PLJ 2022 Lahore (Note) 98
Specific Relief Act, 1877 (I of 1877)--
----Ss. 42 & 54--Qanoon Suit for declaration and permanent injunction--Will deed--Deprivation from valuable right--Separate statements were managed--Legal heirs of Respondent No. 5 were filed application that their written statements were forged and fabricated--Dismissal of application--Suit was decreed--Challenge to--Separate written statements have been managed to be filed but during trial, legal heirs of Mst. Hajran, Defendant No. 5 filed an application to effect that written statement submitted on their behalf was forged and fabricated and it does not bear their thumb impressions and signatures while exercising powers under Article 84 of the Qanun-e-Shahadat Order, 1984--Trial Court ought to have ordered petitioner to make amendment in her plaint with regards to facts emerged in evidence by exercising suo motu jurisdiction--Case is remanded to trial Court with a direction to allow petitioner to amend her plaint, if she desires, also summon all relevant record from concerned quarters and decide case afresh in accordance with law--Revision petition allowed. [Para 3 & 4] A, B & C
Ms. Naila Mushtaq Dhoon, Advocate for Petitioner.
Mr. Wazir Ahmad Makhdoom, Advocate for Respondents.
Date of hearing: 31.3.2022.
PLJ 2022 Lahore (Note) 98
Present: Shahid Bilal Hassan, J.
Mst. AMNA BIBI--Petitioner
versus
AHMED (deceased) through L.Rs. and others--Respondents
C.R. No. 579 of 2013, decided on 31.3.2022.
Judgment
Succinctly, Mst. Amna Bibi, the petitioner instituted a suit for declaration alongwith permanent injunction against the respondents/ defendants contending therein that land measuring 215-Kanals and 05-Marlas was owned by Muhammad Suleman, predecessor of the parties, who died on 28.02.1983;;that the Respondents No. 1 and 2 purportedly managed will-deed dated 13.02.1983 after death of Muhammad Suleman deceased with the intention to deprive the petitioner from her valuable right i.e. legal share from the legacy of Muhammad Suleman, predecessor of the parties; that the Respondents No. 1 and 2 are educated persons while the petitioner is uneducated parda-nasheen lady; that on the basis of the said will Respondents No. 1 and 2 got attested Mutation No. 636 dated 26.07.1984 in their favour; thus, the same alongwith subsequent mutations are liable to be cancelled being against facts and law, without authority, void, based on collusion, fictitious and ineffective upon the rights of the petitioner. The suit was contested by the respondents/defendants while submitting separate written statements. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties was recorded. The learned trial Court vide impugned judgment and decree dated 07.04.2011 dismissed suit of the petitioner. The petitioner being aggrieved of the said judgment and decree preferred an appeal; however, the learned appellate Court vide impugned judgment and decree dated 10.01.2013 dittoed the findings of the learned trial Court and dismissed the appeal, which has culminated in filing the revision petition in hand.
2. Heard.
3. Matter in issue is with regards to inheritance and deprivation of daughters from the legacy of their deceased father on the basis of alleged will deed dated 13.02.1983, whereas the predecessor of the parties breathed his last on 28.02.1983, which factum strengthens the stance of the petitioner that Muhammad Suleman, predecessor of the parties, was aged about 100 years, because the said factum has not been negated by the Respondents No. 1 and 2 who are beneficiaries of the said will deed. Though separate written statements have been managed to be filed but during the trial, the legal heirs of Mst. Hajran, Defendant No. 5 filed an application to the effect that written statement submitted on their behalf was forged and fabricated and it does not bear their thumb impressions and signatures. After such application, it was duty of the learned trial Court to compare their thumb impressions/signatures while exercising powers under Article 84 of the Qanun-e-Shahadat Order, 1984 or would have sent the admitted signatures/thumb impressions to the finger print expert but the learned trial Court without adhering to the said procedure out-rightly dismissed the application on 28.07.2010. In such like cases, great care and caution is required to be made and the learned trial Court would have summoned all the relevant documents from the concerned quarters so as to reach to a just conclusion in the matter because the learned trial Court was not denuded of powers to summon all the necessary record in this regard and even the learned trial Court ought to have ordered the petitioner to make amendment in her plaint with regards to facts emerged in the evidence by exercising suo motu jurisdiction. In judgment reported as Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 Supreme Court 811), wherein the matter of inheritance was under adjudication, the Apex Court of the country held:
‘-----We summoned the record also but it is clear from its examination that the case was badly conducted not only from the petitioner’s side but also from the respondents’ side. All the relevant documents were not brought on record. The trial Court was not denuded of power to summon all the necessary Revenue Record and also to summon the Patwari so as to supply omissions from both sides. It was also the duty of two higher appellate Courts. It seems that it was an appropriate case for exercise of power under Order XLI, Rule 27, C.P.C. for brining on record additional evidence. The suo motu exercise of this power would also have been fully justified in the facts and circumstances of the case.’
4. In view of the above, the revision petition in hand is allowed, impugned judgments and decrees are set aside and case is remanded to the learned trial Court with a direction to allow the petitioner to amend her plaint, if she desires, also summon all relevant record from the concerned quarters and decide the case afresh in accordance with law. The adversaries are directed to appear before the learned District Judge Mianwali on 18.04.2022 who will further entrust the case to the concerned Court.
(Y.A.) Petition allowed
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