—Suit for declaration and permanent and mandatory injunction—Decreed--Appeal--Accepted--Modificaton in judgment--Pedigree table--Respondents were not challenged pedigree table--Principle of return (Radd)--Surviving sister-

 PLJ 2023 Lahore (Note) 118
Present: Ch. Muhammad Iqbal, J.
MUHAMMAD YASIN and 2 others--Petitioners
versus
MUNIR HUSSAIN and 10 others--Respondents
C.R. No. 2285 of 2015, heard on 19.1.2023.

Specific Relief Act, 1877 (I of 1877)--

----Ss. 42 & 54--Muhammadan Law, Para 66—Suit for declaration and permanent and mandatory injunction—Decreed--Appeal--Accepted--Modificaton in judgment--Pedigree table--Respondents were not challenged pedigree table--Principle of return (Radd)--Surviving sister--Challenge to--As per settled law, after death of Muhammad Ismail, 1/2 share belonged to Mst. Lajjo Bibi being his only surviving sister and under para 66 of Mohammaden Law remaining 1/2 share would also be returned to her under principle of return (Radd)/exclusion--As per law respondents-plaintiffs were required to tender document in their own statements but perusal of record shows that sale deed as well as mutations, which were challenged by respondents in suit have been produced by counsel for respondents in his statement which is not a valid tender of documents in evidence--It is settled law that documents relied upon or on basis of which case has been filed, should be produced in evidence by party itself and a fair opportunity should be given to other party to cross-examine same, as such documents produced by respondents’ counsel cannot be relied upon as valid piece of evidence and ordinarily such documents are excluded from taking into consideration--Respondents have failed to prove their assertions through any unimpeachable and trustworthy oral as well as documentary evidence--Petition allowed.                                        

                                                          [Para 9, 10, 11 & 12] A, B, C & D

Ref. 1991 SCMR 2300; 2021 SCMR 1534; 2007 SCMR 996; PLD 2021 SC 715; 2016 SCMR 24.

Ms. Gulzar Butt and Mian Muhammad Ayub, Advocates for Petitioners.

Ch. Abdul Majeed, Ch. Ehsan-ul-Haq and Ch. Zahid Majeed, Advocates for Respondents.

Date of hearing: 19.1.2023.

Judgment

Through this single judgment I intend to decide the titled Civil Revision along with Civil Revision No. 2561/2015 as both these cases have arisen out of the same judgment and decree.

2. Brief facts of the case are that the respondents/plaintiffs filed a suit for declaration, mandatory and permanent injunction along with consequential relief against the petitioners/defendants and contended that a constructed house measuring 4½ Marla situated in Khokharke Tehsil and District Gujranwala was purchased by Muhammad Ismail son of Jan Muhammad through registered sale deed dated 27.08.1966. Muhammad Ismail died on 26.05.2001 being unmarried and inheritance Mutation No. 8459 dated 07.08.2003 was incorporated in the revenue record in favour of Mst. Lajjo Bibi real sister of Muhammad Ismail. Mst. Lajjo Bibi died issueless on 10.05.2005. The respondents/plaintiffs contended that they are the sole heirs of Muhammad Ismail and Mst. Lajjo Bibi and are entitled to inherit the estate left by them. The petitioners/defendants filed contested written statement controverting the pedigree table alleged by the respondents/plaintiffs and tendered another pedigree table of Mst. Lajjo Bibi. Further contended that Mst. Lajjo Bibi after receiving the consideration of the suit property, executed a general power of attorney in favour of Petitioner No. 1/Defendant No. 1 who further alienated the suit properly in favour of Petitioner No. 3/Defendant
No. 3 through registered sale deed No. 2202 dated 15.03.2004. Out of the divergent pleadings of the parties, the learned trial Court framed following issues:--

I.       “Whether the plaintiffs are owners of the suit house mentioned in Para Nos. 2 & 3 being legal heirs of the deceased Muhammad Ismail and Mst. Lajo Bibi? OPP

II.      If the above mentioned issue is proved in affirmative, whether plaintiffs are entitled to decree for declaration along with permanent injunction, as prayed for? OPP

III.     Whether plaintiffs are entitled to receive amount of
Rs. 8,000/- per month from the defendants as mesne profit, as prayed for? OPP

IV.     Whether plaintiffs have no cause of action to file this suit? OPD

V.      Whether plaintiffs are estopped by their words and conduct to file this suit? OPD

VI.     Whether the plaintiffs have not come with clean hands before this Court? OPD

VII.    Whether this suit is not maintainable in its present form? OPD

VIII.   Whether this suit is false, frivolous and has filed just to harass and blackmail the defendants, therefore, the same is liable to be dismissed with cost under Section 35-A of C.P.C? OPD.

