AHMAD NADEEM ARSHAD, J.---Through this civil revision petitioner has called in question the validity and legality of judgments and decrees dated 31.05.2014 and 14.01.2017 of learned courts below, whereby the suit of respondent No.1 for declaration was decreed concurrently.
2. Shorn of unnecessary details, respondent No.1/plaintiff on 02.12.2010 instituted a suit for declaration against his real sons (petitioner and respondent No.2) challenging registered Tamleek deed No.139 dated 31.01.2006 by contending therein that he is owner in possession of suit property; that he neither executed any Tamleek deed in favour of defendants nor appeared before the Sub- Registrar for attestation of the same; that neither he offered them to transfer the suit property through Tamleek nor delivered the possession of the same; that the defendants through fraud and misrepresentation got transferred the suit property in their names. Respondent No.2/defendant No.1 did not appear, therefore, an ex-parte proceedings were initiated against him on 05.01.2012.
The suit was hotly contested by the petitioner/ defendant No.2 through written statement wherein he raised certain legal as well as factual objections. Keeping in view the divergent pleadings of the parties, learned trial court framed necessary issues, invited the parties to produce their respective evidence and after recording evidence of the parties pro and contra, decreed the suit vide judgment and decree dated 31.05.2014. Feeling aggrieved, petitioner/defendant No.2 preferred an appeal which was dismissed by the learned appellate court vide judgment and decree dated 14.01.2017. Being dis-satisfied, he invoked the revisional jurisdiction of this Court through filing instant Civil Revision.
3. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.
4. Learned Trial Court summoned the respondent No.2 through citation in the newspaper vide order dated 18.11.2011 and adjourned the proceedings to 14.12.2011. Citation in the newspaper was published on 08.12.2011 whereby respondent No.2 was summoned for 14.12.2011 but the learned Trial Court did not proceed ex-parte against the respondent No.2 on the said date and initiated ex- parte proceedings against him on 05.01.2012 which was not the date of hearing mentioned in the citation.
5. Respondent No.1/plaintiff assailed the legality and propriety of registered gift deed No.139 dated 31.01.2006 on the oasis of fraud and mis-representation.
Petitioner refuted the allegations by submitting his written statement. Learned Trial Court, keeping in view the divergent stances of the parties framed issue No.1 in the following terms: "Whether the document of Tamleek No.139 dated 31.01.2006, Bahi No.1, cover No.456 is based on fraud and misrepresentation as well against the facts and law and if so, the same is liable to be set aside? OPP".
Learned Trial Court placed burden to prove of this issue upon respondent No.1/ plaintiff. In order to discharge such burden/onus, respondent No.1/ plaintiff got recorded his solitary statement as P.W.1 and in support of his version produced copy of registered Tamleek deed No.139 dated 31.01.2006 as Exh.P.1 and original electricity bill for the month of April 2012 as Exh.P.2.
6. In rebuttal, petitioner got recorded his statement as D.W.1 and produced Mian Abdul Majeed as D.W.2 and registry Moharrir namely Muhammad Hafeez as D.W.3 who produced the record of registered Tamleek deed No.139 dated 31.01.2006. In documentary evidence, petitioner produced copy of Tamleek deed No.139 as Exh.D.1. Copy of Tamleek deed No.140 dated 31.01.2006 whereby respondent No.1 transferred a plot of 12 Marlas to his daughter Mst. Rukhsana Kosar and plot measuring 10 Marlas to his daughter Shumaila Parveen as Exh.D.2, copy of mutation No.2075 dated 20.02.2006 sanctioned on the basis of registered Tamleek deed No.139 dated 31.01.2006 as Exh.D.3
7. Order VI, Rule 04, C.P.C. defines that in a case where the party relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, it is mandatory for him to state particulars of said. allegations in the pleadings. The object of the Rule is to enable the opposite party to know the case. Especially where fraud is the basis of the action or defense, its particulars have to be furnished to spell out a case of fraud and general allegations are insufficient. In order to establish fraud, it must be proved first that a representation was made; that the representation was untrue; that it was untrue to the knowledge the of the person making it and that it induce the contract. In pleadings, general allegations, however strong may be, the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. Fraud is not only to be alleged specifically in the pleadings but also to be proved by convicting and confidence inspiring evidence beyond any shadow of doubt.
