GHULAM MUSTAFA MUGHAL, J.--- The above captioned appeals are directed against the consolidated judgment and decree of the learned District Judge Kotli passed on 4/5/1998, whereby the judgment and decree of the Additional Sub-Judge Kotli recorded on 31.5.1992 has been maintained. Both the appeals raise common questions of facts and law, hence, are heard together and are decided as such.
2. Brief facts of the case are that two sale-deeds were executed on behalf of Fateh Begum, Charagh Begum and lqbal Begum by one Ghulam Muhammad, respondent No. 22 herein, as their attorney, in favour of Muhammad Shafi now survived by respondents Nos.
1. To 8 on 22.7.1963. The sale deeds were about the suit land, as well as occupancy rights. The description of the land has been recorded in the orders of the subordinate Courts, therefore, reproduction of the same is not necessary for decision of the controversy.
3. Muhammad Afsar, Naik Muhammad, Alam Din and Shah Muhammad, plaintiffs, filed two separate suits on the basis of right of prior purchase against Muhammad Shafi, vendee, on 21.9.1964. Another suit was filed by Mst. Lqbal Bi d/o Sher Muhammad for declaration and perpetual injunction in respect of the alienated land through the aforesaid sale-deeds claiming therein that she was minor at the time of execution of the power-of-attorney and the sale-deeds, therefore, the said power-of-attorney, as well as sale-deeds are inoperative and ineffective as against her rights for being fictitious and fraudulent transaction. A suit for declaration and perpetual injunction was also filed by Feteh Begum widow, Charagh Begum d/o Sher Muhammad on 9/2/1985. To the effect that they have never executed any power-of-attorney in favour of anybody. It was further averred that the so-called power-of-attorney allegedly executed in favour of Ghulam Muhammad respondent No. 22 in Appeal No. 38/1998 in bogus, fictitious and fraudulent, resultantly, the sale- deeds executed on their behalf in favour of Muhammad Shafi were also without lawful authority. It was further prayed that as the plaintiffs are in possession of the suit land, therefore, a decree for perpetual injunction may be passed against the respondents. Alternatively a decree for adverse possession was also claimed by them.
4. All the suits were resisted by the respondents by filing written statements. The learned Trial Court consolidated all the suits and framed issues on 31.12.1987 and 31.5.1992. The parties were provided an opportunity of hearing and after conclusion of the trial declaratory suit No. 14 of 1967 filed on behalf of lqbal Bi was decreed to the extent of her share and the sale-deeds were also declared ineffective, inoperative as against her rights whereas the suit for pre-emption filed on behalf of Muhammad Afsar and others was decreed to the extent of remaining land/rights. Feeling dissatisfied with the judgment and decree, the legal representative of Muhammad Afsar and Fateh Begum filed appeals against the judgment and decrees of Additional Sub-Judge before the District Judge, Kotli. The learned District Judge concurred with the Trial Court vide his judgment and decree passed on 4.5.1998, hence, these appeals.
5. Mr. Rafiullah Sultani, the learned Advocate appearing on behalf of Cha.Ragh Begum and others raised the following submissions:-
(1) that the Trial Court has failed to frame the proper issues in light of the respective stands of the parties, therefore, without adverting to the merits of the case the appeal may be remanded for framing of the proper issue's and decision on merits. In this regard the learned Advocate placed reliance on Brederi lssalan Basti Charhdi's (PLJ 2002 Lah. 412).
(2) that the power-of-attorney allegedly executed in favour of Ghulam Muhammad on 2.5.1963 was never executed by the appellants and lqbal Bi proforma respondent thus, the sale deeds executed by Ghulam Muhammad as their attorney on 22.7.1963 were also without lawful authority.
(3.) that the execution of power-of-attorney has not been proved in view of Article 79 of the Qanun-e-Shahadat, 1984 or Section 68 of the Evidence Act, 1872, therefore, subsequent sale -deeds are without lawful authority.
