2005 Y L R 2645
[Lahore]
Before Muhammad Jehangir Arshad, J
KHUSHI MUHAMMADand others—Petitioners
Versus
NOOR BIBI and others—Respondents
C.R. No. 130 of 2005/BWP, decided on 16th June, 2005.
(a) Civil Procedure Code (V of 1908)—
—-O.XIV, R.1 & S. 99—Framing ofissues—Objection with regard to non-framing of issues—Proceduralirregularity, curability of—Objection with regard to non framing of issues,framing of wrong issues or placing a wrong onus of issues, should be raised atthe very early stage—In case no such objection was raised, same would bedeemed to have been abandoned or despite nonframing of issues, framing of wrong issues or wrong onus of issues, if theparties knew the controversy and led their evidence for and against them; samewould become superfluous and no decree could either be interfered with or setaside on that score alone; provided no prejudice was caused to the parties; andsame, at the best, would be a procedural irregularity which was curable underS. 99, C.P.C.
Rana MuhammadRamzan v. Malik Saeed Hussain and another 2001 YLR 2567; Mst. Hameeda Bibi and3 others v. Ch. Atta Ullah, Advocate PLD 1998 Lah.183; Rashid Ahmad v. HaqNawaz and others 1982 CLC 9 and Dwarka Prasad and others v. Mst. Jasoda Kunwarand others AIR 1933 Allahabad 958 ref.
(b) SpecificRelief Act (I of 1877)—
—-S.42—Limitation Act (IX of 1908), Art.120—Suit for declaration—Execution ofsale-deed and power of attorney–Limitation-Suit was resisted by defendantcontending that same was filed after about 8 years of execution of sale-deed and power of attorneywas hit by Art.120 of Limitation Act,1908 which had provided a maximum ‘period of six years for such-like cases—Contention of defendants was not based on proper legal premises because plaintiffs intheir plaint had specifically asserted that they had regularly been receivingtheir lease money from defendants and that it was 20/25 days before theinstitution of the suit when they came to know about said documents—Plaintiffshad further con-tended that neither they were party to said documents nor theyever had executed said documents—Co-sharer—Plaintiffs being sisters ofdefendants were co-sharers in Khata in dispute—Co-sharer could not he oustedby another co-sharer on the ground of limitation; because possession of one wasalways deemed to be the possession of all—Since defendants had notsuccessfully proved the execution of said documents by plaintiffs, plaintiffsnot being parties to said documents, suit filed by plaintiffs was well intime.
(c) Specificrelief Act (I of 1877)—
—-Ss. 8 &42—Suit for declaration—Maintainability—Declaratory suit filed byco-sharer without seeking relief’ of possession was always maintainable on thewell-known principle “possession of one was possession of all “—Two Courts below had committed noillegality by holding the suit of plaintiffswas maintainable—Contention of defendantsthat without seeking relief for possession suit filed by plaintiffs was notmaintainable, was repelled, in circumstances.
(d) SpecificRelief Act (I of 1877)—
—S.42—Estoppel—Suit for declaration—Execution of alleged general power ofattorney and sale-deed on part of plaintiffs having not been proved, plaintiffswere not estopped from filing the suit, especially when defendants had producedno evidence on record tending to establish estoppel on part ofplaintiffs—Contention that plaintiffs were estopped by their words andconduct to bring suit, was repelled.
(e)Qanun-e-Shahadat (10 of 1984)—
—Arts. 117 &118—Specific Relief Act (I of 1877), S. 42—Suit for declaration—Burden ofproof—Onus of issue framed by Trial Court with regard to sale of’suit-laid against consideration, was placed on defendants, whereas plaintiffswere burdened to prove issue regarding illegality of alleged sale-deed andpower of Attorney—Findings of Courtsbelow on issue of alleged sale-deedthough were subject to findings on issue with regard to suit-land but onus ofissue of sale-deed was wrongly placed on plaintiffs whereas same should have beenon defendants as burden to prove execution of a document was always on the beneficiary under the said document—Claim ofdefendants being that they purchased thedisputed land from plaintiffs, it was their liability to have proved that theypurchased said land from a validly appointed/constituted general attorney—Todischarge onus of valid execution ofdocument whatever evidence had been producedby defendants, had been properly examined, appraised and duly scanned by twoCourts below, High Court dismissed the revision.
