' This civil revision arises out of judgment and decreed dated 14-10-2000 awarded by the Additional District Judge, Rawalpindi whereby the appeal of the respondent was accepted and the judgment and decree of the trial Court was reversed.
2. Facts scanned and ascertained from the record are that House bearing No,N-,438 situated in Mohallah Waris Khan, Rawalpindi was an evacuee property. The Settlement Department issued P.T.O. Dated 16-12-1963 and P.T.D. Dated 24-6-1971 in favour of Abdul Rehman who since deceased is now represented through the legal heirs.
3. The case as set up by the petitioner in the plaint is that house was exclusively in possession of Rehmat Ullah deceased who was the father of the petitioner since 1942 till his death in the year 1952. The father of the petitioner paid rent of the said house to the Rehabilitation Department at different rates till 23-1-1960.
4. Further it was stated in the plaint that after the death of his father, the petitioner continued to occupy 1/2 portion of the said house. The father of the plaintiff has brought in defendant No,1 in the house and allowed him to occupy the remaining 1/2 portion of the house as a licensee.
5. Further narration in the plaint are that the plaintiff/petitioner submitted L.H. Form in the office of the then Deputy Settlement and Rehabilitation Commissioner, Rawalpindi for transfer of the said house. The form was entered and registered at No,RWPII-135 LH on 17-11-1959 and record of the Settlement Department revealed that the house was transferred to the plaintiff/petitioner.
Continuing further it was stated that the petitioner is an illiterate person and except for signing his name, he could neither read nor write. On the contrary defendant/respondent No,1 was an educated person. As he was the cousin of the plaintiff's father he as such posed himself as a well- wisher of the petitioner. Therefore, he accompanied the petitioner on few occasions to the Settlement Department. The deceased respondent somewhere in 1965 informed the petitioner that the house stands transferred in his name. He also took him to the Settlement Department. Ever since the petitioner lived in house as an absolute owner.
6. In the year 1983 the deceased respondent served a notice to the petitioner under section 30 of the Displaced Persons Rehabilitation and Settlement Act, 1958 and claimed the ownership of the property. This led to a probe by the petitioner which reveals that through fraud and forgery, the deceased respondent procured P.T.O. And P.T.D. In respect of the suit property in his name.
7. Various facts were specifically pleaded in the plaint which find mention in sub-paras. 8(i) to (iv) and it was alleged that the P.T.O. And P.T.D. Procured by Abdul Rehman deceased was the result of the fraud and forgery. He was not entitled to transfer of the evacuee property under the relevant Settlement Scheme No,l.
8.. The suit was resisted by the defendant/respondent. Various legal and factual pleas were raised by the defendant/respondent and it was contended in the written statement that the alleged form was submitted by the defendant and P.T.O. And P.T.D. Was rightly issued in his favour:
9. From the pleadings of the parties the trial Court settled following issues:--
(1) Whether the plaintiff has no cause of action?
(2) Whether the suit is not maintainable?
(3) Whether this Court has no jurisdiction?
(4) Whether the suit is barred under sections 22 and 25 of Displaced Persons Compensation and Rehabil citation Act, 1958 and section 15(7) of Rent Restriction Ordinance, 1959?
(5) Whether the suit is time-barred?
(6) Whether the plaintiff is entitled to decree for declaration to the effect that the plaintiff is transferee of the disputed property and P.T.D. Dated 24-6-1971 in favour of defendant No,1 is result of fraud and forgery.
(7) Relief.
10. Both the parties led their evidence. The petitioner appeared as P.W.1 and produced documentary evidence Exh.P.1. To Exh. P.35. Respondent examined Musadaq Kalim, Special Attorney of deceased respondent No,1 as D. W.1 and produced documentary evidence as Exh.D.1 to Exh.D.51.
11. After conclusion of the evidence and hearing, the trial Court vide its judgment and decree dated 11-11-1991 decreed the suit of the petitioner holding that the plaintiff/petitioner was a legal transferee of House No, 438 under Settlement Scheme and that P.T.O. Dated 16-12-1963 and P.T.D.
Dated 24-6-1971 were void being result of fraud and forgery. Further it was held that Abdul Rehman deceased shall surrender before defendant No,2, these documents of title who shall proceed to cancel the same. Decree for possessor of half portion was also granted in favour of the plaintiff/petitioner. The deceased respondent has challenged the judgment and decree of the trial Court by filing an appeal. The appeal was finally decided by the Additional District Judge, Rawalpindi vide his judgment dated 14-10-2000 which is called into question through the present revision petition. The appellate Court held that the trial Court did not render its judgment and decree on proper appraisal of the evidence.
