Mst. HALIMA Versus Mst. FATIMA
MUHAMMAD ALAM, J.--- Order/judgment dated 17.06.2004 passed by District Judge, Skardu in C.F.A. No.46/2013 (ADSJ) CFA No. 34/2014, (DJ) and CFA No.24/2013, whereby the learned District Judge varied the judgment/decree dated 07.09.2013 of the learned trial court, passed in Civil Suit No.31/2010.
2. From perusal of record it is evident that petitioner/plaintiff filed Civil Suit No.31/2010 and after complete trial proceedings the learned trial court i.e. civil judge first class Skardu decreed the suit throughout through decree/judgment dated 07.09.2013. Feeling aggrieved from the same respondents/defendants filed C.F.A. No.34/2014 while petitioner/ plaintiff filed C.F.A. No.24/2013. Through her appeal petitioner/ plaintiff prayed for modification of the decree/judgment dated 07.09.2013 of the learned trial court to the extent of standing trees over the suit property described in survey No.3697/2569, situated at Lalli Khor/Abbas Town moza Olding Skardu. The learned first appellate court decided both the said appeals through this single order i.e. impugned order. Petitioner/plaintiff felt aggrieved from the said order of the learned first appellate court and filed the petition in hand. Respondents also felt aggrieved from the impugned judgment/order to the extent of partly upholding the decree/judgment of the learned trial court, through impugned order, filed separate revision petition (C.Rev No.23/2014). As through both the revisions i.e. C. Rev. No.23/2014 and this revision, the parties to the case have challenged impugned order I, therefore, decide both the petitions through this single order. I have passed the short order on C. Rev. No.23/2014 with reference to my detailed order (infra) on this file. Through my today's order on C.Misc. No.11/2014, I have allowed the said petition and have directed for placing the said documents on this file. I have read the said documents as petitioner's evidence.
3. I have heard learned counsel for parties at length and have gone through the relevant record. I had to thoughtfully consider the arguments advanced by the learned counsel for the parties, because of different opinions, entailing to different judgments/orders of the two courts below.
4. Through the suit (Civil Suit No.31/2010) petitioner/plaintiff prayed for her sharie share in property of her father Muhammad Khalil. It is not disputed that petitioner/plaintiff is real daughter of said Mr. Muhammad Khalil. Respondent No.1 is admittedly widow of said Muhammad Khalil while respondents Nos. 2 to 5 are daughters and are admittedly entitled to their sharie share in the property of said Mr. Muhammad Khalil. Mst. Saleema, who is defendant No.2 to this suit and is not party to the appeal or this petition did not contest the suit or appeal or this petition, therefore hereunder contesting respondents means respondents Nos.2 to 7.
5. Contesting respondents/defendants filed written statement and pleaded that respondent No.3 purchased sharie share of the petitioner in property situated at Poq Soq/Syathang Olding through her husband respondent No.6, while sharie share of petitioner/plaintiff in the lands situated at Hussainabad were purchased by respondent No.2. So in my opinion burden of proof of the alleged sale is on contesting respondents. As to rest of the suit land respondents have admitted that the same was ownership of Muhammad Khalil but have written evasive denials as to sharie share of petitioner/plaintiff. Obviously it is well settled principle of law of pleadings that evasive denials in pleadings amounted to admissions.
6. It is not disputed that parties to this suit are party to a suit pending trial in the civil court for the lands situated at Hoto, therefore, I do not pass any order regarding the said land and I hold that the decree of the learned civil judge to the extent of said land is incorrect. In this connection I further hold that parties are free to contest the said suit and either of the parties can file a fresh suit in the light of decision/order of the civil court or any other court, whatever the occasion arises. So hereunder suit land means the suit land except the suit land situated at. Hoto.
7. In the case in hand once it is admitted that petitioner/plaintiff is real daughter of Mr. Muhammad Khalil, the burden of depriving her from share in the properties of her father shifts to the respondents. So I am taking up the pleas of the respondents for discussion. The first plea of respondents as to depriving the petitioner/plaintiff from her sharie share in the property of her share in the lands of her father situated at Lalli khor/Abbas town is that petitioner/plaintiff has in her possession, more than her sharie share in the said property. Learned counsel for petitioner/plaintiff stated at bar that petitioner/plaintiff obtained her share in the landed property in the said land but argued that there is a house of father of petitioner/plaintiff on the said land and the two courts below have concurrently held that petitioner/plaintiff is entitled to her sharie share in the said house. In this connection I have gone through the file which does not contain any evidence showing that petitioner/plaintiff is not entitled to her sharie share in the said house. Moreover the question of her sharie share in the said house is a question of fact and the concurrent findings of the two courts below is conclusive. The second plea of respondents as to depriving the petitioner/plaintiff from her sharie share in the property in the lands of her father situated at Hussainabad is that petitioner/plaintiff sold her share in the said property to respondent No.2. I have gone through the file and have heard learned counsel for respondent, who did not cite any evidence, whatsoever in proof of such sale. An important aspect of the case, in this regard is that, it is very clearly admitted that all the respondents have completed partition of the said lands among themselves, depriving the petitioner from her share in the said property. Learned first appellate court has declared the said lands government lands just because a column in the revenue papers (Exh.P-11) showed so. In my opinion learned first appellate has very badly failed to appreciate that if the said lands are government lands, then why the same have been partitioned among themselves by the respondents? Moreover column No.3 of the said document, Exh.P-11 shows name of Muhammad Khalil, father of parties as tenant of the lands described in Exh.P-11. It is very important to note that the Provincial Government for GB is party to the case, as respondents Nos.8 and 9 to this petition, respondents Nos.3 and 4 to the first appeal and defendants Nos.9 and 10 to the suit. It is also admitted at bar that the Provincial Government for GB did not file any written statement etc. Contesting respondents also did not plead that any part of the suit land is government land. Through C.Rev No.23/2014, contesting respondents did not challenge findings of first appellate court to the extent of declaring some of the suit land as government land. So I hold that petitioner/ plaintiff is entitled to her share in the said lands and the learned trial court of civil judge has correctly held so. The third plea of respondents as to depriving the petitioner/plaintiff from her sharie share in the property of her father situated at Poq Soq, also called Syathang is that the said lands are government lands and have been mutated in the name of respondent No.3. This plea of the respondents is very important and needs to be thoroughly discussed; therefore, I am taking up this plea in the next para.
