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Civil Petition for Special Leave to Appeal No.1061/R of 1980, decided on 10th February, 1981.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 20‑1‑1980 in R.S.A.No.867 of 1979)

‑‑‑Art. 185(3)‑‑Forged documents‑‑Onus to prove not discharged‑ Petitioners claiming that documents were forged but did not produce these documents in evidence to substantiate allegations despite opportunities given by Court‑‑Petitioners having failed to discharge onus of proof, their appeal dismissed by High Court‑‑Supreme Court declined to examine question in context of lapse on part of petitioners in producing original documents before Courts and refused leave to appeal.‑‑[Burden of proof.

Ch. Abdul Rehman, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Bashir Ahmed Ansari and Imtiaz Muhammad Khan, Advocate‑on -Record (absent) for Respondents Nos. 1 and 2.

Date of hearing: 10th February, 1981.

‑Sheikh Kaloo, a claimant displaced person, who was the predecessor‑in‑interest of the petitioner, applied for the transfer of House No.0408/C and a shop in 1960, against his C . H . and C . S. forms which were duly transferred to him. As he was illiterate he had entrusted his case to his brother, respondent No.1 herein, who took advantage of this fact and fabricated association deeds and affidavits in respect of the house and the shop and managed to secure separate P.T.Ds. in favour of Sheikh Kaloo and himself and the other respondents, on 9th of February, 1962. Sheikh Kaloo died on 8th of November, 1968, and till this date this clandestine association did not come on the surface. However, the petitioners, on learning about it, filed separate applications before the Deputy Settlement Commissioner for the cancellation of these documents on the ground that they were forged and that Sheikh Kaloo had neither consented to his association nor he had any knowledge about them. So far as the shop was concerned, the Settlement authorites held that the deed of association was a forged document and that Sheikh Kaloo had not executed it which decision was upheld in Writ Petition No.97‑R of 1973 as it was dismissed and the litigation finally ended. Nevertheless, the Deputy Settlement Commissioner informed the petitioners by letter, dated 11th of November, 1969, that no action could be taken in so far as the house was concerned after the issuance of the P.T.D. This decision was upheld in appeal by the Additional Settlement Commissioner and the revision against it was dismissed on 7th of March, 1972. The petitioners filed Writ Petition No.383‑R of 1972 in the Lahore 'High Court, Lahore, to challenge the orders of the Settlement authorities but did not succeed as it was dismissed on 5th of August, 1975. The High Court held that the question of validity of genuineness of the agreement cannot be gone into in this Settlement writ" but it felt satisfied that there was material before the Settlement authckities to hold that Sheikh Kaloo had executed the deed of association and thus did not interfere with the orders.

However, during the pendency of this writ petition, the respondents filed a civil suit seeking possession .of 3/4th share in the house through partition. The petitioners resisted the suit on the ground that they had no share in the property as the transfer of the portion of the house was obtained by means of a fabricated deed of association and the forged affidavit. An issue was struck for determining this controversy. In the meantime, the writ petition was decided and the judgment was filed in the suit. The petitioners examined four witnesses but the original deed of association and the affidavit was not summoned from the High Court. Both these documents bore the thumb‑mark of Sheikh Kaloo, the genuineness of. which was assailed as it was urged that he could sign and, therefore, there was no reason to impress his thumb‑mark. The trial Court did not decide this issue on merits but held the suit to be barred by res judicats.

Against this judgment, the petitioners filed R.S.A. No.867 of 1979 in the High Court which was dismissed on 20th of April, 1980. The High Court held that the onus to establish that the documents were forged was on the petitioners who had failed to discharge it as they did not produce any evidence to substantiate the allegations.

The learned counsel for the petitioners assails the finding that the suit was barred by res judicata and further the absence of the evidence to establish the fabrication of the documents. His plea is that he had examined four witnesses to establish that Sheikh Kaloo had not thumb‑marked the documents nor did he have any knowledge of this surrepetitious transfer. It may here be mentioned that the case was fixed for the petitioners evidence on 11th of December, 1976, when it was adjourned to 11th of January, 1977, as the counsel for the petitioners had taken time .to produce copies of those documents from the High Court. Thereafter, it was next adjourned to 16th of February, 1977 , for this purpose; and finally, on the next date of hearing that is 25th of September, 1978, the petitioners evidence was closed.

In the absence of the original documents, we do not see how the petitioners could have established that they were forged merely on the strength of the oral evidence which could not have advanced their, plea; and as this mistake was fatal, we do not see any reason to examine this question in the context of the lapse on the part of the petitioners themselves. The plea of res judicata, for this reason, does hot require consideration as it will be a futile exercise to do so. Finding no substance in this petition, we dismiss it.

M . I . Petition dismissed.

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