----S. 42---Suit for declaration---Document, proof of---Procedure---Adverse possession---Scope---Contention of defendants was that suit property was transferred in their favour by the predecessor of the plaintiffs in his life time---Suit was decreed concurrently---Validity---Defendants were bound to prove the transaction and execution of alleged 'Iqrar Nama' in their favour---Only one marginal witness out of five witnesses of transferred deed was produced---Defendants had failed to prove the transaction and execution of document by not producing stamp vendor, scribe and alleged marginal witnesses or persons who could testify the signatures of deceased marginal witnesses---Findings recorded by the courts below were based on proper appreciation of evidence---Plea of adverse possession was against law---No mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below---Objection which was not raised before the courts below could not be raised at revisional stage---No illegality or irregularity had been pointed out in the impugned judgments and decrees---Revision was dismissed in circumstances. [Paras. 10, 15, 16, 17 & 18 of the judgment]
Sahib Jan v. Mst. Ayesha Bibi and others 2013 SCMR 1540; Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447; Badrul Hassan Nazami v. Muhammad Sultan Khan 1994 SCMR 669; 1984 CLC 2131 and Bacha Khan v. Abdul Qayyum 2007 YLR 1788 rel.
Aurangzeb for Petitioners.
Abdul Halim Khan for Respondents.
Date of hearing: 22nd June, 2016.
JUDGMENT
MUHAMMAD YOUNIS THAHEEM, J.---This judgment shall dispose of the instant civil revision petition filed by the petitioners against the judgment and decree dated 15.5.2012 passed by learned Additional District Judge/Izafi Zila Qazi-II, Camp Court Kabal at Swat in Civil Appeal No. 48/13 of 2010, vide which the judgment and decree dated 27.7.2010 passed by learned Civil Judge-IX/Illaqa Qazi, Swat, who decreed the suit was kept maintained.
2.Brief facts of the case are that initially a civil suit was instituted by Mst. Qavi Bibi daughter of Mian Gul Bacha against her brother, step brothers, sisters, mother and legal heirs of her real sister Mst. Socha Bibi i.e. husband Fazal Mian and others for seeking declaratory decree along with permanent injunction against the defendants to the effect that she is legal heir of Mian Gul Bacha and other legal heirs could not deny her Shari share and be restrained to intervene or alienate or change nature of inherited property consisted of agriculture land as well as five (5) constructed houses fully detailed in the plaint with relief of possession through partition by separating her share etc.
3.Afterward amended plaint was filed, wherein some of the defendants in the initial plaint were transposed to the panel of plaintiffs on 24.5.2000. Later on, plaintiffs of amended plaint Khadim and Nazir Ahmad sons of Mst. Socha Bibi effected compromise so were arrayed as defendants in the amended plaint filed on 13.6.2000 and lastly amended plaint was filed on 14.12.2002 through the same suit, Deed i.e. 'Iqrar-Nama' dated 16.7.1971, Deeds Nos.146 and 147 dated 07.7.1987, Partition Deed dated 15.4.1982, 'Iqrar-Nama' dated 29.8.1993, 'Iqrar-Nama' dated 12.10.1993, deed No. 270 dated 11.01.1959, Mutation No.98 Muaza Ghorega etc. were challenged on the basis of fraud, result of collusiveness, fake, void against law along with relief of partition etc.
4.The different plaints were followed by amended written statements after transposition and either were deleted from panel of plaintiffs to panel of defendants or from defendants to panel of plaintiffs. Lastly defendants filed their written statement in the sets so defendant's Nos.1, 2 and 5 and other set of defendants Nos.3 and 4 submitted their separate written statement, raising there in distinct pleas both legal as well as factual.
5.The learned trial Court in the light of distinct pleadings of the parties framed initially 10 issues and later on 04 additional issues were framed same are following:-
6.The learned trial Court provided opportunity to both the parties to adduce their evidence. During trial again some of the parties effected compromise like Mst. Qavi Bibi etc. and after conclusion of trial suit of the plaintiffs was decreed and present petitioners/defendants Nos.1, 2 and 2 others namely; Bostan son of Khyber and Amjad son of Bostan feeling aggrieved filed regular civil appeal, which was also dismissed by the learned Appellate Court through impugned judgment and decree dated 15.5.2012. Still dissatisfied, the present petitioners filed the instant revision petition on the grounds mentioned therein.
7.Arguments of learned counsel for the parties heard and available record perused with their able assistance.
