The parties to the present revision petition are closely inter-related. They are successors of Gahna.
Respondent No. 1 Sher Muhammad is his son while Karam Bibi petitioner No. 3 and Mst. Hanifa Bibi respondent No. 2 are his daughters. Muhammad A.I and Muhammad petitioners Nos. 1 and 2 are sons of Khushi Muhammad a pre-deceased son of Gahna while respondents Nos. 3 to namely Muhammad Mushtaq, Muhammad Iftikhar, Mst. Mukhtaran Bibi and --Mst. Mumtaz Bibi are the sons and daughters of Din Muhammad, another pre-deceased son of Gahna.
The dispute between them relates to 65 Kanals 7 Marlas of land situate in Raiwind, Tehsil and `District Lahore which belonged to Gahna, the predecessor of the parties. Respondents 1 to 6 claim that this land was gifted to them by Gahna through a registered deed of gift dated 19th of March, 1976 and they, as such, have become the owners of this land.
2. On 3rd of June, 1980 Gahna filed the present suit seeking cancellation of the gift deed alleging that he had never executed the same nor had he gifted the land to the petitioners. He claimed to be in possession of the land and stated that the gift was void and ineffective against his rights. The petitioners contested the suit by filing the written statement in which they pleaded that the land was in their possession as owners on the basis of the gift made in their favour by Gahna. During the pendency of the suit, Gahna died and the respondents were impleaded as the plaintiffs in his place.
3. The learned trial Court dismissed the suit on 17th of December, 1985 after holding that the gift deed dated 19th of March, 1976 had been executed by Gahna. As regards, the possession, it was found that petitioner No. 1 Muhammad A.I had been managing the affairs of the land and as such no delivery of physical possession was necessary. According to the trial Court, it was a peculiar case in which execution of gift also proved the delivery of possession. The learned Judge decided issues No. 5 and 6 regarding the execution of the decd and its validity against the plaintiff. Under issue No. 1 the suit was held to be barred by time. The trial Court, therefore, proceeded to dismiss the suit.
Dissatisfied with this decision, the respondents filed an appeal which was accepted by Mr. Yar Muhammad Nizami, Additional District Judge, Lahore on 16th of April, 1988. The learned Additional District Judge held that the gift deed Ex. P1 was not executed by Gahna and also that the possession of the land had not been delivered by the donor to the donees and for this reason too the gift was void. It was also found that the suit was filed within three years of the knowledge of the plaintiff and was, therefore, within time. The learned Additional District Judge reversed the judgment and decree of the trial Court and decreed the suit filed by the petitioners. This judgment and decree of the learned Additional District Judge has been assailed in this revision petition.
4. The learned counsel for the petitioners has contended that the learned Additional District Judge while reversing the findings of the trial Court had omitted to consider material evidence especially Khasre Girdawari, extract of the register of petition-writer and the statement of C.W.
1. The learned counsel for the petitioners has further contended that the findings of the learned Additional District Judge also suffer from misreading of evidence and were; therefore, liable to be interfered with. The learned counsel for the respondents has, however, argued that the revisional jurisdiction was confined to correction of jurisdictional errors and none has been pointed out by the petitioners.
According to the learned counsel, this Court cannot reappraise evidence and interfere in the finding of fact recorded by the Additional District Judge. The learned counsel for the respondents has also submitted that the evidence which has been allegedly ignored was not material for the decision of the case and, therefore, the omission to consider this evidence was of no consequence.
5. As regards the scope of revisional jurisdiction, it is well-settled that, he findings of fact recorded by the Courts below are not liable to be interfered with. However, if some material evidence has been misread or omitted from consideration or if a material irregularity resulting in miscarriage of justice has been committed by a subordinate Court, the High Court can interfere and correct the errors in the exercise of revisional jurisdiction. Reference in this connection may be made to Shaukat Nawaz v. Mansab Dad and another (1988 SCM R 851) wherein their Lordships were pleased to observe that:- "it is not always correct that the High Court will not interfere with the concurrent findings of the two Courts below in the exercise of its revisional jurisdiction under section 115, C.P.C. If it is found that the two Courts below, while giving their finding on a question of fact, have committed material irregularity or have omitted to read evidence on a point which has resulted in miscarriage of justice, the High Court will have the occasion to re-examine the question and give its own finding on that question in the exercise of revisional jurisdiction."
