This judgment will also dispose of R.SA. No,143 of 1985 which is also directed against the same judgment and decree of the learned lower appellate Court.
2. This is defendant's second appeal directed against the judgment and decree dated 16-12-1984 passed by the learned Additional District Judge, Lahore. The facts forming the background of legation between the parties necessary for disposal of the appeal shortly stated are as under:- Haji Muhammad Hussain predecessor-in-interest of the parties died on 1-7-1969. Respondents No,1 to 5 filed a suit against the present appellant for administration, partition and rendition of accounts etc. Of the properties left by the said Haji Muhammad Hussain deceased. Respondents No,1 to 4 and the present appellant are the sons whereas respondent No,5 is the daughter of Haji Muhammad Hussain deceased. Respondent No,6 namely Bilquis Sultana is the daughter of Mst.
Inayat Begum the other pre-deceased daughter of Haji Muhammad Hussain, as such, she having been found to be entitled to inherit the properties of Haji Muhammad Hussain to the extent of share of her deceased mother under the Muslim Family Laws of 1961, was ordered to be impleaded as one of the defendants in the suit by the learned lower appellate Court. According to averments in the plaint the case of respondents No,1 to 5 was that Haji Muhammad Hussain deceased left behind the following properties:-
(a) A plot of land measuring 2 kanals 19 marlas bearing khasra No,2124/38 situated at Begum Kot, Lahore.
(b) A plot of land measuring 6 kanals 4 marlas bearing khasra No,29/1/1 and 4/2 situated at Mauza Dacca, District Sheikhupura;
(c) House No,D/753, situated in Lohari Mandi, Phullanwali Gali, Lahore. It was stated that mortgagee rights in the said house were purchased by Haji Muhammad Hussain deceased which had not been redeemed within a period of limitation, therefore, he had become owner thereof. Apart from this it was also averred that Haji Muhammad Hussain owned land measuring 17 marlas situated in village Begum Kot, Lahore.
(d) House No,D/13 situated at Chowk Jhanda, Lahore.
The suit was contested by the present appellant. He took a number of preliminary objections.
Regarding the properties mentioned above he took up the following stand:--
(i) Property measuring 6 kanals 4 marlas bearing Khasra No,29/1/1 and 4/2 did not belong to Haji Muhammad Hussain deceased at the time of his death, therefore, an objection was taken that no question of its administration, partition and rendition of accounts arose at all. It was not, however, specifically stated in sab-para (a) of Para 2 of written statement that this property was owned by the appellant;
(ii) About property measuring 2 kanals 19 marlas bearing Khasra No,2124/38 the plea raised by the appellant was that Haji Muhammad Hussain deceased in his lifetime transferred this property in the name of Firm Sharif Sons which was subsequently dissolved as a consequence of which all the assets of the Firm including the said property became the exclusive property of the present appellant, as such, at the time of his death the deceased had no right, title or interest in the said land;
(iii) It was admitted by the appellant that House No,D/13 situated in Chowk Jhanda, Lahore, was still a joint property. It was, however, averred that the appellant was only in possession of a small room on the ground floor of the said house and the rest of it was occupied by the plaintiffs and as such they were liable to account for rents received by them in respect of the said property; Regarding house bearing No,D/753 the case of the appellant was that it was still under a mortgage and Haji Muhammad Hussain deceased at the time of his death did not become its full owner. It was averred that the said house was owned by Mst. Wazir Begum and her daughter Irshad Begum the ex-wife of the present appellant which was mortgaged with one Muhammad Hussain whose mortgagee rights were purchased by the appellant in the name of Haji Muhammad Hussain deceased as such Haji Muhammad Hussain was alleged to be a. Benami mortgagee, whereas the actual mortgagee was the present appellant. The appellant also alleged that he had spent a sum of Rs,25,000 on the repairs and maintenance of this house. It was also alleged that Haji Muhammad Hussain in his lifetime acknowledged that the appellant was the real mortgagee and he was really a benamidar. Regarding land measuring 17 marlas situated in village Begurn Kot Lahore, the case pleaded by the appellant was that the same was purchased by him from its previous owner namely Pir Bakhsh son of Taleh Mand through registered sale deed dated 8-5-1941 as such, it was not owned by Haji Muhammad Hussain who had no right, interest or any entitlement in this piece of land.
3. It was admitted position that property bearing No,D/587 was owned by late Mst. Zainab Bibi the mother of the appellant and respondents No,1 to 5 who died in the year 1958.
4. On the pleadings of the parties the learned trial Court framed the following issues:-
(1) Whether the suit is bad for non-joinder of necessary parties? OPD
(2) Whether the plaint is not properly verified? If so, its effect? OPD
(3) Whether the plaint cannot proceed because of non-signing of the plaint? OPD
(4) Whether the plaint does not disclose any cause of action? OPD
(5) Whether the plaintiffs are entitled to a decree for administration, rendition of accounts and partition of property is prayed for? OPP
(6) Who is accounting party? OP Parties
(7) Whether the details of the disputed properties are incorrect, if so, what are the details of actual property left by the deceased and who are in its possession and control? OPD
(8) Relief.
In support of their case respondents No,1 to 5/plaintiffs examined Abdur Rashid as PW.1, Akbar Hussain one of the plaintiffs examined himself as PW.2 whereas Mahmood Hussain plaintiff No,2 examined himself as PW.3. Apart from this oral evidence the plaintiffs also produced documents such as copy of Jamabandi regarding land measuring 6 kanals 4 marlas as Ex.P.1 and a copy of Writ Petition No,133 of 1980 as Ex.P.2. Copies of documents attached with the said writ petition were produced as Ex.P.2/1 to Ex.P.2/4 whereas Jamabandi regarding land measuring 2 kanals 19 marlas was produced as Ex.P.3.
