Abdul Ghani Versus Muhammad Sharif
Ch. Muhammad Iqbal, J.--- Through this Regular Second Appeal, the appellants have challenged the validity of the judgment and decree dated 29.01.2016 passed by the learned Civil Judge, Sheikhupura who dismissed the suit for declaration along with perpetual injunction filed by the appellants and also assailed the judgment and decree dated 04.05.2017 passed by the learned Additional District Judge, Sheikhupura who dismissed the first appeal of the appellants.
2. Brief facts of the case are that Muhammad Yaqub etc. appellants/ plaintiffs filed a suit for declaration against Muhammad Sharif etc. respondents/defendants contending therein that the appellants/plaintiffs and Mst. Asmat Bibi, defendant No.2 are owners of suit property situated in village 29/UCC Tehsil Ferozwala District Sheikhupura fully described in paragraph No.1 of the plaint. That the plaintiff No.1 and defendants Nos.1 and 2 are siblings whereas the plaintiffs Nos.2 to 9 are legal heirs of Muhammad Yaqoob. The respondent/defendant No.1 used to cultivate the land of the suitors as co-shares and in lieu whereof gave share of produce to the plaintiffs. But the respondent/defendant No.1 restrained the appellants/plaintiffs from personally cultivating their land and also withheld payment of produce share. That about 14 days before the filing of the suit, the respondent/defendant No.1 claimed himself to be owner of the suit land on the basis of relinquishment deed dated 15.11.1997. Later on, he transferred the suit land through mutation No.278 dated 07.03.2005 in favour of defendant No.3 Nazir Ahmad son of Siraj Din. Whereas the appellants/plaintiffs had neither executed any relinquishment deed nor appeared before any revenue officer. That the respondent/ defendant No.1 on the basis of fraud prepared the alleged fake relinquishment deed of the suit land in his favour and thereafter further alienated the land.
The respondents/defendants Nos.1 to 3 filed contesting written statement, controverted the contents of the plaint and pleaded genuineness of the Tamleek / relinquishment deed on the legal and factual grounds. The trial Court framed issues, recorded evidence and dismissed the suit vide judgment and decree dated 15.04.2009. The appellants filed appeal [R.F.A. No.260/2009] which was allowed with the consent of the parties and the case was remanded to the trial Court for fresh decision. In post-remand proceedings, the trial Court again dismissed the suit vide judgment and decree dated 29.01.2016. The appeal of the appellants was also dismissed by the first appellate Court vide judgment and decree dated 04.05.2017. Hence, this second appeal.
3. Arguments heard. Record perused.
4. The controversy involved in this case is centered upon Issues Nos.1 to 3 which are reproduced as under:
"1. Whether the plaintiffs are owners of suit property? OPP
2. Whether deed No.6490 dated 15.11.1997 is based on fraud and forgery and thus plaintiff never executed same? OPP
3. Whether mutation No.183 dated 20.11.1995 and mutation No.278 dated 07.03.2005 are without any legal sanctity and the same have been sanctioned in favour of the defendants wrongfully? OPP"
To prove the assertions made in the plaint and to dislodge the onus of the aforesaid issues, Nawab Bibi mother of the plaintiff appeared as PW1 and deposed that 5/6 acre land was joint, which land was being cultivated by Sharif; that initially he used to give share of produce to Abdul Ghani, who was her duly appointed attorney; that she never made any relinquishment deed nor imposed thumb impression nor appeared before any ahle commission , that she is an illiterate lady and has never executed any relinquishment deed; that she has four sons and three daughters. Abdul Ghani (P.W.2) has deposed that Sharif is his uncle; that the plaintiffs and defendants No.2 are owners; that since 1960 land was being looked after and cultivated by their uncle Muhammad Sharif who had been giving share of produce to them; that he never signed any relinquishment deed nor appointed any commission and nor has any knowledge when relinquishment deed was prepared; that he is an illiterate person. The appellants/plaintiffs also produced Muhammad Ilyas (P.W.3) and Sardar Ali (P.W.4) who supported their claim. Despite lengthy cross-examination, the stance of the witnesses could not be shattered.