8. From scanning of record, it appears that respondent No.1 levelled allegation of fraud without giving its details and particulars. In support of his allegation, he got recorded only his self-serving statement. In this way, he failed to discharge his initial onus. The respondent No.1 challenged the authenticity / sanctity of a registered document (Tamleek deed) by levelling allegation of fraud and mis-representation that the same was got procured by the petitioner and respondent No.2 with the connivance of Sub-Registrar. In this way, allegation of fraud and mis-representation has been levelled against Sub-Registrar. In this eventuality, in my view, the Province of Punjab as well as the Sub-Registrar, who registered the Tamleek deed were necessary party. Admittedly, neither the Province of Punjab nor the Sub-Registrar are arrayed as defendants in the suit, the suit was defective one and admittedly a decree cannot be passed against a person who is not a party to the lis before the Court.
9. Respondent No.1 challenged the registered Tamleek deed by instituting the suit. Presumption of truth and sanctity is attached to a registered document and strong piece of evidence is required to cast aspersion on its genuineness. Bare words could not dislodge the said presumption. Although, such presumption was rebuttable, but for the rebuttal a party must produce evidence on the basis of standard as set-forth by august Supreme Court of Pakistan. Respondent No.1/plaintiff failed to dislodge said presumption by adducing evidence of unimpeachable character.
10. Perusal of registered Tamleek deed No.139 dated 31.01.2006 (Ex h. P. 1/Exh. D.1) shows that respondent No. 1/plaintiff transferred two plots in favour of his two sons. Plot No.1 measuring 04 Marlas was transferred to respondent No.2 namely Muhammad Shakeel, whereas, plot No.2 measuring 07 Marlas was transferred to the petitioner. This Tamleek deed was written on a stamp paper valuing Rs.1000/- (Rs.500/-, Rs.300/- and Rs.200/-) which were issued in the name of respondent No.1 for execution of Tamleek deed in favour of petitioner and respondent No.2. It also bears his signatures at the backside of stamp paper. Said Tamleek deed was executed on 31.01.2006 and witnessed by Raiz Ahmad son of Abdul Karim, Chiragh Muhammad son of Sharaf Deen. National Identity Card numbers and signatures of executant as well as attesting witnesses were recorded at the end of writing. This deed was scribed by Azeez Ullah Wasiqa Navees who not only put his seal but also incorporated in his register at serial No.278. At the time of registration, said attesting witnesses namely Riaz Ahmad and Chiragh Muhammad identified the executant Muhammad Rafique (respondent No.1) before the Sub-Registrar. Thumb impression of respondent No.1 were affixed twice before the Sub-Registrar and identifiers also put their thumb impressions.
Sub-Registrar also gave a note that parties put their thumb impressions before him. Presence of the donees was neither marked at, the time of execution of the gift deed nor before the Sub- Registrar and on their behalf Sajjad Hussain appeared as their representative who put his thumb impression. Sub-Registrar registered the document on 31.01.2006 which was incorporated in the register Bahi No.1 at serial No.139. This fact was strengthened by D.W.3 Muhammad Hafeez Registry Moharrir who appeared in the witness box along with record and supported the valid execution of Exh.P.1/Exh.D. Petitioner produced another registered Tamleek deed No.140 dated 31.01.2006 as Exh.D.2 Perusal of said deed it appears that on the same day i.e. 31.01.2006, respondent No.1 transferred plot No.1 measuring 12 Marlas in favour of his daughter namely Mst. Rukhsana Kosar and plot measuring 10 Marlas in favour of his second daughter namely Mst. Shumaila Parveen. Said document was scribed by the same scriber Azeez Ullah who entered it in his register at serial No.277. This registered" deedwas also witnessed by the same persons namely Riaz Ahmad and Chiragh Muhammad. National Identity Card numbers of executants and witnesses as well as their signatures were available on the said deed. Respondent No.1 was also identified by the said witnesses namely Riaz Ahmad and Chiragh Muhammad before the Sub-Registrar. Their National Identity Card numbers were incorporated at the time of registration and thumb impression of executant Muhammad Rafique as well as his identifiers are also available on the said deed.
Donees i.e. Mst. Rukhsana Kosar and Mst. Shumaila Parveen were represented by same person namely Sajjad Hussain. Respondent No.1 did not challenge the said Tamleek deed executed in favour of his daughters but assailed the sanctity of Tamleek deed executed in favour of his sons.
Presence of two similar nature of documents one in favour of the donor's sons and second in favour of donor's daughters creates doubts about the stance of respondent No. 1/plaintiff that he did not get execute the disputed Tamleek deed. It is common practice in our society that father distribute his property to his legal heirs during his lifetime in order to avoid future complications. It seems that after execution of the registered Tamleek deed behavior of the donees towards their father became hostile which annoyed him and he challenged the Tamleek deed through instituting the suit. Respondent No.2 did not contest the suit which redressed the grievance of respondent No.1 and after the decree he transferred the whole suit property to his name through registered Tamleek deed No.841 dated 15.02.2017 followed by mutation No.3625 dated 20.03.2017.