5. On the other hand the present appellant examined Kh. Abu Tahir as DW.1 (he was examined twice), Subaktageen Dar as DW.2, Muhammad Anwar as DW.3, Muhammad Yousaf as DW.4 and Muhammad Latif as DW.5 and the appellant examined himself as his own witness as DW.6. After the close of evidence of the present appellant the respondents No,1 to 5/plaintiffs examined S.M.K.
Lodhi as PW.4 and Iftikhar Hussain as PW.5. Besides this oral evidence the appellant produced documentary evidence consisting of Ex.D.1, Ex.D.1/1, Ex.D.2, Ex.D.2/1-3, Ex.D.4 and Ex.D.5. Apart from these documents copy of sale-deed dated 18-8-1965 of land measuring 3 kanals 16 marlas was marked as D.1, copy of the registration form dated 9-12-1963 was marked as D.2, and copy of mutation of land measuring 17 marlas dated 23-6-1943 was marked as D.3.
6. Issues No,2, 3 and 4 the onus of which was on the present appellant were not pressed by his learned counsel who made statement to that effect before the learned trial Court on 27-10-1982.
These issues were, therefore, decided against the appellant. Under issue No,1 it was held that Mst.
Bilquis Sultana daughter of Inayat Begum a pre-deceased daughter of Haji Muhammad Hussain was a necessary party because he had share in the inheritance. She was, however, not ordered to be impleaded whereas it was held that her share shall otherwise be determined. This issue was decided accordingly. Issues No,5, 6 and 7 being interconnected were taken up and decided through consolidated findings. Since the appellant admitted in the written statement that House No,D/13 was owned by Haji Muhammad Hussain deceased, therefore, it was held that the same shall be shared by the parties according to Shariat Law. The learned trial Court held that land measuring 6 kanals 4 marlas bearing khasra No,29/1/1 and 4/2 situated at Mauza Dacca District Sheikhupura was owned by Haji Muhammad Hussain deceased, and the plea of the present appellant that it was owned by him was repelled.
7. Plot bearing Khasra No,2134/95 measuring 17 marlas was held to have been owned by Haji Muhammad Hussain by the learned trial Court and the claim of the present appellant that it belonged to him was rejected. It was also held that House No,D/753 situated in Phullanwali Gali, Lohari Mandi, Lahore, was owned by Haji Muhammad Hussain. Regarding the creation of alleged firm with the name of Sharif Sons it was held by the learned trial Court that the same was a fake transaction as such neither deceased Haji Muhammad Hussain nor Mahmood Hussain one of the plaintiffs and the present appellant were partners in that firm and the documents produced to establish the creation of the said firm were held to be fabricated. As a consequence of this finding it was held that land measuring 2 kanals 19 marlas situated in village Begum Kot, Lahore was owned by Haji Muhammad Hussain. Issue No,5 was found to have been proved by the plaintiffs, therefore, the same was decided in their favour. It was further held that the present appellant failed to prove issue No,7, onus of which was on him, therefore, it was answered against him. The learned trial Court also held that the details of the disputed properties owned by Haji Muhammad Hussain were correctly given in the plaint. The learned trial Court also recorded finding that the plaintiffs succeeded in proving that the defendant/appellant was the accounting party, therefore, issue No,6 was answered against the appellant. In the result the learned trial Court passed preliminary decree through judgment dated 1-11-1983 in respect of the said properties in favour of the plaintiffs, and Mst. Bilquis Sultana daughter of Mst. Inayat Begum as against the present appellant, the shares of each of them were found to be as under:- (1)Sh. Akbar Hussain Plaintiff No,1 2/12 (2)Sh. Mahmood Hussain Plaintiff No,2 2/12 (3)Sh.Masud Hussain Plaintiff No,3 2/12 (4)Munawar Hussain Plaintiff No,4 2/12 (5)Mst.Mumtaz Begum Plaintiff No,5 1/12 (6)Mst.Balquis Sultana d/o Mst.Lnayat Begum1/12 (7)Sh. Muhammad Sharif Defendant No,1 2/12
8. Feeling aggrieved the present appellant filed appeal against the said judgment and decree of the learned trial Court. The learned lower appellate Court decided the appeal by judgment and decree dated 16-12-1984 impugned in this appeal. The learned lower appellate Court upheld the findings of the learned trial Court on issue No,1. Anyhow on the application of Mst. Bilquis Sultana made under Order 1 Rule 10 C.P.C. She was ordered to be impleaded as one of the defendants in the suit as also respondents in the appeal. The findings of the learned trial Court regarding land measuring 6 kanals 4 marlas situated in Mauza Dacca District Sheikhupura and House No,D/753 situated in Phullanwali Gali, Lohari Mandi, Lahore, were upheld. Likewise, the findings of the learned trial Court respecting plot measuring 17 marlas were also maintained. The learned lower appellate Court recorded a finding that the firm Sharif Sons was proved to have been established and property i.e, land measuring 2 kanals 19 marlas was held to have been invested by Haji Muhammad Hussain in the said firm whereas the investment of property measuring 17 marlas allegedly made by Sh. Muhammad Sharif in the said firm treating it as his property was held to have not taken effect as Sh.Muham mad Sharif was not owner of this land which was owned by Haji Muhammad Hussain as such to this extent it was held that it was not the partnership property.
Regarding property measuring 2 kanals 19 marlas which was found to have been invested by Haji Muhammad Hussain in the firm it was further held that the same is still owned by the firm and could not be subject-matter of the present suit as such could be dealt with separately as partnership property. Regarding mortgagee rights of House No,D/753 it was held that Haji Muhammad Hussain continued to be the mortgagee of the said property and had not become its owner. With these modifications the findings of the learned trial Court were upheld.
