Mst. SAFIA Versus Mst. BIBI

The brief facts out of which the present revision petition arises are that the petitioner initially filed a suit for declaration with joint possession as a consequential relief in the Court of Civil Judge, Sheikhupura on 17-4-1982 . During the pendency of the suit the petitioner/plaintiff filed an application under Order VI, rule 17, C.P.C. for amendment of the plaint which was allowed and suit was converted into declaratory suit. The contents of the plaint reveal that Ibra son of Bana was owner of land in India who died before independence. The property owned by Ibra devolved on Mst. Jainan as limited owner in terms of the custom prevailing at the time of death of her husband. Mst. Jainan after creation of Pakistan came to Pakistan and submitted claim form for allotment of land in Village Jatri Kohna, District Sheikhupura in lieu of the land abandoned by her in India . Land measuring 128 Kanals, 14 Marlas was allotted in her name which was confirmed in her name after consolidation of the land in village in question. The contents of the plaint further reveal that at that time when Ibra died Khawaja and Rulia sons of Katha and Imam Din son of Hakoo were alive who inherited the property. The contents of the plaint further reveal that Khawaja, Rulia and Imam Din were Yakjaddi of the original owner late Ibra. The plaintiff/petitioner is daughter of Imam Din and sought declaration that she is entitled to inherit 1/8th share in the suit property and has also sought for joint possession of the property in terms of the pedigree-table mentioned in para 1 of the plaint according to which the petitioner/plaintiff is daughter of Imam Din and Khawaja and Rulia are sons of Katha. The contents of the plaint further reveal that the parties were in joint possession of the property in question and respondent/defendants have been regularly paying share of produce to the plaintiff/petitioner who refused to pay share of produce to her since Kharif 1981 on the ground that her name has been omitted in Mutation No.8/34 dated 18-8-1954 . The contents of the plaint further reveal that mutation of inheritance is absolutely nullity, void and of no legal effect as against the rights of the petitioner/plaintiff.

2. Respondents/defendants Nos.2 and 3 filed written statement and controverted the allegations levelled in the plaint. The remaining defendants were proceeded against ex parte after proclamation in the newspaper. The contesting defendants took a definite stand in the written statement that the disputed mutation was passed by the Rehabilitation Authorities on 18-8-1954 which was not challenged before Settlement Authorities and the same cannot be called in question as it has attained finality and the Civil Court has no jurisdiction to take the cognizance of the matter. Out of the pleadings of the parties the trial Court framed the following issues:--

(1) Whether this Court has no jurisdiction to try this suit? OPD

(2) Whether the suit is not maintainable in its present form? OPD

(3) Whether the plaintiff is estopped to sue? OPD

(4) Whether Mutation No.8/34 dated 18-8-1954 is illegal, void, and ineffective upon the rights of the plaintiff/ OPP

(5) Whether plaintiff is daughter of Imam Din? OPP

(6) If Issue No.5 is proved, whether the plaintiff is entitled to 1/8th share of the suit-land? OPP

(7) Whether the suit is within time? OPP

(8) Whether the plaintiff is entitled to joint possession of the suit-land as prayed for? OPP

(8-a) Whether the suit has not been correctly valued for the purposes of Court fee and jurisdiction? If so, what is the correct valuation? OPD

(9) Relief.

3. The learned trial Court dismissed the suit vide judgment and decree dated 27-9-1995 . The petitioner being aggrieved filed appeal in the Court of Additional District Judge, Sheikhupura who dismissed the same vide impugned judgment and decree dated 6-6-1998 . Hence the present revision petition.