(4) that the onus of proof of the disputed documents was on the beneficiaries of these documents and has illegally been shifted to the executants who were 'pardanashin' ladies, hence, the conclusion arrived at by the learned Trial Court as well as first Appellate Court with regard to the proof of the documents is erroneous and is based on surmises and conjectures, misapplication of law, therefore, is unsustainable.
(5) that admittedly plaintiffs, Charagh Begum and others are in possession of the suit land thus, their possession even otherwise was adverse to the vendors;
(6) that the decree was un-executable as it is contradictory.
The learned Advocate- supported his submission by placing reliance on the following cases:-
(1) "Muhammad Zaman Khan v. Sher Afzal Khan and 8 others" (PLD 1984 SC (AJ&K) 138);
(2) "Shabbir Anwar v. Sh. Tariq Mehmood and 2 others" (2002 CLC 1102);
(3) "National Bank of Pakistan v. M/s. Fine Art Textile Industry, etc." (NLR 1986 Civil 146);
(4) "Mst. Jannat Bibi v. Faqir Muhammad" (1998 M LD 837);
(5) "Amirzada Khan and another v. Ltbar Khan and others" (2000 PSCC 1812);
(6) "Abdul Aziz v. Mst. Jantay. Bib1 (1999 CLC 1505);
(7) "Mst. Badshah Begum v. Ghulam Rasul and 4 others" (PLD 1991 SC 1140);
(8) "Govt. Of Sindh and others Khalil Ahmed" (1992 CLC 1958);
(9) "Shehnaz Bibi v. Muhammad Ikhlaq Khan" (PLJ 1996 Lah. 1472); ( 1 0) "Shabbir Anwar v. Sh. Tariq Mehmood and 2 others" (2002 CLC 1102); and
(11) "Abdul Rashid v. Barkatullah and 18 others" (PLJ 2002 SC (AJ&K) 1).
6. In the case titled "Brederi Issaian Basti Charhdi through Inayat Masih and 6 others v. Aziz Baig and 8 others" (PLJ 2002 Lah. 412), it has been opined that where proper issues were not framed by the Trial Court, the Appellate Court can remand the case for framing of proper issues or after itself framing proper issues, case be remanded. In PLD 1984 SC (AJK) 138, the controversy was with regard ,to the execution of a will. It was opined that the person who relied on execution of will must show that it was duly executed. In Shabbir Anwar's case (2002 CLC 1102), it was opined that the beneficiary of the document was bound to prove that the document was executed by 'Pardanashin' lady having independent legal advice at the time of execution of the document in question. In NLR 1986 Civil 146, it was opined that mere registration of the document is not, sufficient to hold that the same has been properly executed. It was further opined that a person relying on a document is bound to prove its execution. In 1998 M LD 837, the manner of proof of execution of documents was dilated upon. It was opined that the endorsement of Registrar was not sufficient to hold that the document in fact was executed. In PLJ 2000 SC 1930; it was opined that where document has been executed by a 'pardanashin lady', the burden of proof will be on the person claiming benefit therefrom and he is legally bound to prove and satisfy the Court; firstly, that the document was executed by her; secondly, that she had complete knowledge and full understanding about its contents; and thirdly, that she had independent and disinterested advice in the matter before entering into transaction and executing the document.
Almost the same principle was followed and approved in 1999 CLC 1505, 2000 CLC 150, PLJ 1996 Lah.
1472, 1992 CLC 1958 and 1992 M LD 1598. In PLD 1991 SC 1140, the same rule was again explained with reference to the rights of women in Islam. In PLJ 1996 SC (AJ&K) 312, the principle with regard to the execution of document has been highlighted. In 2002 CLC 1102 and in 1998 M LD 837, the rule of proving the document in light of Article 79 of Qanun-e-Shahadat, 1984, has been highlighted. In PLJ 2002 SC (AJK) 1, it was held that a decree which by itself is un-executable even if passed is nullity and non-existence in the eye of law.
