Saturday, 19 May 2012

Civil Revision of a case for declaration

PLJ 2012 Peshawar 7

Present: Shah Jehan Khan Yousafzai, J.

MANZOOR AHMAD & another--Petitioners

versus

KHAN MUHAMMAD and 35 others--Respondents

C.R. No. 27 of 2008, decided on 2.7.2010.

Civil Procedure Code, 1908 (V of 1908)--

----S. 115--Civil revision--Suit for declaration challenging inheritance mutation attested by ignoring the plaintiffs as legal heirs of common predecessors of parties--Dismissed by Courts below--Appreciation of evidence--Claim of Petitioner to be entitled to land as her dower in the suit property--Document neither mentioned Khasra number as description of the property, the subject-matter of the deed nor the deed was ever produced before the revenue authority for incorporation in the revenue record neither stamp vendor nor scribe were produced nor the deed was produced through secondary evidence--Marginal witnesses of the deed were also not produced and no other evidence regarding their inability to produce them in the witness box were examined before the Court--Claim of dower appeared to be an after thought and relief in that regard was sought through amended plaint thus the petitioner had miserably failed to discharge her liability--Petitioners had failed to discharge their burden to establish that disputed mutation was fake, fictitious and ineffective upon the rights of the petitioners and that petitioner was son and co-petitioner was widow of predecessor of respondents whose legacy was devolved upon respondents through disputed mutation--No illegality or irregularity, misreading or non-reading of evidence is found in the concurrent findings of the Courts below--Petition dismissed.        [Pp. 12 & 13] A, B, C & D

Mr. Shakeel Azam Awan, Advocate for Petitioners.

Mr. Muhammad Awan Khan, Advocate for Respondents.

Date of hearing: 16.4.2010.

Judgment

This revision petition is directed against the concurrent findings of the two Court below whereby the trial Court dismissed the suit of the plaintiffs/petitioners by judgment and decree dated 30/03/2006 which was also maintained by the lower Appellate Court vide judgment and decree dated 12/11/2007.

2.  The necessary facts, briefly stated, are that the plaintiffs/petitioners filed a suit against the defendants/respondents for declaration to the effect that the property fully described in the plaint subject matter of inheritance Mutation No. 923 attested on 12/01/1986 ignoring the petitioners as legal heirs of Ghulam Muhammad, the common predecessor of parties is wrong and illegal. The suit was filed on 12/07/1997 with the averments that Ghulam Muhammad last full owner of the suit land died in the year 1983 whose legacy was mutated in the names of Defendants No. 1 to 5 and one Niaz Muhammad through inheritance Mutation No. 923 attested on 12/01/1986. The said mutation was challenged in appeal before the Collector who remanded the matter back to the Revenue Officer for inquiry prior than the attestation of the mutation. The plaintiffs/petitioners alleged to be the son and widow of Ghulam Muhammad and they were deprived to get their shares in the legacy of Ghulam Muhammad in the said mutation as at the time of attestation of mutation, the Petitioner No. 1 was a minor and Petitioner No. 2 a parda nasheen lady were subjected to fraud and conspiracy. Being minor Petitioner No. 1 could not transfer his title in the suit land and Petitioner No. 2 being parda nasheen illiterate female could not abandon her title. They allegedly never appeared before any Revenue Officer and had never abandoned the claim regarding their shares in the legacy of Ghulam Muhammad. The suit was adjourned on various dates for obtaining written statement. On 07/09/1999 written statement was filed and the case was adjourned to 08/10/1999 for filing of rejoinder to the written statement on which date the plaintiffs/petitioners applied for amended plaint instead of filing rejoinder. The said application was contested but vide order dated 28/04/2000 they were allowed to submit amended plaint.

3.  In the amended plaint an addition in relief was made to the effect that out of 30 Kanal 16 Marla of land owned by Ghulam Muhammad last full owner described in the amended plaint situated in Mauza Mewara Tehsil and District Peshawar out of which Petitioner No. 2 claims 16 Kanal as dower and in the remaining property both the plaintiffs/petitioners claim their shari shares being the son and widow of Ghulam Muhammad. In the averments of amended plaint it was alleged that Ghulam Muhammad executed a dower deed dated 07/08/1972 in favour of Plaintiff/Petitioner No. 2 whereby 16 Kanal of land was transferred to her but Since at the time of institution of the original suit the dower deed was not in their knowledge being parda nasheen and illiterate lady, they could not mention the same in the plaint but on examination of the record Plaintiff/Petitioner No. 1 was told by Plaintiff/Petitioner No. 2 that she was given 16 Kanal of land as dower. Ghulam Muhammad was stated to have died in the year 1983 and his legacy was transferred to Defendants No. 1 to 5 and Niaz Muhammad through inheritance Mutation No. 923 attested on 12/01/1986. Rests of the contents of the amended plaint are almost the same which were averred in the original plaint. The trial Court framed as many as nine issues including the relief and after pro and contra evidence and hearing the learned counsel for the parties, the suit was dismissed by the trial Court vide judgment and decree dated 30/03/2006 which was challenged in appeal and vide judgment and decree dated 12/11/2007 the lower Appellate Court concurred with the findings of the trial Court and dismissed the appeal which has now been challenged through the instant revision petition.