4. Learned counsel of the petitioner submits that both the Courts below erred in law to non-suit the petitioner on the basis that the petitioner could not file the suit well in time. The petitioner has challenged the vires of inheritance mutation being a co-sharer in joint possession of the land in question. Therefore, both the Courts below were not justified to non-suit the petitioner which is not in accordance with the dictum laid down by the superior Courts. In support of his contention he relied upon the following judgments:--

Ghulam Ali's case (PLD 1990 SC 1)

Khuda Yar's case (PLD 1987 SC 453)

(1987 SCMR 626) (There is no judgment at this page)

Najabat's case (PLD 1982 SC 187)

He further urges that relationship between the parties is not denied by the respondents in evidence produced by them before the trial Court. He further urges that according to the pedigree-table the petitioner and respondent are in line and has heavily relied upon the family tree mentioned in para.1 of the plaint. He also heavily relied upon following portion of statements of D.Ws. 1, 2, 4 and 5:--

He further urges that both the Courts below erred in law to non-suit the petitioner merely on the ground that petitioner herself did not appear before the trial Court which is not necessary and condition precedent in civil matters. The attorney of the petitioner/plaintiff appeared before the trial Court and, therefore, it is sufficient compliance of the law to prove the contents of the plaint. Therefore, judgments of both the Courts below are result of misreading and non-reading of record. Both the Courts below erred in law to discard the statement of Sardar Ali Attorney of the petitioner/plaintiff on wrong premises. He further urges that First Appellate Court decided the appeal of the petitioner merely by countersigning the judgment of the trial Court without reappraisal of evidence on record. Therefore, judgment of the first Appellate Court is not sustainable in the eye of law.

5. Learned counsel of the respondents submits that judgments of both the Courts below are concurrent against the petitioner on question of fact. Therefore, revision petition is liable to be dismissed. He further urges that it is duty and obligation of the petitioner to prove the contents of pedigree-table by appearing herself before the trial Court but the petitioner failed to appear herself before the trial Court. The attorney of the petitioner has no knowledge qua the pedigree-table and has admitted in his statement to the following effect:--

Therefore, contents of the plaint qua pedigree-table are not proved in accordance with the provisions of Qanun-e-Shahadat Order, 1984 in terms of the following law laid down by the superior Court which was relied by the First Appellate Court.

Shah Nawaz's case (PLD 1976 SC 767)

Sughran Bibi's case (1996 SCMR 137)

Abdul Ahad's case (PLD 1979 SC 890)

He further urges that trial Court decided the question of limitation against the petitioner and the petitioner did not challenge the finding of the trial Court in the memorandum of appeal before the First Appellate Court. Therefore, the petitioner is not entitled to raise this plea before this Court. He further urges that inheritance mutation was sanctioned by the Rehabilitation Authorities on 18-8-1954 which was not challenged by the petitioner for 28 years, therefore, both the Courts below were justified to non-suit the petitioner on the ground that the petitioner has not filed the suit within prescribed period. He further urges that it is admitted fact in terms of evidence produced by the petitioner that the petitioner has another sister namely Waziro who was not impleaded as plaintiff or defendant in her suit, therefore, the suit is liable to be dismissed. In support of his contention he relied upon the following judgments:--

Muhammad Hussain's case (PLD 1993 SC 147).

He further urges that petitioner has not affixed Court fee in terms of the finding of the trial Court on the memorandum of appeal as well as on memorandum of revision petition. Therefore, appeal before the First Appellate Court and revision before this Court are not properly instituted. In support of his contention he relied upon Muhammad Riaz Aslam's case (1993 CLC 1391). He further urged that long-standing documentary evidence is not discarded by oral evidence as the respondents have placed on record pedigree-table which clearly shows that petitioner and respondents are not in line with each other. Therefore, judgments of both the Courts below are based on proper reappraisal of evidence on record which is in consonance with the law laid down by the superior Courts. He further urges that petitioner has basically challenged the mutation sanctioned on 18-8-1954 by the Rehabilitation Authorities therefore, civil Court has no jurisdiction to take the cognizance of the matter. In support of his contention he relied upon the following judgments:--

Muhammad Siddiq's case (1992 SCMR 2260).

Mst. Habib Khatoon's case (PLD 1970 SC 162).

