' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court is directed against the judgment and decree of the High Court passed on 15-7-1998, whereby the appeal filed by the appellant herein was dismissed.
2. The necessary facts for the disposal of the present appeal are that the respondent herein brought a suit for declaration before the Court of Sub-Judge Mirpur. It was claimed by the respondent-plaintiff that plot No, 204 measuring 5 Marlas situate in sector C-4 Mirpur was allotted in the name of appellant who secured this allotment for the respondent. The entire price of the plot was paid the respondent-plaintiff who duly obtained the possession of the said plot from the concerned authority. The 1/4th advance payment was made by the respondent-plaintiff and on 15-3-1971, the appellant-defendant received Rs,2,800 from the respondent-plaintiff who executed a receipt in favour of respondent-plaintiff. The respondent, according to his averment, obtained the possession of the said plot and the same is in his possession uptil now. As at the relevant time there was no law for transfer of plots the entire documents of plot were given to the custody of the respondent wherein constructed a boundary wall as such the defendant-appellant had no concern with this plot. The respondent-plaintiff also alleged that adverse possession of the respondent-plaintiff on the plot had matured and had ripened into ownership. A counter-suit was filed by the appellant to seek a declaration and possession. He pleaded that the receipt produced in counter-suit was forged. The Sub-Judge decreed the suit of the appellant and dismissed that of the respondent. The first and second appeals were decided in favour of the respondent. Hence, this appeal.
3. Ch. Muhammad Sharif Tariq, the learned counsel for the appellant, vehemently contended that the present case suffered from gross misreading of evidence. He submitted that the receipt Exh. P.F.
Had been wrongly relied upon. The learned counsel contended that signatures of the appellant on Exh.P/F were not legally proved. It was strenuously argued by the learned counsel that marginal witness of receipt Exh.P/F Hamid Hussain did not appear while another marginal witness Mehboob Hussain Hashimi stated in the cross-examination that he went to England in 1970 and came back in 1973, and thus, he could not have signed Exh.P/F purportedly executed at Mirpur on 15-3-1971. The learned counsel for the appellant submitted that in 1971 respondent Karamat Hussain was in England. According to the learned counsel Mehboob Hussain Hashimi stated that the receipt was written by respondent Karamat Hussain but respondent Karamat Hussain in his statement before the Court deposed that it had been written by one Mistri Muhammad Aslam of Gujrat. The learned counsel also contended that firstly the receipt was a forged document and secondly even if it be assumed that it was not a forged document, it would be deemed to be an agreement to sell on which stamp duty had been paid nor was it registered with the result that it could not, be acted upon. The learned counsel also strenuously argued that the receipt Exh.P/F in any case could not form the basis for a decree for declaration.
4. In reply it was contended by Raja Muhammad Siddique, the learned counsel for the respondent, that the appellant and the respondent are closely related to each other. The whole price of the plot was paid by the respondent. The respondent himself was not entitled to the allotment of the plot, as a plot of one Kanal was already allotted to him, therefore, he obtained allotment of the plot in the name of the appellant. The learned counsel maintained that if the plot had not been sold to the respondent by the appellant then how the original documents of the plot came into the custody of the respondent. He submitted that various contradictory versions were taken by the appellant regarding the original documents of the plot. In fact, according to the learned counsel, the documents of plot had been handed over to the respondent as he had sold this plot to him. The learned counsel maintained that the relevant time under the law the plots could only be transferred after the construction of a house. Thus, it was prevalent at that time that persons selling plots used to hand over the original documents to the vendees and execute some affidavits or agreement deeds in their favour. The learned counsel submitted that the original price of the plot was deposited by the respondent. In the first instance he deposited Rs,70 in the shape of cheque but that cheque was dishonoured. Then he deposited Rs,70 in cash. Subsequently, he deposited Rs,630 and obtained the possession of the plot. The learned counsel also submitted that the appellant took different versions with regard to the handing over of the original documents of the plot by stating that the original documents had been stolen. In the same breath he took another plea that the documents were misplaced. The learned counsel contended that the possession of the respondent on the plot in dispute continued since 27-9-1996, the date on which the possession was taken by the concerned authority. The respondent remained silent till 1999 when the suit was filed by him. There was no reasonable explanation for such a long delay. The learned counsel for the respondent fully defended the decree passed by the First Appellate Court and the High Court in his favour.