It is also to be noted that in the present case the findings on the question of fact are not concurrent but the learned lower appellate Court has taken a views contrary to that of the trial Court. Since the two findings are at variance, this Court is under a legal obligation to compare the findings of both the Courts for R their respective merits and to find out if the finding of the learned Additional District Judge is substantiated by the evidence on record.
6. The grievance of the learned counsel for the petitioners that the learned Additional District Judge while accepting the appeal had not adverted to the Khasra Girdawari Ex. D2, an extract from register of Wasiqa Nawees Ex. D1 and the statement of Muhammad Saeed Wahla who was examined as Court witness, appears to be correct. In view of this omission and also the fact that the judgments of the two Courts are at variance I have examined the evidence on C record and find that the findings arrived at by the learned Additional District Judge are correct and not liable to be interfered with. The evidence which has been ignored by the Additional District Judge, even if read, does not advance the case of the petitioners, as will be presently explained.
The dispute between the parties is confined mainly to two issues, firstly, about the execution of the deed of gift dated 19th of March, 1976 Ex. P1; secondly, the delivery of possession at the time of gift by Gahna. On examination of the entire evidence on the record I have come to the conclusion that both the questions are to' be answered against the petitioners and they cannot succeed in this revision petition.
7. In support of his case Gahna appeared as P.W. 3 and denied having executed the gift deed or delivered possession. He was supported by Haji Bashir Ahmad P.W. 1 and Sardar Muhammad P.W. 2 the tenant of the land at the time of the alleged gift. The petitioners on the other hand produced Abdul Sattar Nasir, Wasrqa Nawees as D.W. 1, Sarfraz Hussain Patwari as D.W. 2, Nawab Din as D.W.
3, Rana Faqir Muhammad D.W. 4, Waqar Arif Khan, Advocate as D.W. 5, Muhammad Munazzam Khan as D.W. 6, Muhammad Afzal Butt as D.W. 7 and Muhammad A.I as D.W.
8. Ex. Dl a copy of the extract from the register of Wasiqa Nawees, Ex. D2, copy of register Khasra Girdawari from 19? 7 to 198 ", Ex. D6 photostat of the gift deed from the Sub-Registrar's register were also produced in evidence.
8. Both in the plaint as also while appearing as P.W. 3 Gahna the alleged donor, had completely denied having executed the gift deed. In view of this denial the most important evidence was the original gift deed itself. Significantly, however, the original gift deed was not produced by the respondents either alongwith written statement or even subsequently when Gahna appeared as P.W.
3. The explanation for not producing this document given by the petitioners was that the same had been lost by Mgr. Arif Waqar Khan, Advocate, a son of their counsel, when he was travelling from Courts to his office on 16th of July, 1984. Mr. Arif Waqar Khan appeared as D.W. 5 and also produced copy of the report made to the police Ex. D5/1, dated 18th of July, 1984. From a perusal of the statement, it becomes clear that though he generally stated about the loss of briefs of some; case including the present one, he did not mention specifically that the brief contained the original gift deed. No question was put to this witness by respondents in this behalf. Similarly, in the report Ex. D 5/1, there is no mention of the original gift deed having been lost. The learned counsel for the petitioners when confronted with this position tried to explain that though the loss of the original document was not mentioned in the statement of the witness, yet in the applications for adjournment, dated 19th of July, 1984 and the application for permission to produce additional evidence this fact specifically finds mention. These applications are not signed by Mr. Arif Waqar Khan who had allegedly lost the document but by his father.. Furthermore, these applications are not supported by affidavit of Mr. Arif Waqar Khan or the original counsel. The applications are not part of evidence and cannot advance the case of the petitioners. It .Is, therefore, difficult for me to agree with the learned counsel for the petitioners that the loss of original document stands proved on the record.
