1. ' Syed Bagh Hussain Shah, who was a Shia by faith, owned and possessed house No,SN-1092/A. He died on 7-7-1983. Application for grant of succession certificate was filed by Mst. Taj Bibi, sister of Bagh Hussain deceased who is sole heir as per Shia Law of Inheritance. During the course of proceedings for grant of succession certificate, Ahmad Hussain Shah petitioner before this. Court who claims himself to be son of paternal aunt of the deceased obtained stay order against the grant of succession certificate to the respondents. Subsequently, an alleged compromise dated 21- 5-1984 was filed in those proceedings on the basis whereof the proceedings relating to succession certificate were finalized. As a statement is alleged to have been made by the respondents in the said proceedings in accord with the compromise referred to above on 21-5-1984 that she gave up her claim in the house in question on receipt of Rs,40,000 out of which Rs,13,000 was allegedly given to her in cash whereas a claim of Rs,27,000 which was being raised by the petitioner who claimed himself to be an heir during the succession proceedings, was relinquished and this amount was allegedly received by the respondent towards the payment of price for relinquishment of her ownership rights in the said house. Hence ownership of the house was entered in the name of petitioner in record of respondent No,2. Subsequently, the respondent filed a suit seeking title in the house in question as being sole heir of the deceased and also declaration to the effect that the compromise decree dated 21-5-1984 and the consequential statement which was allegedly got recorded are based upon fraud and hence are inoperative against her ownership and possessory rights in the house in question. The suit was contested. On the basis of the pleadings of the parties learned trial Court settled the following issues:--
(i) Whether the plaintiffs are owner of the disputed property? OPP.
(ii) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction if so what is its effect? OPD.
(iii) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD.
(iv) Whether plaintiff is estopped to file this suit? OPD.
(v) Whether this suit is not maintainable? OPD.
(vi) Whether the plaintiff has transferred the suit property for the consideration of Rs,40,000 OPD.
(vii) Whether there is any will in favour of defendant No,1 by deceased Bagh 'Hussain Shah, if so, its effect? OPD.
2. (viii)Relief.
3. ' After recording evidence, learned trial Court decreed the suit vide judgment and decree dated 30- 3-1989. Aggrieved of this judgment and decree, the petitioner filed regular first appeal which has been dismissed by the learned Additional District Judge, Rawalpindi, vide judgment and decree dated 6-10-1990. Hence this revision petition has been filed by the defendant in this Court.
2. Mr. Kowkab Iqbal, Advocate has appeared on behalf of the petitioner, whereas Maulvi Anwarul Haq, Advocate has appeared on behalf of respondent No,1. Mr. Mansoor Ahmad, Standing Counsel has appeared on behalf of Cantonment Board-respondent No,2. Learned counsel for the petitioner has vehemently argued that respondent No,1 had relinquished her rights in the house in question in her statement made during the course of proceedings under Succession Act, 1925, and had entered into a compromise with the petitioner as a result whereof he is the sole owner of the house in question and therefore, the title suit filed by respondent No,1 could not have been decreed. Both the Courts below according to the learned counsel, have not taken into consideration copy of statement of the respondent which is Exh.D4 on record of the case, which conclusively proves relinquishment of her rights in the house in dispute. It is contended that while decreeing the suit, the two Courts below have exercised their jurisdiction illegally and with a material irregularity.
4. ' Maulvi Anwarul Haq, Advocate, on the other hand has vehemently contended that respondent No,1 is illiterate lady and the evidence recorded in the case if tested on the touchstone of law declared in case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) it is not established that she has relinquished her rights of ownership in the house in question in favour of the petitioner conscientiously. Learned counsel has further contended that it has been admitted by the petitioner while appearing as D.W.5 that the amount which is alleged to have been paid to respondent No,1 as a consideration for relinquishment of her right in the house belonged to her, and therefore, even if, some statement was made by respondent No,1 reflecting relinquishment of her rights, the same being without consideration is liable to be retracted, and hence having been retracted by filing of the suit it does not confer any right of ownership in favour of the petitioner. Therefore, according to the learned counsel, the two Courts below have rightly decreed the suit in favour of respondent No,1. Learned counsel for the respondent No,2 has supported the contentions raised by the learned counsel for respondent No,1.
3. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Admittedly Syed Bagh Hussain Shah deceased who was the owner of the house in question was Shia by faith. Respondent No,1 being his sister is, therefore, sole heir of the deceased. Ownership of the house shall automatically vest in her by way of inheritance as per law declared in case of Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1).
