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Letters Patent Appeal No. 269 of 1979, decided on 3fd,Decembta', 1979.

‑‑S. 145‑‑Confrontation, rule of‑Explanation of witness that at time of execution of Mukhtiarnama he‑thumb‑marked another docu ment‑Held, sufficient compliance of rule of confrontation‑Rule does not contemplate any prescribed form of confrontation‑Wisdom behind S. 145 : that a party be not taken‑ by surprise but afforded an opportunity to explain admission attributed to him.

Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others A I R 1946 Lah. 65; Sikandar Hayat and 4 others v. Master Fazal Karim P L D 1971 S C 730 and Raja Muhammad Afzal Khan v. Ch. Manzoor Elahi and 6 others P, L D 1975 Lah. 1276 ref.

Muhammad Akram Khawaja for Appellant.

Sh. Maqbool Ahmad for Respondent.

Dates of hearing : 18th November, and 3rd December, 1979.

This is a Letters Patent Appeal against the judgment of the learned Single Judge in Chamber s passed in R. S. A. No. 288/ 1962 maintaining the judgment and decree of the learned Appellate Court dated 3‑5‑1962, affirming those of the learned Senior Civil Judge. Montgomery (now Sahiwal) dated 21‑I1‑1961 whereby the plaintiff's suit for a declaration that he was an owner in possession of certain agricultural land including an ihata situated in Chak No. 80/12‑L, Tehsil Sahiwal was decreed. We need not reproduce the entire facts of the case as they have been given in detail in the impugned judgment of the learned Single Judge in Chambers. However, it may be mentioned here that the learned lower Courts have concurrently held that the suit land was validly transferred by the appellants to the respondent by means of a sale and that con current finding of facts arrived at by the Courts below has also been affirmed by the learned Single Judge in Chambers holding that the decision of the two Courts below on this issue is equally unassailable.

2. The only contention raised by the learned counsel for the appellants before us is that while interpreting section 145 of the Evidence Act the learned Single Judge in Chambers erred in law in holding that the rule as to confrontation does not apply to admission of a party and those documents (Exhs. P‑10, P‑11 and P‑12) though intrinsically inadmissible were erroneously taken to belonging to the category o1 "substantive evidence". Resting on this contention he submitted that the decisions on issues Nos. 2 and 3 cannot sustain in law. In support of his aforesaid contention he has placed reliance on the decisions given in the following cases:‑‑

(i) Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others A I R 1946 Lah. 65.

(ii) Sikandar Hayat and others v. Master Fazal Karim P L D 1971 S C 730.

(iii) Raja Muhammad Afzal Khan v:. Ch. Manzoor Elahi and 6 others P. L D 1975 Lah. 1276.

For a proper determination of the contention raised by the learned counsel for the appellants as to whether there has been a violation of the mandatory provision of section 145 of the Evidence Act, it appears necessary to review the statement of Suleman, one of the appellants made in the trial Court, Only Suleman one of the appellants put his appearance in witness‑box and deposed in cross‑examination as under :‑

From the deposition referred to above it is evidently clear that Exh. P. 4 was put to the appellants who denied its execution but admitted the appearance of the appellants before the Registrar and further admitted to cross‑examination that the appellants also put their thumb marks upon another document without knowing its contents. Exh. P. 4 which was confronted to D.W.I Suleman appellant, is a deed of general power of attorney executed by Suleman and Sakhi Muhammad appellants in favour of Muhammad Din Lambardar son of Ch. Qaim Din, caste Gujjar on 18‑1‑1949 and registered on 5‑4‑1949 under the thumb‑impressions of Suleman and Sakhi Muhammad, witnessed by one Muhammad Din Lambardar of Chak No. 67/48, Tehsil Montgomery. This document contains the following relevant recitals :‑

Exh. P. 11, disputed document, is an agreement for sale purporting to have been executed by the present plaintiffs/appellants in favour of a respondent. A careful perusal of Exh. P. 11 and Exh. P. 4 (confronted document) reveals that both the documents were executed on 18‑1‑1949 and are in the handwriting of the same Scribe bearing similar thumb impressions. Exh. P. 11 contains a reference for the aforesaid appoint ment of Muhammad Din son of Ch. Qaim‑ud‑Din, Lambardar Chak No. 80/12‑L Montgomery by the appellants for the completion of sale of the land and ihata in suit in favour of the respondent. In fact this document (Exh. P. 11) was virtually put to Suleman one of its executants while appearing as D. W. 1 for which he explained that at the moment of execution of Mukhtarnama (Exh. P. 4) in favour of Muhammad Din Lambardar they (i. e. he and Sakhi Muhammad) had thumb‑marked another document without knowing its contents. In our opinion this amounts to sufficient compliance of the rule of confrontation enacted in section 145 of the Evidence Act. As this section does not contemplate any prescribed form of confrontation, and as the wisdom behind this provision of Evidence Act is that a party should not be taken by surprise but should be afforded an opportunity to explain such admission attributed to him it is evident from the above deposition that Suleman D. W. 1 who admitted appellants' thumb‑mark on Exh. P. 1, was given an opportunity to explain the relevant conduct, and while availing of that chance he unsuccessfully tried to explain as to how another document (i.e Exh. P. 11) came into being on 18‑1‑1949, same day when Exh. P. 4 was executed. Although this explanation is not believable at all in the absence of any cogent corrobo rative evidence on the record, it cannot be argued that appellants were not furnished any opportunity to put their explanation about another disputed document of even date, i e. Exh. P. 11.

3. Moreover Exh. P. 11 further makes a reference of payment of Rs. 9000 as sale consideration vide pronote Exh. P. 12 of even date, i.e. 18‑1‑1949. It is otherwise proved on the record that all these three documents, i.e. Exhs. P. 4, P. 11 and P. 12 were executed by the appellants and were scribed by same deed writer on the same date. All these aforesaid documents stand proved in accordance with the provisions of Evidence Act and the appellants absolutely failed to bring out any material on the record as to establish those documents as forged and fictitious rendering them inadmissible in evidence. It is further worth mentioning that all the aforesaid disputed documents have been specifically referred in the plaint by the plaintiff/respondent and the present appellants while submitting their joint written statement categorically denied their existence and genuineness with the allegations that all such documents were mere fabrications. However, in the absence of any substantial evidence, a bare allegation would not advance the case of the appellants. Under the circumstances mentioned above we are firmly of this view that the aforesaid documents were rightly held as admissible in evidence by the learned Single Judge in Chambers.

4. Facing this situation, the learned counsel for the appellants triad to advance his case on the contention of dispossession of the respondent from the suit land. We are not inclined to consider this contention as the same was never agitated before the learned Single Judge in Chambers who while discussing this matter as well correctly concluded that the respondent was in possession of a property in suit on the date when the suit was filed and the question of possession stood finally decided in S.A.O. No. 42 of 1959 by our learned brother S.A. Mahmood, J. (as he then was) on 8‑12‑1960. As no further appeal was filed against that judgment, same has attained finality.

5. For all these reasons we are of the opinion that the learned Single Judge rightly dismissed the regular second appeal and. maintained the judgments and decrees of the learned Courts below. We accordingly dismiss this appeal with costs throughout.

M. Y. M. Appeal dismissed.

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