9. The present appeal has been filed by the defendant/appellant against the said judgment and decree of the learned lower appellate Court whereas the plaintiffs alongwith Mst. Balquis Sultana have also filed connected RSA No,143 of 1985. In this connected appeal the appellants/plaintiffs have prayed that the findings of the learned lower appellate Court regarding land measuring 2 kanals 19 marlas bearing Khasra No,2124/38 situated in Begum Kot Lahore, and firm M/s. Sharif Sons and property No,D/753 may be reversed and the appellant/plaintiff be also granted relief of rendition of accounts as such the preliminary decree dated 1-11-1987 passed by the learned trial Court may be confirmed with the abovementioned modifications.
10. During the hearing of the appeal the grievance of the present appellant that examination of his expert witness was declined unjustifiably I through order dated 21-1-1989 remitted the case to the learned trial Court for recording evidence of the expert witness of the appellant as also evidence in rebuttal of the plaintiffs. The learned trial Court in compliance thereof recorded the said evidence which has been transmitted to this Court. The appellant examined A.G. Pasha, Hand Writing Expert as DW.7. This witness proved his report which was produced as Ex.DW.7/1 whereas photograph chart was produced as Ex.DW.7/2. In rebuttal the plaintiffs produced Zaka A. Malik Hand Writing Expert as PW.6 who proved his report which was produced on record as Ex.PW.6/1, Photo Enlargement Chart was produced as Ex.PW.6/2 and another Chart as Ex.PW.6/3. It may be pertinent to note here that the appellant produced the expert evidence in respect of documents Ex.D.5 dated 30-6-1970. And Ex.D.1 and Ex.D.1/1 dated 7-2-1964 and Ex.D/2 dated 5-1-1969.
11. Learned counsel for the parties have been heard at length. The appellant claimed that land measuring 6 kanals 4 marlas situated in village Dacca Tehsil Ferozepur District Sheikhupura was owned by him in his own right an& Haji Muhammad Hussain was merely a benamidar as the said land was purchased by the appellant in his name as benamidar. In support of this plea, he produced in evidence document Ex.D.4. He also examined Muhammad Anwar son of Karam Elahi as DW.3 and Muhammad Yousaf son of Muhammad Yaqoob as DW.4 to prove the execution of this document by Haji Muhammad Hussain apart from his own evidence as DW.6. Document Ex.D.4 is in the nature of an acknowledgement allegedly made by Haji Muhammad Hussain in which he stated that this land was purchased through registered sale-deed dated 8-5-1941 and all the expenses were borne as also the price was paid by the appellant Muhammad Sharif. The two Courts below held that the execution of this document by Haji Muhammad Hussain was not established and that it was a fake document. This is concurrent finding of fact. The learned lower appellate Court additionally held that this document purported to create rights in immovable property, therefore, it required registration and since it has not been registered, as such, it did not operate to create right in favour of the appellant in the property in dispute. Learned counsel for the appellant took exception to the findings of the learned Additional District Judge regarding the requirement of registration. The argument has considerable force. This document in itself does not operate to create any right in the property but merely contains an acknowledgement that the property was purchased by Muhammad Sharif appellant through registered sale-deed dated 8-5-1941 in the name of Haji Muhammad Hussain as benamidar. The original document of sale dated 8-5-1941 is stated to have been registered. The findings of the learned lower appellate Court that this document required registration is not sustainable and the same is hereby set aside.
12. The next question which falls for consideration is whether the appellant has succeeded in establishing the execution of the said document by Haji Muhammad Hussain. As observed above, the two Courts below have concurrently held that it was not established and that it was a fake document. In order to succeed in this Court to dislodge this concurrent finding of facts, the appellant has to show that this finding suffers from such an illegality as provided in Section 100 C.P.C. Such as misreading, misconstruction or non-reading of evidence as also taking into consideration such evidence which was not admissible.
13. The learned trial Court apart from other evidence also compared the disputed signatures of Haji Muhammad Hussain on Ex.D.4 with his signatures on documents Ex.P.2/1 to Ex.P.2/4. Learned counsel for the appellant argued that these documents were not admissible in evidence about which objection was taken, the decision on which was reserved, to be decided, in the final judgment which has not been disposed of. His precise argument was that Ex.P.2/1 to Ex.P.2/4 were certified copies of documents annexed with Writ Petition No,133 of 1980 which were not original documents but photo copies. According to him these documents could not have been taken into consideration as evidence in the case. Writ Petition No,133 of 1980 was admittedly filed by the appellant. These documents were annexed with the writ petition by the appellant himself to support his case. It is firmly settled law that a document can be used against that party who had produced the same. Learned counsel for the appellant faced with this difficulty attempted to argue that the documents of which Ex.P.2/1 to P.2/4 are the certified copies were not attached by the appellant with the writ petition whereas with the said writ petition some other document was attached which has been got removed and replaced by Iftikhar Hussain son of Sh. Mahmood Hussain one of the plaintiffs who was employee of this Court. Learned counsel for the appellant when questioned after consulting his client was not in a position at present to show as to which was the other document allegedly attached with the writ petition which as argued by him was replaced. The defendant examined Mr.S.M.K. Lodhi, Advocate, who admittedly filed the said writ petition on behalf of the appellant as his counsel who was engaged by him. This witness stated that the said documents were provided by the appellant for annexing the same with the writ petition. The plaintiff in these circumstances, cannot be allowed to urge that the said documents could not be used in evidence against him. The argument regarding admissibility of Ex.P.2/1 to Ex.P.2/4, therefore, has no force which is hereby repelled.