VIII-A. Whether Mst. Lajo Bibi was real owner of suit property and Muhammad Ismail was mere a Benamidar, if so, its effect? OPD-3.

IX.     Relief”.

Thereafter, the learned trial Court recorded evidence of the parties and vide judgment and decree dated 28.07.2012 decreed the suit filed by the respondents/plaintiffs, however, rejected their claim regarding mesne profits. Being aggrieved, the petitioners/defendants assailed the said judgment and decree through an appeal which was partly accepted by the learned appellate Court vide judgment and decree dated 23.06.2015, the judgment and decree of the learned trial Court was modified in the terms that Mst. Lajjo Bibi was entitled 1/2 share of the suit property, as such to that extent she rightly alienated the suit property to petitioners/defendants.

3. The petitioners in the titled Civil Revision No. 2285/2015 have challenged the judgments and decrees of both the learned Courts below and have prayed for dismissal of the suit whereas the respondents through the connected Civil Revision No. 2561/2015 have requested that the judgment and decree dated 23.06.2015 passed by the learned appellate Court may be set aside.

4. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

5. The respondents/plaintiffs alleged the following pedigree table of Muhammad Ismail and Mst. Lajjo Bibi:

The petitioners/defendants have controverted the aforesaid pedigree table by producing another pedigree which is as under:

By placing both the pedigree tables at juxta position it is an established/admitted fact thai Mst. Lajjo Bibi was real sister of  Muhammad Ismail. It is settled law that admitted facts need not to be proved. Reliance is placed on the cases of Mst. Nur Jehan Begum through LRs v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) and Mst. Rehmat and others vs. Mst. Zubaida Begum and others (2021 SCMR 1534).

6. The respondents/plaintiffs contended that Jan Muhammad, predecessor-in-interest of the Muhammad Ismail and Mst. Lajjo Bibi, had two other brothers whereas the petitioners/defendants contended that Jan Muhammad was the only son of Rulya. The respondents/ plaintiffs were under obligation to prove the aforesaid pedigree table as well as relationship as prescribed under Article 64 of Qanun-e-Shahadat Order, 1984 but they did not produce any evidence and only oral assertions were made in support of their claim.

7. On the other hand, the Petitioners No. 1/defendant appeared as D.W.1 as well as produced Mst. Zubaida Bibi (D.W.2) who deposed that defendants are her nephews; that Mst. Lajjo Bibi was her maternal aunt who had four sisters; that Lajjo’s father name was Jan Muhammad who had no brother; that plaintiffs are not relatives of Lajjo; that Ismail was brother of Lajjo, who had no wife or child; that Ismail was blind and used to live with Mst. Lajjo; that Lajjo sold her house to her nephew Yasin. During cross-examination, she deposed that:

"لا جو بی بی میری سگی خالہ تھی اور اسماعیل میر اسگا ماموں تھا۔۔۔ فتح دین جان محمد کا بھائی نہ تھا۔ کالے خان بھی جان محمد کا بھائی نہ تھا۔ جان محمد اکیلا تھا۔۔ جان محمد میرے ہاتھوں میں فوت ہوا تھا۔ مجھے علم نہ ہے کہ فتح دین اور کالے خان رلیا کے بیٹے تھے تاہم یہ غلط ہے کہ فتح دین اور کالے خان، جان محمد کے حقیقی بھائی ہیں۔"

On ‘death of Muhammad Ismail, his inheritance mutation No. 8459 dated 30.08.2003 was incorporated in favour of Mst. Lajjo Bibi which mutation was witnessed by the pattidaran. Upon the above said mutation, a pedigree table is drawn which shows that Jan Muhammad was survived by Muhammad Ismail and Mst. Lajjo Bibi. The respondents/plaintiffs did not challenge the validity of the said mutation/pedigree table before any forum.