5. Statement of relinquishment of her rights Exh.D4 is a previous statement made by respondent No,1, which has not been confronted to her when she has appeared as a witness. Therefore; this statement is not admissible as evidence in the case in view of the law declared in case of Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 SC 730) wherein at pages 734-736 of the report it has been held as under:-- "The learned counsel for the appellants has contended that the omission in the notice should have been put to the defendants in order to contradict their statement. In support of this contention he has relied on the cases of Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others (AIR 1946 Lah 65) and Bal Gangedhar Tilak and others v. Shinivas Pandit and others (AIR 1915 PC 7). On the other hand, the learned counsel for the respondent has contended that under section 21 of the Evidence Act, it is not necessary for the parties relying on an admission to put it to the other party in cross-examination such a document in order to contradict him. In support of proposition he has relied on the cases of Chandra Kanwar v. Chaudhry Narpat Singh (AIR 29 A11.184), Raheem Bakhsh v. Nathu Bibi and others (PLD 1951 Pash. 6), Ghulam Nabi Corporation Ltd. v. Khan Iftikhar Hussain Khan of Mamdot (PLD 1962 Lah. 370), Ajodhya Prasad- Bhargava v. Bhawani Shankar Bhargava and another (AIR 1957 A11.1) and Venkatlal Beldeoji Mahajan v. Kanhyalal Jankidas and others (AIR 1963 MP 155). After going through these decisions I am of the view that the principle of law enunciated in the case of Firm Malik Das Raj Fakir Chand v. Firm Piara Lal Aya Ram and others lays down the correct law. In this case it was held as under:-- `Where 'a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission, or runs counter to that admission, then the previous admission, cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party'."
6. ' This principle was also enunciated in the case of Bal Gangadhar Tilak and others v. Shrinivas Pandit and otheRs, It was held in that case as under:-- "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 be singularly clear.
7. ' In the present case, the learned Judge of the High Court has raised an adverse inference against the defendants in respect of the plea of estoppel and waiver on the basis of Exh.D.1 in which the defendants had omitted to mention it. In my opinion, if the plaintiff wanted to raise any such inference against the appellant he should have given an opportunity to explain it to the defendants when they appeared in the witness-box. The mere fact that the defendants had offered to give the land in dispute to the respondent if he proves his superior right of preemption and pays Rs,22,000 does not mean that the plea of the appellants on this question is an afterthought or not based on actual faets. Even in the case of Ajodhya Prasad Bhargava v. Bhawani Shankar Bhargava. And another, it was held that where the statements relied on as admissions are ambiguous or vague, it is obligatory on the party who relies on them to draw in cross-examination the attention of opponent to the said statements before he can be permitted to use them for the purpose of contradicting the evidence on oath of the opponent."
8. ' Hence is liable to be excluded from evidence in view of the law declared in case of Khan Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160), wherein at pages 204-205 of the report it has been held as under:-- "The last objection raised against the admissibility of this document on account of non- compliance with the provisions of section 145 of the Evidence Act also appears to me to be well- founded. Assuming that the doeument Exh.PE. Had been duly admitted hi evidence the fact remains that it could be used as a previous admission against the appellant only if the latter had been confronted with this document under section 145 of the Evidence Act, when he appeared in the witness-box but no such confrontation was made. The Election Tribunal got over this difficulty by saying that the document was not being used as an admission, but this is not so in the case of the High Court which appears to have taken the view that the appellant had not made any statement inconsistent with Exh.PE.
9. ' It will be seen that the real controversy in this case was not in regard to the signatures of the appellant on Exh.PE., but with regard to its contents, namely, that the appellant was shown as the Managing Director of the company on 31-12-1970. Even if the appellant failed to contradict his signatures on this document, he had resigned from the office of Managing Director on the 10th of December 1970, and had ceased to function as such from the date. The eontents of Exh. PE were inconsistent with this assertion made by the appellant in his written statement as well as during the course of his evidence in the witness-box. It was, therefore, clearly necessary to confront the appellant with the contents of Exh.PE., as required by section 145 of the Evidence Act, if it was intended to place reliance on his previous admission in this behalf, ' I find myself in 'agreement with the view taken by a Full Bench of Lahore High Court in Des Raj Faqir Chand v. Piarey Lal, that:- "Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission, or the statement made in the witness-box involves the denial of the previous admission, or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admission. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party."
10. ' A similar view was reiterated by this Court in Sikandar Hayat v. Fazal Kairm. In the present case the appellant having taken a particular stand in the witness-box it was necessary to confront him with Exh.PW. So as to give him an opportunity to explain how he came to describe himself as a Managing Director of the Company in this document purported to have been signed by him on 31- 12-1970. It will be recalled that even the alleged oral concession made by the appellant's counsel was that the appellant must have signed this document erroneously or illegally. In this context, the failure to comply with the provisions of section 145 of the Evidence Act becomes fatal to the admissibility of Exh.PE. In evidence.
11. ' Even otherwise, the statement besides being made by an illiterate lady in a proceedings where the house in dispute was not a subject-matter of the lis without there being any evidence about the availability of an independent advice, being without consideration inasmuch as the amount paid in consideration for making of the statement admittedly belonged to her is not sufficient to prove transaction of relinquishment of rights in immovable property in absence of any other independent evidence -of transaction the petitioner does not claim himself to be an heir of the deceased and therefore, it stands established on record that it is respondent No,1 who is the owner of the house in question and the petitioner has no title in the property in dispute and has no locus standi to resist her title suit. The two Courts below, therefore, have rightly held the respondent No,1 to be owner of the house in question and have rightly decreed the suit as prayed for.
12. ' Justice having been done, I see no force in this Civil Revision, the same is, therefore, dismissed with costs.