2003 PLP 433 (MLD)

(1) Whether the plaintiff has purchased the disputed plot from the defendant No.3 and is in possession of the same and alienation order dated 24-1-1996 executed by the defendant No.2, sale agreement dated 29-8-1994 executed by defendants Nos. 1 and 2 in favour of the defendant No.4, are against law and facts, result of fraud, ineffective upon the rights and plaintiff is entitled to the relief claimed? OPP. (2) Whether this Court has no jurisdiction to try this suit? OPD. (3) Whether the suit is not maintainable in its present form? OPD. (4) Whether the plaintiff has no cause of action to file this suit? OPD. (5) Whether the suit has not been properly valued for the purpose of court-fee and jurisdiction? OPD. (6) Whether the plaintiff's suit is time-barred? OPD. (7) Whether the plaintiff's suit is mala fide and frivolous one and defendant is entitled to get special costs under section 35-A of C.P.C.? OPD. (8) Relief. Evidence of the parties was recorded. Vide judgment and decree dated 6-3-1999 the learned trial Court decreed the suit of the petitioner. Feeling aggrieved respondent No.4 filed a first appeal which was heard by a learned Additional District Judge, Faisalabad who allowed the same on 19-11-1999 and dismissed the suit of the petitioner.

2. Rana Abdur Rahim Khan, learned counsel for the petitioner argues that the petitioner had proved on record the case set up by her in the plaint; that the admitted original allottee i.e. respondent No.3 supported the case of the petitioner in the witness-box with reference to document Exh.P.1. According to the learned counsel the evidence on record has been misread by the learned Additional District Judge. Mr. Babar Sohail, Advocate learned counsel for respondent No.4, on the other hand, argues that there are inherent discrepancies in the case of the petitioner whereas his client has proved his case in accordance with his pleadings and that the impugned judgment of the learned Additional District Judge is in accord with the evidence on the file.

3. I have gone through the copies of the records appended with this civil revision, with the assistance of the learned counsel for the parties. I have already referred to the respective pleadings of the parties i.e. the mother and the son. As against the pleaded case of both the parties i.e. the, petitioner saying that she purchased the plot from respondent No. 3 and respondent No.4 saying that he had purchased the plot from the said allottee, it has turned out in the evidence of both the parties that for all intents and purposes it was Muhammad Bashir Mirza i.e. husband of the lady and the father of respondent No.4 who had purchased the plot. Petitioner appearing as P.W.3 has stated that the house was constructed with the money of her husband. On the part of respondent No.4 it has been suggested to both P.W.1 and P.W.3 that Muhammad Bashir Mirza was the purchaser of the plot. D.W.2 Zia Kausar has stated that Muhammad Bashir Mirza had purchased the plot from Abdul Wahid and it was suggested to him and he stated in cross-examination that the entire price was paid by Muhammad Bashir Mirza in the year 1982. It has not been suggested to this witness that the petitioner had purchased the plot. Respondent No.4 while appearing as D.W.4 has stated that he purchased the plot from his father for Rs.48,

000. So far as agreement Exh.P.1 and receipt Exh.P.2 are concerned. I find that although Abdul Wahid, the executant of the same had admitted the said document, yet learned counsel for the respondents has pointed out some material discrepancies in the statement of P.W.1 and the petitioner, who asserts that she was present at the time of execution of the said document. Abdul Wahid, respondent, P.W.1 states that the document was executed at C. I. A. Staff Quarters while the petitioner lady states that these were executed in Kohinoor Quarters. Apart from this document Exh.D.3 also discloses that the petitioner her two sons and two daughters had applied to F.D.A. after the death of Muhammad Bashir Mirza for transfer of plot in favour of all the heirs.

4. So far as respondent No.4 is concerned, I find that he has departed from his pleadings. In the written statement he has stated that the plot was purchased by him from Abdul Wahid, respondent No.3 on 11-5-1982 for Rs.42,

000. As D.W.4 he has proceeded to state that he had purchased the plot from his father for Rs.48,

000. He has produced Mirza Muhammad Saeed, a Deputy Director, F.D.A. as D.W.1 who entered the witness-box with the records. He says that Muhammad Bashir Mirza appeared before him on 24-3-1987 and made a statement for transfer of plot in favour of respondent No.4 vide documents Exhs. D.1 and D.2. He also produced Exh.D.3, the copy of general power-of-attorney. He admits that no amount was paid in his presence. He admits that the said forms were filled up by Basharat Khalid, Clerk and that he was not present when the forms were filled up. He admits that he did not know Muhammad Bashir Mirza personally but he had checked his N.I. Card. Now the document Exh.D.2 is witnessed by M/s. Shakaib Ahmad and Sh. Basharat Ahmad while document Exh. D.1 is witnessed by Yahya and Muhammad Sarwar. None of these witnesses have been produced by respondent No.4. The petitioner lady, on the other hand, managed to produce Basharat Ahmad a witness to document Exh. D.2 as P. W.2 who has stated that Bashir Ahmad informed him that the plot was to be transferred to his wife and he and Shakaib Ahmad signed on plain papers and came back as the Clerk told them that he will do the rest. To my mind, respondent No.4, in the matter of said documents has failed to produce the best evidence when there is nothing on record that the same was not available.

5. Having thus examined the file, I find that Muhammad Bashir Mirza was admittedly owner of the property having purchased it from Abdul Wahid and thereafter constructed it froth his own funds. Both the learned counsel present state that Muhammad Bashir Mirza was survived by the petitioner as widow, three sons including respondent No.4 and two daughters as mentioned in document Exh.D.3. The evidence on record leads to the conclusion that the property forms the estate of Muhammad Bashir Mirza and on his death has been inherited by his widow, three sons and two daughters. The civil revision accordingly is allowed. The judgments and decrees of both the learned Courts below are set aside. The plaintiff is granted a declaration that she being the widow of Muhammad Bashir Mirza, the deceased owner of the property in suit is entitled to 1/8th share in the suit property while respondent No.4 is entitled to 14/64th share therein. The remaining two sons and two daughters are entitled respectively to 14/64th and 7/64th shares each son and each daughter. No orders as to costs. H.B.T./M-546/L Order accordingly.