8. Muhammad Siddique (P.W.1) admitted in his statement that after the death of Muhammad Ismail, suit property was transferred in the name of Mst. Lajjo Bibi. He deposed that:

"محمد اسماعیل کی وفات کے بعد مکان مذکورہ لاجو بی بی کے نام ہو گیا کیونکہ وہ اس کی بہن تھی۔ لاجو     بی بی اب فوت ہو چکی ہے۔ لا جو بی بی کی شادی ہوئی تھی اس کی کوئی اولاد نہ ہوئی تھی اور لا جو بی بی لا ولد فوت ہوئی تھی۔ لا جو بی بی کا خاوند چنن دین لا جوبی بی کی وفات سے پہلے ہی فوت ہو گیا تھا۔۔۔

میں لا جو بی بی کو اس کی زندگی میں ملتا رہتا تھا۔"

Munir Hussain respondent No. 1/plaintiff during his cross-examination admitted that he knew the factum of execution of general power of attorney by Mst. Lajjo Bibi in favour of petitioner/Defendant No. 1 Muhammad Yasin. The relevant portion of his cross examination is reproduced as under:

لا جو بی بی نے 1.Exh.D کے سلسلے میں مجھے بتایا تھا کہ اس نے اشٹام خرید نہ کیا تھا۔۔۔ لا جو بی بی اس وقت یسین مدعاعلیہم کے گھر پر تھی ۔"

Munir Hussain P.W.6 while appearing in rebuttal evidence deposed that:

"لا جو بی بی مذکوریہ کو مکان متد عویہ ازاں وراثت محمد اسماعیل سے ملا تھا۔"

The respondents/plaintiffs were well aware of the factum of inheritance mutation of Muhammad Ismail in favour of Mst. Lajjo Bibi but they did not challenge the same at that time rather they claimed their entitlement in the suit property after death of Mst. Lajjo Bibi which proves their mala fide and ulterior motive.

9. As per settled law, after death of Muhammad Ismail, 1/2 share belonged to Mst. Lajjo Bibi being his only surviving sister and under para 66 of Mohammaden Law the remaining 1/2 share would also be returned to her under the principle of return (Radd)/exclusion. Reliance in this rsgard is placed on cases cited as Saadullah and others vs. Mst. Gulbanda and others (2014 SCMR 1205) and Waris Ali and others vs. Rasoolan Bibi (PLD 2014 SC 779).

10. As per law the respondents-plaintiffs were required to tender document in their own statements but perusal of the record shows that the sale deed as well as mutations, which were challenged by the respondents/plaintiffs in the suit [Exh.P.14 to Exh.P.17] have been produced by the learned counsel for the respondents/plaintiffs in his statement which is not a valid tender of the above documents in evidence. It is settled law that the documents relied upon or on the basis of which the case has been filed, should be produced in the evidence by party itself and a fair opportunity should be given to the other party to cross-examine the same, as such the documents produced by the respondents’ counsel cannot be relied upon as valid piece of evidence and ordinarily such documents are excluded from taking into consideration. Reliance is placed on the cases titled as Mst. Hameeda Begum and others vs. Mst. Irshad Begum and Others (2007 SCMR 996), Province of the Punjab through Collector, Sheikhpura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172 ) and Mst. Akhtar Sultana vs. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC 715).

11. The respondents/plaintiffs have failed to prove their assertions through any unimpeachable and trustworthy oral as well as documentary evidence, as such the findings of both the learned Courts below on Issue Nos. I, II, and VIII-A being against the record, are hereby reversed and the same are decided against the respondents/plaintiffs and in favour of the petitioners/defendants.

12. The learned Courts below have committed blatant misreading and non-reading of the evidence and have also failed to apply the correct law which rendered the said dicta as not sustainable in the eyes of law. This Court, under Section 115, C.P.C, has jurisdiction to interfere in the perverse concurrent judgments and decrees of the learned lower foras. Reliance is placed on the case of Nazim-ud-Din and others vs. Sheikh Zia-ul-Qamar and others (2016 SCMR 24).

13. In view of above, this civil revision is allowed the judgment and decree dated 28.07.2012 passed by the learned trial Court and the judgment and decree dated 23.06.2015 passed by the learned appellate Court are set aside and the suit filed by the respondents/plaintiffs is hereby dismissed. The connected Civil Revision No. 2561/2015 is hereby disposed of accordingly. No order as to costs.

(YA)    Petition allowed