P L D 1993 (PLP)

This petition is directed against judgments and decrees dated 294-1992 and 24-10-1992, passed by learned Civil Judge-III and Additional District Judge-III respectively. The dispute in this case relates to, House No.4-9/16 Jamiat Rai Road, Quetta. Originally it was an evacuee property which on payment of price through compensation book was obtained from settlement authorities by Nawab Din, deceased father of respondents. Permanent Transfer Deed of above said house was thus issued in favour of late Nawab Din in year 1960. The petitioner who is wife of respondent No.2 Munawaruddin riled a suit for declaration and permanent injunction asserting that late Nawab Din got adjusted sum of Rs.1,307 against portion of sale price of the house from her Compensation Book and executed agreement in May, 1960 undertaking to return said amount by way of twelve (12) equal instalments and on the failure to perform the obligation whole house shall be deemed her property. It is alleged that installments have not been paid in accordance with terms of agreement dated 24th May, 19(A) despite demands made to respondents being the legal heirs of Nawab Din,, therefore, suit was filed. Respondent No.1 (Allauddin) contested the proceedings and filed detailed written statement on 15-8-1988, refuting the claim o in suit. Keeping in view pleadings, trial Court framed six issues and gave parties opportunity of leading evidence. Record discloses that petitioner apart from herself adduced. five witnesses namely: (i) Muhammad I Bashir,' , (ii) Shaukat Ali, (iii) Saleem Ahmad, (iv) Muhammad' Nazir, and (v) Javed lqbal.Clerk of Settlement Department to substantiate her claim whereas in rebuttal respondent No.1 besides his own statement examined four witnesses namely: (i) G hulam Hussain (ii) Muhammad Yousuf, (iii) Abdul Latif, and (iv) Muhammad Ibrahim Respondent No.2 also got recorded his statement 'for himself and attorney of respondent No.3. Petitioner's claim was not disputed by the said respondents. Learned Civil Judge-III by means of judgment dated 29-4-1992 decreed the suit. Respondent No.1 feeling aggrieved had challenged said decree by way of appeal which came up before learned Additional District Judge-111, Quetta who eventually accepted it vide judgment and decree dated 24-10-1992 directing dismissal of suit. present petition is directed against last mentioned judgment of learned Additional District Judge-111, Quetta. Arguments were heard at length. Mr. Molisin Javed learned counsel for petitioner emphatically urged that part payment of sale consideration concerning house in dispute was made from Compensation Book belonging to petitioner and deceased Nawab Din. In this connection an agreement was executed on the basis whereof she has acquired valid title over said property. It was contended that respondent Allauddin had denied her title concerning this house, therefore, op his final refusal proceedings were initiated. Whereas respondent expressed that' house-in-dispute belonged to his father late Nawab Din, who left behind three sons (the respondents), therefore, he is entitled to 1/3rd share. Suit has been maliciously riled to deprive him from same. I have carefully perused available record in the light of 'above submissions. This is an admitted feature that late Nawab Din had expired on 5th of February, 1967. Permanent Transfer Deed of the house in dispute was exclusively in the name of late Nawab Din. However, claim set up by petitioner suggests that portion of sale consideration having been adjusted from her Compensation Book,. was returnable by late Nawab Din in 12 instalments, therefore, in terms of agreement now said property vests in her. For proper appreciation of controversy it would be appropriate to have brief resume of evidence adduced by petitioner for supporting her claim. P.W. 1 Muhammad Bashir real brother of petitioner deposed that house-in dispute was purchased jointly by petitioner and late Nawab Din and a sum of Rs.1,301 out of said consideration had been paid by her. The witness admitted that he was not present at the time of purchase, payment or transaction indicating joint share. Evidently operative portion of this statement is hearsay, 'besides being contradictory to the stand in suit. * Testimony of P.W.2 Salim Ahmad mentions purchase of house in dispute by petitioner. He admits that he was not. present at the time of transaction and came to know about it from petitioner's son namely Javed. Version of this witness is totally hearsay. and inadmissible. P.W.3 Shaukat Ali disposed, that house in dispute was in occupation of petitioner., An agreement regarding purchase of house in dispute by petitioner and respondent No.2 was executed within his presence on 24-5-1900. It was reduced into writing by petition writer Chanan Khan and Abdul Hameed was its only attesting witness. Evidently petitioner does not even allege purchase, of house by respondent No.2. Absolutely no' agreement indicating purchase of premises jointly by petitioner and respondent No.2 hag been brought on record. Though according to him document was executed in his presence yet, surprisingly he is not attesting Witness. The deposition of this witness being contradictory, instead of