' Through this civil revision, Hashmat Ali, petitioner, who was plaintiff in the suit, has assailed the judgment and decree, dated 19-4-1994, passed by the learned Additional District Judge, Bahawalpur, which has accepted the appeal of respondent-defendant No.2 and has set aside the judgment and decree in petitioner's favour passed by the learned Civil Judge vide order, dated 31- 1-1991. Hence, this revision petition.
2. Brief facts of the case are that Hashmat Ali, claiming himself owner in possession of Plot bearing Survey No.302, which was constructed and had measured four Marlas, and was situated in Ward No.5, Gharib Mohallah, Mandi Hasilpur, was allegedly obtained by him in exchange for his constructed plot of Survey .No.120 from Mst. Rasheedan Bibi, widow of Abdul Aziz (defendant No.1), who had got that plot No.302 from one Ghulam Nabi (defendant No.2) through an agreement, dated 17-12-1986. Adding more to his version, Hashmat Ali, plaintiff-petitioner stated that he had paid Rs.15,000, net cash, to Mst. Rasheedan Bibi, in addition to the property he had handed over to her in exchange as stated above. He has prayed for grant of permanent injunction also in the suit.
Ghulam Nabi, defendant No.2 presented his written statement when he appeared in the suit. In his written statement, he denied to have entered into any such alleged transaction with Mst.
Rasheedan Bibi. He also refuted the fact that any agreement was executed by him on 17-12-1986 in favour of Mst. Rasheedan. It was further replied by him in the written statement that the plaintiff had in fact narrated a concocted and fictitious story, in the plaint with the collusion and connivance of Mst. Rasheedan Bibi. Due to these divergent pleadings, issues were framed and the parties were directed to produce their respective evidence. Learned Civil Jude, after recording the evidence and hearing the arguments, decreed the suit in favour of the plaintiff and against the defendant. But in appeal filed by the defendant, failure became the fate of the plaintiff on 19-4- 1994. So, this revision.
3. Learned counsel appearing on behalf of Hashmat Ali submits that Mst. Rasheedan Bibi, while appearing as P.W.3, had deposed in her statement that house in dispute was gifted away to her by her brother, namely, Ghulam Nabi, through a gift-deed. According to the learned counsel, this material portion of the deposition was not challenged in the cross-examination. Therefore, this fact was to be considered to have been admitted by Ghulam Nabi, defendant-respondent. To support this version, the learned counsel has also referred to a document, which was brought on record as Mark-C, which was scribed by Nisar Ahmad, deed-writer, who had entered into witness-box as P.W.1 and had proved that Mark-C was got written by Ghulam Nabi in favour of Mst. Rasheedan Bibi on 17-12-1986, and that Ghulam Nabi had admitted the delivery of possession also. Arguing the case further, learned counsel states that as all the three ingredients provided for completion of gift were admitted due to the above mentioned narration, therefore, the gift was proved in favour of Mst. Rasheedan Bibi. D.W.-2, Ghulam Nabi had also admitted the factum of exchange and the delivery of possession. So, the gift had become complete when the delivery of possession was proved on the record. According to the learned counsel, no writing is necessary for the completion of the existence of gift. For it, he has referred to 1992 CLC 235 Manzoor Khan v. Abdul Aziz and 1988 CLC 1489 Rehmat Ali and 6 others v. Muhammad Ishaq.
4. Learned counsel appearing on behalf of Ghulam Nabi has stated that the plaintiff-petitioner has taken inconsistent pleas in this revision. The version of gift was never pleaded in the plaint, so the petitioner cannot, at this stage, be allowed to take self-contradictory version in this Court. He has referred to PLD 1971 Karachi 505 Amin Yousuf Nizami v. Rashid Rayon Mills, Karachi, 1985 CLC 2146 St.