8. Burden of proof of this plea is also on the respondents. The suit land described in Poq Sop/Syathang is measuring 12 kanals, which is clear from contents of paras 8 and 9 of written statement of contesting respondents, read with prayer part of the plaint. In prayer part of the plaint of plaintiff, petitioner/plaintiff has clearly averred that suit land situated at Poq Sop/Syathang is measuring about 12 kanals or 11 kanal and 06 marlas, came in possession of her father as a result of his share in the name of plot No.22. We find a very evasive denial on the part of respondents regarding the said Prayer part of plaint.
It is not disputed that parties to the case are residents (Aasaamiyan) of moza Olding. Respondents/defendants argued in the light of Exh.P-3, in support of this plea. In this connection I have gone through the contents of paras Nos.8 and 9 of the plaint and reply thereto. In para No.9, of the plaint petitioner/plaintiff has clearly averred that as a result of partition of lands of Poq Soq/Syathang among the Aasaamiyan of moza Olding, in the light of order of the then Government of GB, lands measuring 12 kanals came in share of her father. Respondents have written a very evasive denial to the contents of said paras. Respondents have therefore, pleaded contradictory pleas to the extent of suit lands situated at Poq Soq/Syathang. On the one hand learned first appellate court has declared the said lands as Government land and on the other hand contesting respondents have pleaded that they have purchased share of petitioner/plaintiff in the said lands. I am first taking up the findings of the first appellate court which in opinion are baseless and unfounded for the following reasons:--
An important aspect of the case, in this regard is that, it is very clearly admitted that all the respondents have completed partition of almost half of lands among themselves, depriving the petitioner from her share in the said property. Learned first appellate court has declared the said lands government lands just because a column in the revenue papers (Exh,.P-3) showed so. In my opinion learned first appellate has very badly failed to appreciate that if the said lands are government lands, then why part of the same have been partitioned among themselves by the respondents? Moreover it is not disputed that petitioner/plaintiff has challenged this document (Exh.P-3) through the suit. The endorsements on the back side of Exh.P-3 are very important, wherein it is clear that the entries of Exh.P-3 are justified on the basis of a partition of the lands of Poq Sop/Syathang, conducted among the Aasaamiyan of Olding, in the light of a decision of revenue board. For ready reference I deem it very appropriate and necessary to reproduce the relevant parts of said endorsements hereunder:--
In proof of sale of said lands respondents have filed Exh.D-1 but did not produce any marginal witnesses thereto, therefore both these pleas are not only contradictory but are not proved also.
Attestation of mutation of some lands of Poq Soq/Syathang in the name of respondent No.3 is not supported from contents of the document, referred on the back side of Exh.D-3, therefore, is very clearly false. The attestation of mutation described in Exh.P-3, must have been either on the basis of any allotment or on the basis of the document referred on the back side of Exh.P-3 and without which Exh.P-3 is result of any foul play. Learned first appellate court has taken statement dated 21.11.2012 of Mr. Muhammad Amin, attorney for respondent No.3 very lightly. In the said statement the said attorney has clearly admitted that suit land of Poq Sop/Syathang is ownership of Muhammad Khalil. So the learned CJ has rightly cancelled the same and the learned first appellate court wrongly reversed the findings of the learned trial court to that extent.
It is very important to note that the Provincial Government for GB is party to the case, as respondents Nos.8 and 9 to this petition, respondents Nos.3 and 4 to the first appeal and defendants Nos.9 and 10 to the suit. It is also admitted at bar that the Provincial Government for GB did not file any written statement etc. Contesting respondents also did not plead that any part of the suit land is government land. Through C.Rev No.23/2014 contesting respondents did not challenge findings of first appellate court to the extent of declaring some of the suit land as government land. So I hold that petitioner/plaintiff is entitled to her share in the said lands and the learned trial court of civil judge has correctly held so.
9. Respondents have further pleaded that they are relying on partition of the properties of Mr. Muhammad Khalil, father of the parties. We find mention of this partition in the written statement. In this connection it is sufficient to say that petitioner/plaintiff is admittedly not party to said partition. Therefore, the same cannot be used against petitioner/plaintiff.
10. In the sequel of above discussion I hold that the findings of the first appellate court are based on mere conjectures and amounted to misreading of evidence as well as material irregularities except to the extent of two suit house situated at Olding Kharmang and Skardu. To that extent the first appellate court has rightly upheld decree/judgment of the trial court. As to rest of suit land I hold that the same was in possession of Mr. Muhammad Khalil, father of petitioner till his death. The provincial government for GB did not contest the suit or appeal or this petition only because the legal status of Mr. Muhammad Khalil, father of petitioner was either as owner or as permanent tenant of the suit land but never as an encroacher. Therefore suit land is subject to partition between petitioner and contesting respondents according to their sharie shares. Attestation of mutation Exh.P-3 or Exh.PW-3 is wrong, therefore rightly cancelled by the trial court. Impugned judgment of first appellate court, therefore merits to be reversed to the extent of above described suit land and is set aside and judgment/decree of learned trial court upheld. Contesting respondents to bear costs. This file be consigned to record.
HBT/99/GB Petition allowed.