1997 PLP 822 (CLC)

(2) Whether the suit is within time? (3) Whether the plaintiff is estopped to bring the present suit? (4) Whether the suit is competent in its present form? (5) Whether the plaintiff is .the son of Khan Baz? (6) Whether the suit has been brought collusively by the plaintiff alongwith defendant No. 1 and is fraudulent? (7) Whether the defendants have collectively entered the suit land in their names in the revenue papers and have eliminated the name of the plaintiff? (8) Whether the plaintiff is owner up to 1/3rd share in the suit property? (9) Whether the suit land is mortgaged and the plaintiff is entitled to redeem the same? (10) If issue No.9 is decided in affirmative, then what is the mortgage charge? (11) Whether the plaintiff is entitled to the declaration prayed for? (12) Relief. The learned trial Judge decided Issues Nos. l, 8 and 11 against the plaintiff and held on. Issue No.5 that the onus for proving the plaintiff/respondent No. l to be the son of Khan Baz was on the plaintiff which has not been established by any cogent evidence and decided the issue in the negative. On Issue No.3 it was held that if the plaintiff/respondent No.1 was proved to be brother of the defendants then the suit would have been in time hence, while referring to Aswar Muhammad and others v. Sharif Din and others (1983 SCMR 626) the issue was held to have become redundant. Issues Nos.6 and 7 were decided in the negative holding that there was no sufficient proof to establish the collusiveness between the plaintiff/respondent No. l and defendant No.2. On issues Nos. 9 and 10 it was 'held that the suit land Was shown mortgaged in the revenue record but there existed no such evidence and the issues were decided accordingly. In the light of the above findings, the suit of the plaintiff/respondent No. I was dismissed on 15‑1‑1989.

3. Feeling aggrieved of the judgment and decree as aforesaid, the plaintiff/respondent No. l preferred an appeal before the Additional District Judge, Swabi, who vide his judgment and decree dated 21‑3-1990 accepted the appeal, set aside the judgment and decree of the trial Court and decreed the plaintiff's suit for declaration and joint possession to the extent of his share in the suit land.

5. Mr. Khalil Khan Khalil, learned counsel for the petitioner argued that respondent No. l has failed to establish that he was born of the wedlock of Khan Baz and Mst. Badro; that neither the plaintiff/respondent No. l appeared himself to face the cross‑examination of defence nor any cogent evidence was brought in this regard; that P.W.2 appeared as special attorney of respondent No. l but his power of attorney was objected to by the petitioner; and that even P.W.2 was not in a position to answer the material questions raised in the cross-examination. The learned counsel emphasised that none from the vicinity or relation was produced to substantiate the claim of respondent No. l; that Noor Mehmood respondent No.2 was not in good faith with the petitioner and criminal cases were going on between them; that the suit was collusively brought by the plaintiff/respondent No. l at the instigation of his brother Noor Mehmood respondent; that the plaintiff/respondent No. l was born after 6/7 years of the divorce between Khan Baz and Mst. Badro the mother of the plaintiff and contesting defendant; that since 55 years the petitioner is in possession of the suit land without interference by any body; and that the suit is barred by time.

5. Mr. Muhammad Ismail Khalil, learned counsel for respondent No. l on the other hand, argued that the plaintiff/respondent No. l has established his claim by producing cogent evidence of P.W.3 who is undisputedly real brother of the contesting defendant; that one cannot commit collusion against his own interest and further that the said witness had made a clean‑breast statement in this regard; that it was for the petitioner to prove the onus of factum of divorce between Khan Baz and Mst. Badro; that although D.W.1 has said in his cross-examination that he can produce the proof of divorce but no such proof was brought on record and even he failed to furnish the proof of divorce at the appellate stage as well as in this Court; that since the D.Ws. have admitted that the plaintiff/respondent No.l was born of Mst. Badro and Mst. Badro was the legally‑wedded wife of Khan Baz, therefore, the burden was heavily lying on the shoulder of the petitioner to prove by cogent evidence; that the learned trial Court has failed to appreciate the evidence in its true perspective and thus wrongly decided Issue No.5 against respondent No.l. While supporting the judgment and decree of the learned Appellate Court, the learned counsel urged that it was based on well‑reasons, proper appreciation of evidence and in accordance with law. As regards objection of limitation, the learned counsel contended that as the contesting parties being co‑owners, possession of one owner shall be considered possession of all the co‑owners, therefore, the objection of limitation cannot be entertained and in support of his contention relied upon the case of Aswar Muhammad and others v. Sharif Din and others (1983 SCMR 626) wherein the point of limitation raised by the petitioners therein was not entertained.