5. Conversely, Muhammad Sharif himself appeared as D.W.1 and has deposed during his cross-examination, that the land was allotted to legal heirs of Deen Muhammad; that when Exh.D.1 was scribed, they brothers were present; that Abdul Ghani was also present; that he did not pay any amount in respect of relinquishment. Mushtaq Ahmad (D.W.2) deposed that plaintiffs executed relinquishment deed in favour of the respondent No.1.
6. The appellants/plaintiffs in their plaint categorically pleaded that they did not execute any relinquishment deed and the said transaction is based on fraud. To prove their stance, Nawab Bibi one of the appellants/plaintiffs appeared as P.W.1 and lengthy cross-examination, the stance of the P.Ws could not be shattered. At the same time being beneficiary of the transaction, burden was shifted upon the respondents/defendants to prove the validity of the deed initially by describing expediently the day, date, time, place, names of the witnesses and venue of the transaction in their pleading (written statement) and said asserted stance should have necessarily been proved through believable and corroborative evidence as prescribed under the law but in this case the respondents/defendants have failed to prove these details which legal flaw vitiates the validity of the said deed. Thus, non-proving of the asserted stance of relinquishment through corroborative, credible and trustworthy evidence is considered a material flaw which dismantle the very foundation of the stance of the respondents/defendants. Reliance is placed on the cases titled as Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417), Muhammad Nawaz and others v. Sakina Bibi and others (2020 SCMR 1021), Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others (2021 SCMR 73), Syed Ahmad v. Ali Akbar and others (2021 SCMR 743) and Faqir Ali and others v. Sakina Bibi and others (PLD 2022 SC 85).
7. Further perusal of alleged relinquishment deed it transpires that Mushtaq Ahmad (D.W.2) is shown as the single witness of the said instrument whereas under Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984, it is mandatory that such document should necessarily be attested by at least two witnesses. Thus, the non-establishing of the second marginal witness on the instrument is blatant non-compliance of the above mandatory provision of law which leads to conveniently held that the respondents/defendants have failed to prove the valid execution of the alleged relinquishment deed as per law. Reliance is placed on Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089), Hafiz Tassaduq Hussain v. Muhammad Din through LRs and others (PLD 2011 SC 241) and Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187).
8. Perusal of evidence of the respondents/defendants shows that the D.W.1 and D.W.2 did not exhibit their signatures/thumb impressions on the alleged relinquishment deed [Exh.D.2] as such the respondents/defendants could not prove the valid execution of the said document. Reliance is placed on the cases cited as Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241) and Abdul Jabbar v. Muhammad Ajmal (2010 CLC 1950).
9. Further, the respondents/defendants did not produce the Lambardar, the Ahle-Commission as well as the Sub-Registrar who registered the alleged Relinquishment Deed in support of their version. Thus, non-production of such material witnesses is amounted to withholding of the best evidence and it would be legally presumed that had the said witnesses produced in the evidence they would have deposed against the respondents/ defendants as such presumption under Article 129(g) of Qanun-e-Shahadat Order, 1984 clearly operates against them. Reliance is placed on the case of Sughran Bibi v. Mst. Aziz Begum and 4 others (1996 SCMR 137), Jehangir v. Mst. Shams Sultana and others (2022 SCMR-309), Ghulam Fareed (deceased) through his L.Rs., and others v. Daulan Bibi (2024 SCMR 202), Sher Ayaz Khan alias Sheraz Khana, through LRs. and others v. Gul Najeeb Khan (2025 SCMR 380) and Muhammad Ayub, S.H.O Manager Bata Pak Ltd and another v. Muhammad Rahman and others (2026 SCMR 31). The respondents/defendants did not file any application before the trial Court for comparison of thumb impression/signatures of the parties of the lis on the alleged instrument of Tamleek Deed.
10. Further, the appellants/plaintiffs have their own children and no reason has been expounded as to why the appellants/plaintiffs have executed the alleged relinquishment deed in favour of the respondents/defendants and excluded their dearest/ beloved children. Reliance in this regard is placed on a judgment of the Hon'ble Supreme Court of Pakistan titled as Mst. Farzana Zia and others v. Mst. Saadia Andaleeb and others (2024 SCMR 916).