14. From a bare perusal of Ex.D.4 it is demonstrably clear that this document is of doubtful character. The opening part of the document consisting of about 15 lines shows that the space in between these lines is very narrow as they have been very closely written whereas the space in between the lines in the middle portion of the document is comparatively wider and the space in between the lines, in the closing part thereof has again been narrowed. It appears that the effort was made to adjust the document in one page in the given space as if the signatures of the alleged witnesses and the executant were already present on blank paper. The alleged signatures of Muhammad Yousaf a marginal witness are placed in the extreme end of the document leaving a considerable space between the signatures of other marginal witnesses namely Ghias-ud-Din Sheikh and the signatures of Muhammad Anwar. These circumstances also detract from the genuineness of this document. The land was admittedly purchased as stated in this document itself through registered sale-deed on 8-5-1941. This document was written on 1-8-1967 i.e, after about a period of almost 26 years. If the appellant was the real owner, then as a man of ordinary prudence he would not have kept silent for such a long time. Had he been the real owner he would have got the matter of his title cleared earlier. No independent evidence either has been produced to prove that in fact the appellant purchased the land with his own resources and that he bore all the expenses and that Haji Muhammad Hussain was merely a benamidar. There is no evidence as to the existence of circumstances that he could not purchase the land in his own name and was compelled to purchase the same in the name of his father. The evidence of Muhammad Anwar DW.3 and Muhammad Yousaf DW.4 when considered in conjunction with the other evidence and other circumstances, the same do not inspire confidence. Muhammad Yousaf DW.4 stated that he was servant of Haji Muhammad Hussain deceased since 1955 upto 1971. Haji Muhammad Hussain deceased admittedly died in the year 1969. The statements of Muhammad Anwar and Muhammad Yousaf are general in nature and it is not safe to rely upon them in view of the observations made above. In this document, it has been stated that Haji Muhammad Hussain as a matter of fact wanted to transfer the land to the appellant through registered sale deed so as to put the matter regarding title of the appellant in the land beyond any doubt but he could not do. So for compelling reasons. He died about two years after the execution of this document but no such document was executed by him though in this document he allegedly stated that he would so at proper time. If Haji Muhammad Hussain deceased was really a benamidar and he wanted to acknowledge the title of the appellant in the land as real owner to put the matter beyond doubt, he would have asked the plaintiffs to witness the document or could have at least got the mutation entered in the name of the appellant by appearing before the Revenue Authorities. The concurrent findings of the two Courts below that Ex.D.4 is a fake document do not suffer from any illegality on account of misreading, misconstruction or for taking into consideration inadmissible evidence as such the same are upheld. This document also contains an alleged acknowledgement by Haji Muhammad Hussain that mortgagee rights in House No,D/753 Phullanwali Gall owned by Mst. Irshad Begum and Mst. Wazir Begum were purchased by the appellant in his name as benamidar which is also repelled for the same reasons and the concurrent findings of the two Courts below regarding this property are also unexceptionable and do not require any interference.
15. The learned trial Court held that since the mortgager had not redeemed the mortgage regarding House No,D/753, as such, Haji Muhammad Hussain the purchaser of mortgagee rights had become full owner of the said house, therefore, it was held that it devolved on his heirs as full owners. The learned lower appellate Court on the other hand, held that the house was still under mortgage and only the mortgagee rights in the said house vested in Haji Muhammad Hussain and the same shall be inherited by his heirs subject to mortgage. There is no evidence on the record that the mortgager ever redeemed the said house. The findings of the learned trial Court were, therefore, perfectly in accordance with law and the said house vested in Haji Muhammad Hussain absolutely. This finding inter se between the parties in this suit could be dislodged if the appellant who was claiming that the house was still under mortgage had brought any evidence that the same was redeemed within the period of limitation. It may be observed that this finding is for the purposes of this suit and if at any point of time the mortgager or any of his successors brings the suit for redemption of property, this finding would not be binding on them and if it was ultimately held that the property was still subject to mortgage and any decree is granted to the mortgagor for redemption, the parties shall be bound by the same. In this view of the matter for the purpose of this suit Haji Muhammad Hussain deceased shall be deemed to have become full owner of the house. The findings of the learned lower appellate Court are, therefore, set aside.
16. The appellant claimed that the land comprising Khasra No,2134/95 measuring 17 marlas situated in village Begum Kot was owned by him and not by Haji Muhammad Hussain deceased. In the written statement the appellant pleaded that he purchased this land from its previous owner namely Pir Bakhsh through registered sale-deed dated 8-5-1941. In support of this plea he relied upon mutation mark D.3. This document having been marked, it appears was not admitted in evidence. Even if this document is considered to be the part of the evidence, it shows that Mutation was sanctioned on 29-9-1943 on the basis of sale-deed dated 23-6-1943. Since 1943 upto the start of litigation many years had passed but the appellant failed to produce copies of the record of rights such like Jamabandi to show that his name was incorporated in the record of rights. The plaintiffs claimed that this land belonged to Haji Muhammad Hussain deceased. It is firmly settled law that mutation itself does neither create any right nor extinguish any vested right. The appellant failed to produce registered sale-deed dated 8-5-1941 through which he allegedly purchased this land. It was this document which was the primary evidence to prove his alleged ownership in this land. The appellant having not produced it, a presumption can very safely be raised that there was no such document and further that he could not succeed in establishing his ownership about this land through purchase or otherwise. It may be pertinently mentioned here that in W.P. No,133/80 filed by the appellant a copy of which has been produced in evidence as Ex.P.2, it was stated by him that this land belonged to one Chooni Lal s/o Kanshi Ram and was purchased through registered sale-deed dated 4-2-1939. It was also stated that on the basis of the said sale, a mutation was sanctioned on 29-9-1943. The said sale-deed was annexed as Annex. 'A', with the writ petition. As a matter of fact this was not one single document whereas it shows that through four sale-deeds Haji Muhammad Hussain deceased purchased this land measuring 17 marlas in four pieces, each piece measuring 4-1/2 marlas for an amount of Rs,99 each. It appears that this was done according to common practice prevalent in those days as a device to avoid the requirement of getting the document registered had it been through single document for a consideration of more than Rs,100. As has been discussed above these documents were produced by the appellant himself and annexed with the writ petition. In the presence of the said documents the copies of which have been produced in this case as Ex.P.2/1 to P.2/4, the claim of the appellant that this land was purchased by him from Pir Bakhsh stands fully negatived. The concurrent findings of fact of both the Courts below that this land belonged to Haji Muhammad Hussain deceased also do not suffer from any illegality which are upheld.