9. Even if it be assumed, that the document was lost on 16th of July, 1984 as alleged by the petitioners, it was admittedly in their possession prior thereto when Gahna appeared as a witness and was examined on 25th of May, 1984. In view of the denial on oath of the execution of the document by Gahna while appearing as a witness it was incumbent upon the petitioners to have confronted him with his thumb impressions on the original document. Strangely enough this course of action was not followed nor any explanation for not doing so has been furnished by the petitioners. The only argument advanced by the learned counsel for the petitioners in this respect was that since the execution of document was being denied by Gahna, the petitioners were not obliged to produce the original document. I regret my inability to agree with the learned counsel. In Bal Gandadhar Tilk and others v. Shrinivas Pandit and others (AIR 1915 Privy Council 7) it was held that:- "On general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute.. This is a general, salutary and intelligible rule, and where a witness's reputation and character are at stake the duty of enforcing this rule would appear to he singularly clear."
"A witness cannot be disbelieved without his attention being drawn to the documents inconsistent with his deposition even though the documents were produced after his examination. In such a case he should be recalled for further cross-examination."
Similar view was taken by this Court in Rais Abdul Rehman v. Province of West Pakistan and another (PLD 1981 BJ 55) wherein it was observed that:- "The receipt was apparently not admissible in evidence, inasmuch as it was always in possession of the respondents but they did not confront it to Abdul Karim who was alleged to be the author thereof and who had appeared in the witness-box."
This proposition finds support from the authorities of the Supreme Court in Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160) and Sikandar Hayat and 4 others v.
Master Fazal Karim (PLD 1971 SC 730). The learned counsel has relied upon Malik Najib Ullah Khan etc. v. Saif Ullah etc. (1980 CLC 2155) to contend that no confrontation was required. The precedent case, however, proceeds on its own fact and the learned Judge, in that case distinguished the authority of the Supreme Court in Khan Muhammad Yousaf Khan Khatak's case and held the same to be not applicable to the fact of that case. Be that as it may, however, the facts remains that if the document was in possession of the petitioners, it was incumbent upon them to have produced it at proper stage and on account of failure to do so, an adverse presumption arises E against them. It is also to be noticed that DW4 Rana Faqir Muhammad the alleged marginal witness of the deed was also examined before the alleged loss of document on 16th of July 1984. Though this witness was generally asked about the execution of the deed but strangely enough the deed was not produced nor was shown his signatures or the thumb-impression of Gahna on it. When asked as to why it was not done, the learned counsel for the petitioners was not able to give any answer. I agree with the learned Additional District Judge that on account of failure of the petitioners to produce the document a strong presumption is to be drawn against the petitioners under Article 129 of Qanun-e---Shahadat Order, 1984.
The learned counsel for the petitioners has however, contended that since the document was a registered instrument, a presumption in favour of its execution by Gahna arose, under section 60 of Registration Act of 1908. This argument of learned counsel has no merit. As observed by the Privy Council in Gopal Das and another v. Sri Thakarji (AIR 1943 Privy Council 83), section 60 of the Registration Act does not dispense with the necessity of showing that the person admitting execution before the Registrar was not an imposter but the same person who was mentioned in the document as the executant. This question was also examined by this Court in Muhammad Sher and 2 others v. Muhammad Azim and others (PLD 1977 Lahore 729) where the facts were almost similar to one in hand. In the precedent case the original deed was not produced before the Court on the plea that the same had been lost and a certified ropy was produced in evidence. The Court however, felt it difficult to believe the loss of the original and held that it was for the person relying on the document to show that it was in fact executed by the proper person and further that he had in fact appeared before the Sub-Registrar.
10. In order to prove the execution of gift deed, the petitioners produced D1 Rana Faqir Muhammad who was allegedly a marginal witness of the document. In his cross-examination, he had stated that Gahna had thumb-marked plain papers and not stamp paper. He has further stated that the land had been leased out to Sardar tenant jointly by Muhammad A.I petitioner, and Gahna while according to statement of Sardar PW2, he was in possession since last 15-16 years as tenant under Gahna. This witness also deposed that he and Saeed Advocate had signed the gift deed but neither the name nor the signature of any Saeed Advocate appears on the document copy of which has been produced as Ex. P1. As regards the statement of Mr. Muhammad Saeed Wahla, Advocate who alleged identified Gahna before the Sub-Registrar, it is difficult to place any reliance on it. Although he claimed to be a practising lawyer but when asked as to how many briefs he was holding, he refused to answer the question. He denied the suggestion that he did not have any case before Courts but he did not state how many cases he was conducting. This witness is resident of Nawankot while Gahna was living in Raiwind. He could not explain as to how he came to know Gahna. He merely stated that he knew Gahna as he used to come to Court but purpose for doing so was not explained. Even otherwise in the absence of the original document, his statement becomes highly doubtful. It may, at this stage, be mentioned that the thumb-marks on the register of Sub-Registrar, as deposed by Registry Moharir DW6 had been tampered with and had been superimposed, with the result that these impressions were also rendered useless for the purpose of comparison.
