Mst. SOOCHA Versus Mst. KHAZUNA BIBI

MUHAMMAD YOUNIS THAHEEM, J.--- Through the instant revision petition, the petitioners have called in question the judgment and decree dated 27.10.2011 passed by learned Additional District Judge/ Izafi Zila Qazi-IV, Swat, whereby appeal preferred by defendants/ petitioners against Judgment and decree dated 21.12.2010 passed by learned Civil Judge/Illaqa Qazi XVIII, Swat has been dismissed.

2. Brief facts of the case are that plaintiffs/respondents Nos. 1 and 2 Mst. Khazuna Bibi and Mst. Bakht Rana daughters of Firdoos instituted a civil suit bearing No. 62/1 of 2005 against the present petitioners and respondents Nos. 3 to 25, wherein they claimed their inheritance rights to the extent of their Shari shares from the legacy of their father Firdoos in respect of suit properties fully described in the plaint and the wrong entries in the revenue record are liable to be set aside and corrected to the extent of their share. It is pertinent to mention here that during the course of proceedings before the learned trial Court the plaintiffs were allowed to file amended plaint and they did so.

3. On appearance, the defendants/petitioners and other purchased owners contested the suit by filing their separate written statements. As per stance of defendants Nos. 1 to 7, the suit property is not the legacy of common predecessor namely Firdoos, rather it was the ownership of L.Rs. of defendants Nos. 6 and 7 deceased Fareed and Haroon-ur-Rashid, who had partitioned it amongst them during their lifetime and the entries in the first ever settlement in the name of defendants Nos. 1 to 7 are correct.

4. The defendants Nos. 8 to 11 are purchased owners, who averred in their written statement that they have purchased the suit property to their extent through various mutations from the defendants/petitioners Nos. 1 to 7. Similarly, the defendant No.12 is also purchased owner and all the purchased owners claimed protection under section 41 of the Transfer of Property Act. The defendant No.21 also refuted the claim of plaintiffs/respondents Nos. 1 and 2 through his separate written statement.

5. Out of the divergent pleadings of the parties, the learned trial court framed the following issues:--

6. Both the parties led their respective evidence and on conclusion of trial and hearing arguments of the parties the suit of plaintiffs/ respondents Nos. 1 and 2 was decreed against defendants/petitioners Nos. 1 to 7, while the rights of purchased owners defendants Nos. 8 to 12 and 21 were protected and it was held that the shares of purchased owners/defendants will either be adjusted from the shares of defendants/ petitioners Nos. 1 to 7 or they be paid the current price of their properties by vendors or their legal heirs vide judgment and decree dated 21.12.2010 of the learned trial court.

7. Feeling aggrieved, the defendants-petitioners preferred regular civil appeal before the learned appellate Court, who upon hearing arguments, dismissed the same vide impugned judgment and decree dated 27.10.2011, resultantly, maintained the judgment and decree of learned trial Court, hence, instant civil revision petition inter-alia on the grounds mentioned therein.

8. The main submissions made by learned counsel for petitioners Mr. Adil Khan Tahirkhaili, Advocate are that order, judgments and decrees passed by both Courts below are against law and evidence on record and are result of misreading and non-reading of evidence. He further added that a suit filed by respondents Nos.1 and 2 (plaintiffs) was badly time barred, but this aspect escaped the judicial notice by both Courts below; the property in question has been entered in the name of petitioners as owners in the revenue record prepared during first ever settlement, to which strong presumption of correctness is attached but was not given heed in view of law on this point during lifetime of Fareed Khan and Haroon-ur-Rasheed present plaintiffs kept mum and did not claim the shares in the property in dispute. He further argued that Fareed Khan and Haroon-ur-Rashid were lawful owners of the property in dispute. He added that respondents Nos.1 and 2 neither pleaded nor stated during recording of evidence that they were not aware of the settlement proceedings. Similarly, added that settlement record has not been specifically challenged as the husband of plaintiffs/respondents Nos. 1 and 2 being co-sharer in Khasra No. 468 was in knowledge of revenue record, prepared during first ever settlement; as predecessor of the parties was alive before merger of Swat State and died during reign of Wali-e-Swat but plaintiffs did not claim any inheritance rights at that time 'Riwaj' was observed and followed, so, were and are not entitled for any share and are also estopped from their conduct to sue. The learned counsel referred case law cited as PLD 1993 SC 38, 2015 YLR 2443, PLD 2014 SC 167, 2013 SCMR 299 and 2014 SCMR 513.