7. M/s. Khawaja Abdul Basit and Mirza Nisar Ahmed, the learned Advocates, for the other side controverted the arguments advanced by Mr. Rafiullah Sultani, Advocate. It is submitted by the learned Advocates that the appellants miserably failed to discharge the onus of proof to the extent of disputed documents, thus, the conclusion arrived at by the Trial Court as well as that of first Appellate Court is unexceptional. According to the learned Advocates the concurrent findings of facts even otherwise cannot be challenged on the ground that from the same evidence some other view is possible. The learned Advocates while supporting the cross appeal submitted that findings on issues Nos.4, 8 & 9 against the respondents are against the record, therefore, the Appeal No. 39/1998 filed on their behalt may be accepted and the judgments and decrees of the subordinate Courts may be amended, accordingly.
8. I have heard the learned Advocates for the parties and perused the record.
9. Before proceeding further I would like to attend the objection of the learned Advocates for the respondents regarding the maintainability of the appeal of Charagh Begum and others. The objection of the learned Advocates that no second appeal is competent in view of Section 100 of the Code of Civil Procedure against the concurrent findings of facts returned by the subordinate Courts, is correct, however, this rule has some exceptions and is not strictly applicable to the present case. No doubt that an interference under Section 100 of the Code of Civil Procedure is possible only on the following grounds:-
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law; (a a substantial error or defecting the procedure provided by this Code or by any other law for the time being in force, which may possibly have prodCued error or defect in the decision of the case upon the merits.
10. The concurrent findings of the subordinate Courts are not to be interfered with in second appeal if the same are based on careful consideration of documentary and oral evidence but not otherwise. In the present case as has been argued on behalf of the appellant, the onus of proof has been wrongly placed on the plaintiff ladies and the execution of the document in light of Article 68 of the Evidence Act; has also not been proved, therefore, it cannot be held that in the given circumstances of the case this Court cannot entertain the second appeal. I would like to refer a case titled "Ahmad Khan v. Rasul Shah and others"
(PLD 1975 SC 311) wherein it was opined that the right construction of documents, particularly revenue record is a question of law. The relevant observation of the apex Court of Pakistan is at page 315 of the report which is to the following effect:- "..... It may be that in some cases the question whether possession is adverse or not, is one of simple fact. But it may not necessarily be so in all cases, for it may as well be a conclusion of law or a mixed question of law and matter of legal inference to be drawn from certain documents or any proved or admitted fact. As will be seen presently, the plaintiffs relied inter alia upon entries in the successive Jamabandis of the land for more than 20 years in support of their perfection of their proprietary title by prescription. Right construction of documents and in particular in a revenue record has always been regarded as question of law which the High Court is not precluded from considering in second appeal."
11. This brings me to the arguments of the learned Advocates for the appellants that the issues have not been properly framed, in my opinion the contention is devoid of any force. The suit remained pending for pretty long period and the plaintiffs never requested for proper framing of the issues, they are, therefore, not entitled to raise the objection in second appeal. In Khadim Hussain's case (PLD 1981 SC (AJK) 40), it has been opined that if a party omits to claim an issue no capital can be made out of such omission and such issue shall be deemed to have been abandoned.
12. The next contention of the learned Advocate for the appellants that power-of-attorney allegedly executed in favour of Ghulam Muhammad on 2.5.1963 was never executed by the appellants herein and the sale-deeds on behalf of the appellants and lqbal Bibi Proforma respondent are fictitious and without lawful authority, is supported from the record. A perusal of the judgments of the Subordinate. Court reveals that onus of proof has wrongly been placed on the plaintiff ladies so far as the genuineness of the power-of-attorney or sale-deeds is concerned, thus, the judgment to this extent has been rendered on wrong assumption of facts and law. The authorities referred to and relied upon by the learned Advocates unequivocally laid down the principle of law that where the execution of a document has been denied by a Pardanashin illiterate lady alleging fraud, then the onus of proof would be on the beneficiaries of the document. The learned Subordinate Courts misdirected themselves in this regard. In PLD 1984 SC (AJK) 138; a similar proposition came under consideration of the 'apex Court of Azad Jammu and Kashmir and it was opined as under:- "9. Even otherwise, we are of the considered view that the onus has been wrongly placed on the appellant to prove that the document (will) is a forged one. The respondent claims to have acquired title to the suit land on the basis of a will which fact, in the suit, was repudiated by the appellant claiming that the -will was forged one and, therefore, it was the respondent who was to prove that the will was executed by Muhammad Afzal Khan. The law is that those who rely on the will must show that the will was duly executed. Ordinarily, if there is po suggestion to the contrary any man who is shown to have executed a will, will be presumed to have done 'so, but the moment the execution is called in question the onus lies on those propounding the will to affirm positively the execution of the will. Therefore; the burden here should have been on the respondent to prove that the document (will) has been executed and it was not for the appellant to prove in negative that it had not been executed or it is a forged or fabricated one. However, as said earlier, the question of burden of proof is not important here because all the relevant evidence on the issues is available on the record it matters little as to which party has adduced the evidence.
