Haji MUHAMMAD HUSSAIN Versus Mst. LAL KHATOON
SADAQAT ALI KHAN, J.--- The instant Civil Revision No.259-D-2005/BWP has been filed by the present petitioners against judgment and decree dated 8-2-2005 passed by Additional District Judge, Khanpur according to which appeal of the present petitioners was dismissed, filed against judgment and decree dated 22-6-2004 passed by Civil Judge Khanpur according to which suit for declaration filed by Mst. Lal Khatoon respondent/plaintiff (since died) was decreed against present petitioners Nos.1 to 5.
2. Brief facts of the case are that plaintiff Mst. Lal Khatoon respondent (since died) on 12-3-1997 filed a suit for declaration against present petitioners Nos.1 to 5/defendants and made party to present petitioners Nos.6 to 9 as pro forma defendants stating therein that she is owner in possession of land mentioned in Khata No.5 and Khata No.6 to the extent of her share(7/360 and 11 1/8 respectively) measuring 11 Kanals 4 Marlas situated in Mauza Muhammad Khan and also owner in possession of land mentioned in Khata No.15 and Khata No.36 to the extent of her share (7/80/15 and 1/36/4845) measuring 6 Kanals 16 Marlas situated within the revenue estate of Tatar Chachar Tehsil Khanpur and above stated Khata Nos. have been converted as Khata No.134/6 of Mauza Khan Muhammad according to Register Haqdaran-e-Zameen for the year 1995-96 and Khata No.43 of Mauza Tatar Chachar according to the Register Haqdaran-e-Zameen for the year 1992-93. Plaintiff further stated that defendants Nos.1 to 5/present petitioners Nos.1 to 5 are being her real brothers have been cultivating the above stated suit land and giving share of produce to the plaintiff to the extent of her share. For the last one year they stopped giving share of produce to the plaintiff and now flatly refused to do so asserting therein that the plaintiff is not the owner of the suit land who had alienated the same to Mst. Bharwana (real mother of the plaintiff and the defendants). She further stated that she then got inspected the revenue record where it was revealed that defendants Nos.1 to 5/present petitioners Nos.1 to 5 firstly got transferred the suit property through Mutations Nos.101 and 1156 dated 25-11-1979 in favour of Mst. Bharwana real mother of the parties showing the plaintiff as donor and thereafter same property was got transferred by the present petitioners Nos.1 to 5/defendants No.1 to 5 in their favour from Mst. Bharwana through Mutations Nos.1167 and 109 dated 25-6-1980 fraudulently by depriving the plaintiff from her legal share. She stated further that she never alienated the suit property in favour of Mst. Bharwana through the mutations stated above. She herself is a poor lady having children and she neither appeared before any revenue officer for the attestation of the above stated disputed mutations nor made any statement thereof in this regard. She further stated that she did not affix any thumb impression on disputed mutations and disputed mutations are fake, forged and result of forgery and are ineffective against the rights of the plaintiff. She obtained suit land from inheritance left by her father Wahid Bakhsh after his death. She further stated that Mutations Nos.1167 and 109 dated 25-6-1980 are also result of fraud and forgery and are ineffective against the rights of the plaintiff and same are liable to be set aside. On the other hand present petitioners being defendants put their appearance before the learned trial court and submitted their written statement jointly and denied the assertions made by the plaintiff Lal Khatoon/respondent (since died) in this petition.
3. Out of the divergent pleadings of the parties following issues were framed by the trial court:--
ISSUES
(1) Whether plaintiff is exclusive owner in possession of suit property fully detailed in head-note of plaint and impugned mutations Nos.101 and 1156 dated 25-11-1979, tamleek Mutations Nos.1167 and 109 both dated 25-6-1980 are against law, facts, result of fraud as such ineffective, inoperative against rights of plaintiff and liable for cancellation? OPP
(2) Whether plaintiff is entitled for decree of declaration as prayed for? OPP
(3) Whether plaintiff has no cause of action? OPD
(4) Whether plaintiff is estopped by her act and conduct to file the suit? OPD
(5) Whether the suit is incompetent in this present form? OPD
(6) Whether the suit is time barred? OPD
(7) Whether suit has been based upon wrong facts and its effects? OPD
(8) Whether suit is false as such liable to be dismissed with special costs? OPD
(9) Relief.
4. In support of her claim plaintiff herself appeared as P.W.1 and produced attested copy of Mutation No.101 Exh.P1, attested copy of Mutation No.109 Exh.P2, attested copy of Mutation No.1156 Exh.P3, attested copy of Mutation No.1167 Exh.P4 and copy of the Register Haqdaran-e-Zameen for the year 1995-96 Exh.P5 and closed her evidence. On the other hand Muhammad Hussain petitioner No.1 (one of the defendants) appeared as DW1, Mst. Sharif Khatoon petitioner No.7 as DW2 and Muhammad Asim as DW3 and closed the evidence. Learned trial court after conclusion of the trial and after hearing the arguments from both sides decreed the suit of Mst. Lal Khatoon plaintiff/respondent (since died) to the extent of her share vide judgment and decree dated 22-6-2004. Present petitioners feeling aggrieved preferred an appeal before the learned Additional District Judge, Khanpur but the same was dismissed on 8-2-2005. Hence, this Civil Revision before this court.