8.From the perusal of record it reveals that both the parties except defendant No.9 are legal heirs of late Mian Gul Bacha. The relationship in shape of pedigree table is given as under. It is important to note that Mian Gul Bacha contracted marriage with two ladies Mst. Haleem Zadgai Bibi and Mst. Kharoo Bibi and from wedlock of each wife the following legal heirs were born:-
9.The legal heirs from the wedlock of Mst. Kharoo Bibi are plaintiffs, while legal heirs from the wedlock of second wife Mst. Haleem Zadgai are defendants. During trial some of the parties effected compromise, with each other including legal heirs of Mst. Socha Bibi. So Khadim, Nazir sons of Mian Fazalai were transposed to the panel of defendants.
10.As per averments of defendants/petitioners Nos.1 and 2 they claimed that the suit property along with houses had been transferred to them by their predecessor in his life time in their favour vide 'Iqrar-Nama' Ex. DW-5/5. The onus was squarely upon the defendants to prove the said transactions and execution of alleged deed. From the perusal of alleged transferred deed EXDW5/5 it reveals that there are five marginal witnesses and out of these only one of its marginal witness namely; Rahim Jan was produced as DW6 who during cross-examination deposed that he did not state that Mst. Qawai Bibi is not the daughter of Mian Gul Bacha rather he stated that she is daughter of his maid servant. He admitted that he had submitted written statement on behalf of defendants Nos.3 and 4. He further admitted that the above said deed was not tried to be registered either by him or by any else one. He deposed that he did not know which property was sold by Mian Gul Bacha for the purpose of meeting expenses incurred upon the marriages of Mst. Qawai Bibi and Socha Bibi and on what price. He deposed that he did not remember the area which was purchased by defendants Nos.1 and 2 from Mian Gul Bacha their father. It is also noticeable fact that the above discussed deed is silent regarding description or boundaries of the suit property/land. DW6 during deposition stated that other witness of the alleged deed is Mian Abdur Rahim who is alive and has not been produced. Thus it can be safely held that defendants/ petitioners badly failed to prove the transaction and execution of document by not producing stamp vendor, scribe and the alleged marginal witness or persons who could testify their signatures of deceased marginal witnesses.
11.Defendants Nos.1 and 2 to prove their stance in respect of transferring property to their wives produced one Mian Gul Jan petition writer as DW1 who brought his register regarding incorporation of 'Meher deed/Iqrar Nama Jaat" bearing Nos.146, 147 dated 7.7.1987 as EXDW1/1 and EXDW1/2 in the said register but this witness was not produced for cross-examination rather his son Syed Attaullah appeared as DW7 who during his examination in chief stated that his father due to illness is unable to appear and deposed before the Court, so the examination in chief of such witness who though being alive did not appear for cross-examination so his statement is not worth consideration.
12.Defendants Nos.1 and 2 to prove deed No.720 dated 15.04.1982 EXDW3/1 produced Abdul Ghaffar Khan Advocate as DW2.The same witness during cross-examination admitted that EXDW3/1 was not scribed in his presence. He further deposed that he did not remember as to whether it was about compromise or partition matter. From the perusal of deed dated 15.4.1982 EXDW3/1 it transpired that it is about the terms and condition of partition of property among defendants Nos.1, 2 and two other persons namely Abdur Rahim and Mian Halim Jan and is not transfer deed of any property from Mian Gul Bacha in favour of said defendants Nos.1 and 2.
13.Similarly, the defendants/petitioners Nos.1 and 2 also alleged in their written statement that they have purchased some property vide deeds Ex. DW-5/1 and Ex. DW-5/2, but here too, the marginal witnesses of the above-referred documents namely Faridoon Khan and Sher Afzal Khan have not been produced. As per Deed Ex. DW-5/2, it is shown that one Mian Rahim Jan son of Qasim Jan had sold his property in favour of defendants Nos.1 and 2 in lieu of Rs.82, 500/-. In support of this document, though Mian Rahim Jan appeared as DW6 on behalf of defendants, but he showed his total ignorance about rest of the suit properties purchased by the defendants, rather his statement is ambiguous and incomplete in respect to the alleged stance of the defendants Nos.1 and 2. Thus, the deeds Ex. DW-5/1 and Ex. DW-5/2 have not been proved according to law by the defendants through producing cogent and reliable evidence.
