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Regular Second Appeal No.23 of 1985/BWP, decided on 6th June, 1987.

---S.100--Dispute over ownership of property--Suit of respondent decreed by Trial Court and First Appellate Court declaring him to be owner of disputed property--Appellant producing sale-deed purported to have been executed in May 1966 in support of his claim of ownership--Statement of witness relied upon by appellant showing that it was for the first time in 1967 that appellant asked witness to pay him rent of disputed property which was not done--Sale-deed, therefore, seemed to have been prepared at some later stage by appellant--No proof of payment of price of disputed property having been produced, sale-deed was without consideration--Appellant admittedly not in possession of disputed property--Appellant, held, had failed to prove the sale of disputed property in his favour and relevant issue was, therefore, rightly decided against him--Appeal found to be without any merit was dismissed.

Appellant in person.

Muhammad Shamsher Iqbal Chughtai for Respondent No.1.

Respondent No. 2 in person.

Date of hearing: 6th June, 1987.

Briefly stated the facts of the case are as follows:---

Brig. Muhammad Abbas Khan Abbasi, Amir of Bahawalpur, on 1-3-1980 filed a suit in the Court of Senior Civil Judge, Bahawalpur against Kh.Mumtaz Hussain and Sabir Farhat seeking a declaration that he was owner in possession of Quarter No.20 in Baghi Khana Bahawalpur; that Kh.Mumtaz Hussain defendant had no concern/title in this quarter; that Sabir Farhat defendant No.2 was tenant under the plaintiff and that the sale-deed dated 24-5-1966 was illegal, void and forged. As a consequential relief it was prayed that defendant No.1 be directed not to interfere in the ownership and possession of plaintiff over this quarter. It was stated in the plaint that the Amir of Bahawalpur died in London on 24-5-1966 and that after his death the plaintiff became owner of the property. It was pleaded that on the death of the Amir of Bahawalpur the general power-of-attorney in favour of Lt.-Gen. J.H. Marden automatically came to an end. It was further pleaded that Quarter No.20 was never sold to defendant No. 1.

The two defendants put in appearance in Court. Kh.Mumtaz Hussain defendant No.1 alone contested the suit and claimed ownership of the quarter in dispute vide the sale-deed dated 24-5-1966. The parties were put to issues.

In support of his claim Kh.Mumtaz Hussain defendant No.1 examined Allah Nawaz D.W. 1 and Ghulam Hassan D.W. 2 besides appearing himself in support of his case. He produced in evidence sale-deed EXh.D.1 dated 24-5-1966, original letter from Lt.-Gen. J.H. Marden dated 18-10-1972 Exh. D.2, and another letter from him dated 11-1-1973 Exh.D.3. He also produced a letter said to have been written by one Hamidi dated 19-5-1972 Exh.D.4; copy of the plaint Exh. D .5 in a suit filed by him against Muhammad Shafi before Rent Controller, Bahawalpur; copy of written statement Exh.D.6 in the said ejectment petition; copy of the order of the Rent Controller Exh.D.20, dated 30-5-1972 granting permission to withdraw the said application; copy of agreement Exh. D.7 by Muhammad Shafi Hamidi dated 14-3-1971 agreeing to pay rent to Kh.Mumtaz Hussain on 1-6-1971; copy of excerpt of register of rent Exh.D.8 regarding quarters; copy of the statement of Muhammad Shafi Exh. D.9 made by him before Rent Controller; copy of the order Exh. D.10 of Rent Controller, Bahawalpur in second application for ejectment by which Sabir Farhat a son of Muhammad Shafi Hamidi was directed to vacate the premises; copy of the statement EXh.D.11 of Allah Nawaz D.W. 1 made by him before the Rent Controller; copy of the amended petition for ejectment Exh. D .12 and copy of the written statement Exh . D .13 filed by Sabir Farhat to defend the ejectment petition. Mumtaz Hussain also filed copy of application Exh.D.14 by Brig. Muhammad Abbas Khan Abbasi praying that he be impleaded as party in the ejectment petition; copy of the order of District Judge Exh.D.15 dated 17-7-1980 setting aside the ejectment order Exh.D.10 dated 6-12-1979; copy of constitutional petition (W.P.No.355 of 1980-BWP) Exh.D.16; copy of the order of this Court in the writ petition Exh.D.17 directing that the case be put up after the decision of the learned Civil Judge Bahawalpur; copy of the receipt of deposit of rent by Muhammad Shafi Exh.D.18 for the period 24-5-1966 to February 1971 in the application for ejectment filed by Mumtaz Hussain; copy of receipt Exh. D.19 by which Rs.20 were deposited by Muhammad Shafi as Rent for April and May 1972 in the application for ejectment by Mumtaz Hussain, Exh . D .21 is copy of the statement of Muhammad Anwar made by him in the ejectment proceedings before Rent Controller. Exh.D.22 is copy of the statement of Khurshid Anwar D.W. 4 recorded by the Rent Controller. Exh.D.23 is a receipt showing payment of rent of quarter No.20 by Muhammad Shafi Hamidi to Lt.-Gen.J.H.Marden from 1967 to 1972, Exh.D.24 is an application by Brig. Muhammad Abbas Khan Abbasi for getting himself impleaded as party in writ petition No.355-80/BWP and Exh. D.25 is an order dated 21-3-1973 by which the complaint by Mumtaz Hussain under sections 406, 420, PPC against Muhammad Shafi and Sabir Farhat was dismissed for non-prosecution.

