PLJ 2024 Quetta 136
Present: Gul Hassan Tareen, J.
Malik SHAH MUHAMMAD and others--Petitioners
versus
AMANULLAH and others--Respondents
C.R.P. No. (s)43 of 2022, decided on 19.8.2023.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 9, 39, 42 & 54--Punjab Partition of Immovable Property Act, (IV of 2012), S. 4--Suit for declaration, cancellation, partition, possession mense profit and perpetual injunction--Decreed--Appeal--Dismissed--Non-producing of document of sale--No one came to implead in suit as purchaser of suit land--Mala fide intention of petitioners--Stereo typed written statement of petitioners--Entitlement of respondents to received shares in suit property--Challenge to--Respondents were legal heirs of late Karam Khan--Petitioners had neither mentioned names and description of purchasers, nor produced any document of sale and purchase and attorney of petitioners in Court’s statement, had not stated that he had sold out many portions of suit lands--Petitioners failed to plead and prove any independent source of income by virtue of which this property was purchased--Hence, respondents were rightly declared by Courts below that they were also entitled to receive shares in that property--The written statement was a stereo typed copy of written statement of petitioners--Petitioners did such act merely to give an impression to Trial Court that real sisters of Respondent No. 12 were at their side which shows mala fide intention of petitioners--Respondents were legal heirs of Karam Khan (late) and became co-sharers in suit lands at his death, irrespective of mutations of inheritance; therefore, limitation does not apply against a co-sharer in suits for partition--The suit was instituted on 23 September, 2017 and till now, no one came forward for his impleadment in suit that he was purchaser of suit land--Hence, Courts below had rightly decided additional issue pertaining to limitation in favour of respondents--Revision petition dismissed.
[Pp. 142, 143 & 144 ] A, B, C, D & E
2004 SCMR 392, 2004 SCMR 704 and 2007 SCMR 635 ref.
Mr. Babber Abbas, Advocate for Petitioners.
Mr. Muhammad Akram Shah, Advocate for Respondents Nos. 1 to 12.
Date of hearing: 18.8.2023.
Judgment
This Civil Revision Petition, filed under Section 115, the Civil Procedure Code, 1908 (‘C.P.C’) is directed from judgments and decrees passed by the Courts below whereby, Civil Suit, instituted by the Respondent Nos. 1 to 12 (‘respondents’) against the petitioners and Respondent Nos. 13 to 24, was decreed concurrently.
2. Respondents instituted a Civil Suit No. 91/2017, against petitioners and Respondent Nos. 13 to 24, for declaration, cancellation, partition, possession, mesne profits and perpetual injunction. Respondents alleged that they alongwith petitioners and Respondent Nos. 13 to 23 are the successors-in-interest of Karam Khan (late) who had left behind his legacy/properties as described in para No. 3 of the plaint (‘suit lands’). After the death of said predecessor in interest, the mother/ predecessor of Respondent Nos. 1 to 11, namely, Dur Bibi and Respondent No. 12 became joint owners of the suit lands alongwith petitioners and Respondent Nos. 13 to 23. The Petitioners No. 1 and the predecessor of Petitioner No. 2 to 6 used to manage the suit lands and were regularly giving the share of crops as per their shares. On 01 February, 2011, the predecessor of Respondent Nos. 1 to 11, namely, Dur Bibi passed away and Respondent Nos. 1 to 11 being her successors, became joint owners of the suit lands and used to receive the share of crops of their deceased mother from the Petitioner No. 1 and predecessor of Petitioner Nos. 2 to 6. Three years before institution of the suit, the said petitioners had stopped paying the share of respondents out of produce from the suit lands and started claiming sole ownership thereof. Respondents approached the revenue office where, they came to know that petitioners, with the connivance of Tehsildar Sibi (Respondent No. 24’) fraudulently got mutated some of suit lands to their names. In prayer clause, respondents prayed for declaration that, they being legal heirs of Karam Khan (late), are entitled for their respective shares in the suit lands according to Law and Sharia and denial of such right on behalf of petitioners is illegal, mesne profits for the last three years, cancellation of mutations, partition, mutation on their names and perpetual injunction.