11. Petitioner moved an application (C.M. No.1-C of 2017) under Order VI Rule 17 seeking amendment in the written statement in this revision petition. This Court vide order dated 13.03.2017 issued notice of this application to the respondents. Respondent No.1 tiled its contesting written reply. Petitioner also moved an application (C.M. No.1166-C of 2017) for placing on record Tamleek deed No.841 dated 15.02.2017 whereby respondent No.1 transferred the suit plots measuring 11 Marlas to respondent No.2 and mutation No.3625 dated 20.03.2017 sanctioned on the basis of said registered Tamleek deed. This Court vide order dated 02.05.2017 issued notice of this application to the other side.
This Court is going to remand the matter to the learned Trial Court for decision afresh through instant judgment, therefore, no need to pass any specific order upon said applications. However, parties are at liberty to move any type of application which will be required to do complete justice between the parties.
12. Petitioner during the pendency of the suit moved an application for comparison of signatures as well as thumb impression of the respondent No.1 available on the registered Tamleek deed (Exh.P.1/Exh.D.1). Learned Trial Court without getting its reply dismissed the same vide order dated 31.05.2014 on the ground that it was moved at a belated stage.
13. Petitioner also moved an application (C.M. No.1247-C of 2017) seeking an order for sending the thumb impressions and signatures of respondent No.1 with his admitted thumb impressions and signatures to the handwriting/ fingerprint expert for comparison. Respondent No.1 filed its contesting written reply.
14. Respondent No.1 categorically denied his signatures as well as thumb impressions available on the registered gift deed (Exh.P.1/Exh.D.1) and thumb impressions attributed to him made at the time of registration of said deed. Although, learned counsel representing legal heirs of respondent No.1 contended that respondent No.1 has been died, therefore, his specimen thumb impressions and signatures could not be obtained but there could be many other documents like the record of national registration office or the registered Tamleek deed No.140 where the respondent No.1 did not challenge his signatures as well as thumb impressions, which can be used for comparison.
Therefore, the alleged thumb impressions and signatures can easily be verified by comparison with the admitted signatures/thumb impressions.
In case of any dispute regarding genuineness of signatures/thumb impressions, Articles 59 and 84 of the Qanun-e-Shahadat Order, 1984 are enabling provisions of law. Refusal to get comparison of thumb impressions and the signatures amounts to negation of justice. The report of finger print and handwriting experts are always open to objection by either side. There will be no harm to any party rather it will be appropriate and imperative to reach a just and proper conclusion that signatures and thumb impressions will be got compared. Therefore, reaching a fair conclusion is more and more necessary for soothing the litigants rather than to deliver a wrong decision hurriedly.
As the respondent No.1 strongly and vehemently denied his signatures as well as thumb impressions, therefore, it is appropriate to get compare said signatures as well as thumb impressions through Forensic Science Laboratory.
15. Evidence available on the record is not of the class which could prove the respective claims of the parties. Record shows that the case was badly conducted not only from the respondent No.1 's side but also from the petitioner side. All the relevant evidence was not brought on record.
Therefore, it is a fit case to be remanded to the learned Trial Court for decision afresh.
16. For the foregoing reasons without commenting upon the merits of the case. this revision petition is allowed. Consequently, impugned judgments and decrees dated 31.05.2014 and 14.01.2017 of the Courts below are set-aside and case is remanded to the learned Trial Court. Parties are at liberty to amend their pleadings, if so desired, and can also lead further evidence in support of their respective claims. Besides this, learned Trial Court shall also send impugned Tamleek deed No.139 dated 31.01.2006 as well as Tamleek deed No.140 of even date for comparison of signatures/thumb impressions of respondent No. 1. If original deeds are not available then learned Trial Court shall do this exercise by calling original record from the office of Sub-Registrar regarding said deeds. Any other 'document bearing admitted signatures/thumb impressions of respondent No.1 may also be sent for comparison to the expert/Punjab Forensic Science Agency as per prescribed procedure and thereafter suit be decided afresh in the light of further evidence adduced by the parties and report of P.F.S.A. Needless to mention here that Tamleek deed No.841 dated 15.02.2017 followed by mutation No.3625 dated 20.03.2017 have lost its sanctity as the judgments and decrees passed in favour of respondent No.1 have been set aside and he has not remained owner of suit property to alienate it further.
17. Parties are directed to appears before learned District Judge Muzaffargarh, on 10.01.2023 who shall entrust the matter to the Court of competent jurisdiction at Tehsil Kot Addu. Learned Trial Court shall decide the matter expeditiously, preferably within a period of 06 months after receipt of certified copy of this order.