The plaintiff Brig. Muhammad Abbas Khan Abbasi examined his General Attorney Muhammad Anwar Abbasi P.W. 1 in support of his case. He also produced copy of Jamabandi for the year 1971-72 EXh.P.1; copies of letters written by Mumtaz Hussain defendant Exh.P.3 dated 3-11-1972 and Exh.P.2 dated 23-12-1972. A copy of notice Exh.P.4 on behalf of Kh. Mumtaz Hussain to Muhammad Shafi Hamidi was also tendered in evidence.

Sabir Farhat defendant No.2 appeared as DW 4 and supported the plaintiff's case. The parties did not lead any other evidence during trial of the suit.

2. The learned Civil Judge 1st Class Bahawalpur vide the judgment and decree dated 18-6-1984 decreed the suit of plaintiff with costs and declared the plaintiff to be owner of the disputed property. He refrained from giving any finding on possession through tenant. This judgment and decree was challenged by Kh. Mumtaz Hussain before learned Additional District Judge, Bahawalpur who vide the impugned judgment and decree dated 28-1-1985 dismissed his appeal with costs. Hence this regular second appeal.

3. I have carefully gone through the record of this case and examined each and every document. I have also heard the appellant and respondents at length. A perusal of various documents which form part of the suit would show that most of them are not relevant for purposes of deciding the question involved in the suit. The main question requiring determination is the ownership of quarter No.20 in Baghi Khana Bahawalpur. Kh. Mumtaz Hussain defendant admitted that this quarter was owned by the plaintiff. He however claimed to have purchased this quarter on 24-5-1966 vide sale-deed Exh.D.l. In order to prove this sale-deed he examined two witnesses i.e. D.W. 1 Allah Nawaz Khan and D.W. 2 Ghulam Hassan. It was stated by Allah Nawaz Khan D.W. 1 that the sale-deed Exh.D.1 was signed by Lt.-Gen.J.H.Marden and that his signatures appeared at Exh.D 1/1 and Exh.D.1/2 in the sale-deed. In cross-examination he stated that he did not remember as to when Nawab Sadiq Muhammad Khan died. He was unable to give description of Quarter No.20 because one Khurshid Abbasi was incharge of the quarters. He stated that during his tenure of service no property was sold in his presence. He admitted that at the time of purchase of a stamp paper EXh.D.l, he was not present and that the signatures Exhs.D.l/1 and D.1/2 were not fixed in his presence. In cross-examination he admitted that the deed Exh.D.1 was not written in his presence. D.W..2 Ghulam Hassan stated that he was in employment of Nawab Sahib from 1958 to 1974 and was a subordinate of Lt.-General Marden in 1969. He stated that he had typed the letters Exh.D.2 and D.3 which were signed by General Marden. He admitted that the agreement Exh. D .1 was not typed by him nor written in his presence. He, however, identified the signatures Exhs.D.l/1 and EXh.D.l/2 to be that of Marden Sahib. In cross-examination he expressed ignorance as to whether any of the quarters had been sold or not. He also was not aware as to who was residing in Quarter No.20. In cross-examination he admitted that the letters Exh.D.2 and D.3 were not initialed by him. Mumtaz Hussain D.W.3 defendant No.1 supported his own case and tendered documents in evidence given in detail above.

D.W. 4 Sabir Farhat defendant No.2 stated that he was tenant under the plaintiff and paying him rent regularly. He admitted in cross-examination that his father died in the year 1979. He expressed ignorance as to whether after receipt of notice Exh.P.4 his father deposited any rent in Court or not. P.W. 1 Muhammad Anwar Abbasi General Attorney of the plaintiff supported the averments in the plaint.

4. In my view the relevant documents in this case are two letters Exh.P.2 and P.3 written by Kh.Mumtaz Hussain defendant No.1. Besides these the other documents required to be considered are sale-deed EXh.D.1, letters Exh.D.2 and D.3, statement of Muhammad Shafi D .9. The rest of the documents tendered in evidence by Mumtaz Hussain defendant relate to the proceedings before the Rent Controller or the constitutional petition pending in this Court.