12. The learned counsel for the petitioner argued that the appellate Court misread and misappreciated the evidence on record and on the basis of surmises and conjectures reversal a well-reasoned judgment of the trial Court.
13. It was argued that Exh.P.1 letter, dated 24-6-1984 issued by Additional Settlement Commissioner (Urban) Punjab, Lahore, Exh.P.2 LH-Form Exh.P.3 an extract of E.T.O. Record of 1945-46, Exh.P.4, Exh.P.6 Survey List of Urban Properties, Exh.P.7 to Exh.P.19 receipts for the payment of rent, Exh.P.20 extract from C.S.C. Register Exh.P.27 and Exh.P.28 were not considered by the Appellate Court in its proper perspective whereas the trial Court based its judgment on proper analysis of these documents.
Accordingly the learned counsel maintained that it is a case of misreading of the record and evidence. Further it was argued by the learned counsel that there was no evidence on record suggesting the possession of the respondent prior to 1960. The receipts or any other documents which the deceased respondent if at all shown to the Settlement Department were neither available on the record of the Settlement Department nor the same were produced. Therefore, according to the learned counsel neither the possession of the deceased respondent was proved nor he had any entitlement under Settlement Scheme No,I to obtain property as a local. Adding to his arguments he highlighted certain manipulation in the documents which he has referred. It was also submitted that the petitioner had no knowledge about these manipulations till 1983, therefore, the suit filed was within time and it was not hit by the limitation. Also it was argued that the plenary jurisdiction of the civil Court was not barred to examine the validity of P.T.O. And P.T.D. Which was stated to have been procured by the respondent through fraud and forgery. Reliance was placed by the petitioner on cases Hamid Hussain v. Government 'of West Pakistan and others 1974 SCM R 356, Sultan Hussain Khan and others v. Mst. Nasim Jahan and others 1994 SCM R 150, Majeedud Din Khan and others v. Sardar Khan and others 1990 SCM R 1031 and Laeeq Ahmad and others v.
Maqsood Ahmad and others 1991 SCM R 465.
14. On the other hand learned counsel appearing for the respondent has controverted - the arguments of the petitioner and submitted that the receipt Exhs.P.7 to 19 which are purported to be rent receipt were the fabricated documents. According to the learned counsel the close analysis of these receipts would show that rate of rent was not consistent. Further it was maintained that these documents were not produced by the Settlement Department or from the custody of the Settlement Department. Therefore, these were not properly proved and they do not have the probative evidentiary value and are liable to be ignored. According to the learned counsel the appellate Court has rightly ignored these documents from considerationm Further the counsel criticized the judgment-of the trial Court and supported the judgment of the Appellate Court.
Documentary evidence produced by the respondent deceased was highlighted to support the title of the respondent. In support of his plea learned counsel placed reliance on cases Sher Bahadur Khan v. Qazi Islamuddin and others PLD 1984 SC 213, Ghulam Rasool v. Janat Bibi and others 1990 SCM R 744, Union Council Deh Gujro v. Messrs Baba Corporation (Pvt.) Ltd. 1993 SCM R 596.
15. Firstly I will deal with the objections relating to the documents Exhs.P.7 and P.19. These documents were produced in the statement of plaintiff who has appeared as P.W.1. Trial Court mentioned against these documents (iv j) i,e, subject to objections. The nature of the objections of the defendant were not specifically mentioned.
16. From the judgment of the trial Court it is observed that no serious objection was raised to these documents. After the judgment by the trial Court, the respondent filed a detailed memo. Of appeal but in so many words, an objection was not taken that these documents were not the correct certified copies from the record of the Settlement Department. Merely in ground of appeal it was stated that these documents were forged.
17. Exhs.P.7 to P.19 are the receipts showing the deposit of rent. These receipts are issued by the Settlement Department and shows the payment of rent of different A periods. Perusal of these documents also reveals that these are certified copies issued by the Settlement Department. All these receipts are in the name of father of petitioner.
