Stereo. H C J D A-38 .

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT

Civil Revision No.301-D-2014

Syed Mubarak Hussain Shah vs. Syed Muhammad Ayub Shah(deceased) through L.Rs.

JUDGMENT
Date of hearing 06.06.2022
Petitioner by Hafiz Muhammad Adil Umer Mian, Advocate
Respondents Mr. Muhammad Hussain Awan, Advocate for respondents
No.1 to 3 & 5.
Dr. Muhammad Saleem Malik, Adv. for respondent No.4.

Ch. Muhammad Masood Jahangir,J.- To call in question legality &

validity of judgment dated 21.01.2014, whereby learned Appellate Court below

(while reversing decision of 25.04.2011 passed by learned Civil Court) decreed suit instituted by

Syed Muhammad Ayub Shah (father of parties), hence instant petition has been filed.

2. In concision, facts of the case are that Syed Muhammad Ayub Shah,

respondent/plaintiff (now deceased and represented through LRs) & petitioner/

defendant inter se were father & son respectively. The plaintiff was owner of the

disputed house, which allegedly transferred to the defendant through Sale Deed

dated 30.05.2003 (Exh.D1). The former brought declaratory suit with the

assertion that neither sale was settled nor any consideration received, rather his

signatures over blank papers were deceitfully procured to maneuver the subject

instrument, which being outcome of forgery & fraud was liable to be cancelled.

The suit was contested by defendant while pleading that a true sale was made

against Rs.2,20,000/- and while receiving it, Exh.D1 was genuinely

executed/registered. The learned Civil Court facing with divergent pleadings,

narrowed down its conflicting arears by framing almost six issues enabling the

parties to produce their respective evidence and as a result of its appreciation

though suit initially was dismissed, yet learned Addl. District Judge in exercise
C.Rs.No.301-D-2014 2

of his appellate jurisdiction decreed the same, which compelled the defendant to

approach this Court via cited Civil Revision.

3. Hafiz Muhammad Adil Umer Mian, Advocate on behalf of the defendant

inaugurally argued that Exh.D1 was a registered instrument, which attained

presumption of regularity and correctness, thus was not needed to be formally

proved, but even then its marginal witnesses (DW1 & DW2) were examined,

who being truthful remained consistent to establish that sale transaction

recorded therein was settled inter se its parties. Mr. Adil further pleaded that

change of possession in favour of his client itself was a notice that the same

effected as a result of some transaction. Further added that plaintiff had to prove

his case while examining trustworthy & cogent evidence, which assuredly was

missing, but learned Appellate Court while capturing minor discrepancies from

evidence of the DWs returned its decision to reverse comprehensive judgment of

the Civil Court, thus impugned verdict was not sustainable. The learned counsel

for the defendant while relying upon case-law reported as Habibullah and others

vs. Mst. Aziz Bibi (1986 CLC 2126) finally emphasized that suit was instituted

much beyond specified limitation, but the Court below omitted to consider said

vital issue while passing the impugned decision.

In contra, M/s. Muhammad Hussain Awan & Dr. Muhammad Saleem Malik,

Advocates argued that defendant was feeble, weak & an advanced age person,

having crossed hundred years of his life ,when Exh.D1 was executed; that at that

event no independent advice was available to him; and that in such situation,

possibility of exerting undue influence could not be ruled out. They further

emphasized that defendant being beneficiary was under obligation to prove due

execution of disputed Sale Deed while falling back upon the basic sale

transaction, but essential detail viz-à-viz time, venue & names of witnesses was

not exposed in the evidence to establish when, where & before whom it effected.

The learned counsel for the plaintiff also highlighted that Exh.D1 was a

fraudulent document and against any such act, law of limitation did not apply,

because a forged, fictitious instrument neither could be protected nor

C.Rs.No.301-D-2014 3

perpetuated behind any such shield, thus was liable to be quashed and rightly so

via impugned decision.

4. Arguments heard, record perused.

5. As two Courts below appreciated the available evidence with different

angles to form their divergent opinion, thus the matter requires deep scrutiny.

The real dispute inter se the parties was perfectly covered through settling issues

and out of those No.1, 2 & 4 being relevant as well as crux of the case for ready

reference are given below:-

1. Whether the plaintiff is entitled for decree of declaration that he

is owner in possession of the suit property? OPP

2. Whether the registered sale deed No.2791 dated 30.05.03 is based

on fraud and misrepresentation? OPP

4. Whether the suit is time barred? OPD

There is no other cavil that according to prevailing law, the party, which

approaches the Court to seek some relief, has to first prove its stance/allegation,

however once it is discharged/shifted, then in the cases like in hand, it becomes

obligatory for the beneficiary to prove that a genuine transaction while

accomplishing its ingredients was struck before the witnesses and in lieu thereof

document executed. Per spirit of Article 85 of the Qanun-e-Shahadat Order, 1984,

only registered instrument, the execution whereof was never denied, falls within

the category of public document and the one, whose construction is doubted or

questioned, then sine qua non for the beneficiary to prove it per modes prescribed

for the proof of private document. While keeping in mind this firm approach, on

consultation of material, it was affirmed that the plaintiff was over the age of 100

years and no independent advice was with him, when Exh.D1 was written or

presented before the Attesting Officer for its registration. Although, the plaintiff

admitted to have signed the papers, yet with the demonstration that at very

point of time, those were out of any writing. Moreover, basic stance of the

plaintiff was that sale never germinated, thus there was no occasion to receive

the consideration. He (PW1) via his statement-in-chief was found to have stated

on oath in line therewith. No doubt, during test of cross-examination, he at some