helping the petitioner destroy her case and suffers from high improbabilities. P.W.4 Muhammad Nazeer expressly mentioned that house was jointly purchased by late Nawab Din. and petitioner. According to him a sum of Rs.2,016 was paid by late Nawab Din and balance of Rs.1,037 by petitioner. No document was executed in presence of this witness. It is pertinent to note that larger share of sale price of the. house Was paid by late Nawab Din from his own claim. It is matter of record that petitioner had executed document of association regarding her compensation book in favour of late Nawab Din. Therefore, -no direct interest can be claimed by petitioner in the property on account of said adjustment. Next witness Javed lqbal, Settlement Clerk, has produced documents on record. Petitioner in her statement has merely expressed that house in dispute was in her possession and a sum of Rs.1,307 had been adjusted towards its price through her compensation book. According to her said amount was payable in 12 instalments. It was admitted by petitioner that Nawab Din had expired on 5-2-1967, and property till date is recorded in the name of Nawab Din. However, evidence led by'respondent Allaudin shows that house was purchased from Settlement Department exclusively by late Nawab Din. It has also been brought in evidence that late Nawab Din died in year 1967 leaving behind three sons arrayed as respondents. Respondent has desposed that house exclusively by late Nawab Din. Respondent has deposed that house was purchased exclusively belonged to his father, therefore, he was entitled to 1/3rd share. He denied the correctness of agreement relied upon by appellant. It may be seen that evidence led by petitioner is either contradictory to the claim in suit or inadmissible. It therefore, has no logal sanctity. Even the version of petitioner does not indicate that the payment was not returned through instaiments by late Nawab Din- A Therefore, agreement relied upon has not been effectively proved through, primary evidence. Non-production of Hameed, the only attesting witness cast serious doubt concerning validity of alleged agreement. Thorough scrutiny discloses that claim put forth by petitioner has not been satisfactorily substantiated. Most important factor relating to limitation for riling the suit cannot be conveniently overlooked. Admittedly property was transferred by Settlement Department in favour of late Nawab Din during year 1960. The amount of compensation book was essentially adjusted before transfer documents were issued in his favour by the Settlement Department. It is not disputed that till date Nawab Din alone is recorded owner of the house. The petitioner has not claimed specific performance of alleged agreement. for which limitation prescribed by law was only three years from accrual of cause of action. Petitioner has opted to pursue remedy. for declaration' for which maximum benefit can be claimed from residuary Article 120 of Limitation Act, where maximum period available to petitioner Was only six years from cause of action. Cate Nawab Din had expired in year 1967, therefore, it was obligatory for the petitioner to have disclosed how after 28 years from the transfer of house in favour of Nawab Din and 21 years subsequent to his death suit could be lawfully instituted. When Mr. Molisin Javed, learned counsel was asked to explain this position, he felt himself in great difficulty to justify ~ such deep slumber and inordinate delay. Absolutely no explanation has been offered to justify this belated action. Surprisingly trial Court has cursorily dealt with this aspect by observing that said point was not pressed, which is factually contrary to record. The Hon'ble Supreme Court in case Haji Muhammad Bhoota v. Habib i Ahmad PLD 198SSC . 153 has authoritatively observed that even if point of limitation is not taken it was obligatory for the Court to ensure that question of limitation is scrutinised because it deals with assumption of jurisdiction to grant re1W. Apparently no provision of law could justify institution of suit at itich belated stage specially when there is no specific explanation for delay. However, it may also be observed that petitioner would at best claim share proportionate to her contribution to the sale price. The filing of suit claiming whole property yas ex facie incompetent. The appellate Court has appropriately considered all the factors and arrived at correct conclusion on proper appreciation of whole record. After independent re-evaluation of evidence am inclined to confirm said conclusion. It is Well settled that when appellate Court has assessed the evidence and based conclusion on cogent reasons, then finding of appellate forum must be given greater weight. In this view I am supported by the observation in PLD 1982 SC 465 and PLD 1986 SC (AJ&K)

65. From the above discussion I have no hesitation in holding that suit filed by petitioner merited dismissal as rightly held in the impugned judgment. Thus there is no substance in the petition, which is consequently dismissed. Parties are, however, left -to bear their own costs. This petition was decided by short order of even date and here are reasons for the same. A-A./435/Q REVISION DISMISSED.