(f) Qanun-e-Shahadat(10 of 1984)—
—- Arts.61, 72& 74—Specific relief Act (I of 1877), S. 42—Suit fordeclaration—Execution of document—Proof—Where execution of document had been denied by its alleged executantby disowning his/her signature/thumb-impressions, it would become duty ofbeneficiary under the document to at onceapply to the Court for getting thumb-impressions compared from HandwritingExpert—Throughout the proceedings either before the Trial Court or beforeAppellate Court or even before High Court, no effort was made by defendants tohave thumb-impressions of plaintiffscompared from Handwriting Expert—By not resorting to that exercise at anystage, defendants had themselves incurred a presumption against them that incase the thumb-impressions of eitherplaintiffs and alleged attorney had been got compared from Handwriting Expertreport of Expert would have beenagainst them.
Hamid Qayyum and 2others v. Muhammad Azeem through Legal Heirs and another PLD 1995 SC 381 ref.
(g) Qanun-e-Shahadat(10 of 1984)—
—-Arts. 61, 72& 74—Pardanashin lady—Transaction with Pardaanashin lady—Whileentering into transaction with Parda observing ladies, especially regardingalienation of immovable property fromsisters to brothers or widows to other members of family, a heavy onus lay on transferee to proveexecution of sale-deeds; as well as the fact that illiterate lady thumb-markedthe said documents after understanding its contents and consequences flowingtherefrom—Mere acknowledgement in the sale-deed regarding payment ofconsideration without proving surrounding requirements of transaction,execution of document, could not be presumed.
Muhammad Nazir v.Khurshid Begum 2005 SCMR 941; Mst. Raj Bibi and others v. Province of Punjabthrough District Collector, Okara and 5 others 2001 SCMR 1591; Rana MuhammadRamzan v. Malik Saeed Hussain and another 2001 YLR 2567 and Mst. Hameeda Bibiand 3 others v. Ch. Atta Ullah, Advocate PLD 1998 Lah.183 ref.
(h) Specific ReliefAct (I of 1877)—
—-Ss. 8, 39 &42—Court Fees Act (VII of 1870), S.7(iv) (c)—Cancellation of document—Parryto the document was bound to seek its cancellation, but a person who was notprivy to a document or was a stranger, was not bound to file suit for itscancellation and suit for mere declaration of his/her title, could be filed at any time after denial of thesame—Co-sharer need not file a suit for possession but simply a suit fordeclaration could be competently filed and such type of suit was covered by S.7(iv) (c) of Court Fees Act, 1870.
Dwarka Prasad and others v. Mst. Jasoda Kunwar andothers AIR 1933 Allahabad 958 ref.
(i) CivilProcedure Code (V of 1908)—
—-S. 115—Specific Relief Act (I of 1877), S. 42—Suit for declaration—Revision—Suitof plaintiffs had been rightly decreed concurrently—Findings of two Courtsbelow neither suffering from illegality or irregularity nor opposed to record,could not be interfered with in revision.
Miss Samina Qureshi for Petitioners.
ORDER
This Civil Revision has been filed to challenge thejudgment and decree, dated 10-11-2004 passed by learned Additional DistrictJudge, Bahawalpur whereby two separate appeals titled “Khushi Muhammad andothers v. Mst. Noor Bibi and others” and “Mst. Rahim Bibi and othersv. Khushi Muhammad and others” filed against the judgment and decree ofthe learned trial Court, dated 10-12-2004 were decided and the learnedAppellate Court through the said judgment dismissed the appeal titled”Khushi Muhammad and others v. Mst. Noor Bibi and others”, however,accepted the second appeal titled “Mst. Rahim Bibi and others v. KhushiMuhammad and others”. Both the above mentioned judgments and decrees ofthe learned two Courts below were passed in a suit filed by Mst. Noor Bibi,Mst. Rashidah Bibi and Mst. Rahim Bibi (hereafter to be called asplaintiffs/respondents) against their brothers namely Khushi Muhammad, ShahMuhammad and Abdul Majeed (hereinafter to be referred asdefendants/petitioners) claiming themselves as owner in possession of theproperty measuring 29-Kanal, 5-Marla situated in Chak No.9/BC Tehsil andDistrict Bahawalpur (hereinafter to be called as the property in dispute).