9. On the other hand, Mr. Asghar Ali Advocate, learned counsel for the respondents Nos.1 and 2 argued that plaintiffs present respondents Nos.1 and 2 are real daughters of common predecessor namely Firdoos, who had two sons and two daughters and deceased predecessor was owner in possession of suit property mentioned in plaint and after his death it developed upon his L.Rs. i.e. brothers and sisters, so, they are coming owners in possession of their inherited property to the extent of their shares. As their brothers/defendants Nos.1 to 7 illegally had transferred some of common property vide different deeds as well as mutations mentioned in the plaint, so, it has got no adverse effects upon the rights of plaintiffs, so, to the extent of shares of plaintiffs are in-effective, void and liable to be set aside. He further argued that suit of plaintiffs was also for declaration to the effect that wrong entries in the revenue record are liable to be set aside and corrected, so, the learned trial Court after appreciating evidence and law had correctly decreed the suit and has been rightly upheld by the learned appellate Court. He argued also, that both the judgments are based on lawful reasoning, evidence on record and no limitation runs against inheritance rights and the learned Courts below had correctly set aside controversial wrong entries, what to say in first ever settlement. He added that defendants/petitioners failed to prove that the plaintiffs had relinquished their inherited property in favour of their brothers, so, prayed for dismissal of the instant civil revision petition. Learned counsel placed reliance on plethora of judgments of Hon'ble Supreme Court as well as of this Court cited as PLD 1991 SC 213, PLD 1984 SC 394, 2016 SCMR 1417, 2016 SCMR 910, 2016 SCMR 763, 2015 SCMR 869, 2014 SCMR 801, 2014 MLD 1116 (Peshawar), PLD 1990 SC 1 and judgment of this Court rendered in C.R. No.163-M of 2014 dated 30.3.2016 titled as "Mumtaz Muhammad and others v. Muhstaq-ul-Aarifin and others".

10. Valuable arguments of learned counsel for the parties heard and record perused with their able assistance.

11. From the perusal of record it reveals that it is an admitted position on record that one Firdoos Khan had two sons namely Fareed Khan and Haroon-ur-Rasheed and two daughters namely Mst. Khazona Bibi and Mst. Bakht Rana Bibi. During the pendency of suit defendants Nos. 1 to 7, who had previously submitted their written statemenet. They averred in reply to Para No. 1 on facts as below:--

So, they moved an application for amendment to replace word ( ) by word ( ) and it was allowed vide order sheet No.3 dated 12.4.2007.

12. The questions for determination before this Court are (i) as to whether suit of the plaintiffs/respondents Nos. 1 and 2 was barred by time (ii) whether Firdoos Khan, predecessor of the parties (except purchased owners) was owner of the suit property mentioned in the plaint and (iii) whether entries in the revenue record in the name of Fareed Khan and Haroon-ur-Rasheed are correct, valid (iv) whether two Courts below correctly appreciated the evidence and law, so, to determine these questions entire evidence on record is required to be re-examined, which was already re-appraised by the learned appellate Court in its appellate jurisdiction.

13. From the perusal of evidence it reveals, that Mehboob Ali Shah, appeared as PW-1, who is attorney for his mother, plaintiff No. 2, Mst.Khazona Bibi and of his maternal aunt ( ) plaintiff No.1, Mst. Bakht Rana Bibi who stated in his examination-in-chief that the plaintiffs are daughters of late Firdoos Khan and real sisters of Fareed Khan and Haroon-ur-Rasheed and in this respect pedigree table ( ) lying on record is Ex. PW-1/2.