3. The petitioners and Respondent Nos. 22 and 23 filed a contesting written statement. The Respondent Nos. 13, 14 and 16 to 21 also submitted a contesting written statement. The Respondent No. 15 submitted a conceding written statement and the Respondent No. 24 submitted written statement contending therein that, matter is between the private parties.
4. On such pleadings, the Trial Court framed issues and additional issues. The respondents produced eights witnesses in support of their claim. The Respondent No. 12 through attorney deposed on oath. The Respondent Nos. 1 to 11 made statement through Respondent No. 10 as their attorney. In rebuttal, petitioners produced three witnesses. The Respondent Nos. 17, 18, 19, 20, 21, 22, Petitioner Nos. 7 to 10 and Respondent Nos. 22 & 23 deposed on oath through attorney Muhammad Yasin. The Petitioner No. 1 deposed on oath on his behalf and on behalf of Petitioner Nos. 2 to 10. An application was made by the petitioners under order XVI Rule 1, the C.P.C, which was allowed by the Trial Court and DW-6 was examined as additional evidence. On conclusion of trial, the Trial Court vide impugned judgment and decree dated 25 November, 2021 decreed the suit. Petitioners impugned the decretal judgment in appeal before the Court of learned District Judge, Sibi (‘Appellate Court’). The Appellate Court vide impugned judgment and decree dated 27 May, 2022 dismissed the appeal.
5. Mr. Babber Abbas, learned counsel for the petitioners states that pleading/suit of the respondents was not in legal format as described by the Orders VI and VII, the C.P.C for, it was silent about the description of the suit properties, the share of each respondent in the suit properties and, relation of each respondent with Karam Khan (late). He refers to Order VI rules 2 and 4 and Order VII Rule 1(e) read with rules 3 and 7, the C.P.C. He states that the evidence produced by the respondents should have been excluded from consideration by the Trial Court for, the same was departure from their pleading. He states that respondents failed to prove that they are legal representatives of Karam Khan (late) through his first wife namely Feroz Khatoon whereas, in rebuttal, petitioners through additional evidence had proved that the predecessor of the respondents namely Dur Bibi and Bakht Bibi were not the daughters of Karam Khan (late). He states that the PW-8 was not authorized by his department to produce the record before the Trial Court as the authority letter to produce record was issued to one namely Muhammad Karim, therefore, his statement was liable to be overlooked. He states that respondents alleged that the petitioners had sold out certain portions of the suit lands whereas the subsequent purchasers were not impleaded in the suit. He further states that one of the suit property namely Ex: P/3-D (1) was a self-acquired property of the Petitioner No. 1 which was not an inherited property, however the Trial Court, nevertheless, declared it as common and joint. He states that petitioners through documentary evidence (Mark: 6-1 and Mark: 6-2) had proved that respondents are not the legal representatives of Karam Khan (Late); therefore, in presence of such documentary evidence, oral evidence produced by the respondents was not admissible. He states that Karam Khan was died 45 years before institution of the suit whereas, the predecessor of Respondent Nos. 1 to 11 namely Dur Bibi also died seven years before institution of the suit and suit property had been further sold out, therefore, the suit was barred by limitation. He states that the predecessor of Respondent Nos. 1 to 11 was alive for thirty years after the death of Karam Khan (Late) however, she had not claimed any right in the suit lands. Finally, the learned counsel states that the suit was instituted without a legal power of attorney, however, the Courts below overlooked afore mentioned discrepancies in the suit and question of limitation in a legal way.