2. The reasons for filing the said suit as disclosedin the plaint are that on the death of their mother namely Mst. Rabia Bibi thesaid property devolved upon them according to their legal shares, whereas onthe death of their father Omar Din the entire agricultural land left by him inChak No.96-A/15-L Tehsil Mian Channu District Khanewal was firstly mutated inthe name of defendants as well as plaintiffs according to their Islamic sharebut the plaintiffs voluntarily gifted away their share in the said property infavour of the defendants. However, neither any bargain wag struck nor theplaintiff ever agreed to sell the disputed property situated in Chak No.9/BCTehsil and District Bahawalpur or ever appointed Inayat Ullah presentrespondent No.9 as their General Attorney for the transfer of disputed propertyto the defendants/petitioners and they continued and still continue to beowners in possession of the same. It was further alleged in the plaint thatplaintiff being Paradah-observing illiterate and simpleton ladies having neverappeared in public were trapped by their brothers Khushi Muhammad and othersdefendants/ petitioners in the garb of gifting away the property situated inMian Channu and by taking advantage of their illiteracy and other infirmitiesthey got the entire proceedings conducted for completion of gift in aclandestine manner and without imparting them they were also getting thedisputed land transferred in their favour, rather the defendants/petitionershad regularly been paying the lease money of the disputed property to theplaintiffs/ respondents. However, suddenly about 20/25 days before theinstitution of the suit when they came to Chak No.9/BC at Bahawalpur with theintention of selling the disputed property, the defendants informed them thatthe plaintiffs were not owners of the suit property as same stood transferredin favour of the defendants. The above said disclosure of information, led theplaintiffs to approach the Patwari Halqa from whom they came to know thatdefendants/petitioners in league with present respondent No.9 and through aforged, fraudulent and fictitious registered General Power of Attorney, dated20-2-1986 got registered from Sub-Registrar, Mian Channu in favour ofrespondent No. 9 and thereafter the said respondent alienated the disputed landto the defendants/petitioners. It was finally averred in the plaint thatappointment of respondent No.9 as General Attorney on behalf of the plaintiffswas result of fraud, collusion between the defendants, Field Staff ofSub-Registrar Mian Channu well as the person who allegedly identified theplaintiffs before the Sub-Registrar, whereas the plaintiffs never appearedbefore him for the purpose of appointing respondent No.9 as General Attorney.In fact they were only brought to the office of Sub-Registrar, Mian Channu forthe purposes of gifting the property left by their father in Mian Channu andthat the defendants being their brothers by taking undue advantage of theirrelationship with the plaintiffs prepared forged power of attorney and then gotthe disputed property alienated in their favour through the said power ofattorney by way of three different sale-deeds, dated 20-4-1986 Exh.P-1, Exh.P-2and Ex.P-3.
3. The suit was contested by the presentpetitioners/defendants who in their written statement while controverting theallegations of the plaintiffs, fully stuck to their stand by claiming thegeneral power of attorney, dated 20-2-1986 and sale-deeds, dated 20-4-1986having been validly executed in their favour. However, Inayat Ullah presentrespondent No.9 in his separate written statement supported the version of theplaintiffs and filed consenting written statement on 8-2-1999.
4. Keeping in view the divergent pleadings of theparties the learned trial Court framed the following issues and put the partiesat trial:–
ISSUES:
(1) Whether the suit isnot competent in its present form? OPD.
(2) Whether the suit hasnot been correctly valued for the purposes of court-fee and jurisdiction. Ifso, what is the correct valuation? OPD.