17. This brings me to plot measuring 2 kanals 19 marlas situated at Begum Kot Lahore. The case of the plaintiffs was that this also belonged to Haji Muhammad Hussain deceased, therefore, was to be inherited by his heirs. In support to this plea they produced jamabandi for the year 1976-77 in evidence as Ex.P.3. It is evident from this document that this land was owned by Haji Muhammad Hussain deceased according to Revenue Record and through Mutation No,3529 it was mutated in the names of the plaintiffs and the appellant as his sons and Mumtaz Begum as his daughter. The case of the appellant was that this plot was invested by Haji Muhammad Hussain deceased, as his share of investment in the firm established by Haji Muhammad Hussain deceased, the appellant and Mahmood Hussain one of the plaintiffs in the name and style of Sharif Sons, as such, the same became partnership property. According to the appellant Haji Muhammad Sharif subsequently withdrew from the partnership and transferred his share in the property of firm i.e, plot in favour of the appellant. His case was that subsequently the third partner namely Mahmood Hussain one of the plaintiffs also withdrew from the partnership and the business became the sole proprietorship of the appellant as Mahmood Hussain also transferred his share in the plot as partnership property to the appellant as such he became its full owner. The plea regarding establishment of partnership firm by the said three persons was categorically denied by the plaintiffs. In order to prove that this partnership firm was formed, the appellant produced Exs.D.6, D.7 and D.8. Ex.D.6 is a copy of Form 'A" which is maintained by the Registrar of Firms under Section 59 of the Partnership Act, from which it is manifest that the firm M/s. Sharif Sons was registered on 19-12-1963 which was recorded therein to be a firm at will. The principal place of business according to this document was shown to be Chowk Jhanda Lahore. The names of the partners given in this document were Sh.Muhammad Sharif, Haji Sheikh' Muhammad Hussain and Sheikh Mahmood Hussain. This document shows that it was filed with the Registrar of Firms on 19-12-1963. Ex.D.7 is acknowledgement of registration of firm issued by the Registrar, This document bears the date as 19-12-1963. Ex.D.8 shows that the firm had a bank account in the Industrial Development Bank and the names of above-said three partners have been mentioned therein. Surprisingly no account number has been given in this document, which the firm was maintaining. Be that as it may, from these documents the appellant succeeded to establish only that a partnership firm was registered in the name and style of M/s. Sharif Sons and three persons were shown as its partners namely the appellant, Haji Muhammad Hussain and Mahmood Hussain in the record of Registrar of the Firms. Since Mahmood Hussain had denied that there was any partnership firm formed by him and Haji Muhammad Hussain deceased as partners with the appellant, it was incumbent upon the appellant to have proved on record that there was an agreement between the said three alleged partners for carrying on business in partnership as under the law it was only through an agreement that a partnership firm could be formed. The registration of firm with the name and style of M/s. Sharif Sons disclosing therein that certain persons were its partners was not itself the proof of execution of any such agreement between the said alleged partners to do business in partnership. In order to prove that there was an agreement between the said alleged partners the appellant produced the partnership deed allegedly executed by them as Ex.D.1. This document shows that it was allegedly executed on 7-2-1964. In order to prove execution of this document the appellant examined Muhammad Yousuaf as DW.4 who is its marginal witness. This witness is not creditworthy. In his statement he deposed that he had been the servant of Haji Muhammad Hussain from 1955 to 1971 whereas according to the statement of the appellant himself as DW.6 Haji Muhammad Hussain died on 1-7-1969. The evidence of this witness does not inspire confidence and was rightly rejected by the two Courts below which does not suffer from any legal infirmity and no interference is justified under section 100 C.P.C. By this Court. This document has also been witnessed by one Fazal Ahmad s/o Wali Dad who has not been examined. The appellant examined Mr. A.G. Pasha Hand Writing Expert as DW.7 in whose opinion alleged signatures of Mahmood Hussain on this document Ex.D.1/1 were similar to his admitted signatures. This evidence has been rebutted by the plaintiffs by producing another Expert witness namely Mr. Zaka A. Malik who was examined as PW.6. Learned counsel for the appellant submitted that this Court in a case reported as Lt.-Col. Muhammad Yusuf v. Syed Ali Nawaz Gardezi PLD 1963 (W.P) Lah. 141 remarked that he was not reliable as Expert witenss, therefore, evidence of Mr. A.G. Pasha may be taken as having not been rebutted. Learned counsel for the respondents/plaintiffs submitted the said remarks againt Mr. Zaka A. Malik were expunged by the Supreme Court in appeal which was filed against the said judgment which is reported as Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51.