6. In rebuttal Mr. Muhammad Akram Shah, learned counsel for the Respondent Nos. 1 to 12 states that the two Courts below have concurrently held that respondents are the legal representatives of Karam Khan (late) whereas, petitioners failed to highlight any material piece of evidence which was overlooked by the Courts below while passing the impugned judgments. He states that Petitioner No. 1 and predecessor of Petitioner Nos. 2 to 6 used to pay share of crops to the respondents, therefore, they were not ousted from possession of the suit land and limitation would not apply against a co-sharer. He states that the Courts below have rightly held that suit is within limitation. Learned counsel put too much emphasis on the statement of PW-8 and states that respondents through the record of NADRA had proved that they are the legal representatives of Karam Khan (late). He states that the record produced by the respondents was public to which presumption of correctness is attached whereas, petitioners failed to rebut such presumption through strong and convincing evidence. Learned counsel placed reliance on the following case laws:
Bashir Ahmed Anjum v. Muhammad Raffique and others (2021 SCMR 772)
Farhan Aslam and others v. Nuzba Shaheen and another (2021 SCMR 179)
Mst. Gohar Khanum and others v. Mst. Jamila Jan and others (2014 SCMR 801)
Mst. Suban v. Allah Ditta and others (2007 SCMR 635)
7. Heard. Record perused.
8. The petitioners had denied that predecessor of Respondent Nos. 1 to 11, Respondent No. 12 and predecessors of Respondent Nos. 13 to 23 were not the daughters of Karam Khan (late). On such material proposition of fact, the Trial Court had framed issue No. 1. The Respondent Nos. 1 to 12 had produced Muhammad Rafiq, Assistant Superintendent, representative of NADRA Sibi as PW-8, who produced in evidence the R.T.S record of the Respondent No. 12 and predecessor of Respondent Nos. 1 to 11 as Ex: P/8-A and Ex: P/8-B, respectively. Perusal of these exhibits would reveal that names of the father and mother of Respondent No. 12 and predecessor of Respondent Nos. 1 to 11 have been mentioned as Karam Khan and Feroz Bibi. These exhibits have been made by the public officer of NADRA in the discharge of his official duty under the law of National Database and Registration Authority Ordinance, 2000, and therefore, are public documents within the meaning of Article 85, the Qanoon-e-Shahadat Order, 1984 (‘Q.S.O’). The entries of parents’ names of Respondent No. 12 and predecessor of Respondent Nos. 1 to 11 in the said exhibits are relevant under Article 49, the Q.S.O. Under Article 90, the Q.S.O, strong presumption of genuineness is attached to such public documents, whereas, petitioners had failed to rebut it through material evidence. The petitioners, in rebuttal produced Ghulam Hyder, who produced application forms of the predecessor of Respondent Nos. 1 to 11 and Respondent No. 12 as Mark: 6-1 and Mark: 6-2, respectively. The DW-6 did not produce the original record of Mark: 6-1 & Mark: 6-2. He, during his cross-examination admitted that he has not produced the original forms in the Court because their complete record has been saved after scanning, at Quetta (‘question No. 12’). Petitioners should have proved the contents of Mark: 6-1 & Mark: 6-2, through primary evidence/original per mandatory provision of Article 75, the Q.S.O which reads as under:
“Documents must be proved by primary evidence except in the cases hereinafter mentioned.”
Petitioners failed to prove the contents of such documents through primary evidence and also failed to seek permission of the Court for proving the contents of such documents through the secondary evidence, per Article 76, the Q.S.O. The Courts below, while deciding issue No. 1 in favour of Respondent Nos. 1 to 12 have rightly placed reliance on the Ex: P/8-A and Ex: P/8-B & discarded Mark: 6-1 and Mark 6-2.
9. Besides afore discussed public documents, the respondents produced oral evidence for prove of the fact that they are the legal representatives of Karam Khan (late). The PW-1, PW-2 and PW-7 deposed that Karam Khan had two wives. The name of first wife was Feroz Khatoon who gave birth to six daughters namely Noor Bibi, Shah Bibi, Dur Bibi, Aysha Bibi, Bakht Bibi and Dur Khatoon, whereas the second wife was Lal Bibi who gave birth to two sons namely Shakar Khan and Shah Muhammad and four daughters namely Khair Bibi, Hayat Khatoon, Naz Bibi and Faiz Bibi. The PWs were cross-examined at length but petitioners failed to shatter them on the issue No. 1. Hence, the Courts below have rightly held that respondents are the legal representatives of Karam Khan (late).