C.Rs.No.301-D-2014 4

stages was found to be bit capricious/shaky, but while dispensing with justice,

the Court has to keep in mind the facts and situation of the case before it. Here,

PW1 was an extremely old person (might have appeared first time in the Court), who faced

tricky, sly, furtive & shrewd questions extended by an expert/professional. The

Court is clear in its mind that statement of a witness is to be considered as a

whole so that it can be appreciated per its essence/crux and obviously cannot be

read in isolation, so as to disbelieve or disregard his testimony while picking up

some of its sentences. Nonetheless, the plaintiff (PW1) remained firm that neither

sale inter se the parties was offered nor accepted, that consideration was neither

paid or received, and that there was no need to execute a document for the

transaction, which never originated. The PW2 & PW3 also came forward in

support of the plaintiff, thus succeeded to shift the onus towards the

beneficiary/defendant to confirm otherwise.

6. Although contents of the written statement revealed that defendant paid

Rs.2,20,000/- to purchase the suit house, but rest of essential detail viz when,

where & before whom the sale was offered as well as accepted were kept secret.

There would be no other eventuality that alleged happening of oral bargain was

accomplished prior to execution of Exh.D1, but as regards former series of facts,

the evidence brought by the defendant remained missing. The statement-in-chief

of the latter (DW1) even did not expose that against what price the sale was

settled, what to talk that he could state that it was made good. Verily, though

marginal witnesses of Exh.D1 viz Raja Muhammad Taj (DW2) & Farzand Ali

(DW3) appeared in aid of the defendant to corroborate that said document was

executed/registered in their presence, yet they kept mum to the effect that

original deal and payment of sale price was witnessed by them. Surprisingly, the

Stamp Vendor, Deed Writer, Sub-Registrar (who were independent persons) despite

availability were withheld, who being best & self-reliant could be the sole source

to say that plaintiff approached them for issuance of stamps, execution as well as

registration of Sale Deed, so that allegation of the plaintiff that his signatures

were obtained prior to any writing could be refuted. The Superior Courts of the
C.Rs.No.301-D-2014 5

land so far are unanimous that mere attestation of a document, its exhibition or

even proof of due construction thereof are not enough for the beneficiary of

registered instrument, rather much important for him is to fallout the basics of

the transaction for which it was executed. To this extent, reliance can be placed

upon the judgments reported as Sh. Muhammad Sarif Uppal vs. Sh. Akbar Hussain

and others (PLD 1990 Lahore 229), Siraj Din vs. Mst. Jameelan and another (PLD

1997 Lahore 633),Muhammad Tufail vs. Abdul Aziz through legal heirs (PLD 1998

Lahore 137), Abdul Majeed and 6 others vs. Muhammad Subhan and 2 others (1999

SCMR 1245), Noor Begum vs. Abdul Ghaffar (2003 YLR 1494) & Abdul Ghafoor and

others vs. Mukhtar Ahmed Khan and others (2006 SCMR 1144). The relevant part of

the last judgment for ready reference is reproduced here:-

“There is no cavil to the proposition that a presumption of truth is

attached to registration of a document but if its contents are challenged
then the onus shifts on the beneficiary to prove its contents. It was for
the petitioners/defendants to prove that Gul Muhammad had validly
gifted the suit property in terms of impugned gift-deed but neither any
marginal witnesses of said gift-deed nor scribe and even the person who
identified Gul Muhammad were produced. The petitioners/defendants
miserably failed to prove their case.”

7. The additional drastic aspect of the defendant’s case was that plaintiff

admittedly was much advanced age person, who subsequent to filing of suit

breathed his last, but was not accompanied by some independent advice, when

Exh.D1 allegedly executed. In such situation, sine qua non for the defendant to

prove that plaintiff was fully cognizant and aware of the import of transaction,

which aspect was not taken care of as well. Even demand of law should be that

any document executed on behalf of feeble, weak & old person, if disputed, has

to be proved with more inspiring, consistent & strong evidence, otherwise in

such like situation when a father at the end of his life was living at the mercy of