18. In view of the circumstances that Muhammad Yusaf DW.4 the marginal witness of this document having been disbelieved and the other marginal witness namely Fazal Ahmad having not been examined I am not inclined to place any reliance on the evidence of Mr. A.G. Pasha whose evidence has been sufficiently rebutted by other expert evidence. In the result it is held that the execution of Ex.D.1 a partnership deed has not been proved. No doubt the appellant could still establish through other evidence that there was an agreement between the said alleged partners to carry on business in partnership. In order to prove such circumstantial evidence the appellant placed on record a document mark D.1 which is described as transfer. This document was registered under the Registration Act. It shows that Haji Muhammad Hussain deceased allegedly transferred land measuring 2 kanals 9 marlas comprising Khasra No, 2124/38 Khewat No, 305 Khatuni No, 76 situated at Begum Kot, Lahore, to the Firm M/s Sharif Sons. It may be mentioned here that this land was purchased by Haji Muhammad Hussain through document No, 326 dated 9-5- 1941, as per contents of this document and through the same document Muhammad Sharif the appellant has also been shown to have transferred his ownership rights in the land measuring 17 marlas comprising Khasra No, 2134/95 allegedly purchased by him through sale-deed dated 23-6- 1943 to the said Firm. It has also been mentioned in this document that Muhammad Sharif, Mahmood Hussain and Sheikh Muhammad Hussain were the partners in the said Firm. This document has not been admittedly signed by any of the plaintiffs including Mahmood Hussain. It has already been held that the appellant was not the owner of the land measuring 17 marlas allegedly purchased by him through sale-deed dated 23-6-1943, therefore, he could not transfer the said land to the said alleged partnership firm. The learned lower appellate Court, however, relied upon this document for holding that the document having been registered, for this reason formal proof of its execution was not required.
19. I am afraid the approach of the learned lower appellate Court is wholly fallacious and against the law. The law is firmly settled that mere registration of a document raises no presumption in favour of its execution by those persons who were shown to have executed it where its execution was disputed. The appellant was required under the law to prove its execution by producing evidence that Haji Muhammad Hussain deceased in fact executed it. Appart from this, this document was not exhibited but was placed on record as mark D.1 obviously for the reason that its execution was not formally proved. The learned trial Court rightly excluded this document from consideration. The findings of the learned lower appellate Court are not sustainable in law and the same are hereby set aside. The execution of this document having not been proved, therefore, it cannot be considered as evidence in the case. The appellant also produced in evidence document Ex.D.2 dated 5-1-1969 alleged to have been executed by Haji Muhammad Hussain as one of the partners of the firm purporting to have transferred his all rights by way of sale in the firm and its properties in favour of the appellant. This document recites that Haji Muhammad Hussain in lieu of this transfer had received consideration. This document being a transfer deed simpliciter, through which for a valuable consideration rights in immovable property of the firm allegedly owned by Haji Muhamamd Hussain were transferred, therefore, the argument of the learned counsel for the respondents that it could not create or extinguish any right in the immovable properties having not been registered has force. This argument finds support from judgment reported in Zainab Bai v.
Ibrahimji. And others PLD 1962 (W.P.) Kar. 209 and The Eastend Agencies and others v. Al-haj Mafiz- ud-Din and others PLD 1970 Dacca 155. Apart from that the appellant made no efforts to produce evidence to prove the signatures of Haji Muhammad Hussain on this document who is alleged to have executed it. On the other hand evidence was produced to prove the signatures of Mahmood Hussain who had allegedly put his signatures as marginal witness. It is well-settled law that a marginal witness of a document is neither bound by its contents nor is he required to know what the document contained. The marginal witness is only a witness of its execution. Even otherwise the evidence of the expert witness to prove signatures of Mahmood Hussain having been rebutted through another expert witness, therefore, I am not inclined to rely upon such an evidence. I have also noticed that this document shows that it has also been signed by Khalid Javaid son of Muhammad Shard and Akbar Hussain son of Haji Muhammad Hussain. None of these witnesses have been produced. On query it was admitted by the learned counsel for the appellant that this Khalid Javaid is the real son of the appellant. His non-production in evidence, therefore, is very material and an adverse presumption can be raised that had he been produced he would not have supported the appellant. For this additional reason that the marginal witness having not been produced it is not safe to place reliance on expert evidence which as has been discussed above has been rebutted, therefore, the execution of this document has not been proved and as such, it cannot be used as evidence to establish that there was either any partnership agreement between the alleged partners or that Haji Muhammad Hussain transferred his interest in the said alleged partnership business or in the property mentioned in this document which remained his personal property which is liable to be partitioned among the heirs. It is also of no merit to say that this document was a composite deed, as such, did not require registration. As is evident from its contents it is a document through which rights and interests in immovable property have been transferred for consideration, therefore, it is a document of transfer, as such, was subject to requirement of registration under the Registration Act.
20. The appellant also produced Ex.D.5 which is described to be a dissolution deed of this partnership. To prove its execution by Mahmood Hussain Mr. A.G. Pasha has been examined as DW.7. Muhammad Latif s/o Sheikh Faiz Muhammad DW.5 is the scribe of this document. This witness has been examined by the appellant who stated that Mahmood Hussain was the husband of his sister and his sister had filed a suit for partition of property against him. He also admitted that his relations with Mahmood Hussain are strained due to disputes for which neither he participated in the marriage of the son of Mahmood Hussain nor Mahmood Hussain participated in the marriage ceremonies of his daughters and that he was not on speaking terms with Mahmood Hussain. This witness categorically stated that none of the alleged executants of this document and particularly Mahmood Hussain put his signatures on this document. He, however, stated that the stamp paper was purchased by Mahmood Hussain. His evidence if read as a whole does not prove that this document was executed by the executants named therein including Mahmood Hussain. The part of the statement of this witness that Mahmood Hussain purchased stamp paper of this document does not inspire confidence and is of no evidentiary value and cannot be given any credence. This document has also been shown to have been signed by Muhammad Akbar and Munawar Hussain as marginal witnesses but none of them has been examined to establish the execution by either of the executants including Mahmood Hussain. In these circumstances evidence of Mr. A. G. Pasha the Expert witness which has been duly rebutted through evidence of Mr. Zaka A. Malik is of no help to the appellant. The evidence of marginal witnesses of a document and the scribe is always considered to be more reliable evidence as against evidence of expert witness and in the absence of evidence of marginal witnesses it is not safe to rely upon such expert evidence. The appellant having withheld the evidence of these marginal witnesses, a presumption can safely be raised against him that if produced they would not have supported him. The execution of document Ex.D.5 is, therefore, held to have not been established. I have also examined in detail the evidence of DW.1 and the statement of the appellant when he appeared as DW.6 and the evidence of other witnesses and find that agreemnt for establishment of partnership firm between the above-said three partners does not stand proved.
