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Revision Application No.25 of 1982, decided on 4th November, 1986.

‑‑‑S. 115‑‑Revision‑‑Question agitated in revision primarily a question of fact and two Courts below giving a concurrent finding thereon‑‑Such question, held, could not normally be allowed to be agitated in revision proceedings.

‑‑‑S. 60‑‑Civil Procedure Code (V of 1908), S. 115‑‑Documentary evidence‑‑Sale‑deed‑‑Proof of execution‑‑Petitioner challenging execution of deed of sale in respect of land in dispute in favour of respondent and contending that copy of deed produced was a forged and fictitious document which did not bear thumb‑impression of deceased land owner who never executed it‑‑Only copy of deed was produced to prove transaction through scribe and attesting witnesses and for obtaining their admission that it was thumb marked by deceased‑‑Held, evidence of scribe of document as well as that of attesting witnesses to the effect that document carried thumb‑impression of deceased was of no avail in circumstances as these witnesses were not shown original document at time they were deposing before Court‑ Controversy as to execution of sale‑deed also stood unresolved because in order to prove execution of document by deceased, production of original sale‑deed carrying his thumb‑impression was necessary and a certified copy thereof could not be a substitute for original document‑‑Courts below decided crucial controversy regarding execution of sale‑deed without having any satisfactory evidence‑‑Order of Court below set aside and case remanded back to lower Court with direction that parties may be allowed to lead evidence with regard to execution or otherwise of sale‑deed after production of original document before that Court.

Muhammad Ali Shaikh for Applicant.

G.M. Qureshi for Respondent.

Date of hearing: 4th November, 1986.

This Civil Revision Application under section 115, C.P.C. is filed by the Applicant against the two concurrent judgments of the Courts below whereby the suit instituted by the Applicant for declaration and injunction was dismissed. The following facts may be stated here which are relevant for purposes of disposal of the present Revision Application.

The applicant who is the grandson of one deceased Hamid, instituted F.C. Suit No.181 of 1985 for declaration and permanent injunction claiming that the registered sale‑deed No.267 dated 6‑3‑1974 said to have been executed by said Hamid in favour of respondent was not executed by the deceased Hamid and is a forged and fictitious document which was registered by producing a fictitious person before the Registrar. The suit was contested by the respondent who is the daughter of said Hamid, and she claimed that the property was conveyed to her by her deceased father Hamid against valuable consideration and the sale‑deed in this behalf was duly registered in her favour at Nawabshah. On the basis of controversy between the parties the trial Court framed the following issues:‑---------

"(1) Whether the sale‑deed dated 6‑3‑1974 has been got executed by the defendant through a ficitious person and whether it is a forged document

(2) Whether the defendant is in possession of the suit land and whether he has appropriated the produce of the land for Kharif 1974/75

(3) Whether the Court fee is payable in this suit on the sum of Rs.30,350

(4) Whether the suit is not properly valued If so what is its effect

(5) Whether the suit is not in proper form

(6) Relief "

On issue No.l which is the only material issue in the case both the Courts below on the basis of the evidence recorded in the suit reached the conclusion that the sale‑deed dated the 6‑3‑1974 was executed by Hamid.

Learned Counsel for the applicant firstly contended that the evidence on record produced by the respondent did not establish at all that the registered sale‑deed executed in favour of respondent bears the thumb‑impression of the deceased Hamid. It is next contended that before the first appellate Court the applicant had filed an application for summoning of the original statement alleged to have been made by the deceased Hamid in Partition proceedings before the Revenue Authorities which bears his thumb‑impression for the purposes of comparison with the thumb‑impression alleged to have been made by Hamid on the sale‑deed dated 6‑3‑1974 executed in favour of respondent but this application was wrongly rejected by the first appellate Court. It is accordingly contended that the judgment and decree of the Courts below cannot be maintained. The question agitated by the learned counsel for the applicant before me is primarily a question of fact and the two Courts below having concurrently reached the conclusion that the sale‑deed dated 6‑3‑1974 was executed by the deceased Hamid, such question normally could not be allowed to be agitated in Revision proceedings. However, after going through the record of the case I find that the original sale‑deed dated 6‑3‑1974 which allegedly bears the thumb‑impression of Hamid was not produced in evidence at all. The applicant in his evidence before the trial Court produced a certified copy of the sale‑deed dated 6‑3‑1974 and prayed for its cancellation, on the ground that it is a forged and fictitious document which did not bear the thumb‑impression of deceased I Hamid and the said Hamid never executed it. This certified copy of the sale deed was put by the respondent to her witnesses namely the ascribe of the document and the attesting witness to obtain an admission that it was thumb marked by the deceased Hamid. The evidence of the ascribe of the document as well as that of the attesting witness to the effect ‑ that the document carried the thumb impression of Hamid was of no avail in these circumstances, as these witnesses were not shown the original document at the time they were deposing before the Court. The crucial controversy in the case between the parties related to the fact whether the sale deed dated 6‑3‑1974 alleged to have been executed by Hamid bore the thumb impression of deceased Hamid or not which could not be resolved satisfactorily on the basis of above evidence. In order to prove execution of the document by the deceased in the circumstances of the case, the production of the original carrying the thumb impression of deceased was necessary and a certified copy of the document could not be a substitute for the original document. Learned first appellate Court during the course of the judgment observed that the applicant had not cared to prove authenticated and undisputed thumb impression of the deceased Hamid to get the same compared with the impression on the original sale deed. This observation by the learned first appellate Court was made in ignorance of the fact that the original sale deed bearing the thumb impression of said Hamid was never brought on record by the respondent and as such the question of its comparison with another admitted document hardly arose. After hearing the learned counsel for the parties I am of the view that the crucial question in the case which related to the execution or otherwise of the sale deed dated 6‑3‑1974 by the deceased has been decided by the Courts below without having any satisfactory evidence in this regard on record. I accordingly accept this Revision Application, set aside the judgment and decree of the first appellate Court and remand the case back to that Court with direction that the parties may be allowed to lead evidence with regard to the execution or otherwise of the sale deed dated 6‑3‑1974 by the deceased Hamid after production of the original document before the Court. The 1st appellate Court will re‑hear and decide the appeal after recording of the above evidence. Mr. G.M. Qureshi, learned counsel for the respondent made a grievance that the applicant has not complied with the order of this Court dated 31‑10‑1982 and the payments which were to be received by the respondent have not been paid to him. I have gone through the order dated 31‑10‑1982 which required the applicant to deposit a sum of Rs.18,000 within two months and to give security for Rs.30,000.

This part of the order, it is admitted before me by the learned counsel, has been complied with by the applicant. However, the further direction of the Court that if the case is not decided by 31st October, 1983, the applicant shall deposit a further sum of Rs.3,000 in Court, within one month and shall furnish security for Rs.5,000 within the same period for every year until the decision of the Revision application, it is stated by Mr. G.M. Qureshi, has not been complied with by the applicant. If it is so it will be open to the learned first appellate Court to consider the desirability of enforcing this order either by appointment of Receiver or in such other manner as the Court may deem fit in the circumstances of the case. Mr. G.M. Qureshi, finally requested that a sum of Rs.6,000 which is lying in the trial Court in pursuance of the order dated 31‑10‑1982 may be allowed to be withdrawn by the respondent. Mr. Muhammad Ali Shaikh has no objection to it. This amount may accordingly to paid to the respondent subject to all just exceptions. There will be no order as to costs.

M. Y. H./M‑132/K Case remanded.

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