13. Where dispute is with regard to the execution of a document allegedly executed by a Pardanashin lady then the question of proof becomes more crucial and the beneficiaries of the documents are bound to prove that the document has been properly executed. There is a plethora of judgments on the point and some of them have been referred to and relied upon by the learned Advocate for the appellants, therefore, need not be discussed again. However, it would be useful to quote a passage from a judgment of the apex Court of Pakistan titled "Amirzada Khan and another v. /tbar Khan' and others" (2000 PSCC 1812). In this case at page 1932, the apex Court of Pakistan observed as under:- "2. The learned counsel referred to the impugned 'mutation appearing at page 61 of the paper book and stated that there is mentioned of Irbar Khan (defendant No. 1) who is husband of Mst. Noor Bibi which proves that Itbar Khan was associated with the transaction covered by the mutation. This is a fallacious argument. Itbar Khan has neither reported the sale to the Patwari nor he was present at the time of the recording the statement of his wife (Mst. Noor Bibi) by the Commission. The sale was reported to the Patwari by one Zawar described as relation of Mst. Noor Bibi and the attesting marginal witnesses over the mutation are Zarin Khan (PW-5) and Abdul Malik (PW-6). It is admitted position that Abdul Malik (PW-6) was in no way related to Mst.
Noor Bibi and also even if the relation of Zawar being a cousin of the vendor, as stated by him; is admitted that relation would not satisfy that test/criteria as laid down by the superior Courts to prove independent and free device while dealing with an illiterate 'pardanasheen' lady in a transaction in which she is to part with certain property . It is by now well established requirement of law that burden of proof in respect of genuineness of a transaction with a 'pardanasheen' lad/ and a document allegedly executed by such a lady lies on the person who claims benefit from the transaction or under the document. Such a person is legally obliged to prove and satisfy the Court; firstly that the document was executed by 'pardanasheen' lady secondly, that she had completed knowledge and full understanding about the contents of the document and thirdly, that she had independent and disinterested advice in the matter before entering into the transaction and executing the document. The evidence on record as discussed by the Appellate Court and the High Court does not satisfy the above standard. The plaintiff failed to prove that at any stage during the proceedings in the mutation any close relation of the vendor-lady was associated."
(underlining is mine).
14. So far as the proof of the power-of-attorney is conceRned the finding on this issue was also against the law. Section 68 of the Evidence Act, 1872, (now Article 79 of the Qanun-e-Shahadat, 1984) was applicable at the time of execution of the document which reads as under:- "68. Proof of execution of document required by law to be attested.-- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called from the purpose of proving its execution, is there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:- Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, ,which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
15. The provision of law reproduced above postulates that the execution of the document mentioned in the Section can only be proved by calling at least one attesting witness alive. No such method has been adopted by the Trial Court or the beneficiaries. Of the documents, therefore, it cannot be held that power-of-attorney executed in favour of Ghulam Muhammad was factually and actually proved. Muhammad Zaman's case (PLD 1984 SC (AJK) 138), also endorses the same view. Moreover, mere exhibiting of a document is no proof of its execution nor the endorsement on document by the Registrar is sufficient for proving the execution of document as has been held in Muhammad Khan's case (2003 PSC 1274). Para No. 13 of the report is reproduced as under:- "13. The rule of law emerging from the precedents appears to be that registration of a document in case of dispute about its execution is neither decisive on the identity of the executant nor preclude3 inquiry by the Court on this point and the fact in issue has got to be proved like any other fact in dispute. In Sanaullah v. Muhammad Manzoor (PLD 1996 S.C. 256), it was observed that ordinary rule for proving signature of any person on document would be to call that person in evidence. Where person who was alleged to have executed document had denied his signatures, his signatures could be proved by calling that person in whose presence such document was executed. Signatu.Es of executant could be proved by calling two attesting witnesses in whose presence, person concerned had signed the document. Where both attesting witnesses of document in question were alive and were available but were not produced, in such case, Courts below could not hold on basis of evidence on record that execution of document in question was proved."
