2018 PLP 7 (YLRN)

MUHAMMAD ALAM, J.

Through this single order, I intend to dispose of this petition as well as Civil Revision No.74/2016. Order dated 25-04-2016 of the learned District Judge Ghizer, passed in C.F.A. No.94/2014 and C.F.A. No.100/2014, found challenged through both this petition as well as Civil Revision No.74/2016.

2. Petitioner filed a suit (Civil Suit No.45/2009) while respondent No.1 filed Civil Suit No.01/2010 in the trial court of Civil Judge Gupis/Yasin. Learned trial court completed trial proceedings in both the said suits and passed the following order on 02-10-2014, in Civil Suit No.48/09:-- "In absence of proving contrary of ownership of suit shop plaintiff has right to inherit the suit shop being single legal heir of late Jafar Ali. Therefore the Suit No.01/10 of plaintiff titled Mst. Mus Nigar v. Roshti etc is decreed in favour of plaintiff against defendants up to extent of suit shop only and the Suit No.48/2009 of plaintiff titled Mohammad Rahim v. Numbardar Jafar Ali etc. is dismissed being meritless. Attested copy of this judgment be placed in Suit No.01/2010." Feeling aggrieved from the same, respondent No.2, Mst. Mass Nigar, filed CFA No.94/2014, whereas, petitioner also filed appeal (CFA No.100/2014) against the said order in the District Court Ghizer. Rest of the respondents filed cross-objections in the District Court Ghizer, against the judgment/decree of the trial court. Learned District Court passed impugned order in the said two appeals and cross-objections.

3. I have thoughtfully considered arguments advanced by the counsel for parties and have gone through material available on file. In the very peculiar circumstances of the case in hand, the question for determination is, whether Mr. Jafar Ali, father of Mst. Mass Nigar (respondent No.2), transferred suit lands to respondent No.5 through any will? Suit property of both the above referred suits is admittedly ownership of father of respondent No.2.

4. Petitioner, who is plaintiff of Civil Suit No.45/2009, admittedly sold suit land to father of respondent No.2, about 10 years prior to institution of suit (Civil Suit No.45/09). Petitioner filed the suit pleading that, at the time of sale of suit land, Mr. Jafar Ali (father of respondent No.2) agreed to sell the same to him as and when he (Mr. Jafar Ali) decided so. In view of admitted state of affairs that father of respondent No.2 never sold any part of suit land to any person, therefore, the question of sale even did not arise. So, the occasion of sale did not arise, therefore, petitioner had no cause of action to file the suit (Civil Suit No.45/2009) and trial court has rightly dismissed the same.

5. The second suit is of respondent No.2 (Mst. Mass Nigar), who filed the same pleading that she is entitled to the suit property of Civil Suit No.01/10 on the ground that she is the only heir of her father, late Jafar Ali. So, the admitted state of affairs is that suit property was ownership of Mr. Jafar Ali and as the sole legal heir respondent No.2 has every right to inherit the same unless and until any contrary is proved. In the above circumstances, the only question for determination is:- Whether father of respondent No.2 transferred suit property to respondent No.5 through any valid WILL etc.?

6. As to above question, I am of the opinion that respondent No.5 was bound to establish a valid WILL regarding any part of suit property. I am of further opinion that in view of the circumstances of the case, burden of proof shifted to respondent No.5, to establish a valid WILL, or otherwise respondent No.2, Mst. Mass Nigar, is the only legal heir of deceased Jafar Ali, therefore, could rightly inherit the whole of suit property. It is not disputed that father of respondent No. 2 could not transfer 1/3rd of his property through any WILL. So, let us see what evidence respondent No.5 has produced in proof of a valid WILL? Respondent No.5 (Ahmed Khan son of Rushti) has produced three witnesses in proof of the WILL. In examination in chief part of his statement, recorded on 14-04-14, respondent No.5 has stated that suit land was gifted to him by Mr. Jafar Ali. Then in cross-examination, respondent No.5 frankly admitted that Mr. Jafar Ali, the donor of suit property, remained in possession of suit land till his death. In cross-examination, respondent No.5 further stated that, later on, father of respondent No.2 gave some of the lands, gifted to him, to respondent No.2. Mr. Niat Wali Shah, a witness of respondent No.5, alleged scribe of gift deed has stated that Mr. Jafar Ali expressed his desire to gift the suit property to respondent No.5 and respondent No.2. The said witness has clearly stated that he does not remember if the said deed was a gift deed or WILL. This witness has clearly stated that half of the land described in the deed is in possession of respondent No.5 and remaining half is in possession of respondent No.2. A very important aspect of the statement of this witness (Mr. Niat Wali Shah) is that witnesses Mir Najab and Mustajab were present when the said deed was being written. Respondent No.5 admittedly did not produce said two PWs. The witnesses Mir Shah Zareen and Mr. Samandar Khan produced in the court are giving a different statement from that of respondent No.5 and the witness Mr. Niat Wali Shah. So, respondent No.5 has badly failed to establish a valid WILL.

7. In the sequel of above circumstances, this petition as well as Civil Revision No.74/2016 meritted dismissal and dismissed. But at the same time I deem it appropriate to hold that the impugned order and the judgment/decree of the trial court are result of erroneous approach of law and misreading of evidence. I do so although there is no revision or appeal of respondent No.2 against the impugned order. In my opinion, the petition in hand is a revision petition, wherein I have power to pass any order in the light of prevailed circumstances. I, therefore, set aside both the judgments of the trial court as well as of the first appellate court. And instead suit (Civil Suit No.01/10) of Mst. Mass Nigar stands decreed throughout. Order accordingly. Copy of this order be placed in Civil Revision No.74/2016 also. Both the files be consigned to record. ZC/183/GB Revision allowed.