The other witness produced by the petitioners was Muhammad Afzal 'Butt the scribe of the gift deed. He produced an extract from his register mark `A' on which according to him the thumb- impressions of Gahna appeared as A1 and A2. This document however, is not part of evidence as it was never exhibited. He was asked as to how he knew Gahna, the answer given was that he knew him because Gahna said so. The learned Additional District Judge in the absence of the original document, did not rely upon this witness and I also find no reason to disagree with him. The learned counsel for the petitioners submitted that since thumb-impression of Gahna was clear on the register of Wasiqa Nawees it could have got compared with the admitted thumb-impression of Gahna. This argument is, however, not of much avail especially when the original register was not proved to have been thumb-marked by Gahna nor was the register produced in evidence. Even its extract was not -got exhibited and was produced at a time when the respondents had already closed their evidence. If the petitioners were relying upon the extract or the register itself, it was for them to have got the thumb---impression compared with the admitted thumb-impression of Gahna. It is also significant to notice that the extract was produced at the time when Gahna was already dead.
I, therefore, find no valid reason for interfering in the finding of fact recorded by the lower appellate Court and after considering the entire evidence, am of the view that the petitioners had failed to prove the execution of gift decd in their favour by Gahna.
The second question arising in the case is regarding the delivery of possession at the time of gift.
This question, has also to be answered against the petitioners on the basis of the evidence on the record. It is an admitted fact between the parties that Sardar Muhammad PW2 was a tenant under Gahna at the time of the gift. He, while appearing as PW2 has specifically denied the factum of gift and also that he had ever attorned to the petitioners. His possession, as a tenant, stan recorded in the Khasra Girdawari Ex.D2, which has been produced by the petitioners themselves. The case of the petitioners in this behalf is that after the gift in their favour, Sardar Muhammad had executed a lease deed (Pats Nama) in their favour. It is significant to note that like the original gift deed this lease-deed or Pata Nama was not produced in evidence. Sardar Muhammad PW2 denied having executed any such document but again he was not confronted with his signatures on the document. No reason, as to why this document was not produced, has been furnished by the petitioners. The extract from the register of Wasiqa Nawees Abdul Sattar DW1 cannot, therefore, be relied upon. It is also interesting to note that though according to the case of the petitioners, Sardar Muhammad PW2 had executed a lease-deed but the extract Ex. D1 shows that the document was in the nature of some agreement or receipt but certainly not a lease-deed. Another important fact to be noticed is that according to the contents of the gift deed copy of which has been produced as Ex. P 1, the petitioners were placed in physical possession of the land. Similar statement was made by DW4 Rana Faqir Muhammad. However, it was admitted by petitioner No. 1 Muhammad A.I while appearing as his own witness that Sardar Muhammad was in possession for the last 10 years.
The learned trial Court in this behalf had held that no physical delivery of possession was necessary as the donees were already in possession of the land alongwith the donor. This finding, to say the least, is wholly untenable. It is not even the case of the petitioners themselves that they were in possession of the land before the gift but they on the other hand had asserted in the written statement as also in evidence delivery of possession which stands belied by the testimony of PW2 Sardar Muhammad. The reliance of the learned counsel on Khasra Girdawari Ex. P2, is not apt. This document mentions the physical possession of Sardar Muhammad and not the petitioners who are entered as owners on the basis of mutation in their favour and not as being in possession. The lower appellate Court was justified in holding that the delivery of possession in the present case has not been proved. The finding of fact recorded by the learned Additional District Judge is duly supported by the evidence on the record and the omission to consider the evidence pointed out earlier, does not in any way advance the case of the petitioners.
I, therefore, find no justification for interfering in the findings of the learned appellate Court.
The civil revision, therefore, fails and is dismissed with no order as to costs.