(3) Whether the plaintiffsare estopped by their words and conduct to bring this suit? OPD.
(4) Whether the plaintiffshave no cause of action and locus standi to bring this suit? OPD.
(5) Whether the contestingdefendants are entitled to recover the special costs under section 35-A,C.P.C., if so, to what amount? OPD.
(6) Whether the defendantshad sold the suit-land in favour of defendants Nos.1 to 3 against theconsideration of Rs.45,000 through registered sale-deeds,
dated 20-4-1986? OPD. (7)Whether the impugned sale-deed, dated 20-4-1986 and impugned general power ofattorney, dated 20-2-1986 are illegal, void, against facts, inoperative againstthe rights of the plaintiffs and liable to be cancelled on the grounds ascontained in the body of the plaint? OPP.
(8) Whether the impugnedMutations Nos.2322 to 2324 are also illegal, void, against facts, inoperativeagainst the rights of the plaintiffs and liable to be cancelled on the groundsas contained in the body of the plaint? OPP.
(9) Whether the plaintiffsare entitled to a decree for declaration and permanent injunction as prayedfor? OPP.
(10) Relief.
5. The plaintiffs namely Mst. Noor Bibi etc., besidesappearing herself as P.W.1 also produced Inayat Ullah as P.W.2, the allegedGeneral Attorney and closed evidence by placing on record certified copies ofall the three disputed sale-deeds Exh. P-1 to Exh.P-3. In rebuttal thedefendants/petitioners produced Muhammad Sharif Deed-Writer D.W.1, Abdul Sattarfrom the office of Sub-Registrar, Mian Channu as D.W.2, Muhammad Aslam son ofTufail Ahmad Khan as D.W.3, Abdul Majeed one of the defendants appeared asD.W.4, Muhammad Ahmad D.W.5 and one Salmat Ullah from the office of DeputyCommissioner, Khanewal was produced as D.W.6. The statement of Mst. RashidahBibi one of the plaintiffs was also recorded as C.W. on 17-7-1997.
6. On the conclusion of the trial the learned trialCourt vide judgment and decree, dated 10-10-2004 decreed the suit in favour ofMst. Noor Bibi and Mst. Rashidah but dismissed the same to the extent of Mst.Rahim Bibi plaintiff in terms of his findings on Issue No.7. Against the saidjudgment and decree of the learned trail Court, one appeal was filed by thepresent petitioners i.e. Khushi Muhammad, etc. whereas the second appeal wasmoved by the legal heirs of Mst. Rahim Bibi. Both these appeals were heard by alearned Additional District Judge, Bahawalpur who on 10-12-2004 by his separatejudgments dismissed the appeal filed by Khushi Muhammad etc. presentpetitioners maintaining the judgment and decree of the learned trial Court infavour of Mst. Noor Bibi and Mst. Rashidah, however allowed the appeal filed bythe legal heirs of Mst. Rahim Bibi with the result that the suit filed by Mst.Rahim Bibi also stood decreed jointly with Mst. Noor Bibi and Mst. RashidahBibi. This civil revision has now been filed by Khushi Muhammad, etc. tochallenge the legality/validity of both the judgments of learned AdditionalDistrict Judge, Bahawalpur.
7. Miss Samina Qureshi, Advocate representing thepetitioners/defendants has disputed the judgments of two Courts below bymaintaining:–
(A) That, the suit filedby Mst. Noor Bibi and others was barred by time:
(B) That the suit was notmaintainable having been filed without seeking prayer for possession;
(C) That the findings ofthe two Courts below are result of misreading and non-reading of evidence onthe point of appointment of Inayat Ullah as attorney by the plaintiffs;
(D) That issues were notproperly framed;
(E) That the two Courtsbelow while recording findings against the petitioners failed to take notice ofthe fact that registered Power of Attorney carried presumption of truth;
(F) That Mst. Noor Bibimiserably failed to prove the allegations of fraud and fabrication; and finally
(G) That the plaintiffswere estopped by their words and conduct to file the suit.