10. Petitioners’ counsel stated that the evidence of PW(s) and, of Respondent Nos. 1 to 12’s attorneys was beyond pleading for, the plaint had not stated that Karam Khan (late) had two wives namely Feroz Khatoon and Lal Bibi and names of legal representatives. The Respondent Nos. 1 to 12, in para No. 02 of plaint, had mentioned that they alongwith private defendants are the successors of Karam Khan (late). Mentioning, that, ‘parties to the suit are legal heirs of Karam Khan (late)’ was sufficient that they are legal representatives of Karam Khan and it was not necessary to mention the names and description of the wives of Karam Khan (late), per Order VI rule 2, the C.P.C. The Respondent Nos. 1 to 12, in the title of the plaint had also mentioned such fact as under:
(Grandsons and granddaughters of Karam Khan)
(Daughters of Karam Khan)
As such, the contention of petitioners’ counsel is not legal.
11. Petitioners’ counsel also contended that suit suffered from non-joinder of purchasers of the suit lands. The contention of petitioners’ counsel is not correct for, petitioners had neither mentioned the names and description of the purchasers, nor produced any document of sale and purchase and the attorney of petitioners in his Court’s statement, had not stated that he has sold out many portions of the suit lands. The petitioners, in para No. 5 of their common written statement pleaded that, ‘it is however correct that the defendants No. 1 and 2 are in possession of the lands in question. Hence, contention of petitioners’ counsel is not correct.
12. The revenue pedigree of Karam Khan (late) was produced by the petitioners through DW-3, Abdul Khaliq Patwari as Ex: D/1-A. The Ex: D/1-A states that Karam Khan (late) has two sons namely Shah Muhammad (Petitioner No. 1) and Shakar Khan (predecessor of Petitioner Nos. 2 to 6). Petitioners had tried to establish through such exhibit that, where Karam Khan had two daughters with the name of Dur Bibi and Bakht Bibi, the exhibit should have mentioned them. Petitioners pleaded that Karam Khan (late) had only one wife and four daughters but the exhibit beside, the predecessors of respondents, does not state the names of the real mother and sisters of the petitioners as well. The Petitioner No. 1 and the predecessor of Petitioner Nos. 2 to 6 had merely incorporated their names in the revenue record and excluded not only the names of the mother of Respondent Nos. 1 to 11, Respondent No. 12, rather the names of their real mother and real sisters were also excluded. Therefore, the Ex: D/1-A had not proved their stance rather supported the claim of respondents.
13. So far as petitioners’ counsel contention, that property at serial No. xxix is their self acquired property is concerned, the same is misconceived, because the Petitioner No. 1 and his deceased brother were in the use and possession of the suit land since 1980 (when Karam Khan died), therefore, they had purchased such property through the profits arose out of the suit lands. They failed to plead and prove any independent source of income by virtue of which this property was purchased. Hence, respondents were rightly declared by the Courts below that they are also entitled to receive shares in this property.
14. Petitioners’ counsel contended that Respondent Nos. 1 to 12 instituted suit through an unauthorized attorney, therefore, Courts below should have dismissed the suit on this count too. Perusal of the case diary dated 26 September, 2018 reveals that at such date, Respondent No. 12 appeared in person before the Trial Court and verified the execution of power of attorney (Ex: P/9-A) in favour of his son Dost Muhammad. The Trial Court had obtained her thumb impression on the margin of the order sheet. Hence, the contention of petitioners’ counsel is baseless.
15. Petitioners’ counsel also raised an objection that PW-8 was not authorized by his department to produce Ex: P/8-A and Ex: P/8-B as Authority Letter dated 19 September, 2019 was issued to one Wazeer Ahmed. Under Order XVI rule 6, the C.P.C, it is not expedient that document summoned must be produced by a person authorized to do so. Any person summoned to produce a document, without being summoned to give evidence and production of such document by any person shall be deemed to have complied with direction of the Court when the same is produced. Hence, contention of petitioners’ counsel is without legal footing. The pleading/plaint had described the full description of the suit lands and was not defective under Orders VI and VII, the C.P.C.