5. Learned counsel for the petitioners submitted that judgments and decrees of the courts below are against law and facts on the file and are liable to be set aside. It is submitted that findings of the courts below are result of misreading and non-reading of evidence and both the courts below have committed illegality by decreeing the suit of respondent Mst. Lal Khatoon (since died) and submitted that plaintiff has failed to prove her case and her suit is liable to be dismissed. Reliance is placed on cases titled as "Taj Muhammad Khan through L.Rs. and another v. Mst. Munawar Jan and 2 others" (2009 SCMR 598), "Aish Muhammad alias Ashiq Muhammad Khan v. Mst. Jamila Khatoon and others" (PLD 2006 Lahore 87), "Ghulam Ghous v. Muhammad Yasin and another" (2009 SCMR 70) and "Haji Abdul Ghani and another v. Muhammad Arjumand Malik" (1988 CLC 606).
6. On the other hand learned counsel for the respondents submitted that plaintiff has proved her case with solid evidence and her suit was rightly decreed by the learned trial court which decree was rightly upheld by the appellate court by dismissing appeal of the present petitioners and the instant Civil Revision is also liable to be dismissed.
7. I have heard the learned counsel for the parties and perused the record.
8. Mst. Lal Khatoon plaintiff/respondent (since died) was the real sister of present petitioners and she had obtained suit property from the inheritance of her real father Wahid Bakhsh after his death. Plaintiff has challenged Mutations Nos.101 Exh.P1 and 1156 Exh.P3 dated 25-11-1979 according to which Mst. Lal Khatoon plaintiff along with pro forma defendants Nos.6 to 9 (petitioners Nos.6 to 9) had gifted their property in favour of Mst. Bharwana their real mother (since died) and mutations Nos.1167 Exh.P4 and 109 Exh.P2 dated 25-6-1980 according to which same property was gifted by Mst. Bharwana to present petitioners Nos.1 to 5 (real brothers of plaintiff Mst. Lal Khatoon). In view of the above it is concluded that present petitioners Nos.1 to 5 are the beneficiaries of the alleged transaction stated above. Mst. Lal Khatoon specifically stated in her statement before the learned trial court as under:--
9. In view of the above Mst. Lal Khatoon plaintiff has denied the execution of Mutations Nos.101 Exh.P1 and 1156 Exh.P3. It is settled law that it is the duty and obligation of the beneficiary to prove the mutations by producing evidence in accordance with accepted principles and in terms of Qanun-e-Shahadat Order 1984 otherwise it does not create any title. I have perused above stated all four mutations which were registered on the statement of DW1 Haji Muhammad Hussain petitioner No.1 who is also witness of mutation No.101 Exh.P1 and Mutation No.1156 Exh.P3 according to which plaintiff Mst. Lal Khatoon was deprived of her share (disputed property). The other witness of the mutation was Haji Elahi Bakhsh Lambardar who did not appear due to his death rather his son Muhammad Asim was produced by the present petitioners /defendants as DW3 who stated in cross examination that the signatures which were shown to him were not original but is a photocopy. Further he stated in examination-in-chief that both the parties are his close relatives and Mst. Sharifan Khatoon DW2 stated in cross examination that Haji Elahi Bakhsh Lambardar (witness) was her Mamun. Present petitioners being defendants did not produce revenue officer to prove the mutations stated above and also did not produce original mutations stated above in their defence during the trial and did not confront the thumb impressions of Mst. Lal Khatoon allegedly present on Mutations Nos.101 Exh.P1 and 1156 Exh.23 specifically denied by her in his plaint as well as in her statement before the learned trial court and further did not make any request to the learned trial court for sending such thumb impressions to finger print expert for comparison. It is admitted principle of law that where the Parda Nasheen Lady was a party to a transaction affecting her right and interest in an immovable property, it was always on the person claiming such right and interest to prove the same through affirmative evidence. I have also perused the written statement filed by the present petitioners and statements of Haji Muhammad Hussain DW1 (petitioner No. 1) and Mst. Sharif Khatoon DW2 (petitioner No.7) wherein they have not stated that suit property was gifted by Mst. Lal Khatoon plaintiff to Mst. Bharwana or further same property was gifted by Mst. Bharwana to present petitioners Nos.1 to 5 through disputed Mutations Nos.109 Exh.P2 and 1167 Exh.P4 and it is my firm view that factum of the gift has not been proved by the present petitioners who are beneficiaries of both the transactions and it was their duty to prove the factum of the disputed gift through solid evidence being beneficiaries. Haji Muhammad Hussain DWI is a witness of disputed Mutations Nos.101 Exh.P2 and 1156 Exh.P3 who has not uttered a single word in his Statement that suit property was gifted by the plaintiff (Donor) to Mst. Bharwana by making offer and acceptance by Mst. Bharwana (Donee) and delivery of the possession of the suit property thereof. Although petitioners Nos.6 to 9 supported the claim of present petitioners Nos.1 to 5 by submitting joint written statement and Mst. Sharifan Khatoon petitioner No.7 by appearing as DW2 but such concession is not binding upon the plaintiff who has contested the matter. In this respect reliance is placed on case titled "Allah Rakha through legal heirs v. Nasir Khan and 4 others" (2007 CLC 154).