21. Learned counsel for the plaintiffs/appellants in the connected RSA No,143 of 1985 argued that the plaintiffs were also entitled to have share in the buildings constructed on the land measuring 2 kanals 19 marlas and the land measuring 17 marlas by Muhammad Sharif and Muhammad Sharif could only claim proportionate share of costs of construction from the plaintiffs as the constructions raised by him were in the nature of improvement by one of the joint owners thereof as such vested in all of them. He also argued that likewise the plaintiffs were entitled to recover share of their income derived from the said buildings by Muhammad Sharif. The learned trial Court did not grant this relief to the plaintiffs on the ground that the buildings had been raised by Muhammad Sharif from his own reasources, as such, he was their exclusvie owner including the income derived therefrom and the plaintiffs were held entitled only to recover their share of income of the plots over which the said buildings had been constructed. The suit of the plaintiffs qua the claim of ownership rights in the buildings and their income shall be deemed to have been dismissed by the learned trial Court. If the plaintiffs felt aggrieved they should have either filed appeal or cross-objection against that part of the judgment in the appeal filed by Muhammad Sharif before the learned lower appellate Court if they wanted the reversal of the decree in that respect. They have not done so, are debarred from agitating this matter. The appeal of the plaintiffs to that extent is hereby dismissed.
22. Learned counsel for the plaintiffs/appellants in RSA No, 143 of 1985 complained that the learned trial Court granted decree to the plaintiffs as is manifest from the judgment dated 1-11-1983 for rendition of accounts of the income of the said plots measuring 2 kanals 19 marlas and 17 marlas as also income of plot measuring 6 kanals 4 marlas, income of House No, D/753 and a portion of House No,D/13 but the decree which was prepared by the trial Court was wrongly described as decree for partition only. He argued that the learned lower appellate Court illegally declined the prayer of the appellant that the decree be amended accordingly on the erroneous-assumption that the appellants were required either to file appeal or cross-objections. He argued that no appeal or cross-objections were required to be filed. The argument has considerable force. The learned trial Court in the judgment dated 1-11-1983 held that Muhammad Sharif the defendant was the accounting party and that the plaintiffs were entitled to recover their share of income of plots measuring 2 kanals 19 marlas, plot measuring 17 marlas (not of the constructions raised on both of them by the defendants) and also income of plot measuring 6 kanals 4 marlas, House No,D/753, and a portion of House No,D/13 for which the defendant was liable to render accounts. To this extent a decree for rendition of account and recovery of their share of income was granted to the plaintiffs. It appears that while preparing the decree in pursuance to this judgment this part of the relief was not mentioned therein. It is mandatory requirement of Order 20 Rule 6 C.P.C. that the decree should agree with the judgment. This rule also provides that the decree shall specify clearly the relief granted. It was, therefore, a case where the Court failed to prepare the decree in accordance with the judgment as the relief granted to the plaintiffs regarding rendition of account and recovery of their share of income as stated above was not incorporated in the decree. It was, therefore, legal obligations of every Court where the matter was pending and for that matter the, learned lower appellate Court to have passed an order for the amendment of the decree accordingly. The decree passed by the learned trial Court is hereby ordered to be modified/amended accordingly. The learned trial Court shall pass consequential order for taking accounts as required under the law.
23. Learned counsel for the plaintiffs made an application bearing C.M. No,4932/C-87 for dismissal of R.S.A. No, 182 of 1985 as barred by time. The learned lower appellate Court passed the impugned judgment and decree on 16-12-1984. The 90 days time prescribed by law of limitation for filing appeal before this Court was to expire on 15-3-1985. The appellant made application for supply of certified copy of judgment only on 17-12-1984. It was prepared on 4-3-1985 and delivery was taken by the appellant on 16-3-1985. There is a report of the copying agency that though the copy of judgment was prepared on 4-3-1985 but the appellant was not supplied the same on the assumption that it was not ready which happened because the copying agency due to mistake recorded number of application as 27034 instead of 27033 in their record. In those circumstances the time taken from 17-12-1984 to 16-3-1985 can safely be treated to be the time spent for obtaining copy of judgment for the purposes of computation of period of limitation as provided in section 12 of the Limitation Act and the said period has to be excluded. The application for supply of certified copy of decree-sheet was made on 4-6-1985 which was prepared and delivered to the appellant on the same date. The objection of the learned counsel for the plaintiffs was that the application for supply of copy of decree-sheet was made after expiry of original period of 90 days of limitation which expired on 15-3-1985, therefore, the appeal was barred by time.