18. The appellate Court ignored from consideration these documents for the reason that these were the attested copies of the receipts as such these do not constitute as primary evidence and there was a different procedure provided for producing secondary evidence under Articles 74 to 76 of the Qanun-e-Shahadat. Following this line of reasoning the Appellate Court, therefore, held that because these documents were not properly proved, as such those were omitted from consideration. It was also observed by the Additional District Judge that the bank issued acknowledgement receipt for deposit which was required to prove the regular deposit of rent.
19. Exhs.P.7 to P.19 are receipts of various dates which are issued by the . Settlement Department.
These are not the bank deposit receipts. Certified copies of these receipts were issued by the Settlement Department. P.W.1 in his statement clarified that the rent was not deposited in the bank but it used to be paid to the Settlement Department who used to issue the receipts. He further stated that the receipts which were issued to him by the Settlement Department were lost from his house.
20. Record relating to the deposit of rent maintained by the Settlement Department is a public record. Exhs.P.7 to P.19 being part of the record of an official body is a public document as contemplated under Article 85. A document may be proved by primary or secondary evidence and Article 76 contained the provision in which secondary evidence is given. In sub-clause (t) of Article 76, it is provided that when the original is public document within the meaning of Article 85, the secondary evidence may be given. In the present case as receipts were public record, therefore, producing the certified copies of these receipts issue( from the Settlement Department was a proof and proper mode of proving these documents. The Additional District Judge was not correct in holding that these documents could only be proved through the primary evidence. I, therefore, hold that the documents Exhs.P.7 to P.19 were properly proved and these were wrongly omitted from consideration.
21. In the arena of civil Law fraud also include improper means resorted to as a means to obtain a benefit or acquire a right which otherwise was not available 'to a C person. The fraud .Is act of dishonesty which is inferable from the evidence on record and circumstances of the case. Exh.P. I is a letter dated 24-6-1984 written by the Additional Settlement Commissioner to the plaintiff.
Settlement Department admitted that L.H Form submitted by the plaintiff was registered at No,RWP-II-135 on 17-11-1959 and the father of the plaintiff was an old tenant. Similarly after a short inquiry the Deputy Settlement Commissioner, Rawalpindi vide memo. Dated 7-4-1984 observed that complaint tiled by the plaintiff, against defendants has some weight in the light of the documentary evidence produced by the plaintiff in the form of rent receipt and entry made in the CSC-IV Register. The plaintiff-defendant are local and claimed the transfer of the property on the basis of their lawful possession under Settlement Scheme No,I as local. Exh.P,2 is a L.H. Form. It shows the signatures of Abdul Rehman as a Special Attorney of plaintiff Wazir Hussain, while in the column of particulars of property name of Abdul Rehman, defendant is shown in possession since 1942. There is no other evidence brought on the record 'to show that defendant Abdul R.Ehman was in possession of the property since 1942. Exh.P.3 is an extract of E.T.O. Record 1945-46 which mention Rehmat Ullah, the father of the plaintiff in possession of the said house. In the light of Exhs. P.3 and P.7 to P.19 it is not difficult to observe that the house in question was in the possession of Rehmat Ullah the father of the plaintiff.
22. Under Settlement Scheme No,1 a local in possession of the property was entitled to transfer. As Rehmat Ullah plaintiff was in possession, therefore, to seek transfer of the house entitlement of the father of the plaintiff is established. The plaintiff being son of Rehmat Ullah acquired the right of transfer of the said house. When the LH Form in the record Exh.P.2 was analysed from this angle, it reveals that it is a form submitted by Wazir Hussain plaintiff through Special Attorney Abdul Rehman. Signatures of Abdul Rehman are also on the said form. If Abdul Rehman himself was submitting a form then there was no reasons for him to mention the name of Wazir Hussain plaintiff. The particulars of the applicant and property are to be given in a lower part of the form which although contained name of Abdul Rehman defendant but it is a manipulation. Personal account of refugees allottees was brought on the record as Exh.P.4. It shows that report for possession was called with a query to show rent receipt. On the same forms the office reported that some of the receipts have been issued in the name of one Rehmat Ullah. Further inquiry was made to know as to who Rehmat Ullah was. Office replied the query on the basis of assertion of Abdul Rehman defendant that Rehmat Ullah was his real brother who has died. The facts flowing from these documents referred are that Rehmat Ullah, father of the plaintiff was in possession of an Evacuee Property as a local and the possession of Abdul Rehman was not there. The survey list of rent of urban properties, Exh.P.6 also shows the possession of Rehtnat Ullah a local in respect of House No,N-438 since 1942.