5. After hearing the respective contentions of the learned counsel for the parties it may be stated that the learned Sub-Judge vide his judgment and decree, dated 30-3-1995, decreed the suit of appellant while dismissed the suit of respondent Karamat Hussain, after elaborate discussion of evidence brought on record by both the parties. It was observed by the trial Court that respondent Karamat Hussain failed to prove the execution of receipt dated 15-3-1971 Exh.P.F. As according to the learned Judge Karamat Hussain respondent and Mehboob Hussain the marginal witness of the said receipt were in England at the time of alleged execution of sale-deed. From no other independent evidence it was proved that at the time of execution of receipt respondent Matloob Hussain was present at the place where the receipt was executed. The trial Court also opined that the signature of Matloob Hussain on the said receipt Exh.P.F. Appears to be fake and fictitious. The learned trial Court further observed that Exh.P.F. Was executed in 1971 and that time Karamat Hussain respondent and his marginal witness Mehboob Hussain were in England and this fact is sufficiently established by the evidence of Mehboob Hussain who deposed in the Court that he went to England in 1970 and came back after 3 years. Thus, Karamt Hussain respondent was bound by the statement of his own witness Mehboob Hussain. Another factor which according to the learned trial Court makes the receipt. Exh.PF doubtful is that Karamat Hussain respondent in his own statement had deposed that the said receipt was written by Mistri Muhammad Aslam resident of Gujrat whereas Mehboob Hussain witness for Karamat Hussain deposed that the receipt was written by Karamat Hussain himself but in the statement of Mehboob Hussain nowhere the presence of Mistri Muhammad Aslam has been shown. Moreover, the signatures of Matloob Hussain which appear on Exh.PF are totally different than the signatures of Matloob Hussain affixed on Vakalat Nama and his statement before the Court. It was enjoined upon Matloob Hussain plaintiff in the case to request the Court for sending the signatures to a handwriting expert and to compare it with his admitted signature on receipt Exh.PF but no such course was adopted by plaintiff-respondent Matloob Hussain whereas the other marginal witness of receipt Hamid Hussain was not produced by the respondent-plaintiff as such the receipt Exh.P.F. Becomes doubtful. Even otherwise the receipt Exh.P.F. Is non-registered and it does not fall within the definition of agreement-to-sell. The above findings of the learned trial Court were set aside by the District Judge and the High Court without any cogent reasons. The only ground made basis for the grant of decree in favour of respondent by both the District Judge and the High Court is that how the original documents of the plot came in possession of respondent Karamat Hussain if the plot in dispute was not allotted for the need of Karamat Hussain respondent. The mere fact that the documents of the plot had been in possession of respondent Karamat Hussain is not per se a ground for believing that the plot had been allotted in the name of appellant for the need of respondent. To this aspect of the case we will be adverting to at a latter stage.
6. In the first instance the moot point to be resolved in the present case is as to whether the receipt Exh.P.F. Was duly executed by the appellant in favour of respondent in presence of marginal witnesses and if the plaintiff-respondent succeeds in proving this issue then naturally the judgments and decrees passed by the District Judge and the High Court are to be upheld. In that case by all means the respondent was entitled to a decree for declaration as prayed for but we have reached the conclusion that the receipt Exh.P.F. On which the claim of plaintiff-respondent is based is found to be fictitious and fake on the face of record for the following reasons:---
(i) that the signatures of appellant-plaintiff on the said receipt are totally different than his admitted signatures on the Vakalat Nama and on his statement recorded before the trial Court;
(ii) that it is not the case of respondent-plaintiff at the time of execution of receipt by the appellant that the initial payment in the shape of advance money amounting to Rs,70 was paid by the respondent through a cheque which was bounced and later on an amount of Rs,70 was paid in cash by the respondent;
(iii) It was also not entered in the receipt that Rs,670 were paid by the respondent-plaintiff as the remaining price of the plot and the same after having been deducted from the bargain amount Rs,2,800 were paid to the appellant. Instead it has been categorically mentioned in the receipt that Rs,3,500 were paid to the plaintiff-appellant as a consideration of plot for which the bargain was struck;
(iv) Even if it be assumed that the bargain between the parties was settled at Rs,3,500 that too is not proved;
(v) As observed by the Sub-Judge the receipt was purportedly executed on 15-3-1971, but it is abundantly clear from the evidence on record that in 1971 Karamat Hussain respondent himself and his one of marginal witness Mehboob Hussain were in England and this fact has been deposed by Mehboob Hussain who appeared as a witness for Karamat Hussain respondent is bound by the statement of his own witness Mehboob Hussain;
(vi) Karamat Hussain respondent in his statement before the Court stated categorically that receipt Exh.P.F. Was written by one Mistri Muhammad Aslam resident of Gujrat whereas Mehboob Hussain a witness from Karamat Hussain respondent has stated in unequivocal terms that the receipt Exh.P.F. Was prepared by Karamt Hussain himself; and
(vii) Above all the receipt Exh.PF on the face of it appears to be fictitious and fake as the signature of Karamat Hussain respondent do not tally with his admitted signature which he affixed on Vakalat Nama and on his statement before the Court. It was rightly observed by the trial Court that it was for the plaintiff-respondent to make a request to the Court to send these signatures admitted as well as disputed to the hand writing expert and to get it proved as to whether they resemble with each other or not.