During cross-examination he was put a question to which he responded as below:-

He during cross-examination further deposed as below:--

14. This witness was cross-examined at length turn by turn from all sets of defendants, but nothing came favourable to them, however, this witness admitted that the defendants Nos. 1 to 7 had sold out some of the property to the purchased owners/defendants Nos. 8 to 11. He answered the question put by learned counsel for the defendants Nos. 8 to 11 as below:--

15. Plaintiffs also produced PW-2 Muhammad Qasim, Imad-ud-Din, PW-3 and Ibrahim, PW-4. Mehboob Ali Shah was also examined as APW-1, Muhammad Qasim as APW-2, Imad-ud-Din as APW-3, Hazrat Younis, ADK, as APW-4 and Patwari Halqa Moza Ningolai as APW-5. All these witnesses have supported the stance of plaintiffs and during cross-examination PW-2 deposed as below:--

16. Muhammad Younis ADK appeared as APW-4, who brought on record mutations No. 40, 41, 60, 93, 192 and 357, which are lying on record as Ex. APW-1/4 to APW-4/6, about the suit property. Similarly, Patwari Halqa, Moza Ningolai appeared as APW-5, who brought on file settlement record consisting of 24 pages, lying on record as Ex. APW-5/1 and current 'Jamabandies' as Ex. APW-5/2 comprised upon 34 pages. He also produced pedigree table ( ) as Ex. APW-5/3. Both above said witnesses despite opportunity were not cross-examined.

17. The defendants produced their evidence and one Ghani Muhammad defendant No. 4 son of Fareed for himself and attorney for defendants Nos. 1 to 3 and 5 to 7 appeared as DW-1 and reiterated the stance taken in written statement in his examination-in-chief, he stated that the suit property is not the legacy of Firdoos. According to his statement whatever left was his legacy and was devolved upon those who were entitled for it. Later on, some of them sold their property.

18. DW-1 during cross-examination admitted that entire suit property was originally the ownership of late Firdoos. The relevant portion of his cross-examination is reproduced as below:--

He further admitted as below:--

He further deposed like below:

He also admitted during cross-examination that we are residing in the same house where their grandfather ( ) was residing. The relevant portion of his cross-examination is reproduced as under:--

He showed his ignorance as to whether their father during the settlement proceedings apprised the settlement authorities about L.Rs. of the Firdoos. The relevant part of cross-examination is given below:--

19. The defendants also produced Adalat Khan as DW-2, Hamayun Khan as DW-3, Fateh-ullah as DW-4, Momin Khan as DW-5, Mian Said Ghani as DW-6 and Haji Muhammad as DW-7 and seven other witnesses as DW-8 to DW-14. Though above DWs supported the stance of defendants, but also being bona fide purchasers claimed protection under section 41 of Transfer of Property Act. DW-2. Adalat Khan during cross-examination deposed as below:---

DW-3, Hamayoon Khan during cross-examination deposed like below:---

20. From the above narrated evidence, it transpires that suit property was ownership of Firdroos and after his death devolved upon his L.Rs. including plaintiffs and the learned trial Court while giving findings in the judgment had properly evaluated the evidence on record and decreed the suit correctly. As the matter sub-judice before the fora below was about inheritance rights/entries in the revenue record so, the question of limitation became immaterial. Similarly, on appeal, the learned appellate Court while re-appraising the evidence gone through the entire evidence and had dismissed the appeal correctly in accordance with law, so, no exception could be taken to the findings of two Courts below.

21. The defendants failed to prove through cogent and believable evidence that their common predecessor had either gifted them the entire property or they purchased it from someone else so there is nothing available on record in shape of believable evidence in this regards, while arguments of the learned counsel for the petitioners that before the merger of State 'Rawaj' was followed, but neither, such plea has been taken by them in their written statement nor evidence has been brought in this respect. Moreover, the Muslim females on the basis of 'Rawaj' cannot be deprived from inheritance rights and if someone raises such plea then that is in conflict with the injunction of Islam, so, this argument of learned counsel for the petitioners has no legal force, therefore, is repelled.

22. Under the Islamic law of inheritance present plaintiffs/ respondents Nos. 1 and 2 became owners on the very day of demise of their father Firdoos Khan, so, they became owners to the extent of their Shari shares at that time so were joint owners with their brothers and so can file the suit when were denied their rights, therefore, it was rightly held that the suit was within time. In this respect wisdom is derived from the judgment of Hon'ble Supreme Court of Pakistan titled as "Agha Seyed Mashtaque Ali Shah v. Mst. Gul Jan and others" cited "2016 SCMR 910". The relevant principle enunciated by the Hon'ble Supreme Court of Pakistan is reproduced below:--