23. After observing these facts that house in question was in possession of Rehmat Ullah father of the plaintiff and there is no counter-evidence suggesting that Abdul Rehman was in its possession, it is safely concluded that defendant had no right to seek the transfer of the property under Settlement Scheme No,I as he was not in possession of the suit property, as a local.
24. Exh.P.20 is an extract copy of Register IV from Settlement Department, it shows the submission of L.H. Form by Wazir Hussain son of Rehmat Ullah in respect of the suit house. There is an apparent manipulation in the register wherein through different handwriting, subsequently the name of Abdul Rehman is written. Another document supporting the version of the plaintiff is a letter issued by the Deputy Settlement Commissioner, (Exh.P.28) this was addressed to Wazir Hussain with reference to. L.H. Form No,RWP-II-135. Wazir Hussain was required to submit an affidavit, therefore, the evidence brought on record proved that L.H. Form was submitted by Wazir Hussain. No form was submitted by Abdul Rehman defendant. The possession of suit house also devolved upon Wazir Hussain plaintiff from his father Rehmat Ullah. Under Settlement Scheme No,1, the plaintiff was entitled to obtain the transfer of the house from the Settlement Department. On the contrary no such right was available to defendant Abdul Rehman.
25. The first application which appears on record on behalf of Abdul Rehman is dated 27-11-1963 which was submitted through Syed Tasleem Ahmad Shah,' Advocate. Noting of the said application appears to be in the same hand and through similar Handwriting the name of Abdul Rehman was brought on record,, in Register Form (Exh.P.20). This fact is clearly observable by comparison of Exh.D.2 and Exh.P.20. Further proceedings were conducted and the order of the D.S.C. Dated 29-1- 1963 is on the file. This document shows that the whole proceedings from making an application to the passing of order to the !D.S.C. Was completed in two days. On the basis of this order P.T.O. And P.T.D. Was issued in his favour. Defendant has brought documents D.1 to D.51. I have examined these documents. Not a single document exist showing the possession of the defendants or payment of rent prior to 1959. Exh.D.10 and D.11, two documents produced by the defendants are shown to be some receipts issued by Muhammad Hussain Inspector Police Special Police Rawalpindi for the payment of rent of House No,438. These two documents are in fact copy of the same documents. It further shows that this handwriting was not on a prescribed form. Exh.D.12 is brought on the record by defendant. It is a receipt on prescribed form but it shows the name of Rehmat Ullah. D.13, 14 and 15 are the documents which contains an observation about the complaint of Wazir Hussain. Exh.D.16 relates to the various procedural proceedings for seeking transfer carried on after 1960 and issuance of transfer document to Abdul Rehman. These documents are comprised of deed of association, various application filed, by defendant Abdul Rehman and payment of Settlement fee, accounts sheet etc. These documents merely show that after 1960, defendant was making efforts with the Settlement Department for the transfer of suit house. The next document Exh.D.35 is a copy of Assessm ent Register Exh.D.36 shows that electric meter was installed at the disputed house on 24-4-1962 in, the name of Abdul Rehman. Exh.D.37 is aeceipt issued by the Municipal Committee in 1963. Similarly Exh.D.38 is certificate showing installation of Sui gas in the suit house in October, 1975.
Exhs.D.42 to 51 are electric, Sui gas and challan bills and the receipts in the name of Abdul Rehman defendant mentioning him owner of the house. These documents are of no help to the defendant Because these merely show that electric meter was installed in 1962 and the Sui gas was completed in 1975. The crucial period was prior to 1960 in support of which the defendant could not bring on record any document. In the absence of any document on evidence brought on record by the defendant, proving his possession prior to 1960 or from the date of submission of L.H. Form dated 17-11-1959, these documents do not help the defendant.
26. On 27-11-1963 when the defendant made an application the order was passed on application on 28-11-1963 by D.S.C. For check and report. On the next date on 29-11-1963 the office submitted a report. On the same day the statement of Abdul Rehman was recorded and on the same day Deputy Settlement Commissioner passed the order and on the same day Appendix was issued.