16. Thus, I have no hesitation in holding that the findings of the subordinate Courts are against the law. The findings of the learned District Judge also suffered from the same legal infirmity and are mere reproduction of the opinion of the Trial Court. The first Appellate Court is equally a Court of facts and appeal should have been decided in light of rule 31 of Order 41 of the Code of Civil Procedure which require an independent consideration of fact by the first Appellate Court.
17. The learned Trial Court has also dismissed the suit filed on behalf of Fateh Begum and others on the ground of limitation. It was opined by the learned Judge that in suits filed on behalf of Muhammad Shafi and lqbal Begum, Fateh Begum and Charagh Begum were impleaded as party, thus it cannot be said that the so-called power-of-attorney and subsequent execution of the sale- deeds were not in the knowledge of the appellants. My perusal oft the record reveals that these findings of the subordinate Courts are again on the wrong assumption of fact. Ch. Muhammad, Yousuf, Advocate as is stated by the learned Trial Court has never appeared on behalf of Fateh Begum in the Trial Court. In fact, the said Advocate has appeared for Muhammad Shafi, vendee. In the pre-emption suits as well as in the suits filed on behalf of lqbal Bibi it does not appear that Fateh Begum and Charagh Begum were ever served properly. Fact of the matter is that ex parte proceedings appear to have been recalled by the Trial Court in 1985 on the assumption that these respondents had been proceeded ex parte. It transpired that pre-emptores had abandoned these respondents on 21.7.1964. An application to this effect is available on the record. It is also on the record that Fateh Begum and others filed an application for recalling ex parte order recorded against them in pre-emption suits on 19.1.1985. This application was objected to by the other side.
After framing issues the Trial Court on 28.8.1986, granted the application. In this application Fateh Begum took a categoric stand that she had never been served. Besides joining in the proceeding of the other suit she also filed separate suit for declaration. In view of these facts there was no cogent evidence on the record from which it could be held that Fateh Begum in fact gained knowledge in 1967. Thus the findings on the question of limitations are also erroneous and against the record.
18. So far as the arguments of Kh. Abdul Basit are concerned, those are misconceived. It is proved by record that Fateh Begum and others have not transferred the possession of the land to the vendees. The findings of the subordinate Courts to this extent are based on careful consideration of the record, therefore, cannot be disturbed. The learned Advocate for the other side have not been able to convince me that the findings on issues Nos.4, 8 and 9 are against the record.
19. The upshot of the above discussion is that appeal No. 38/1998, filed by Charagh Begum and others is hereby accepted; resultantly suit filed by Charagh Begum and others on 9/2/1985 is hereby decreed and it is declared that the power-of-attorney and sale-deeds executed on 2.5.1963 and 22.7.1963 have been executed without lawful authority, therefore, the same are inoperative and ineffective, as against the rights of the plaintiffs and Proforma respondents lqbal Begum. As a result, both the suits Tor pre-emption filed by Muhammad Afsar, Naik Muhammad, Alam Din and Shah Muhammad become infrucutuous and are hereby dismissed. In light of the decision of the suit filed on behalf of Charagh Begum, the decree passed in favour of lqbal Begum is hereby upheld. Consequently, Appeal No. 39/1998 filed on behalf of Arshad. Begum and others stands dismissed. .