his son/defendant, the possibility of exerting undue influence cannot be ruled

out. In the case of Mst. Hamida Begum vs. Mst. Murad Begum and others (PLD 1975

SC 624), august Supreme Court while highlighting the situations extenuating

deduction respecting undue influence clinched that:-

C.Rs.No.301-D-2014 6

“The doctrine of undue influence, as contained in section 16 of the

Contract Act, is to the effect that “a contract is said to be induced by
undue influence where the relations subsisting between the parties are
such that one of the parties is in a position to dominate the will of the
other, and uses that position to obtain an unfair advantage over the
other.” Subsection (2) of this section elaborates the principle further by
say that “a person is deemed to be in a position to dominate the will
of another-
(a) where he holds a real or apparent authority over the other or
where he stands in a fiduciary relation to the other;
(b) where he makes a contract with a person whose mental
capacity is temporarily or permanently affected by reason of
age, illness or mental or bodily distress.”
Subsection (3) places the burden of proof on the person having
domination over another, if the transaction appears, on the face of it
or on the evidence adduced, to be unconscionable.
This doctrine is intended to grant protection against transaction
procured by the exercise of insidious forms of influence, spiritual and
temporal. It applies to acts of bounty as well as to other transactions
in which one party by exercise of his position of domination obtains
an unfair advantage over another. Undue influence may be inferred
when the benefit is such as the taker had no right to demand, either in
law or equity, or even as a moral claim, and the grantor had no
rational motive to give. Whenever one member of the family exercises
weighty influence in the domestic counsel either from age, from
character or from superior position acquired from other circumstances,
an inference as to the existence of undue influence can legitimately be
draw.”

8. The argument of learned counsel for the defendant that once signatures

over the disputed document were admitted by the plaintiff, then there was no

further need to prove it, is not well founded, because it was the specific stance of

plaintiff that he never affixed his signatures for execution of Sale Deed, then onus

was upon the defendant to prove that those were genuinely affixed for the

transfer of house in lieu of sale settled among them. Per spirt of Article 78 of the

Order ibid, due execution of document can be proved by examining its executant

or those, who signed/thumb marked it being marginal witnesses or the one who

scribed it. However, execution of a document is not restricted only to prove that

the same bore signatures of those, who appeared in the witness-box, but it is to

be established that in presence of the parties accompanied by number of

witnesses, the instrument on asking of the executant with consent of the

beneficiary was written and prior to affixing thumb impression in presence of the

witnesses, it was read over for understanding to them. For such reasons, the
C.Rs.No.301-D-2014 7

emphasis of learned counsel for the defendant that plaintiff’s admission qua

affixing of signature was enough proof about due execution of Sale Deed was not

plausible. The narrative of above discussion is that learned Addl. District Judge

while appreciating available evidence in its true perspective perfectly answered

issues No.1 & 2 in favour of the plaintiff, which findings deserve approval, thus

are confirmed.

9. As far as argument of learned counsel for the defendant that suit was

instituted with the delay of four years, thus liable to be regretted on this score is

concerned, suffice it to say that any document, which is proved to be result of

misrepresentation or fraud cannot be protected as it vitiates even most solemn

proceedings. See Khair Din vs. Mst. Salaman and others(PLD 2002 SC

677),Rehmatullah and others vs. Saleh Khan and others (2007 SCMR 729),Mst.

Zulaikhan Bibi through LRs and others vs. Mst. Roshan Jan and others (2011 SCMR

986),Ghulam Farid and another vs. Sher Rehman through LRs (2016 SCMR 862) & Al-

Meezan Investment Management Company Ltd. and 2 others vs. Wapda First Sukuk

Company Limited, Lahore and others (PLD 2017 SC 1). The conclusion drawn by the

apex Court in the last cited judgment for ready reference is given below:-

“The appellant and those who claim to derive title from it and NFC on
the other hand are rivals claimants for the same debt/sum of money.
Section 11 of the Central Depositories Act, 1997 cannot override fraud
if it is once established as it is settled law that fraud vitiates the most
solemn of proceedings and a superstructure built on a foundation of
fraud must fall like a house of cards.”

10. The learned counsel for defendant is unable to point out any irregularity

or illegality as well as mis-reading/non-reading of evidence and jurisdictional

defect committed by learned lower Appellate Court while passing the impugned

judgment to be interfered with by this Court in exercise of revisional jurisdiction.

There is also no cavil that in case of conflict inter se the judgments of learned Trial

Court and the learned lower Appellate Court, the findings of the latter in the

absence of any cogent reason to the contrary (which is not the case here) per dictum of

the apex Court in the judgments reported as Madan Gopal and 4 others Vs. Maran

Bepari and 3 others(PLD 1969 SC 617), Muhammad Nawaz through LRs. Vs. Haji
C.Rs.No.301-D-2014 8

Muhammad Baran Khan through LRs and others(2013 SCMR 1300) & Amjad Ikram

Vs. Mst. Asya Kausar and 2 others (2015 SCMR 1) must be given preference.

Consequently, this Civil Revision being devoid of any merit accordingly is

dismissed with no orders as to costs.

Ch. Muhammad Masood Jahangir

Judge

Approved for reporting

Judge

Syed Zameer