11. Further, the respondent/ defendant through the alleged relinquishment deed has deprived his sister from her due share in the estate left by their predecessor. As per law, it is made obligatory for a Revenue Officer/ Sub Registrar to observe extraordinary care and caution while effecting the transaction /alienation of property or execution of relinquishment deed in which a woman is party and her rights attached with the property are going to be transferred. A similar kind of responsibility is also placed upon the judicial fora to show utmost circumspection during adjudication on the lis emanating from a transaction in which a woman is a party. Some significant standards of a diligent scrutiny are as under:-
(i) that transaction was free from any influence, misrepresentation or fraud.
(ii) that amount of consideration equal to the value of the property was indeed paid to the ladies;
(iii) that in the case of "Pardanasheen" rustic village ladies, at the time of transaction such ladies were fully made to understand the nature of the transaction and the consequences, emanating therefrom and;
(iv) that at the time of transaction, the ladies had access to independent advice of their near and dear ones.
Further the Hon'ble Supreme Court of Pakistan in a case titled as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) has laid down the exhaustive guideline to the revenue as well as the judicial fora to observe extraordinary care and caution while attending the issue of alienation of property right of a woman through any sort of transaction: The relevant text of supra pronouncement is reproduced as under:
..........As is discussed in the case of Haji Nizam (approved in Mohammad Bashir's case) which was also a case of clash of Islamic principles against those of other systems-a widowed daughter-in-law, seeking maintenance for her minor child against the grandfather, it is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic law and principles. This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in accordance with Islamic Jurisprudence, is yet to take its own time.
In the rural areas where 80% of the female population resides, the inheritance rights of the females are not as protected and enforced, as Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the Courts act rightly and follow the correct rules. But it is a wide guess as to how many females take the courage of initiation or continuing the legal battle with their close one in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted, are to be blamed. The social organizations including those in the legal field are yet to show up in the rural area. They are mostly managed by Urban volunteers. When will they be able to move out of mostly managed by Urban volunteers. When will they be able to move out of sophisticated methods of American speech/seminar system and all that goes with it, in the enlightened urban society? It is a pity that while an ubranised brother, who is labourer in a neighbouring Mill, has the protection of such mass of Labour Laws; which sometimes even Courts find it difficult properly to count-right from the definition of 'rights', up to the enforcement' even in homes, through Social Security' Laws, with web of network of 'Inspectorates' etc. who are supposed to be helping him at every step, his unfortunate sister, who is deprived of her most valuable rights of inheritance even today by her own kith and kin-sometimes by the urbanized brother himself, is not even cognizant of all this. She is not being educated enough about her rights. Nearly four decades have passed. A new set up is needed in this behalf. Social Organizations run by women have not succeeded in rural field. They may continue for the urban areas where their utility might also be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic learning and teachings. They should provide the bulk of research in Islamic Law and principles dealing with women. It is not the reinterpretation alone which is the need of the day but a genuine effort by them for the reconstruction of the Islamic concepts in this field. It cannot be achieved by the use of alien manner or method alone."
12. The appellants/plaintiffs successfully proved their case but the Courts below by committing misreading and non-reading of the evidence decided issues Nos.1 to 3 against the appellants/plaintiffs as such the said findings of the Courts below on these issues are not sustainable in the eyes of law which are hereby reversed and these issues are decided in favour of the appellants/plaintiffs.
13. The Courts below did not consider oral as well as documentary evidence and by committing misreading and non-reading of evidence and record, passed the impugned judgments and decrees which suffer from patent illegality and irregularity and it is settled law that this Court in such like circumstances can interfere with the perverse judgments of the Courts below. Reliance in this regard is placed on judgments titled as Muhammad Tufail and 2 others v. Ghaus Muhammad through Legal Representatives (PLD 2007 SC 26) and Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524).
14. Resultantly, this Regular Second Appeal is allowed , the judgment and decree dated 29.01.2016 passed by the trial Court and judgment and decree dated 04.05.2017 passed by the first appellate Court are set aside and the suit filed by the appellants/plaintiffs is hereby decreed . No order as to costs.
UN/A-20/L Appeal allowed.