In support of her contentions, the learned counselhas placed reliance on the cases reported as “Rana Muhammad Ramzan v.Malik Saeed Hussain and another” (2001 YLR 2567); “Mst. Hameeda Bibiand 3 others v. Ch. Atta Ullah, Advocate” (PLD 1998 Lahore 183);”Rashid Ahmad v. Haq Nawaz and others” (1982 CLC 9) and “DwarkaPrasad and others v. Mst. Jasoda Kunwar and others” (AIR 1933 Allahabad958).
8. I have considered the arguments of learned counselfor the petitioners, perused the record made available on the file, haveminutely gone through the evidence produced by the respective parties andfurther thrashed the case-law cited.
9. At the very outset, I would like to deal with thepoint raised by the learned counsel with regard to improper framing of issues.The contention of the learned counsel is that since the plaintiffs/respondentshave challenged the general power of attorney as well as the sale-deeds byclaiming the same as outcome of forgery and fabrication, hence it was mandatoryfor the plaintiffs to have proved that said documents were result of forgery orfabrication but they have failed to discharge the onus and in case if the twoCourts below were of the view that the petitioners were beneficiary of thesedocuments and onus to prove validity of these documents would have been on thepetitioners then specific issues should have been framed.
I am afraid this contention of the learned counsel ismaintainable at this stage. It is an established principle of law thatobjection with regard to non-framing of issues, framing of wrong issues orplacing a wrong onus of issues, should be raised at the very early stage and incase no such objection is raised, the same is deemed to have been abandoned ordespite non-framing of issues, framing of wrong issues or wrong onus of issues,if the parties know the controversy and lead their evidence for and againstthen the same becomes superfluous and no decree can either be interfered withor set aside on this score alone provided no prejudice has been caused to theparties and the same at the best be a procedural irregularity which is curableunder section 99 of the Civil Procedure Code. As it is established from theevidence on record that petitioners did know the controversy and produce entireevidence in their support hence, they were now debarred from taking such a pleaat this stage, when the two Courts below have passed concurrent findingsagainst them. This contention of the learned counsel, therefore, is turned downbeing not sustainable.
10. The learned next contention of the learnedcounsel is that disputed Power of Attorney and sale-deeds were executed in theyear, 1986, whereas the suit was filed on 21-2-1994, hence the same was hit byArticle 120 of the Limitation Act, which provides a maximum period of six yearsfor such-like suits. This contention of the learned counsel is also not basedon proper legal premises. The plaintiff in para. 5 of the plaint havespecifically asserted that they had regularly been receiving their lease moneyfrom the petitioners/defendants and that it was 20/25 days before theinstitution of the suit when they came to know about the said documents. Theyhave further contended that neither they were party to these documents nor theyever executed these documents, hence the same had no binding effect qua theirrights of ownership. Hence, they were well within their right and time to filethe suit from the stage they lastly acquired the knowledge about said transaction.Admittedly the plaintiffs being sisters of the. petitioners were co-sharer inthe Khata and now law on the point is very much clear that a co-sharer cannotbe ousted by another co-sharer on the ground of limitation because possessionof one is always deemed to be the possession of all. Since the petitioners havenot successfully proved the execution of these documents on the part of theplaintiffs hence the plaintiffs not being party to these documents, the suitfiled by them was well in time and the findings of two Courts below aremaintained.
11. Similarly there is no force in the contention ofthe learned counsel that without seeking relief for possession the suit filedby the plaintiffs was not maintainable being hit by proviso to t section 42 ofthe Specific Relief Act. It is now well-recognized principle of law that adeclaratory suit filed by a co-sharer without seeking relief of possession isalways maintainable on the well-known principle “possession of one ispossession of all”. Therefore, the two Courts below have committed noillegality by holding the suit of the plaintiffs as maintainable.