14.The main controversy between the parties was the existence of right of inheritance asserted by plaintiffs/respondents while on the other hand the plea of petitioners/defendants that Mian Gul Bacha left no inheritable property and if he owned some property then it had been transferred by him to defendants Nos.1 and 2 before his death and later on the petitioners transferred it to defendant No.9 namely Parwant Khan so it was correctly held by the learned trial Court and concurred by the learned appellate Court that Parwant Khan is a bona fide purchaser who purchased the same property from the then ostensible owners i.e. defendants Nos.1 and 2. Hence it is held that the transaction made in favour of Parwant Khan defendant No.9 or others by the petitioners shall be taken to have been made by them from their own shares having no bearing or effect upon the rights/entitlement of Mr. Parwant Khan or any other subsequent vendees. In this respect the wisdom is derived from the Judgment of Hon'ble Supreme Court in case titled as Sahib Jan v. Mst. Ayesha Bibi and others cited as 2013 SCMR 1540. The relevant principle regarding protection to a bona fide purchaser is reproduced as below:
"In view of the above, it is held that all the transactions, which have been made by Muhammad Nawaz (his LRs) shall be taken to have been made by them from their own share having no bearing or effect upon the rights/entitlement of Mst. Ayesha to the extent of her 1/3 share.
15.So far as the argument advanced by the learned counsel for petitioners that the suit is time barred is concerned and two courts below did not consider this legal aspect of the case to this arguments suffice it to say is that the dispute is about the inheritance right so one party i.e. plaintiffs had succeeded to prove on record that they are the legal heirs of Mian Gul Bacha and the ownership of the properties mentioned in the plaint has also been proved that of Mian Gul Bacha while defendants /petitioners had failed to prove by producing cogent evidence that their predecessor had transferred his entire property in their favour before his death through Deed Ex. DW-5/5 and had purchased through deed EXDW5/1 and Ex. DW-5/2. The evidence on the record was examined by the trial Court and re-appraised by the appellate Court who maintained the findings of the learned trial Court. So the concurrent findings of the Courts below are based on proper appreciation of evidence and law hence entries in the revenue record and the deeds relied upon by the petitioners are no help to them and were correctly set aside by the two Courts below moreover plea of adverse possession is also against law as it has been declared by the Hon'ble Supreme Court against the injunction of Islam. No instances about mis-reading and non-reading of evidence have been pointed out by the petitioners. With regard to the question of limitation reliance is placed on the judgment of the Hon'ble Supreme Court in case titled as Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others cited as 2005 SCMR 1447. The relevant principle enunciated in the Judgment is reproduced as under:-
"This is settled principle of law that the bar of limitation is not applicable to right of inheritance which does not extinguish such right by efflux of time Right of inheritance of a female, recognize in Sharia, cannot be denied on the basis of oral assertion of surrender of such right by a female in favour of male member of family and in any case, there is no concept of stopple to deprive a person from his right in the inheritance in Islam."
16.So far as the argument advanced by learned counsel for petitioners that learned trial Court was legally bound to have provided opportunity to produce further evidence after framing additional issues before the announcement of judgment is concerned, in my humble view that the petitioners had not annexed the copy of the Additional issues or the relevant record of order sheet with the petition as to whether the additional issues were framed with the consent of both the parties or otherwise, moreover, the same ground was not taken in Regular Civil Appeal before the learned Appellate Court.
In addition to above, the record reveals that issues were framed by the trial Court on 09.10.2011 wherein issue No.7 is about, as to, "whether the suit land was not ownership of the Mian Gul Bacha, hence suit is liable to be dismissed". While additional issues enumerated and discussed in the Judgment of learned trial Court in one way or the other are similar to the above referred issue No.7 and covered by issues already framed. In this respect reliance is placed on the Judgment of Hon'ble Supreme Court, in case titled Badrul Hassan Nazami v. Muhammad Sultan Khan 1994 SCMR 669. So there is sufficient evidence for the determination of dispute regarding the ownership of Mian Gul Bacha and inheritance rights of the parties. Petitioners did not raise any objection before the trial Court in this regard and same ground was not taken before the appellate Court thus raising of this plea at this belated revisional stage is not permissible under the law. In this respect reliance is placed on the judgment 1984 CLC page 2131 (Lahore). So case could not be remanded for the purpose argued above by the petitioners as it would only increase the agonies of the parties hence the arguments advanced by the petitioners has no force so is repelled. In this respect reliance is placed on the Judgment of this Court in case titled as Bacha Khan v. Abdul Qayyum 2007 YLR 1788.
17.The learned counsel for petitioners failed to point out any irregularity, illegality, wrong exercise of jurisdiction while passing both the impugned judgments which could necessitate the interference of this Court under its revisional jurisdiction.
18.In wake of the above discussion, the instant civil revision petition being bereft of merits stands dismissed, however, as suit was also for partition therefore, a preliminary decree is passed in view of the judgments and decrees of the two courts below, with no order as to costs.
ZC/290/P Revision dismissed.
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