5. Issues Nos1l and 2 are important. The defendants admitted the ownership of plaintiff over the disputed house. There was, therefore, no dispute regarding issue No. 1. Mumtaz Hussain defendant No.1 claimed ownership on the basis of sale-deed dated 24-5-1966. As such onus to prove issue No.2 was placed on him. In order to discharge the onus he produced in evidence sale-deed Exh.D.1 dated 24-5-1966 besides the letters Exh.D.2 and D.3 written to him by Lt.-General J.H.Marden. A perusal of the sale-deed Exh.D.1 would show that it was signed by Fida Hussain and Mushtaq Hussain as marginal witnesses. No one of them was examined by defendant No.l in support of his case. General Marden was admittedly not alive at the time of the trial of the suit. This document was sought to be proved by defendant No.1 from the evidence of D.W.1 Allah Nawaz and D.W.2 Ghulam Hassan. No doubt these two witnesses identified the signatures of Lt.-Gen.J.H.Marden but they admitted in their statements that the stamp paper was not purchased in their presence; that the sale-deed Exh.D.1 was not written in their presence and that Gen.Marden did not sign the same in their presence. The plain tiff had denied the signatures of Gen.Marden on Ex.D.1. It was stated by Ghulam Hassan DW.2 that he was not aware as to whether the quarter in question was at all sold or not. I am, therefore, not inclined to accept the statements of these two witnesses. The sale-deed Ex. D .1 was not written on a properly stamped paper. It was also not a registered document. There is nothing on record to show that the two marginal witnesses were not alive or that they were incapable of giving evidence or that they were, in any manner, , not subject to the process of the Court. The omission on the part of Mumtaz Hussain defendant, who was burdened with proof of issue No.2 to examine the two marginal witnesses makes his case doubtful. General J.H. Marden during service of the Amir of Bahawalpur must have signed a large number of documents. As the plaintiff did not admit the signatures of Gen.Marden on EXh.D.l, the plaintiff should have got the signatures of Gen.Marden at EXh8.D.1/1 and D.1/2 compared from some expert with his admitted signatures. This was not done which also makes the defendant No.l's case doubtful. It was argued by defendant No.l that the letters Exhs.D.2 and D.3 also support his contention that the quarter in question was sold to him. It appears from the letter Exh.D.2 that Mumtaz Hussain was occupying Quarter No.6 at the Baghi Khana without payment of rent; that Quarter No.20 was in occupation of Mr.M.S.Hamidi (father of Sabir Farhat) who also did not pay rent. It was also mentioned that from the record it appeared that Quarter No.20 had been sold to Mumtaz Hussain who did not take possession of the same and it thus suggested that the sale-deed of Quarter No.20 be transferred to No.6. Mumtaz Hussain was, therefore, asked to give immediate attention to the question of ownership and payment of rent. He was asked to vacate Quarter No.6 if the suggestion contained in this letter was not accepted. The letter Exh. D.3 indicates that initially Mumtaz Hussain purchased Quarter No.6 which on his request seems to have been changed to Quarter No.20. It was admitted by Mumtaz Hussain defendant No.l-appellant before me today that he was in possession of Quarter No.6 as owner and that the same was not now in dispute. These two letters seem to have been written in the year 1972. It is clear from the contents of these letters that till that time the ownership/ transfer of Quarter No.20 had not been finally settled. These two letters in my view are of no help to the appellant. On the other hand letter Exh.P.3 dated 3-11-1972 and letter Exh.P.2 dated 23-12-1972 written by Mumtaz Hussain defendant No.l to the employees of the plaintiff would show that till writing of these letters sale of Quarter No.20 in his favour had not completed. It was stated by him in the letter Exh.P.2 that he had paid Rs.3,450 as cost of Quarter No.6/15 vide receipt No.72 dated 30-4-1966. He further stated in this letter that "later, on 21-11-1966, I requested your honour to let me have Quarter No.20 on instalments but I could not get reply from you. To my mind I was of the opinion that my request was not considered. Again I applied for the transfer of Quarter No.20 with Quarter No.6" . In para 2 of this letter he stated that "in the year 1967 I again contacted Mr.Noor Ahmad, the then Accountant of the Controller-in-general of properties of H. H . the Amir of Bahawalpur who told me that transfer of quarters cannot be effected because a sum of Rs.1,500 or likewise deposited against Quarter No.20 is to be refunded and unless a sum of Rs.3,450 is not paid, Quarter No.20 cannot be given to me. As per pursuance after a week I paid Rs.3,450 to Noor Ahmad and he gave me a deed of Quarter No.20 to me on two rupees stamp paper." A perusal of this