12. So far as the contention of the learned counselthat plaintiffs were estopped by their words and conduct to bring the suit, isconcerned, needless to say that as the execution of General Power of Attorneyand sale-deeds on their behalf is not proved, hence, the plaintiffs were notestopped from filing the suit especially when the petitioners/defendants haveproduced no evidence on record tending to establish estoppel on the part of theplaintiffs/respondents. Hence, the contention of the learned counsel isrepelled.
13. Now coming to the findings of the learned Courtsbelow on Issues Nos.6 and 7, the onus of Issue No.6 was placed on thepetitioners/defendants whereas the plaintiffs/respondents were burdened toprove Issue No.7. Although the findings of learned Courts below on Issue No.7are subject to findings on Issue No.6, yet it would not be out of place tomention here that the onus of Issue No.7 was wrongly placed on the plaintiffswhereas the same should have been on the petitioners/defendants, as to provethe exemption of a document is always duty of the person beneficiary under thesaid documents. Since it is claim of the petitioners that they purchased thedisputed land from the plaintiffs, hence, it was their liability to have provedthat they purchased the said land from a validly appointed/constituted generalattorney. To discharge onus of valid execution of document whatever evidencehas been produced by the petitioners, has been properly examined, appraised andduly scanned by the two Courts below.
14. The following findings of the learned AdditionalDistrict Judge are worth-mentioning and clinch the entire controversy:–
“It is the basic lawthat the appellants/defendants being bene ficiaries of the transactions fromthe illiterate Parda-observing ladies were under legal obligation to provebeyond doubt the execution and registration of general power of attorney bytheir sisters in favour of Inayat Ullah. One of the marginal witnesses ofgeneral power of attorney is the defendant himself. Therefore, his statement toestablish the transaction is of no value. Another witness of the general powerof attorney is Tufail Ahmad Khan who has since died. His attestation of thedocument has not been proved in accordance with law. No doubt his son appearedin the Court and has testified that power of attorney Exh. D-1 bears thumb-impressionof his father but the statement of the witness is of no legal value as thethumb-impression cannot be identified to be of his father. The beneficiariesdid not take any step to prove the attestation of document by Tufail Ahmad Khanby resorting to other mode of proof of attestation. The statement of D.W.3 inthe cross-examination that his father had affixed his thumb-impression in hispresence is of no consequence because in his chief examination he had notstated that he accompanied his father when Inayat Ullah had taken his fatheralong and further that he has also disclosed in the cross-examination that hisfather had come back late in the night but did not utter a word abouthimself.”
There are concurrent findings recorded by the learnedCourts below supported by evidence to this effect and the learned counsel forthe petitioner has not been able either to cause any dent in these findings orto point out any illegality or irregularity having been committed by the twoCourts below.
15. Besides approving the findings of the learnedCourts below on Issue No.7, I would also like to add a very important pointwith regard to Issue No.7. It is now an established principle of law that wherethe executant of document has denied its execution by disowning his/hersignatures/ thumb-impressions, it becomes duty of the beneficiary under thedocument to at once apply to the Court for getting the thumb-impressionscompared from Handwriting Expert. In the instant case, throughout theproceedings either before the trial, before the Appellate Court or even beforethis Court, no effort was made by the petitioners/defendants to have thethumb-impressions of the plaintiffs/respondents compared from the HandwritingExpert. Similarly, Inayat Ullah the alleged general attorney also appearedbefore the trial Court as P.W.2 and denied that he was ever appointed asgeneral attorney by the plaintiffs or he ever sold the disputed property to thepetitioners/defendants. Thumb-impressions on the disputed sale-deeds Exh.P-1 toExh.P-3 are very much visible and petitioners by getting thesethumb-impressions compared could very well disprove the case of the plaintiffs/respondents. Although report of the Finger PrintExpert is not conclusive evidence but as held by the Hon’ble Supreme Court ofPakistan in “Hamid Qayyum and 2 others v. Muhammad Azeem through LegalHeirs and another” (PLD 1995 SC 381) the report of Finger/HandwritingExpert is one of the modes of producing