' This Second Appeal is against the judgment and decree of the Additional District Judge, Karachi dated 11-7-1967 allowing the appeal of the respondents from the judgment and decree of the VI Civil Judge, First Class, Karachi dated 1-9-1966 decreeing the appellants' suit against the respondents.
2. The appellants Nos. 1 to 7 are the legal heirs of Asghar Husain, who died while this appeal was pending. In 1950, Quarter No, 34/1 Gholimar, Pirabad, Karachi was allotted to Asghar Husain by the Deputy Refugee Commissioner. It was a one-roomed quarter. In 1957, he partitioned the said room into two and let out one room measuring 12'x 6' to Qamaruddin, who used it as a tea shop and later as a cycle repair shop on a monthly rental of R s.
20. The case of Asghar Husain is that Qamaruddin after making payment of the rent of the room for a period of some 2 or 2/ stopped paying the rent after 1960. Therefore, Asghar Husain filed Rent Case No, 624/64 for ejectment against respondents, the legal heirs of Qamaruddin, who died a short while before the rent case was filed. In that rent case, the respondents challenged the title of Asghar Husain and took up the plea that Qamaruddin was owner of the disputed room having acquired title to it by a deed of sale dated 21-2-1957 which they alleged had been executed by Asghar Husain in his favour. In view of the dispute as to title, the learned Rent Controller directed the parties to first get their title established by a civil Court. Accordingly, Asghar Husain filed the present Suit No, 294/65 against the respondents claiming a declaration that he was the landlord and owner of the disputed room and that the respondents were his tenants. The respondents denied that they were tenants of Asghar Husain and pleaded that the late Qamaruddin had purchased the room for a consideration of Rs 250 under a sale deed dated 21-2-1957. That after the purchase, Qamaruddin had made some additions and alterations thereto to the knowledge of the plaintiff and that until his death, he remained in actual possession of the same in his own right and carried on his cycle repairing business in it. The learned Civil Judge framed the relevant issue as to whether Asghar Husain was owner of the room in suit which was in the occupation of the respondents and whether respondents were his tenants. In support of his case, the plaintiff examined himself and his two neighbours Ghulam Ally (P. W. 2) and Abdul Aziz (P. W. 4) and one Maqbool Ghani (P. W. 3), an assistant clerk in the Karachi Municipal Corporation, who produced the revision book of assessm ent for the years 1958 to 1963 to show that Qamaruddin was recorded as tenant of the room. Respondent No. 1, the widow of Qamaruddin examined herself and she produced the sale deed Exh.
17. Mohammad Hafeez (P. W. 2) was examined as the scribe of the document and Nanay Khan (D.
W. 3) as the attesting witness.
3. The learned Judge accepted the version of the plaintiff and his neighbour witnesses which he thought was supported by the K. M. C. Official record and disregarded the sale deed Exh. 17 on the ground that in the absence of registration, it was inadmissible in evidence and also that the respondents could not be permitted to adduce oral evidence to prove the sale and the contents of the document. Therefore, he did not discuss the evidence of the respondent No. 1 and her two witnesses. Accordingly, he decreed the suit.
4. Being aggrieved by the said decree, the respondents preferred an appeal to the Additional District Judge, Karachi. The Appellate Court disagreed with the reasoning of the trial Court with regard to the admissibility of the unregistered sale-deed Exh. 17, and held that the sale-deed could be admitted in evidence and be used for a collateral purpose to corroborate the oral evidence of the fact of the sale although not of the contents of the sale-deed. After examining the oral evidence produced by the respondents, he came to the finding that the sale of the shop had been established as a fact. He, therefore, allowed the appeal and set aside the decree.