"The question, when a right to sue will accrue in a suit for declaration will, to a certain extent, depend upon the facts and circumstances of each case. A suit for declaration of title of the plaintiffs to a particular property is a subsisting right and the right to bring a declaratory suit is continuing right, so long as the right to the property itself is subsisting. The right to sue accrues when the right in respect of which the declaration is sought is denied or challenged by the defendants. The time starts running only when the rights are actually interfered with. In such cases, a fresh cause of action would arise from the date of the last attack on the plaintiff's right or denial thereof. Where the plaintiff is in possession more particularly as a co-sharer in the joint Khata, he is not bound to sue on every denial of his right. He can file a declaratory suit on his option, because every denial or invasion of his right will furnish him a fresh cause of action. In the instant case, the two Courts below have concurrently found that despite entries to the contrary in the records of rights, the plaintiffs-respondents remained in physical possession of the suit land and that the parties were co-sharers. We do not see any reason to disagree with the conclusion arrived at by the Court".

23. Similarly another judgment of Hon'ble Supreme Court of Pakistan on the same proposition, is cited, in case titled as "Mahmood Shah v. Syed Khalid Hussain Shah and others" (2015 SCMR 869), wherein it has been held as below:-- "arguments questioning the judgments of the fora below as well as High Court is that the suit being hopelessly time barred is liable to be dismissed. This arguments would have been viable otherwise but not in a case where co-heirs become co-owners in the property left by propsitus on his demise. Their succession to the property of their propositus becomes a jail accompli immediately after his demise. It, thus, does not need the intervention of any of the functionaries of the Revenue Department and remains as such irrespective of what Patwari, Girdawor and Revenue Officer enter in the mutation sanctioned in this behalf. Since possession of one co-heir or any number of them would be deemed to be on behalf of even those who are out of it, preparation of every new record of rights, in their case, would confer on them a fresh cause of action. No length of time, therefore, would culminate in the extinguishments of their proprietary or possessory rights."

24. So far as the rights of subsequent transferees/vendees i.e. defendants Nos. 8 to 11 is concerned, their rights in view of section 41 of the Transfer of Property Act are protected and in this respect reliance is placed on the judgment of Hon'ble Supreme Court of Pakistan cited 2010 SCMR 1871, PLD 1978 SC (AJ&K) 75, so, the rights of transferee, vendees, who derived their title from petitioners/defendants Nos. 1 to 7 are protected to their extent and would be deducted/adjusted from the shares devolved upon the sons of Firdoos namely Fareed Khan and Haroon-ur-Rashid and would not be deducted from the shares of plaintiffs/respondent Nos.1 and 2.

25. It has been settled by now that wrong entries in record of rights could not confer any right upon the person, in whose favour, wrong entries were made nor such entries extinguished rights of ownership of co-heir.

26. Moreover, the law envisaged under section 115 of the C.P.C. enumerated certain principles that while exercising revisional jurisdiction, Court has only to examine the matter as to whether the jurisdiction vested in it by law was exercised properly or whether it failed to exercise that vested jurisdiction or had exercised it illegally or with some material irregularity, but after evaluating entire record, this Court reaches to the conclusion that no such illegality or irregularity has been found in the judgments and decrees of learned two courts below. In this respect reliance is placed on the judgment of Hon'ble Surpeme Court of Pakistan in case titled as "Muhammad Idress and others v. Muhammad Pervaiz and others" (2010 SCMR 5), wherein their Lordships held as under:-\

"It is settled proposition of law that each and every case is to be decided an its own peculiar circumstances and facts as law laid down by this Court in Muhammad Saleem's case 1994 SCMR 2213. It is also settled law that findings on question of fact or law, erroneous the same may be, recorded by the Court of competent jurisdiction, cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section 115 C.P.C. unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, 'Madras' case PLD 1949 PC 26, with regard to section 115, C.P.C. it is observed by the Privy Council as under:--

(i) This section empowers the High Court to satisfy itself upon three matters:-

(a) That the order of the subordinate Court is within its jurisdiction.

(b) That the case is one in which the Court ought to exercise jurisdiction.

(c) That in exercising jurisdiction, the Court has not acted illegally, that is in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate court upon questions of facts or law."

27. In view of the above, the instant civil revision petition being bereft of merits stands dismissed with no order as to costs.

ZC/57/P Revision dismissed.