4.  I have heard the learned counsel for the respondents and written arguments submitted by petitioner's counsel and have also gone through the record of the case with their able assistance.

5.  In order to establish their claim, the plaintiffs/petitioners have produced Muhammad Ilyas Patwari Halqa, Ziayrat Gul as P.W.1 and Sikandar Khan as P.W.2 besides themselves as P.W 3 and P.W.4, Ziarat Gul P.W.1 in his examination-in-chief supported the claim of the plaintiffs/petitioners and in his cross-examination he has admitted that Jalat maternal uncle of Petitioner No. 2 was the husband of his sister Mst. Dil Jan. He also admitted that Jalat and Zarif were brothers inter-se and Sikandar Khan P.W.2 is the son of Zarif meaning thereby that apart from the two petitioners, the son of maternal uncle of Petitioner No. 2 and the brother of her maternal Aunt were produced in the witness box in support of their claim.

6.  The petitioners claim regarding the marriage between Petitioner No. 2 and Ghulam Muhammad could not be established as P.W.1 has admitted that Petitioner No. 2 was married to one Ghandal and after his death she contracted second nikah with Ghulam Muhammad but he was not present in the said nikah and also expressed his ignorance that when the said nikah was performed and who was nikah Khawan. He has also admitted that Petitioner No. 2 is residing in the house of her deceased husband Ghandal Sikandar Khan P.W.2 has also expressed his ignorance regarding fixation of dower and he also denied about the execution of dower deed Ex.PW3/1. However, he stated that he was told by one Qutab that Nikah Nama was executed in his house by Salimullah Petition Writer who has stated to have died. Amir Said was Nikah Khawan and during those days Ghulam Muhammad was residing in the house of said Qutab where the Nikah Nama was executed in his house. Through the deposition of P.W.1 and P.W.2, the petitioners have miserably been failed to prove the factum of Nikah Nama Ex.PW3/1 between Petitioner No. 2 and Ghulam Muhammad. The alleged Nikah Nama was witnessed by Qutab and Abdul Qadir but none of them was produced in the witness box. Neither the alleged Nikah Khawan nor the Scriber of the deed were produced by the petitioners in support of their claim although no death certificate of scriber was produced. Even if the Scriber of the deed had died, through secondary evidence his signature and hand writing of the execution could have been established. The marginal witnesses and Nikah Khwan were neither produced nor any document/evidence regarding inability in their production were produced.

7.  The respondents produced one Gul Rehman as D.W.1 Naib Tehsildar of the area who stated that on 07/05/1985 on the verification of Muhammad Alam Khan Chairman Usher Zaqat Committee and Ghulam Habib Numberdar Mewara, he attested the inheritance Mutation No. 923. The matter regarding inheritance mutation was remanded to him by the Collector for verification. On 12/01/1986 on the verification of Ghulam Habib Numberdar of the locality, Maulvi Safiullah Pesh-e-Imam of the village, Naik Amal, Hassan Gul brother-in-law of Petitioner No. 2 and Wahab Khan that Petitioner No. 2 is the widow of Ghandal and denied her contracting any second Nikah with Ghulam Muhammad. Petitioner No. 2 on her own behalf and on behalf of Petitioner No. 1 withdrew their objections over the inheritance mutation and she thumb impressed her statement Ex.DW-1/2. Her statement was also thumb impressed by two persons alongwith their Identity Cards. ADK appeared as D.W.2 who produced the original register of mutations of Mauza Mewara for the year 1986-87. He produced the Photostat copy of inheritance Mutation No. 923 attested on 07/05/1985 as Ex.DW-1/1 and subsequent statement and inquiry as Ex.DW-2/1 and Ex.DW2/2. Haji Purdil Petition Writer was produced as D.W.3 who was Scriber of Ex.PW3/3. He confirmed the execution of the deed Ex.PW3/3 duly scribed by him and singed/thumb impressed by the marginal witnesses and the executants wherein the petitioners are recorded son and widow of Ghandal respectively. He stated that the contents were read over to the executants who after admitting the same as correct put their signatures and thumb impressions. The said deed was entered in his Register at Serial No. 202 and the stamp paper Bearing No. 9159 purchased on 3.9.2003. The said deed was executed on 04/09/2003 and the terms of the compromise deed were settled by the arbitrators accompanied by the parties. The contents of the deed are to the effect that the claim of the petitioners pending in Court is frivolous, baseless and against the ethics. There took place some grappling between them. One Ijaz and Sahibzada Khan, Maulana Zahir, Javed Khan and Master Pir Bakhsh were appointed solicitors and committed themselves to withdrew their suit from the Court and the defendants shall pay Rs. 90,000/- for resolution of the dispute and in case of violation they committed themselves for payment of Rs. Four lac.

