2012 C L C 692
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
REHMAT ALI and 4 others ----Petitioners
versus
ABDUL SAMAD ----Respondent
Civil Revision No.60 of 2010, decided on 2nd January, 2012.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Art. 133 ---Specific Relief Act (I of 1877), S.42 ---Suit for declaration ---Re-examination of
witness ---Scope ---Suit of plaintiff was dismissed by Trial Court, but the same was decreed by
Appellate Court ---Defendant assailed orders of Appellate Court, inter alia, on the ground that
the Appellate Court erred in law while relying on the statement of the material witness of the
plaintiff as Trial Court had allowed the plaintiff to re -examine said material witness without
allowing the defendants to cross -examine him ---Valid ity---Appellate Court failed to consider
the relevant provisions of law in Art.133 of the Qanun -e-Shahadat, 1984 ---Re-examination
conducted on statement of the plaintiff's material witness was not made in relation to the
matter referred in the preceding cr oss-examination, but absolutely new facts were suggested
to the witness by the plaintiff's counsel without the permission of the Trial Court ---Even
otherwise, if counsel for the plaintiff was allowed to suggest such new facts to the said
witness by the Tr ial Court, even though there was no such order on record, even then the
adverse party was required to be allowed to again cross -examine said material witness ---Such
re-examination of the said material witness was a complete failure of compliance with
Art.1 33 of the Qanun -e-Shahadat, 1984 ---No reliance could have been made on the statement
of the said material witness during re -examination ---Appellate Court had also not assessed
the material on record properly and recorded findings which were contrary to the record ---
High Court set aside order of Appellate Court and restored the order of the Trial Court
with modifications ---Revision was accepted accordingly.
(b) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revisional Jurisdiction, exercise of---Scope ---Material and record were to be
considered and findings were required to be given on conflicting orders of the courts below.
H. Shakeel Ahmed for Petitioners.
Muhammad Riaz Ahmed for Respondent.
Date of hearing: 20th June, 2011.
JUDGM ENT
MRS. SYEDA TAHIRA SAFDAR, J. --- The petitioners being highly aggrieved of the
judgment dated 4th January, 2010 of Majlis -eShoora, Mekran Division at Turbat, whereby
the appeal filed by the respondent was allowed, and the judgment and decree dated. 2 9th
October, 2009 of Qazi Turbat, was set aside, and the suit filed by the respondent was decreed
as prayed for, preferred instant revision petition seeking setting aside of the impugned
judgment, and restoration of the judgment of the trial court. It was contended that the
appellate court erred in law while relying the statement of Rahim Bakhsh P.W. -1, because the
trial court allowed the respondent to re -examine the witness, but the petitioners were not
allowed to cross -examine him. In the circumstances th e appellate court has misunderstood the
scope of re -examination of the witness, which caused serious prejudice to the petitioners, and
resulted in grave miscarriage of justice. Furthermore, the documents of sale of the property in
question were neither con fronted, nor exhibited through P.W. -1 Rahim Bakhsh, therefore,
there was no evidentiary value of the document, but the appellate court failed to consider the
same. It was further their contention that their father, being previous owner, allowed the
petitio ners to reside in the house in question, therefore, they cannot be dispossessed, but the
appellate court misunderstood the factual aspect of the case, and drawn a conclusion, which is
contrary to the record. Even otherwise, no marginal witness of the sale agreement was
produced by the respondent/plaintiff. The document was attested by Barkat Ali Baloch,
Advocate, in the year 1984, while in fact said Advocate obtained licence of Oath
Commissioner in the year 1996. Further, the said witness was not produced by the
respondent to verify the contents of the sale agreement; therefore, no reliance can be
made on the document. But, the appellate court failed to consider the legal aspect of the
matter, and arrived to a decision, which is contrary to law and fact, therefore, not sustainable.
2. The learned counsel for the parties were heard, and record was perused. It was argument of
the learned counsel for the petitioners that two suits were filed by the parties, which were to
be decided, but no order was made in respect of the second suit filed by them, nor they were
allowed to produce any evidence in their suit. It was further his argument that the sale
agreement was not produced before the court, as it was a disputed document, thus required to
be proved according to law. It was also his argument that the respondent failed to produce
any evidence of his ownership in respect of the property in question. Even the relevant entry
in the Revenue Record was not produced. It was also his argument that there was n o order for
consolidation of both the suits by the trial court, therefore, in the circumstances, the case be
remanded to the trial court for proceeding with the matter in accordance with law. While
replying to the arguments of the learned counsel for the p etitioners, the learned counsel for
the respondent contended that the respondent is recorded owner of the property in question in
the Revenue Record, while his ownership in respect of the property in question is an admitted
fact. It was further his argumen t that two suits were filed by the parties against each other,
while the order of the trial court was in favour of the petitioners, who did not challenge the
order, nor raised any contention to the effect that the suit filed by them has not been
proceeded. Therefore, this objection cannot be raised at this stage. It was also his argument
that the only question before this Court is that whether the appellate court properly
appreciated the evidence, or otherwise. The learned counsel for the respondent further argued
that the onus of establishing the title was on the petitioners to prove their ownership in
respect of the property in question. Because the respondent is the recorded owner in the
relevant record. It was further his contention that the suit filed b y the petitioners was hit by
Article -120 of the Limitation Act, 1908, as the title had been challenged after lapse of 25
years, while the period provided for the purpose is six years. According to the learned
counsel the petitioners are licensee in the pre mises in question; therefore, the suit for
ejectment was very much competent. According to the learned counsel there is no illegality
committed by the appellate court, while deciding the matter.
