MUHAMMAD SIDDIQUE Versus Mst. BIBI SALIMA
MOHAMMAD IBRAHIM KHAN, J.--- For obtaining a declaratory decree Mst. Bibi Salima wants to declare herself to be daughter of Abdul Manan and is entitled to her Shari share in his legacy of the properties as mentioned in the Zamima Bay. This prayer is coupled with obtaining possession of her Shari share if the legacy being partitioned. There be declaration to the effect that all those properties as mentioned in Zamima Bay her brother Muhammad Siddique has sold part of the land owned by her in favour of the Defendant (herein the Respondents Nos. 2 to 11) liable for its cancellation. By this time till the land owned is to he declared in her possession, she is entitled to produce @ Rs. 20,000/- per annum from the date of demise of her father till physically she is possessed and by a decree for obtaining permanent injunction the Defendants (herein the Petitioner as well as the Respondents Nos. 2 to 11) shall not claim ownership of the Shari share of the said Mst. Bibi Salima. The father of Mst. Bibi Salima by the name of Abdul Manan has left this transient world about 50/55 years back, she is the sole daughter of said deceased and at present living with her in-laws.
2. This claim was hotly contested through written statement on behalf of the Defendants Nos. 1 and 9 to 11, whereby they raised various legal and factual objections. On the basis of averments taken in the pleadings of the parties the following issues were framed:--
ISSUES:
1. Whether the Plaintiff has got cause of action and locus stand'? OPP
2. Whether Plaintiff is estopped to sue by her own conduct? OPD
3. Whether predecessor-in-interest of the parties named Abdul Manan at the time of his death left the property mentioned in "Zamima Bay" comprising 06 "qitaas"? OPP
4. Whether Abdul Manan has sold out most of his property received in the legacy of his father Mikayil to different persons and at the time of his death he did not left anything in his Legacy? OPD
5. Whether Plaintiff is also the daughter of Abdul Manan or Abdul Manan had only one daughter named Khonza Bibi? OPP
6. Whether one Abdul Murad got possessed the lands and houses of Abdul Manan, kicked out defendant No. 1 and his brother, later on in lieu of 27 years services for the said Abdul Murad as well as in lieu of cash the disputed land was given to defendant No. 1 which is his exclusive ownership? OPD
7. Whether defendant No. 1 being exclusive owner of his land sold out some of the land to defendants Nos. 9 to 11 who are bona fide purchasers?
8. Whether as per pedigree table Plaintiff is entitled to get her Shari share in the legacy of her father Abdul Manan through partition? OPP
9. Whether Plaintiff is entitled to get the decree as prayed for? OPP
10. Relief.
3. Leading their evidence the parties then examined their respective witnesses. At the end after hearing learned counsel for the parties, the learned Civil Court was pleased in grant of a decree in Suit No. 118/1 of the year 2013 decided on 5th December, 2015. This relief was specific (As sequel to my above discussion, a preliminary decree of partition about the legacy of Abdul Manan as prayer for is hereby passed in favour of all his LRs to the extent of their shari shares, which will be determined at the time of final decree. Let the cost follow the event).
4. The present Petitioner Muhammad Siddique then preferred his appeal bearing No. 57/XIII of the year 2015 before the Court of learned District Judge/Zila Qazi Chitral, who upon hearing learned counsel for the parties passed its judgment on 08.08.2016. Para 9 of the said judgment is reproduced as under:--
Following Para 10 of the judgment the findings of the learned Civil Court were upheld and decree dated 05.12.2015 was confirmed leaving the appeal dismissed.
5. In the attending circumstances against the concurrent findings of the learned Courts below Muhammad Siddique son of Abdul Manan has preferred this revision petition for setting aside of the judgments of the learned Courts below with the following prayer:--
"It is therefore, humbly prayed that on acceptance of this Revision Petition, the impugned judgments/ orders and decrees of both the Courts below be aside and the suit of the plaintiff/respondent No. 1 be dismissed with costs and any other remedy which this august Court deem proper in the best interest of justice may kindly be granted."
6. Having heard arguments of learned counsel for the parties, record with their assistance gone through.
7. At the first instance when the findings of the parties leading to an inference that Mst. Bibi Salima whether daughter of the said Abdul Manan deceased who was owner of the properties as mentioned in Zamima Bay. This fact is evident from the statement of PW-1 Jandool Khan. The witness has beln cross-examined and he has adhered to his statement in the following manner:--
Mst. Bibi Salima was examined as PW-2, she has also categorically stated that she is daughter of late Abdul Manan and has named all her close relatives including the Defendant No. 1 (herein the Petitioner) to be her real brother. Denying this relationship DW-1 Muhammad Siddque the Defendant No. 1 (herein the Petitioner) has categorically stated that his father at the time of death had left no legacy to be devolved upon his legal heirs and the lands mentioned in Zamima Bay have been given to him in lieu of rendering of services and on account of purchase. This witness) being cross-examined, who has also deposed that his father was having two sons and one daughter and he got married his sister to Abdul Wahid. Thus, Mst. Salima Bibi is not at all his sister and she has blackmailed him in order to obtain huge amount from him, thereby this suit has been instituted.
8. Learned counsel appearing on behalf of the petitioner when confronted about the relationship between the Petitioner Muhammad Siddique with Respondent No. Mst. Bibi Salima to be brother and sister, he has without ifs ands or buts admitted that yes the relationship between both of them is of real brother and sister and Plaintiff (herein the Respondent No. 1) is the sister of Petitioner. Apart from this fact DW-4 Khan Muhammad has also admitted in his cross-examination on behalf of Defendants Nos. 2 to 8:--
Thereby leaving no stone unturned to declare that indeed the relationship of Mst. Bibi Salima and Muhammad Siddique are real sister and brother inter-se and are Legal Heirs of the deceased Abdul Manan.
9. Then the next controversy in between the parties is that the lands as mentioned in Zamima Bay has been fallen to the exclusive ownership of Muhammad Siddique (the Petitioner herein) on the basis of pronouncements of the Judicial Council at Chitral in the year 1925. These dictums have been exhibited during trial but its source has not been disclosed as to how these dictums copies have been obtained when announced on 17.10.1925. The language seems to be Persian, however its Urdu translation is available and a look over the same would reveal that these are mere applications without detail orders, wherein descriptions of the properties have not been mentioned. Thus, even if such judicial pronouncements are available on the record these are not to be given any credence for the reason that its source is otherwise unknown and these verdicts have not been produced from proper custody.
10. In view of the above scheme of factual and legal axioms, this revision petition along with CMS have got no force, which are hereby dismissed.
11. While parting with this judgment it is to mention here that on 01.06.2017 the learned counsel for the Petitioner Mr. Rahimullah Advocate had undertaken on behalf of the Petitioner that in the event if the execution proceedings are stayed he will submit an undertaking before the learned executing Court that the revision has failed and the Petitioner will handover possession to the decree-holder (Mst. Bibi Salima) and on its basis the final decree may further proceed for final end. Thereby, the Petitioner is under an obligation by his own undertaking to act accordingly without raising further objection in respect of completion of the final decree.
ZC/90/P Revision dismissed.