evidence and if the said report isproperty proved the same can be used as corroborative piece of evidence. By notresorting to this exercise at any stage, the petitioners have themselvesincurred a presumption against them that in case if the thumb-impression ofeither the plaintiffs or Inayat Ullah had been got compared from HandwritingExpert, the report of the Expert would have been against them. The evidencepresently produced by the petitioners on the question of execution of GeneralPower of Attorney by the plaintiffs in favour of Inayat Ullah is not onlymeagre and insufficient but also do not fulfil the accepted principles/requirements of law. The plaintiffs admittedly being illiterate ladies, ,thelegal protection available to Parda-observing ladies has rightly been extendedto them. There is a chain of judicial pronouncements by the superior Courtsthat while entering into transaction with Parads-observing ladies especiallyregarding alienation of immovable property from sisters to brothers or widowsto the other members of the family, a heavy onus lies on the transferee toprove execution of sale-deeds as well as the fact that illiterate ladythumb-marked the said documents after understanding its contents and theconsequences flowing therefrom. It has also been held by the superior Courtsthat mere acknowledgement in the sale-deed regarding payment of considerationwithout proving the surrounding requirements of transactions, execution of thedocument cannot be presumed. “Muhammad Nazir v. Khurshid Begum” (2005SCMR 941) and “Mst. Raj Bibi and others v. Province of Punjab throughDistrict Collector, Okara and 5 others” (2001 SCMR 1591) are few of thosejudgments. I am therefore, satisfied that the findings of two Courts below onIssue No.7 are proper and in accordance with evidence as well as law.
16. Now I wouldlike to say few words about the judgments cited by the learned counsel for thepetitioners. In “Rana Muhammad Ramzan v. Malik Saeed Hussain andanother” (2001 YLR 2567) the executant had not denied his signatures onthe sale-deed and it was held that simple oral statement without giving detailof fraud in the plaint could not take place of proof. There is no cavil to theproposition laid down in the cited judgment but in the present case theplaintiffs ladies have strenuously disputed their thumb-impressions on theGeneral Power of Attorney and have denied the execution of the same. Hence, thesaid judgment is not applicable to the facts and circumstances of the presentcase.
In “Mst.Hameeda Bibi and 3 others v. Ch. Atta Ullah, Advocate” (PLD 1998 Lahore183) the question was with regard to limitation for cancellation of documentand dispute was whether suit for cancellation of document was covered byArticle 120 or 90 of the Limitation Act. But in the present case there is nosuch dispute. The very case of the plaintiffs is that they never executed thedocuments, hence, they were not party to the same. It is now establishedprinciple of law that a party to the document is bound to seek its cancellationbut a person who is not privy to a document or is a stranger is not bound tofile suit for cancellation and suit for mere declaration of his/her title canbe filed at any time after denial of the same. Hence, this judgment has alsogot no bearing on the facts and circumstances of the present case.
Now coming to thejudgment referred as “Rashid Ahmad v. Haq Nawaz and others” (1982 CLC9) the same relates to question of affixation of valuation of suit for thepurposes of court-fee when the plaintiff has sought cancellation of documentsbut as in the present case it is established that plaintiffs never executedGeneral Power of Attorney as well as sale-deed, hence the suit was correctlyfiled under section 42 of the Specific Relief Act and same was not covered bysection 39 of the said Act dealing with the cases of cancellation of document.
Lastly in”Dwarka Prasad and others v. Mst. Jasoda Kunwar and others” (AIR 1933Allahabad 958) which was cited to canvass that as the plaintiffs were out ofpossession, hence they could not file suit for declaration only but they wereobliged to ask for relief of possession as well. Legally the rule laid down inthis authority is correct but it is an established principle of law in Pakistanat-least that a co-sharer need not file a suit for possession and simply a suitfor declaration can be competently filed and such type of suit is covered bysection 7(iv)(c) of the Court Fees Act.
17. The net resultof above discussion is that the findings of two Courts below neither sufferfrom any illegality or irregularity nor are opposed to the record and that thesuit of the plaintiffs has been rightly decreed in their favour, hence, thiscivil revision has no force and the same is dismissed in limine.
H.B.T./K-110/L Revisiondismissed.