This is clear from the documents Exhs.D.2 to D.S. It is not clear from the record that when the alleged form was submitted by defendant Abdul Rehman. The handwriting of the official submitting report appears to be similar to the writing on Exh.P.20 inserting the name of Abdul Rehman. There is no LH Form of Abdul Rehamn and if LH Form dated 17-11-1959 is taken to be correct, this form was submitted by Wazir Hussain through Special Attorney Abdul Rehman and in the particular of application name of Abdul Rehman was written against the factum of the possession and right or eligibility. Perusal of alleged from Exh.P.2, personal accounts of refugees allottees of the house/sliop etc. (Exh.P.4), survey list of rent of Urban Property (Exh.P.6) CSC-IV P.2 and Exh.P.27 extract from CSC Register, Copy of the application of Abdul Rehman (D.2) and proceedings thereon when looked in the background of other documentary evidence shows the possession of Rehmat Ullah the father 'of the plaintiff. Further observing manipulation/insertion through similar handwriting lead to a reasonable conclusion of fraud and forgery.
27.. Although an appraisal of the evidence is not normal course in exercise of revisional jurisdiction but in case of gross I misreading this Court can reappraise the evidence on the tile. I fortified in my view by various judgments of appellate Court and latest in case of Khan Mir Daud Khan v.
Mahrullah PLD 2001 SC 67. After appraisal of the evidence, I hold that neither the possession nor the eligibility of the defendant to obtain the transfer of the suit property was proved on the record.
Fraud and forgery on the part of the defendant was positively discernible from the evidence.
Therefore, the conclusion drawn by the Appellate Court were incorrect.
28. Next, question urged by the defendant/respondent relates to the jurisdiction. Learned counsel argued that the Civil Court had no jurisdiction to entertain the case for reasons, that Civil Court could not go behind the P.T.D. Which having been issued in 1971 and had attained finality:- Learned counsel also referred to the prayer made, in the suit. Respondent placed reliance on cases of Haji Amir Ali v. The State 1979 SCMR 356, Laeeq Ahmad Maqsood Ahmad 1991 SCM R 465 and Sultan Hassan Khan v. Mst. Nasim Jehan 1994 SCM R 150. I. Am afraid that the arguments raised by the learned counsel are not well-founded. Through the suit the plaintiff sought a declaration that P.T.O. Dated 16-12-1963 and P.T.D. -dated 24-6-1971 procured by defendant was result of fraud and forgery. Inter alia other reliefs of right of transfer were also prayed. Civil Court is a Court of plenary jurisdiction. The question of fraud and forgery is determinable only by the Civil Court, particularly in the settlement cases where after the repeal of Settlement Laws no other forum is available for adjudicating such dispute. Notified Officer appointed under the Repeal Act do not possess jurisdiction to declare P.T.O. And P.T.D. As illegal, null' and void on the ground of fraud and forgery. -After repeal of Settlement Laws this jurisdietion only vested with the Civil Court.
29. Regarding the last question of limitation, the learned counsel argued that the P.T.O. Was issued in the year 1963, P.T.D. Was issued in the year 1971, therefore, for filing a suit the limitation was six years maximum as provided under Article 120 of the Limitation Act but the suit was filed on 2-10- 1984, after 13 years of the issuance of P.T.D. This argument of the learned counsel is also devoid of any force. The plaintiff in his plaint stated that he came to know about the fraud and forgery committed by defendant in procuring the impugned transfer order and transfer document in December, 1983. Whereas the defendant asserted that plaintiff knew the factum of transfer of the suit property in his favour since 1963. Trial Court has correctly decided, Issue No,5, holding that in such-like cases where fraud and forgery is alleged the time is computed from the date of knowledge. On Issue No,5 finding was recorded by the trial Court but the Appellate Court while disposing of the appeal did not attend to this question. Most probably it was not .Forcefully urged by the defendant. However, in the absence of any evidence showing the knowledge of the plaintiff in respect of factum of issuance of the transfer document prior to 1983, I approved the findings of the trial Court and hold that the suit of the plaintiff was within time. The case-law cited Dr. Saghir Alam v. Mst. Kaniz Fatima NLR 1981 Civil 78 and in case Majeed-ud-Din Khan v. Sardar Khan 1990 SCM R 1031 is qualified on the facts and circumstances of these cases and is not attracted to in the facts of the present case.
For the reasons recorded hereinbefore I hold that the judgment of the First Appellate Court suffers with material irregularity. Neither the law was correctly applied nor evidence was properly appraised. Resultantly I set aside the judgment and decree, dated 14-10-2000 awarded by the Additional District Judge, Rawalpindi and restore the judgment and decree, dated 11-11-1991 of the trial Court.