7. In this view of the matter we concur with the finding recorded by the trial Court and hold that the plaintiff-respondent failed to prove the execution of receipt Exh.PF, moreso, when same on the face it appears to be fake and fictitious. The reasons advanced by the learned District Judge and the High Court in this regard being devoid of any legal force are hereby repelled.
8. It is an admitted position between the parties that the allotment was made in the name of appellant in June, 1966. The advanced money as well as the remaining amount of plot stands deposited in the name of appellant Matloob Hussain. However, at the time of taking the possession the possession is shown to have been given to respondent Karamat Hussain. Normally the allotting authority is bound to give possession of a certain plot to an allottee and not to anybody else and if the possession is given to somebody else that shall be deemed to be the possession as a representative of the allottee or on behalf of the allottee. Similarly, the permission of boundary wall was in the name of appellant. The permission for construction of a house was also obtained in the name of appellant. The assertion of respondent that since 27-9-1966 the possession of plot had been with him continuously is also negated by the documents relied upon by the respondent himself. Similarly, the fact that the entire documents of plot in dispute had been in possession of respondent right from the date of allotment is also negated by the documents produced by the respondent himself. In receipt Exh.PF which was purportedly executed on 15-3-1971 it has been shown that after receiving the amount of Rs,3,500 the possession of plot and documents were handed over to the respondent. Therefore, the inevitable conclusion is that the assertion that the documents of plot remained in possession of respondent since the date of allotment or from the date of taking of possession is belied by the receipt Exh.P.F. Which was produced by the respondent himself.
9. Another factor which has persuaded us to record our finding against the respondent is that in the very beginning when the original plaint was filed by the respondent-plaintiff he simply averred that the plot in dispute had been purchased by him from the appellant for a consideration of Rs,3,500 but later on the plaint was amended and some new grounds were taken, for instance a ground was taken that the plot in dispute was got allotted by the appellant for the sake of respondent. In this amended plaint it was also introduced for the first time that the documents of plot from the date of allotment remained in possession of respondent but in the original plaint not such pleas were raised. Be that as it may since the plaint was allowed to be amended by the trial Court we have still to see the evidence as to whether the plaintiff-respondent has been able to discharge the burden of relevant issue placed on him. Except the mere assertion of respondent to the effect that the plot was allotted in the name of appellant for the use of respondent and the price of plot was deposited by the respondent in the name of appellant, the same has not been substantiated by any other evidence.
10. The contention of the learned counsel for the respondent that the appellant with regard to the documents of plot in dispute had been taking contradictory pleas from time to time. At one time he stated that the documents were given to the respondent for looking after the plot and to get the permission of a boundary wall but at another time he moved an application before the Municipal Committee to the effect that his original documents of plot have been stolen. Thus, the learned counsel for the respondent maintained that the pleas being contradictory in nature the appellant was not entitled to get any relief. We regret to say that onus of this issue was on the plaintiff- respondent. The respondent, as said earlier, too took contradictory pleas with regard to the possession of documents of plot. The plaintiff-respondent was to succeed on the strength of his own case and not on the weaknesses of his adversary.
11. We may also point out that appellant and respondent according to the respondent himself are closely related. This is our common experience that close relatives do have an access to the documents in possession of any of their relatives. Moreover, the possibility cannot be ruled out that the appellant might have handed over the documents of plot to respondent for doing favour to him in respect of getting permission for a boundary wall or permission for construction of house, therefore, the argument raised by the learned counsel for respondent being devoid of any force is hereby repelled.
12. Another objection of the learned counsel for the respondent is that the appellant had been silent for a pretty long time and it was only when the respondent started construction of a house that appellant came into field and started raising objection. This is also on record that the appellant not only filed a suit for declaration but also approached the relevant authorities to stop the respondent from raising the construction. During the pendency of the suit the appellant applied for grant of ad interim injunction restraining the respondent from raising construction but the High Court vide its judgment dated 20-11-1991 vacated the stay order on the ground that if ultimately the decree of possession is passed in favour of appellant-plaintiff the respondent shall remove the construction raised by him at his own risk and expenses. To this condition the respondent agreed. Therefore, by ordering the demolishing of unauthorised construction raised by the respondent to which he agreed himself at his own expense, the ends of justice would fulfilled.
In the light of what has been stated above, we accept the appeal filed by the appellant, herein, by setting aside the impugned judgments and decrees of the District Judge Mirpur and the High Court and restore the judgment and decree of the Sub-Judge. Respondent Karamat Hussain shall demolish the construction from Plot No,204 measuring five Marlas situate in Sector C/1 Mirpur and would remove the debris at his own costs within a period of two months from the date of pronouncement of this judgment. In the circumstances of the case we pass no order as to the costs.