He assumed up his arguments that petitioner has approached the Court with unclean hands by producing fictitious pedigree-table of the original owner as well as not impleading her own sister as plaintiff/defendant in her suit. Therefore, she is not entitled to any discretionary relief.

6. Learned counsel of the petitioner in rebuttal submits that pedigree-table produced by the petitioner is correct as is admitted by the witnesses of the respondents/defendants. Therefore, judgments of both the Courts below are result of misreading and non-reading of the record. He further urges that no issue was framed qua non-impleading of petitioner's own sister Waziro. Therefore, petitioner cannot be non-suited on this ground also.

7. I have given my anxious consideration to the contentions of the learned counsel of the parties and perusal the record.

8. It is better and appropriate to reproduce para.1 of the plaint, reply of para. 1 in the written statement on merits, and relevant portions of documents produced by the respondents/defendants as Exh.D.1 to Exh.D.4:--

Para-1 of written statement

The pedigree table given in the plaint is absolutely wrong. Khawaja and Rulia are the sons of Natha and they were not the sons of Katha. The plaintiff is not the daughter of Imam Din.

9. The material issue between the parties is Issue No.6. Both the Courts below have given concurrent finding of fact against the petitioner that petitioner failed to prove family tree on the basis of which the petitioner is entitled to secure 1/8th share of the land in question of original owner late Ibra. Ali Muhammad P.W.2 and Sardar Ali P.W.3 also admitted in cross-examination that Khawaja and Rulia were sons of Natha and not Katha which is not in consonance with the pedigree-table mentioned by the petitioner in para. 1 of the plaint according to which Khawaja and Rulia are sons of Katha. Coupled with the fact that respondents have placed on record documentary evidence mentioned above which shows that family tree mentioned by the petitioner in para.1 of the plaint is not correct. Therefore, judgments of both the Courts below are based on correct reappraisal of the evidence on record. It is pertinent to mention here that petitioner failed to rebut the documentary evidence by producing any document or rebut the same even in oral evidence. It is common prudence that man can tell lie but the documents cannot. Therefore, documentary evidence has been given due weight as compared to the oral evidence. It is settled principle of law that by virtue of Article 64 of Qanun-e-Shahadat Order, 1984 or section 50 of Evidence Act, to prove the contents of the pedigree-table there must be special means of knowledge and in case the statement of Sardar Ali P.W.3 be read as a whole then it does not fulfill the mandatory requirement mentioned in Article 64 of Qanun-e-Shahadat, 1984 . In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court in Shah Nawaz case supra. It is also admitted fact that petitioner did not appear herself in the witness-box. Therefore, both the Courts below were justified to take adverse inference against the petitioner/plaintiff which is in consonance with the law laid down by the Honourable Supreme Court in the following judgments:--

Shah Nawaz's case (PLD 1976 SC 767)

Surghran Bibi's case (1996 SCMR 137)

Abdul Ahad's case (PLD 1979 SC 890)

It is well-settled principle of law that in case the trial Court has exercised its discretion which is upheld by the First Appellate Court then this Court seldom interferes unless and until the discretion is exercised arbitrarily. It is also settled principle of the law that the petitioner/plaintiff has to prove her case on the basis of her own evidence and she cannot get benefit of weaknesses of evidence of the respondents/defendants. It is also settled principle of law that this Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under section 115, C.P.C. unless and until the judgments of the Courts below are result of misreading or non-reading of record or decided the case in violation of parameters prescribed by the superior Courts. Learned counsel of the petitioner failed to point out any irregularity or illegality committed by the Courts below or misreading or non-reading any piece of evidence. As mentioned above, petitioner/plaintiff failed to prove Issue No.6. Therefore, petitioner/plaintiff is not entitled to get 1/8th share in the land in dispute. Findings of the Courts below on Issue No.6 are upheld. The remaining issues are dependent upon Issue No.6. Therefore, the remaining issues have become redundant.

In view of what has been discussed above, this revision petition has no merit and the same is dismissed.

M.H./S-303/L Revision dismissed.