6. I have given my anxious thought to the respective contentiong of the learned counsel for the parties and have gone through the record. I find no substance in the first contention of the learned counsel for the petitioner that respondent No. l had failed to prove himself as son of Khan Baz because he did not appear as his own witness but Qaim Khan appeared on his behalf as special attorney which was also subject to objection by the petitioner. The record shows that the suit was filed by respondent No. l on 14‑2‑1987. The power of attorney also bore thumb‑impression of the plaintiff/respondent No.

1. It has been stated at the Bar that respondent No. l is labouring in Middle‑East since institution of the suit till today. The plaintiff, therefore, appointed P.W.2 as his special attorney to pursue the case and under the law he was competent to do so. The petitioner has raised a baseless objection over the authority of P.W.2 as the power of attorney in his favour was executed on 25‑3‑1987 duly attested by the Notary Public, Swabi, witnessed by the marginal witness and exhibited as Exh.PW.2/1. The contents of the deed show that he was empowered to given statement. The respondent No. l also examined Noor Mehmood defendant as P.W.3 who is undisputedly real brother of the petitioner and enjoying the suit property equally. The learned Appellate Court has rightly held that no one could give a statement detrimental to his own rights. There is no possibility of committing collusion with the petitioner because he has to give 1/3rd of his share to respondent No. l in view of the decree. The evidence brought by the petitioner to the effect that respondent No. l has undertaken to pay rupees one lac to Noor Mehmood if his suit is decreed and that Noor Mehmood has contacted him demanding rupees one lac otherwise he will deposit in favour of the plaintiff/respondent No. l is not convincing for the reason that the property involved is very much of great value and how Noor Mehmood for the sake of one lac rupees would deprive himself of so much valuable property being a sane person. In the presence of statement of P.W.3 there was no need of further any other evidence of his native village because P.W.3 is undisputedly real brother of the petitioner and enjoying the usufruct of plaintiff's share. P. W.3 was subjected to lengthy cross‑examination but not a single question as to the deprivation of respondent No. l was asked. The settlement record was prepared in the absence of the plaintiff/respondent No. l as he was not present in his village and also in the absence of Noor Mehmood P.W.3 who was undergoing imprisonment in jail. The said settlement record was made prejudice in the instant case and non‑entry of the plaintiff/respondent No. l as son of Khan Baz in the pedigree‑table or non‑entry of the suit land in his name does not deprive him of his legal rights. In these circumstances, the plaintiff/respondent No. l has established that he being the son of Khan Baz is entitled to get 1/3rd as inheritance in his legacy. The claim of respondent No.l could not be rejected had the petitioner established through evidence that his father had divorced his mother Mst. Badro and that the plaintiff/respondent No.l was born after the stipulated period of divorce. But not a single witness was produced in whose presence his father Khan Baz had affirmed the divorce of his wife. To deprive the plaintiff/respondent No.l of his legacy, there was heavily burden on the petitioner to bring cogent evidence in this regard. Even admitting in his statement before the trial Court that he can produce a proof of divorce but he failed to bring any such proof at the appellate stage and even in this Court. The learned counsel for the petitioner was asked during arguments about the alleged proof but he showed his inability on the pretext that his client has been sentenced to imprisonment in some criminal case and the son of the petitioner present in Court is not helpful in this respect, D.W.2 was produced to prove the factum of divorce but his deposition is hardly helpful in this regard. His statement is in a narrative form and has not deposed as witness to the alleged divorce or the so‑called marriage of Mst. Badro with one Sher Afzal rather he has admitted that the plaintiff, petitioner and Noor Mehmood were sons by Mst.Badro. In the conclusion of aforementioned facts, it is crystal clear, that the petitioner and respondents Nos. l and 2 were born of the wedlock of Khan Baz and Mst. Badro and Mst. Badro was never divorced by Khan Baz till his death. The settlement in the area was carried out in absence of the plaintiff/respondent No. l and non‑entry of the plaintiff in the said record is ineffective against him. The judgment and decree of the learned Appellate Court as against the judgment and decree of the trial Court are well reasons, based on law and deserve to be maintained.

8. The other contentions raised by the learned counsel for the petitioner having no force are not entertainable. As regards point of limitation, in view of positive findings on Issue No.5, the plaintiff/respondent No. l being co‑owner cannot be deprived of his Shari share in the legacy of his father and the judgment in the case of Aswar Muhammad and others v. Sharif Din and others (1983 SCMR 626) fully supports the case of the plaintiff/respondent No. l .

9. No other point was agitated before me. This revision petition fails and is hereby dismissed. The parties are, however, left to bear their own costs. A.A./2094/P Revision dismissed.