SHERULLAH BAIG Versus BULBUL HAYAT (Late)
ALI BAIG, CJ.--- Through the instant civil revision petition the petitioner/defendant has called in question the validity and propriety of the impugned judgment/ decree dated 30-05-2024 passed by the learned Additional District Judge Gilgit, whereby the learned Additional District Judge Gilgit has dismissed the Civil First Appeal bearing No. 53/2018 filed by the petitioner/ defendant by maintaining the judgment/ decree dated 18-06-2016 passed by the learned trial court in Civil Suit No.34/2016 (185/2010).
2. Brief facts of the case leading to the filing of the instant civil revision petition are that plaintitis/ present respondents Nos. 1 and 2 namely Bulbul Hayat (late) and Imam Yar Baig had filed a civil suit before the learned Trial Court seeking declaration with possession of suit land as their Sharai shares from the land measuring 4 Kanal 19 Marlas under Khasra No. 304 Khata and Khewat No. 165 mutation No. 872 situated at mouza Sultanabad Danyore District Gilgit, fully described in the head note of the plaint.
3. The suit was contested by the present petitioner /defendant by way of filing of written statement wherein he has denied the averments of the plaint on many legal and factual grounds.
4. The learned trial Court out of the divergent pleadings of the parties framed as many as twenty issues including issue of relief and after recording pro and contra evidence and hearing arguments on behalf of both the parties has decreed the suit of the plaintiffs/ present respondents Nos. 1 and 2 vide judgment / decree dated 18-06-2016 in their favour.
5. Feeling aggrieved and dissatisfied with the impugned judgment/decree dated 18-06-2016 passed by learned Senior Civil Judge Gilgit the present petitioner/defendant had filed Civil First Appeal before the learned 1st Appellate Court/Additional District Judge Gilgit. The learned 1st Appellate Court Gilgit after registration of Civil First Appeal, procuring of the attendance of the parties and after hearing arguments on behalf of both the parties has dismissed the Civil First Appeal vide the impugned judgment/decree dated 30-05-2024 and maintained the judgment/decree dated 18-06-2016 passed by the learned Trial Court.
6. Feeling aggrieved and dissatisfied with the impugned judgment/ decree dated 30-05-2024 passed by the learned 1st Appellate Court/Additional District Judge Gilgit in C.F.A. No. 53/2018 the present petitioner / defendant has preferred the instant civil revision petition before this Court.
7. The learned counsel for the petitioner argued that the impugned judgments/decrees passed by both the learned Courts below are contrary to law and facts on the face of record, hence, the impugned judgments/ decrees of both the learned Courts below are not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that petitioner/ defendant is in possession of the suit land from the date of purchase of it and till now. The learned counsel for the petitioner further argued that the petitioner has produced DWs in support of his contentions and they have fully supported the version/plea of the petitioner/defendant, but both the learned Courts below have failed to appreciate the evidence produced by the present petitioner and have wrongly passed the impugned judgments/decrees. The learned counsel for the petitioner further argued that the present respondents have failed to implead necessary party i.e seller of the suit land as defendant in the plaint, hence, the impugned judgments/ decrees passed by both the learned Courts below are not maintainable and liable to be set aside. The learned counsel for the petitioner further submitted that the respondents/plaintiffs have failed to prove the issues which were required to be proved by them but both the learned Courts below have wrongly appreciated the plaintiffs/ respondents evidence and have illegally decreed the suit in favour of the plaintiffs/present respondents. The learned counsel for the petitioner further submitted that the impugned judgments/ decrees passed by the Courts below are against the facts on the records of the case and the relevant law applicable to the matter hence, the judgments/ decrees passed by the learned Court below are not maintainable and liable to be set aside. The learned counsel for the petitioner further contended that it is well settled principle of law that plaintiff cannot take benefits from the weakness of the defendants. The learned counsel for the petitioner further submitted that the impugned judgments / decrees of learned 1st Appellate Court as well as the learned trial Court are result of misconception and misinterpretation of law, hence, are not maintainable and liable to be set aside. The learned counsel for the petitioner lastly submitted that the learned both the learned lower Courts have failed to exercise jurisdiction vested in it and have exercised the jurisdiction not so vested in it as such the impugned judgments/ decrees passed by the learned Courts below are not maintainable and liable to be set aside in the interest of justice.