5. Mr. Saiyid Abbas Zia, learned Advocate for the appellants submitted that the appellate Court erred in law in holding that the sale-deed Exh. 17 can be admitted in evidence for a collateral purpose. His contention is that under section 35 of the Stamp Act, 1899, an instrument not duly stamped shall not be admitted in evidence for any purpose including a collateral purpose. And in this regard, he referred to the decision of the Privy Council in Ram Rattan Parmanand (1). The Privy Council rejected the contention that an unstamped document might be admitted in evidence for a collateral {{FOOT NOTE}}
(1) AIR 1946 P C 51 {{FOOT NOTE}} ' purpose, that is, to prove some matter other than the transaction recorded in the instrument. Sir John Beaumont observed : "Their Lordships do not take this view. A document admitted in proof of some collateral matter is admitted in evidence for that purpose, and the statute enacts that it shall not be admitted in evidence for any purpose. Their Lordships see no reason why the words "for any purpose" in the Indian Act of 1879 should not be given their natural meaning and effect. Such words may well have been inserted by the Legislature in order to get rid of the difficulties surrounding the question of what amounted to a collateral purpose."
' Counsel also referred to Rustomji Ardeshir Irani v. Vinayale Gangadhar Bhat and others (2) where Scott, C. J. Observed that as a document not duly stamped cannot be admitted in evidence under section 35, Stamp Act, 1899, it must be taken to be non-existent. He also referred to Pentapati Negeswa ra Rao v. Moka Narayanamurthi and another (2). While considering the question raised in that case whether an improperly stamped promissory note can be admitted in evidence to prove acknowledgment of liability in order to save limitation in respect of promissory notes previously executed. Leach, C. J. Observed that if an unstamped document cannot be admitted for any purpose, it must mean, if the words are to be given their ordinary and plain meaning, that it cannot be admitted under any circumstances in a civil suit.
6. On the other hand Mr. Rashiduddin, learned Advocate for the respondents submitted that although under section 49 of the Registration Act, 1908, an unregistered document did not operate to create, declare or assign a right in property, it may nevertheless be admitted to explain the nature of possession of the purchaser and cited Anwar Sultana and others v. Pakistan Co- operative Housing Society Ltd. (3) and Mst. Ghulam Sakina v. Umar Bakhsh and another (4). But it is unnecessary to consider the effect of this section of the Registration Act, because the objection to the admissibility of the sale-deed Exh. 17 was also taken on the ground that it was not duly stamped, the sale-deed having been written on a stamp paper of Rupee 1 only. Therefore, the wider prohibition contained in section 35 of the Stamp Act applies and, following the Privy Council decision of Rain A Rattan v. Parma Nand above referred to, I would accept the submission of Mr. Saiyid Abbas Zia that the sale-deed Exh. 17 bearing deficient stamp duty cannot be admitted in evidence or used to corroborate the oral evidence of the fact of the sale.
7. The question, however, remains whether independently of the document of sale Exh. 17, which must be disregarded, the oral evidence establishes that Asghar Husain had sold the shop to Qamaruddin. This being a question of fact, cannot be reviewed in second Appeal unless the finding of fact is not supported on the evidence. The evidence on this question is that of Muhammad Hafeez (D. W. 2). In his evidence, he stated that he lived in the same Mohalla and knew the parties ; that the structure of the shop was sold to Qamaruddin for Rs 250 and that the sale-deed was written before him which the plaintiff executed in his presence ; and that the shop in suit remained in possession of Qamaruddin before his death as owner. The other witness is Nanay Khan (D. W. 3), who also lived in the {{FOOT NOTE}}
(1) I L R 35 Born. 29 (2) 175 I C 24
(3) PLD 1964 Kar. 116 (4) PLD 1964 SC 456 {{FOOT NOTE}} ' same Mohalla and knew the parties. He stated that he saw Qamaruddin in occupation of the shop in suit as owner, that the plaintiff had sold the structure of the shop to Qamaruddin for Rs, 250 and that the sale-deed was written by Hafeez (D. W. 2) and signed by the plaintiff in his presence, and that he also affixed his thumb-impression on it. As none of these witnesses were related to Qamaruddin, the learned Appellate Court gave credence to their testimony in preference to that of Asghar Husain and Maqbool Ghani (P. W. 3), the Municipal clerk. Upon an examination of the oral evidence on record, I find that the Appellate Court was justified in holding that the shop in dispute was sold to Qamaruddin and that he remained in possession thereof as owner.
8. For the foregoing reasons, I find no force in this appeal, which is accordingly dismissed with costs.