John Ambulance Association (Pakistan) through its Honorary Secretary v. Pakistan Red Cross Society, Frere Street, Karachi and another and PLD 1997 Karachi 292 Mst. Gulshan v. Ameer Ali and others. Replying to the arguments of his adversary, he has stated that the petitioner had failed to prckluce the copy of Mark-C and the document Exh. D-1, while filing the revision, so he was not entitled to rely upon the aforesaid documents. 1991 SCMR 496 Riasat Ali v. Muhammad Jaffar Khan and 2 others and 1992 SCMR 2334 Muhammad Yousuf and 3 others v. Khan Bahadur through legal heirs have been referred for this proposition. He has also urged that as per law of the land, no party can produce evidence beyond his pleadings. To support it, he has cited 2003 SCMR 74 Abdul Hague and others v. Shaukat Ali and 2 others 1998 SCMR 593 Amir Shah v. Ziarat Gul, 1996 SCMR 336 Binyameen and 3 others v. Chaudhry Hakim and another, PLD 1993 SC 88 Atlantic Steamer's Supply Company v. m.v. Titisee and others and 1993 CLC 1496 Ghulam Farid through legal heirs v.
Shamsuddin. He has also asserted that the document, Mark-C, was not brought on the record into the evidence in accordance with the provisions of the Qanun-e-Shahadat Order, 1984, provided for secondary evidence and has, therefore, got no evidentiary value. No grounds/reasons for not producing the original document into evidence were adduced before the production of all the aforesaid documents. To get help for his arguments, he has got noted the following citations:--- "PLD 2002 SC 84 Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others, 1995 SCMR 1237 Mst. Khurshid Begum and 6 others v. Chiragh Muhammad, PLD 1987 Karachi 546 Aijaz Mahmood v. Shaikh Muhammad Jamil and 2001 CLC 1796 Mukhtar Ahmad through legal heirs v. Muhammad Younus and 4 others."
According to learned counsel, it is settled law that documentary evidence excludes oral evidence.
For it, he places reliance upon 1985 SCMR 1052 Mst. Sitaran Bibi v. Sher Muhammad Khan and others and 2003 'MR. 1126 Abdul 'Clang v. Suba and 6 others. What are the pre-conditions, to prove a gift, that have been provided in these rulings, 2003 SCMR 1829 Ghulam Hyder v. Ghulam Rasool and others, 1987 ,SCMR 1277 Muhammad Bashir v. Mirza and others 1993 CLC 2448 Raja Muhammad Yasin v. Zaitoon Begum and others. How an exchange can be effected and completed, for that he has relied upon section 54 and section 118 of the Transfer of Property Act and has referred to PLD 1984 SC 424 Habibur Rehman and another v. Mst. Wandinia and others and 1982 SCMR 1178 Dr. Faqir Muhammad v. Maj. Amir Muhammad and others. Vehemently arguing his case, it has been stated by hirii that the plaintiff has failed to prove his case and cannot succeed on the Strength of his adversary's case. Support has been sought by him from PLD 1975 SC 351 Mian Iqbal Mahmood Banday v. Muhammad Sadiq. In the last, the learned counsel has prayed that the revision being discretionary remedy, it should not be granted to a person, who has come to this Court with unclean hands, especially when the conclusions of law and facts have been rendered after appreciating the evidence and considering the law. Those conclusions are not to be upset under any clause of section 115, C.P.C. And the revision should be held, therefore, to be not maintainable, for which, he gets support from the following authorities:--- "PLD 1955 Lahore 187 Mst. Bhirawan and 3 others v. Ahmad Bakhsh and others, 2003 YLR 801 Hazrat Ali Khan v. Mir Wali Khan, 1998 SCMR 760 Muhammad Arif and others v. Muhammad Saleh, 1991 MLD 1017 Murtaza Khan and 2 others v. Muhammad Zarif and PLD 2003 SC 362 Suleman v. Mst. Zeenat Jan and 2 others"
6. I have heard the lengthy arguments of the learned counsels and have perused the record carefully.
(a) The case as set up by the plaintiff in his plaint, is that Mst. Rasheedan Bibi had obtained the plot in dispute from Ghulam Nabi, defendant No.2, through an agreement, dated 17-12-1986. It was never pleaded in the plaint that Mst. Rasheedan Bibi had got this plot through gift. It is pertinent to point out here that the original plaint had contained plot Survey No.302, which was thereafter changed by interpolation, to Plot No.303 and tried to enter at some places by someone, probably by the plaintiff as the copy of the alleged agreement Mark-C was found by them written with plot No.303. Although this attempt seems to have been made by the aforesaid plaintiff, yet in paragraph No.1 of the amended plaint it has uptill now contained the original written survey number 302 at one place, which was missed by the changer to change it. In fact this Plot No.302 was in dispute but afterwards, according to my observation, it was changed to Survey No.303 and it was done near about or after the appeal was decided by the learned Additional District Judge because in the original decree sheet of the learned trial Court, figure No.302 has still been found intact. The learned Additional District Jude had also referred to this Plot as No.302 in his judgment. It appears that the petitioner when found his case on weaker wicket due to the document Mark-C, which had clearly mentioned in it the Plot No.303, he immediately shifted his stance to plot No.303 so as to get support from it. To get the controversy clarified, I summoned the parties to appear in person. Hashmat Ali, admitted that his claim, plaint and suit was for Plot Survey No.302 and he had; no concern with Plot No.303.