8. On the other hand the learned counsel for the plaintiffs/present respondents vehemently controverted the arguments advanced by the learned counsel for the petitioner by contending that the judgments/ decrees passed by both the learned Courts below are well reasoned and result of correct appreciation of relevant law and material available on file. The learned counsel for the respondents further argued that the present petitioner has badly failed to rebut the claim of the plaintiffs/respondents before the learned trial court by producing reliable oral and documentary evidence. The learned counsel for the respondents further argued that the plaintiffs/respondents have proved all the issues by producing cogent oral and documentary evidence and the petitioner has failed to shatter their evidence and the both the learned Courts below have rightly decreed the suit in favour of the plaintiffs. The suit property is inherited property of the plaintiffs/ respondents and the Revenue record fully supported the plaintiff's version. The learned counsel for the respondents lastly submitted that the instant civil revision petition is not maintainable and is liable to be dismissed and the judgments/decrees passed by the learned Courts below may be maintained in the interest of justice.
9. I have heard arguments advanced by the learned counsel for the parties and also gone through the record of the case with their able assistance.
10. It is case of the parties that the present respondents Nos. 1 and 2/plaintiffs claim that the suit land is undivided legacy of their late father namely Noor Hayat, therefore, they are entitled to get their Sharai share from the suit property whereas the petitioner/defendant claims in his written statement that the suit land was purchased by him from one Shah Faqir son of Adam Khan in consideration of Rs.11,500/-as such he is sole owner of suit land and the plaintitts/respondents are not entitled to get their share from the disputed property.
11. From perusal of record it transpires that the learned trial Court has framed as many as 20 issues including issue of relief and the learned first Appellate Court has framed the following three points for determination:-
(i) Whether the disputed land/suit land has been left by the deceased father of the contesting parties?
(ii) Whether the petitioner/defendant No.1 himself is owner of suit property being purchaser of suit land?
(iii) Whether the suit property is legacy of the deceased father of the parties namely Noor Hayat and the respondents being sons of Noor Hayat are entitled to receive their respective sharai share from the suit property?
Points Nos. 1 and 3 are identical and same, which were to be proved by the plaintiffs/respondents.
In order to prove their claim the respondents/plaintiffs have produced Jama bandi of the disputed land Exh.P-1 prepared in the year 1997 by Revenue Authorities, wherein name of father of the plaintiffs/respondents/petitioner/defendant has been entered as owner of the disputed suit land in the relevant column of Jama bandi, hence, the father of the contesting parties was original owner of the disputed property as per Jama bandi as the aforesaid Revenue record shall be presumed to be true under section 52 of the Land Revenue Act, 1967. In addition to the aforementioned revenue record/document, the respondents/plaintiffs have produced three Pws namely Hussain Ullah Baig, Muhammad Faqir son of Zaman Ali and Mir Baz son of Daoulat resident of Khanabad Hunza who have also supported the version/averment of the plaintiffs/respondents as well as Jama bandi Exh. P-1. Thus I have come to the conclusion that the plaintiffs/respondents have proved their claim by producing reliable, cogent oral and documentary evidence in the trial Court.
12. As far as point No.2 is concerned, the defendant/present petitioner is claiming that he himself has purchased the suit property from one Faqir Shah but it is astonishing to observe here that neither any mutation has been attested in favour of the present petitioner nor any Jama bandi or sale deed has been prepared in the name of the petitioner/defendant. However, the defendant/petitioner has produced some oral witnesses in the trial Court as secondary evidence but he has miserably failed to produce any revenue record to substantiate his claim, whereas the respondents have produced documentary evidence i.e. Jama bandi which is primary evidence under Article 73 of Qanun-e-Shahadat Order, 1984. It is settled principle of law that primary evidence shall be given weight/preference over secondary evidence.
13. I have minutely gone through the impugned judgments/decrees of the both the Courts below and did not find any illegality or irregularity in the same rather the same are based upon factual and legal preposition of the case.
14. For the above reasons, the instant civil revision petition being devoid of merits is hereby dismissed with no order as to costs. Consequently, the judgment/decree dated 30-05-20224 passed by the learned Additional District Judge, Gilgit is maintained. File.
MQ/5/GB Revision dismissed.