance, are dismissed. No order as to the costs.