(b) To examine the correctness of the version as to whether Hashmat Ali can be declared owner of Plot No.302, I must say that even if Mark- is believed to have been executed with regard to the disputed plot by Ghulam Nabi, respondent, even then it did not support the case of the plaintiff- petitioner because it is a settled law that property, which has got the value of more than Rs.100, cannot be transferred unless there was a registered instrument to that effect. No valid and legal title can vest through the document (Mark-C) in favour of Mst. Rasheedan Bibi or in his favour, which has been produced by the petitioner, therefore, suit for declaration under section 42 of the Specific Relief Act was not competent, and was liable to be dismissed on this count alone.
(c) Even the document Mark-C was not admissible into the evidence, and it had got no evidentiary value because as pointed out by the learned counsel for the respondent, no ground/reason to adduce the secondary evidence was presented to the learned trial Court and no permission was obtained by the petitioner as to why secondary evidence was being produced in the suit. Learned counsel for the respondent has rightly pointed out and relied upon the following citations:--- "PLD 2002 SC 84 Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others, 1995 SCM1 1237 Mst. Khurshid Begum and 6 others v. Chiragh Muhammad, PLD 1987 Karachi 546 Aijaz Mahmood v. Shaikh Muhammad Jamil and 2001 CLC 1796 Mukhtar Ahmad through legal heirs v. Muhammad Younus and 4 others."
(d) The alleged document Mark-C has 01: nexus to the plot in dispute, therefore, the document Mark-C, which has not been legally admitted 'into the evidence, cannot be Believed to support the version of the plaintiff-petitioner.
(e) As regards the version taken by the plaintiff-petitioner in the plaint that Plot No.302 was obtained by Mst. Rasheedan Bibi from Ghulam Nabi through agreement, dated 17-12-1986, the contents of the document Mark-C, were to be perused. As earlier stated, the document Mark-C clearly depicts about the Plot No.303, which is not legally admissible and reliable for the plot/house in dispute, i.e. No.302, therefore, the plaintiff-petitioner has failed to bring on record any cogent evidence to prove the transfer of plot/House No.302, in his favour or in his predecessor-in-interest i.e. Mst. Rasheedan Bibi. So, the exchange alleged by plaintiff cannot grant him any benefit and Exh.
P-I, the agreement cannot be acted upon to confer any legal and valid title in favour of Hashmat Ali, plaintiff-petitioner.
(f) It is pertinent to point out that this document Exh. P-I, which has been shown to be an agreement does not contain the signatures or thumb impressions of Hashmat Ali even, so this document, which can at the most be considered as memorandum, cannot grant any right to Hashmat Ali, plaintiff-1G petitioner.
(g) The ownership of alleged property mentioned in the aforesaid document Exh. P-I has not been shown in the ownership of Hashmat Ali through any document or proved, so through any cogent evidence. The statements of witnesses have lost their evidentiary value when the documentary evidence, which was produced by the plaintiff- petitioner, kept in view and is scanned.
(h) It is settled law that oral evidence cannot contradict, supersede or bypass the documentary evidence and cannot be relied upon when document contradicts the oral evidence. In the instant case, documentary evidence has been produced by the plaintiff-petitioner, so evidence of his witnesses, who have also taken an inconsistent and indifferent position in their statements, have in fact gone to affect adversely the case of The plaintiff-petitioner. The plaititiff-petitioner has badly and completely failed to prove his case.
7. As no legal or jurisdictional defect/fault has been pointed out by the learned counsel for the petitioner, calling for interference by this Court in exercise of its revisional jurisdiction, therefore, the revision petition is dismissed with no order as to costs.