24. I am afraid this argument has been raised on the erroneous assumption that the application for supply of copy of judgment and decree-sheet was required to be made within the original period of limitation prescribed by law. It has been held in Barada Prasanna Lod and others v. Kubbad Mia PLD 1962 Dacca 381 that it was not necessary to make application for supply of copies of both the judgment and decree appealed against within the original period of limitation. It has been held that if application for supply of one out of the two documents was made and the period spent in obtaining that copy is added to the original period of limitation and within that extended period, the application for supply of copy of the decree-sheet could be made and the appellant could be given benefit for both the periods of course the over-lapping period has to be excluded once.
Considering from this point of view the appeal filed by the defendant/appellant bearing RSA No, 182 of 1985 is not barred by time. C.M. No, 4932/C-87 filed by the plaintiffs is hereby dismissed whereas C.M. No, 3421/C-85 moved by the appellant for treating the appeal as having been filed within the period of limitation is accepted.
25. The appellant has moved C.M. No, 4042/C-89 for permission to produce the following documents as additional evidence:-- Legal Notice dated 29-10-1978 sent by Ch. Khurshid Ahmad Advocate on behalf of Sh. Akbar Hussain, one of the respondents.
Re-joinder dated 27-11-1978 sent by Ch. Khurshid Ahmad Advocate to Mirza Hafeez-ur-Rehman Advocate on behalf of his client, Sh. Akbar Hussain. The above documents are on record of the trial Court although not exhibited.
Legal Notice dated 25-8-1971 sent by Mr. Aamer Raza A. Khan Advocate on behalf of Industrial Development Bank of Pakistan and addressed to the parties.
Notice dated 12-9-1972 sent by Mr. Bashir M. Malik Advocate on behalf of National Bank of Pakistan and addressed to M/s. Sharif Sons Flour Mills through its partner Muhammad Sharif Uppal.
Notice dated 12-9-1972 sent by Mr. Bashir M. Malik Advocate on behalf of National Bank of Pakistan and addressed to M/s. Sharif Sons Flour Mills through its partner Haji Muhammad Hussain.
Notice dated 12-9-1972 sent by Mr. Bashir M. Malik Advocate on behalf of National 'Bank of Pakistan and addressed to M/s. Sharif Sons Flour Mills through its partner Mahmood Hussain.
Copy of the judgment dated 20-3-1982 passed by Ch. Ghulam Rasool Civil Judge Lahore in suit entitled "The National Bank of Pakistan v. Sharif Sons and others".
(viii)Copy of decree-sheet dated 20-3-1982 in the above suit.
(ix) Copy of judgment dated 3-6-1984 passed by Mr. Munawar Hussain Farooqi Additional District Judge Lahore on appeal from the judgment and decree dated 20-3-1982.
(x) Copy of the appellate decree-sheet dated 3-6-1984."
The reasons given in this application are that the learned trial Court had been directed by this Court to conclude the trial of the suit within the fixed time, therefore, the appellant did not have sufficient opportunity to produce evidence as the trial Court was in a haste to conclude the trial. It was not the case of the appellant that when he sought to produce these documents in evidence he was declined to do so for paucity of time, on account of the time having been fixed by this Court for the disposal of the suit. It is also not mentioned in the application that these documents were included in the list of documents filed by the appellant before the Trial Court. No application was made before the trial Court for permission to produce these documents and even before the learned lower appellate Court. Even in this Court the application has been made at belated stage.
In these circumstanaces the arguments that the appellant was deprived of sufficient opportunity to produce these documents in evidence on account of order of this Court for disposal of the suit within a specified time has no force. It is well-settled law that an unsuccessful party cannot be allowed to fill up lacunas and weak parts of his case. This application bearing C.M. No,4042/C-89 is, therefore, rejected.
26. Before closing this judgment I may also dispose of an objection of the learned counsel for the appellant regarding impleadment of Mst. Bilquis Sultana as defendant in the suit as also one of the respondents in the appeal by the learned lower appellate Court. His objection was that her impleadment at this stage deprived the appellant of his right to raise any factual plea against her such as that she was not entitled to get any share in the properties. When questioned learned counsel for the appellant submitted that the appellant could very well raise a plea that in lieu of cash consideration having been received by her from the appellant she had relinquished her share in the properties in favour of the appellant. This plea is nothing but an objection for the sake of objection and is an afterthought. The appellant himself raised objection in the written statement that Mst. Bilquis Sultana was necessary party in the suit as she was also entitled to inherit the properties of Sh. Muhammad Hussain deceased. If she had already surrendered her rights in favour of the appellant as alleged or was otherwise not entitled to any share in the properties he would not have pleaded in the written statement that she was entitled to inherit them. It may not be out of place to mention here that she in her own application expressly stated that if she was impleaded as party at that stage she would not claim re-trial of the suit which meant that whatever findings had been recorded and decree passed by the learned trial. Court she accepted the same. The objection has no merits and is hereby repelled. It may be mentioned here that even in reply to the application filed by Mst. Bilquis Sultana for impleading her as one of the defendants and the respondents in the suit and appeals respectively no such plea was raised. Under section 107, C.P.C. The learned lower appellate Court was vested with the jurisdiction as was vested in the trial Court regarding impleadment of parties under Order 1, Rule 10, C.P.C. The discretion in the matter has been exercised judicially and has not been shown to have been exercised arbitrarily or that any prejudice was caused to the appellant due to her impleadment. It was the duty of the Court before which the lis was pending to see that justice was fully done as such the order for impleading her is just and proper.
27. For the foregoing reasons RSA No, 182 of 1985 is hereby dismissed whereas R.S.A. No, 143 of 1985 filed by the plaintiffs is partly accepted to the extent as indicated above. In the result the judgment and decree of the learned lower appellate Court is hereby set aside and that of the learned trial Court restored with the modification/amendment in the decree-sheet as directed in Para 22 of this judgment. There will, however, be no order as to costs.