10. Plaintiff Mst. Lal.Khatoon specifically stated in her plaint as well as in her statement while appearing as P.W.1 that present petitioners Nos.1 to 5/defendants Nos.1 to 5 being real brothers of the plaintiff have been cultivating the suit land and giving share of produce to the plaintiff and for the last one year from filing of the suit i.e. 12-3-1997 they stopped giving share of produce to the plaintiff and asserted that plaintiff is not owner of the suit property and same was alienated by her to Mst. Bharwana. Thereafter plaintiff got inspected the revenue record and found disputed mutations stated above and filed immediately instant suit for declaration for setting aside the above stated mutations. It is concluded that plaintiff/respondent (since died) on having the knowledge of the above stated mutations, immediately filed the suit for declaration within time and learned trial court after recording the evidence rightly decreed the suit which was maintained by the appellate court as the plaintiff is an illiterate and Parda Nasheen lady. Reliance is placed on case titled "Allah Dittah v. Aimna Bibi" (2011 SCMR 1483) in which august Supreme Court of Pakistan has observed at page 1484 as under:--
3. We have taken into consideration arguments advanced by the learned counsel for the petitioner and perused the available record. From perusal of record, it appears that on the basis of oral agreement, mutation was effected. The respondent on having the knowledge of the same immediately filed suit for declaration and joint possession. The trial Court, after recording the evidence decreed the suit, which was maintained by the Appellate Court as well as by the Revisional Court, as the respondent is an illiterate and "Parda Nashin" lady.
4. Having considered the matter from all angles in the light of material on file, we find no substance in the submission of learned counsel for the petitioner. No misreading and non-reading of the evidence on record nor any infirmity legal or factual, has been pointed out in the impugned judgment. We are of the considered opinion that no different view can be taken in this matter with the concurrent findings of fact. The petitioner filed suit for declaration immediately on having knowledge of alleged mutation gift, and denied that she had gifted the property in question to the petitioner. The presumption under Article 100 of Qanun-e-Shahadat, 1984 in respect of a document thirty years old is in respect of the signature and every other part of the document which supports to be in the handwriting of any particular person which is not the case here. The mutation entry in the record is not in handwriting of the respondent and further it is not compulsory with the Court to presume the genuineness of the documents and may require the party producing the document to prove its execution by producing some witnesses."
11. Learned counsel for the petitioners could not point out any illegality in the impugned judgments and decrees of the courts below and judgments and decrees of the courts below are not result of misreading and non reading of the evidence. Concurrent findings of the courts below are based on proper appreciation of evidence. It is settled law that this court cannot re-appraise and re-evaluate the merits of the evidence of the parties in the absence of any illegality and non reading/misreading of evidence in its revisional jurisdiction. Reliance is placed on case titled "Hazara and others v. Muhammad Yar and others" (2011 SCMR 758) in which august Supreme Court of Pakistan has observed at page 762 as under:--
"The learned High Court, in exercise of its revisional jurisdiction, was not called upon to re- appraise and re-evaluate the merits of evidence of the parties in the absence of any illegality or non-reading/misreading of evidence. It traveled beyond its jurisdiction in re-examination the entire evidence, searching support, for another possible conclusion. This approach has not been approved by this Court and warrant interference. Reference can he had to "Abdul Hakeem v. Habibullah and 11 others" (1997 SCMR 1139). For the above discussion, we are of the view that interference by the learned High Court in exercise of its revisional jurisdiction was not called for. Consequently, the appeal is allowed; impugned Judgment is set aside and that of the First Appellate Court and trial Court are restored. There shall be no order as to costs"
12. Same view has been reiterated by the august Supreme of Pakistan in case titled "Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad" (2012 SCMR 730) in which august Supreme Court of Pakistan has observed at page 734 as under:--
"Concurrent findings of the trial court and appellate Court in favour of appellants were based on proper appreciation of evidence therefore, the same were not open to interference by the revisional Court in exercise of its jurisdiction under section 115, C.P.C., which is primarily meant for correction of jurisdictional defect/error and material illegalities/irregularities, resulting in miscarriage of justice to a party."
13. The case law referred by learned counsel for the petitioners is not applicable to the facts of the instant case because in the case law referred by learned counsel for the petitioners donor had not challenged the gift mutation whereas in the instant case Mst. Lal Khatoon being donor herself has challenged the gift mutations.
14. For the foregoing reasons the instant Civil Revision has no merits and the same is dismissed.
AG/M-314/L Revision dismissed.