8.  The statement of Petitioner No. 2 before D.W.1 reveals that she accepted the disputed inheritance Mutation No. 923 and admitted that the legal heirs mentioned in it to whom one share has been given to Mst.Razia as daughter of Ghulam Muhammad and two shares to each of the sons of Ghulam Muhammad in the suit, is correct and she withdrew her appeal.

9.  Counsel for the parties have restricted themselves to the findings on Issues No. 4 to 8 which are reproduced below:--

(iv)       Whether Plaintiff No. 2 is entitled to land measuring 16 kanal as her dower in the suit property?

(v)        Whether the plaintiffs are entitled to their shari share in the suit property?

(vi)       Whether the inheritance Mutation No. 923 attested on 12.1.1986 is fake, fictitious and ineffective upon the rights of the plaintiffs?

(vii)      Whether Plaintiff No. 2 is the widow and Plaintiff No. 1 is the son of deceased Ghulam Muhammad?

(viii)     Whether the plaintiffs are entitled to the decree as prayed for?

10.  Petitioner No. 2 in support of her claim regarding 16 Kanal of land as dower has produced Ex.PW.3/1 but the said document neither mentioned Khasra number etc as description of the property, the subject-matter of the deed nor the said deed was ever produced before the revenue authority for incorporation in the revenue record. The deed appears to be executed on 7.8.1972 but neither stamp vendor nor scriber were produced nor the deed was produced through secondary evidence even if the stamp vendor and scriber were available. The marginal witnesses of the deed were also not produced and no other evidence regarding their inability to produce them in the witness box were examined before the Court. In the very first initiation of proceedings, through an application to the Collector for correction of the inheritance mutation and incorporation their names as owners of Shari shares in the legacy of Ghulam Muhammad predecessor of respondents. There was no mention of any dower deed in favour of Petitioner No. 2. The claim of dower appears to be an afterthought and relief in this regard was sought through amended plaint thus the Petitioner No. 2 has miserably been failed to discharge her liability under Issue No. 4.

11.  The burden on Issues No. 5 and 7 also lies upon the petitioners/plaintiffs but neither Nikah Khwan nor witnesses of the Nikah were produced to discharge their burden. On record there is available a photocopy of Form-B from the registration office submitted by Ghulam Muhammad the predecessor of respondents on 6.10.1980 which is duly thumb impressed by Ghulam Muhammad and duly verified by Civil Judge. There is mention of Petitioner No. 1 as son and Petitioner No. 2 as widow of Ghulam Muhammad. When on application of the Petitioner No. 2 the disputed inheritance Mutation No. 923 was sent for enquiry to Tehsildar which was concluded on the statement of Petitioner No. 2 who was identified by her son Qudrat Khan from the wedlock with her deceased-husband Ghandal. Also given his I.D. Card number as 137-57-217612 also witnessed by Ghulam Ali Chairman, Ushr Zakat Committee with I.D. Card No. 137-20-074043. In her statement, she has shown to be the widow of Ghandal and stated therein that  she has no  objection  on  keeping  intact  the  disputed  inheritance Mutation No. 923 and the shares of inheritance given to them are correct and she withdrew her appeal in the revenue Court. The statement was recorded on 12.1.1986 marked as Ex.PW.3/1. There took place arbitration between the parties which was concluded and patched up through Ex.PW.2/3 and Ex.PW.3/3. In both these documents, the petitioners have shown themselves as son and widow of Ghandal and they have conceded that they are not heirs of Ghulam Muhammad. In order to patch up the matter between the parties, the Jirga imposed payment of Rs. 22,000/- to the petitioners vide compromise deed Ex. PW.3/2 and Rs. 40,000/- vide agreement Ex.PW.3/3. In view of these documentary evidence which were fully established through D.Ws, the two Courts below have rightly decided Issues No. 5 and 7 in negative.

12.  The burden on Issue No. 6 was also upon the plaintiffs-petitioners but they have failed to discharge their burden to establish that disputed Mutation No. 923 attested on 12.1.1986 was fake, fictitious and ineffective upon right of petitioners and that Petitioner No. 1 is the son and Petitioner No. 2 is the widow of Ghulam Muhammad whose legacy was devolved upon respondents through aforesaid disputed mutation. In rebuttal, the respondents have brought sufficient evidence to establish that the petitioners were not the heirs of their predecessor Ghulam Muhammad and through the disputed inheritance mutation, the legacy of Ghulam Muhammad was rightly devolved upon his five sons with two shares each and one daughter with one share. No illegality or irregularity, misreading or non-reading of evidence is found in the concurrent findings of the Courts below on Issue No. 6. In view of findings on Issues No. 4 to 8 the Courts below have rightly non suited the petitioners for the requisite relief.

13. In view of the above, this revision petition is meritless which is hereby dismissed with no order as to costs.

(M.S.A.)           Petition dismissed.


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