letter would show firstly that Mumtaz Hussain defendant No.1 allegedly paid Rs.3,450 vide receipt No.72 dated 30-6-1966. This receipt was not produced in evidence during trial of the suit. Secondly, the deed regarding Quarter No.20 on two rupees 'stamp paper was given to him by one Noor Ahmad in the year 1967. Mumtaz Hussain did not mention that this deed was signed by General Marden. He also did not mention in this letter that he had obtained deed D.1 from Gen.Marden on 24-5-1966 when it appears to have been signed by him. Thirdly, that the dispute regarding the transfer of Quarter No.20 had not been finally settled even in the year 1967 or till 23-12-1972 when the letter Exh.P.2 was written. There is no evidence to show that defendant No.l Mumtaz Hussain ever paid the price of Quarter No.20 before or after the execution of the sale-deed Exh.D.l. There is another aspect which requires consideration for determination of the question involved in the suit. It was admitted at the bar by Mumtaz Hussain defendant No.l and the learned counsel appearing on behalf of the plaintiff-respondent that the late Amir of Bahawalpur died in London on 24-5-1966. It was also admitted by both of them that no property of the late Amir of Bahawalpur could be sold after the said date as per orders of the Provincial Government. The case of the plaintiff was that late Amir of Bahawalpur died at 7.00 A.M. (Pakistan Standard time) on 24-5-1966 in London. On the other hand Mumtaz Hussain defendant No.l stated that the Amir of Bahawalpur died in London on 24-5-1966 at 6 P.M. (Pakistan Standard time). The learned counsel for respondent No. l argued that immediately after the death of late Amir of Bahawalpur, Lt.-Gen. J.H.Marden had no authority to act as his general attorney. It was contended by Mumtaz Hussain that as the Amir of Bahawalpur died 6 P.M., therefore, till that hour of the death Lt.-Gen. Marden had the authority to act as general attorney of the deceased. There is no evidence to indicate the exact time of death of the late Amir of Bahawalpur on 24-5-1966. The onus to prove issue No.2 was on the plaintiff. It was, therefore, for him to prove the exact time of death of his vendor. It was specifically stated by PW 1 Muhammad Anwar Abbasi that the late Nawab Sir Sadiq Muhammad Khan Abbasi died in London on 24-5-1966 and that the news of his death was received by them at 7 A.M. through the S.P. There was no rebuttal to this evidence. Mumtaz Hussain defendant No.l was cross-examined on behalf of the plaintiff specifically on the point of exact time of death. He, stated that the information was received four days after the death of Nawab Sahib. He did not state in his examination-in-chief or in cross-examination that Nawab Sahib died at 6 P.M. In my view even if EX.D.1 was signed by Gen.Marden then also he had no authority to sign the same after 7 A.M. (Pakistan Standard time) on 24-5-1966. It was stated by Mumtaz Hussain appellant that the sale-deed was executed during office working hours on 24-5-1966 which means after the news of death of the late Nawab was received in Bahawalpur. Gen.Marden, therefore, had no authority to sell Quarter No.20 to Mumtaz Hussain defendant or to sign the sale-deed Ex.D.l. The appellant tendered in evidence the statement of Muhammad Shafi Ex.D.9 in support of his case. It was stated by Muhammad Shafi before Rent Controller that he was tenant of the quarter in dispute under the Nawab of Bahawalpur since the year 1950; that in the year 1967 Mumtaz Hussain told him that he had purchased the quarter and that in future the rent be paid to him and that he later came to know that the quarter was not sold to Mumtaz Hussain and as such he again started paying rent to Nawab Sahib. This statement has been produced in evidence by Mumtaz Hussain in support of his own case. This means that he relies on the statement of Muhammad Shafi. A perusal of the statement would show that it was for the first time in 1967 that Mumtaz Hussain asked Muhammad Shafi to pay him rent. If he had purchased the property in May 1966 as claimed by him he must have asked or given notice to Muhammad Shafi immediately to pay rent to him. This was not done. It, therefore, seems that the sale-deed EX.D.1 was prepares at some later stage by Mumtaz Hussain defendant No.l, an ex-police officer. There is no proof of payment of price of Rs.3,450 for Quarter No.20. The deed Ex.D.l is without consideration. Mumtaz Hussain was admittedly not in possession of Quarter No.20.

6. In view of the above discussion I am of the view that Mumtaz Hussain has failed to prove the sale of Quarter No.20 in his favour. He was not owner of this quarter. Issue No.2 was, therefore, rightly decided against him.

In view of the above discussion there is no merit in this appeal which is accordingly dismissed with costs throughout.

S. Q./M-366/L Appeal dismissed.

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