3. It is apparent from the papers attached with the petitio n that a suit was filed by the present
respondent Abdul Samad against the petitioners for declaration of his title of being owner of
property situated at Singai Sar, Turbat. He also prayed for ejectment of petitioners Nos.1 to 3
from the premises. In the p laint the respondent claimed himself to be lawful purchaser of a
piece of land along with residential rooms from his father in consideration of Rs.50,000/ -
(Rupees fifty thousand only) in the year 1984, and since then he is in possession of the same,
while constructed seven rooms thereon. It was further his plea that the petitioners Nos.1 to 3
are residing in three rooms with consent of the respondent. In reply the petitioners Nos.1 to 3
denied title of the respondent, while it was their plea that the prope rty in question is in
possession of both the parties in their own rights, while their father was also residing therein.
With further plea that one portion of the property was given to the respondent, and other to
the petitioners for residential purposes by their father. They denied effecting of any sale
transaction between the respondent, and their father Rahim Bakhsh. The petitioner No.5 filed
her separate reply, wherein she claimed herself to be the sole owner of the property in
question, with plea that t he property was purchased by her husband i.e. father of the
respondent and petitioners Nos.1 to 4 from money obtained from sale of her golden
ornaments. The second suit was filed by petitioners Nos.1, 2 and 4 against the respondent,
Tehsildar/Settlement De partment, Turbat and Lal Malik widow of Rahim Bakhsh, present
petitioner No.5 with the same contention, wherein correction of entries was also prayed. The
suit was contested by defendant No.1/present respondent with the same contention. Both the
suits were tried together. The parties produced their respective evidence. The trial court
through judgment dated 29th October, 2009 dismissed the suit filed by respondent Abdul
Samad, while it was ordered that the suit property is legacy of Rahim Bakhsh, which has been
divided between the parties in lifetime of Rahim Bakhsh, therefore, mutation be effected
accordingly. The judgment was challenged by the respondent by way of filing appeal, which
was decided by Majlis -e-Shoora, Mekran Division at Turbat, through judgm ent dated 14th
January, 2010, whereby the findings of the trial court were reversed. Feeling aggrieved of the
judgment of the appellate court instant revision petition has been filed.
4. As far as contention of the learned counsel for the petitioners the effect that the second suit
was not decided by the trial court, therefore, the case be remanded to the trial court, is
concerned, it is to be noted that in the judgment of the trial court it has been specifically
mentioned that both the suits were consoli dated and a joint judgment has been made in the
matter, therefore, the argument of the learned counsel for the petitioners do not have the
force.
5. In the present case there are conflicting orders of the courts below, therefore, material and
record is t o be considered, and findings are required to be given thereon. The respondent in
his suit claimed himself to be the lawful purchaser of the property in question, from his father
in consideration of Rs.50,000/ - in the year 1984. With further contention th at he allowed
the petitioners to reside in the three rooms constructed thereon by him (respondent). It
was further his contention that in 1990 during course of settlement the property in question
was entered in his name. The petitioners denied ex istence of any sale transaction between the
respondent, and their father Rahim Bakhsh.
6. From the whole set of the evidence and the pleadings of the parties, it is an admitted
position that the property in question was purchased by Rahim Bakhsh, predece ssor-in-
interest of the parties. Though petitioner No.5 raised a distinct plea that the property in
question was purchased by her husband Rahaim Bakhsh with finance provided by her, but
there is no evidence to the effect, but the ownership of Rahim Bakhsh is an admitted feature
of the case. This person appeared as plaintiff's witness No.1 (P.W. -1), and got recorded his
statement. During course it was his statement that he had two pieces of land, while he gave
one piece of the land to the plaintiff i.e. pres ent respondent, and second piece of the land was
given to the defendants, present petitioners. He further stated that he restrained the
defendants/petitioners from selling out the property to anyone else, rather they were only
allowed to reside therein. Du ring course of cross -examination the only question put to him
was to the effect that two pieces of land are in dispute. But it is apparent that the witness was
re-examined by the counsel for the plaintiff/ respondent, and suggestions were put to him,
where by he admitted that revenue entry is in favour of Abdul Samad, and when he sold the
same to Abdul Samad and the entry was effected, while the disputed property was sold in the
year 1984 in consideration of Rs.50,000/ - and on written sale agreement his thum b-
impression was present, and since execution of sale agreement the property in question is
owned by plaintiff Abdul Samad/respondent. It is most material witness in the circumstances,
because he was the previous owner. While the remaining witnesses of the respondent/plaintiff
were only oral witnesses, and their evidence is of less worth. Because of the fact that none of
these witnesses were in fact witnesses of the sale transaction effected between the respondent,
and Rahim Bakhsh, nor they were the margin al witnesses of the sale agreement executed
between respondent and Rahim Bakhsh. The appellate court while assessing the evidence
simply relied on the statement of P.W. -1 Rahim Bakhsh, rather on the re -examination
conducted during the course. The appellate court failed to consider the relevant provisions of
law. Article -133 of Qanun -e-Shahadat Order, 1984 describes the scope of examination -in-
chief, cross -examination and re -examination, which reads as under: ---
133. Order of examinations. --- (1) Witnesses shall be first examined -in-chief, then (if the
adverse party so desires) cross -examined, then if the party calling him so desires) re -
examined.