16. At this juncture, it is not irrelevant to mention that a contesting written statement was filed before the Trial Court on behalf of Respondent Nos. 13, 14, 16 to 21 (defendant Nos. 3, 4, 6 to 12 and 17). The said written statement was signed only by Muhammad Azam Luni Advocate and does not contain a verification clause. However, one Muhammad Yaseen appeared on oath as attorney of Respondent Nos. 7 to 18, however, during his cross-examination he could not tell about the numbers of children of Respondent No. 13; period/time of death of Shah Bibi; father name of Respondent Nos. 17, 18 and of Respondent No. 12. He could not tell the name of husband of Respondent No. 14. He could not tell the name of the father of Karam Khan (late) and number of his brothers. He during cross-examination admitted as under:
“46. It is correct that word ‘cancelled’ has been written on my power of attorney/stamp paper.
50. I cannot tell that in photographs affixed on the power of attorney, which one is Awais and who is Ali Nawaz.”
The said attorney was managed by the Petitioner No. 1 and filed a written statement which was not signed either by the said so-called attorney or by the Respondent Nos. 13, 14 and 16 to 21. The written statement is a stereo typed copy of the written statement of the petitioners. Petitioners did such act merely to give an impression to the Trial Court that real sisters of Respondent No. 12 are at their side which shows mala fide intention of the petitioners.
17. So far as question of limitation is concerned, the Courts below have concurrently held that suit is within limitation. Since, respondents are legal heirs of Karam Khan (late) and became co-sharers in the suit lands at his death, irrespective of the mutations of inheritance; therefore, limitation does not apply against a co-sharer in suits for partition. The Apex Court in the case of Mst. Reshman Bibi v. Amir and others, reported in 2004 SCMR 392 held as under:
“Needless to reiterate that devolution of inheritance is automatic and the co-heirs become co-sharers, the moment inheritance opens. Even the entry of mutation etc. is also not necessary.”
The Apex Court in the case of Muhammad Rafiq and others v. Muhammad Ali and others, reported in 2004 SCMR 704 has held as under:
“The conclusion reached by the High Court on the question of mutation by findings that having become a co-sharer in the said land alongwith the defendants, the question of limitation running against the plaintiffs did not arise, is also a valid conclusion.”
Petitioners’ counsel submitted that since, petitioners have sold out certain portions in the suit lands and there are bonafide purchasers, therefore, limitation would apply against the respondents. The petitioners, however, had not pleaded that they have sold out the suit lands or portions therein nor described the names of such purchasers nor relied any document of the alleged sale and purchase. The Petitioner No. 1 appeared on oath but had not stated that suit lands have been sold out. The suit was instituted on 23 September, 2017 and till now, no one came forward for his impleadment in the suit that he is purchaser of the suit land. Hence, the Courts below have rightly decided additional issue pertaining to the limitation in favour of respondents. In the case of Mst. Suban v. Allah Ditta and others reported in 2007 SCMR 635, the Apex Court held as under:
‘11. It is a proposition too well-established by now that as soon as someone who owns some property, dies, the succession to his property opens and the’ property gets automatically and immediately vested in the heirs and the said vesting was not dependent upon any intervention or any act on the part of the Revenue Authorities or any other State agencies. It is also an established proposition that a mutation did not confer on anyone any right in any property as the Revenue Record was maintained only for realization of land revenue and did not, by itself confer any title on anyone. It may also be added that efflux of time did not extinguish any rights inheritance because on the death of an owner of property; all the co-inheritors, immediately and automatically, became co-sharers in the property and as has been mentioned above, limitation against them would start running not from the time of the death of their predecessor-in-
interest nor even from the date of mutation, if there be any, but from the dale when the right of any such co-sharers/co inheritors in such land was denied by someone.’
18. The petitioners failed to point out any material illegality in the impugned judgments. In the absence of material illegality, irregularity, error of jurisdiction and misreading and non-reading of material evidence, concurrent findings cannot be interfered with by this Court in the limited revisional jurisdiction.
In view of the foregoing, the impugned judgments are upheld and the instant Civil Revision Petition is accordingly dismissed with costs throughout.
Above are the reasons of short order made on 18 August, 2023.
(Y.A.) Revision petition dismissed
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