(2) The examination and cross -examination must relate to relevant facts but the cross -
examination need not be confined to the facts to which the witness testified on his
examination -in-chief.
(3) The re -examination shall be directed to the explanation of matters referred to in cross -
examination; and if new matter is, by permission of the Court, introduced in re-examination,
the adverse party may further cross -examine that matter.
Keeping in view this provision the re -examination conducted on statement of Rahim Bakhsh
was not made to the explanation of the matter referred in the cross -examination. But
absolut ely new facts were suggested to the witness by the respondent's counsel, that too
without permission of the court. If he was allowed by the court, though no such order is on
record, then adverse party was required to be allowed to again cross -examine the w itness. But
this has not been done in present case, and there was complete failure of compliance of
relevant provision of law. Therefore, in view of the fact no reliance can be made on the
statement of the witness made during re -examination. Even otherwise , this witness did not
disclose in his statement about effecting of any sale transaction between him and the
respondent, rather his statement was only to the extent that he granted one piece of land to the
respondent, and other to the petitioners for their residential purposes. Even otherwise, the
alleged sale agreement was not confronted to the witness when he appeared before the court,
nor got exhibited through him. Instead of the same the respondent tendered the deed in his
own statement. It is further t o be observed that said document does not bear any signature of
the respondent, therefore, he cannot be considered as executant of the document. Even
otherwise the marginal witnesses, the petition writer, who wrote down the sale agreement,
and the Oath Com missioner, who attested it were never produced before the trial court by the
respondent to establish execution of the document. The witnesses of the respondent P.W. -2
Fazal Muhammad and P.W. -3 Dur Muhammad are not witnesses of the occasion, nor they
have s igned the document executed during course of sale transaction, therefore, their oral
evidence is out of consideration in the given circumstances.
7. In addition the plea taken in the plaint by the respondent is contradictory to his own
statement made bef ore the trial court. In the plaint he only referred to a piece of land along
with residential rooms purchased by him, but while appearing before the court he stated that
there were two pieces of land, one was purchased by him from his father Rahim Bakhsh, and
other was purchased by him from one Mir Dura, but, this Mir Dura was never produced
before the court, nor even the person Shabbir referred by respondent in his statement, to
whom he made payment in same respect. Though the respondent asserted in his st atement
that three rooms were given to the petitioners for residential purposes by his elder brother, but
in the plaint it was his plea that the petitioners are residing therein with his consent. But the
fact that his father Rahim Bakhsh, and his step -moth er/petitioner No.5 used to reside in the
disputed property from the time they visited the area, and even before the birth of petitioners
No.1 to 4, is not denied by the respondent. Furthermore, it is also an admitted position that
his father Rahim Bakhsh w as residing in the premises along with his family including the
petitioners and the respondent during his life time. In view of the material on record it is an
admitted position that the property in question was owned by Rahim Bakhsh, predecessor -in-
intere st of the petitioners and the respondent. As far as effecting of sale transaction is
concerned, the respondent has completely failed to establish the fact that he purchased the
property from his father, thus being sole owner is entitled for possession of t he property in
question. The appellate court did not assess the material properly, and recorded the findings
which are contrary to the material on record, thus not sustainable.
8. In view of the above discussion the property in question is established to be the legacy of
Rahim Bakhsh, predecessor -in-interest of the parties, therefore, being his legal heirs the
property devolved on the widow, sons and daughters of Rahim Bakhsh, and they all are
equally entitled to get their respective share from the proper ty in question.
9. In view of the above discussion the order of the appellate court dated 14th January, 2010 is
hereby set aside. The order of the trial court dated 29th October, 2009 is upheld, with
modification that the property in question is legacy l eft by Rahim Bakhsh, therefore, all the
legal heirs of Rahim Bakhsh including the petitioners, and the respondent are entitled to get
their respective shares from the suit property, while the concerned Authorities are directed to
cancel the mutation entry made in favour of the respondent Abdul Samad and entered the
property in the names of legal heirs of Rahim Bakhsh to the extent of their respective shares.
Decree sheet be amended accordingly.
There shall be no orders as to costs.
K.M.Z./4/Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.