2003 PLP 849 (CLC)

"That Muhammad Shafi acquired land measuring 4 Acres, 2 Kanals, 7 Marlas bearing Khasra Nos.4, 5, 7, 12, 13, 19 and 21 in Square No.55 situate in Chak No.20/RB, Tehsil and District Sheikhupura in open auction held on 23-9-1963. Mst. Nazeer Begum alleged that Muhammad Shafi had transferred share in this land in her favour and that she was the owner to the said extent in property in question. That petitioners in Civil Revision No. 1929 of 1994 filed a suit on 2-1-1991 for declaration that they have inherited this land as well in accordance with their Muslim Law share and that the claim of Mst. Nazeer Begum was illegal. It may here be mentioned that remaining 1/2 share in the subject land was allegedly alienated by Muhammad Shafi in favour of Nazeer and Arif (petitioners Nos.1(iii) and (iv) who are sons of Inayat Ali and nephews of Muhammad Shafi. Mst. Nazeer Begum also filed a suit on 12-10-1991 for declaration to the effect that she was the owner of the suit property to the extent of 1/2 share on the basis of a registered sale-deed dated 6-6-1981 made in her favour by Muhammad Shafi. Both these suits were consolidated. Proceedings were conducted in the suit of Inayat Ali. Following issues were framed:-- Issues: (1) Whether Muhammad Shafi son of Ali Akbar was owner of the disputed land at the time of his death? (2) If Issue No. 1 is answered in positive whether the plaintiff and defendant No. 1 are entitled to the inheritance of Muhammad Shafi as described in the plaint? (3) Whether defendant No. 1 Nazir Begum is owner of 1/2 share of the disputed land? (4) Whether the plaintiffs are estopped to file the suit by their conduct? (5) Whether the plaintiffs are trespasser and not approached the Court with clean hands, so they are not entitled to any relief'? (6) Whether the defendants are entitled to special costs under section 35-A of C.P.C.? (6-A) Whether the plaintiff in the suit titled Nazir Begum v. Nazir etc. for declaration No. 118/1 of 1992 is owner of the suit-land to the extent of 1/2 share by virtue of sale-deed dated 6-6-1981? (7) Relief.

6. The learned trial Court, in view of the oral and documentary evidence produced before it decreed the suit of Mst. Nazeer Begum vide judgment and decree dated 30-11-1993 while the suit of Inayat Ali was dismissed. Inayat Ali filed two appeals being Civil. Appeal No.404 of 1993 and Civil Appeal No.406 of 1993 which were dismissed by a single judgment dated 5-4-1994. The learned Appellate Court relied on the copy of the order of D.C. Exh.D.1, copy of the order date 26-6-1980 Exh.D.2, copy of the statement of Muhammad Shafi dated 2-1-1967 Exh.D.3, copy of .the statement of Muhammad Shafi dated 26-6-1980 Exh.D.4, copy of report Exh.D.5, copy of statement of Muhammad Arif petitioner Exh.D.6, copy of Challan Form Exh.D.7 and copy of the sale-deed Exh.D.8 and came to the conclusion that Mst. Nazeer Begum was the owner of half share of the disputed land and that the petitioners were not entitled to the suit-land on the basis of inheritance. The learned Appellate Court thus affirmed the findings of the trial Court.

7. Civil Revision No. 1929 of 1994 and Civil Revision No. 1930 of 1994 have been directed against the concurrent judgments dated 30-11-1993 of the trial Court and dated 5-4-1994 of the Appellate Court.

8. Muhammad Akram Javed, Advocate has appeared in support of the petitioners in all the three civil revisions while Mian Abdur Rasheed, Advocate represented Mst. Nazeer Begum respondent.

9. Arguments, have been heard and record perused.

10. Petitioners Nos.2. to 10 in Civil Revision No. 1928 of 1994 and petitioners Nos.4 to 12 in Civil Revision No.1929 of 1994 and Civil Revision No. 1930 of 1994 are the legal heirs of Meher Din who was the brother of Mst. Rabia Bibi, whether or not they have any right of inheritance in the estate of Muhammad Shafi shall depend upon the decision as to whether Mst. Rabia Bibi was divorced by Muhammad Shafi before he contracted marriage with Mst. Nazeer Begum. If the answer be in the affirmative, Mst Rabia Bibi would not inherit Muhammad Shafi as his widow and similarly her brother Meher Din would also have no right or interest in the suit property. In the proceedings leading up to Civil Revision No.1928 of 1994 the learned trial Court had correctly appreciated the respective evidence produced by the parties before it. From an overall evaluation of the said evidence, the learned trial Court was of the view that Muhammad Shafi had divorced Mst. Rabia Bibi before entering into the contract of marriage with Mst. Nazeer Begum. The inference drawn from the evidence on the record by the trial Court was neither fanciful nor arbitrary. While decreeing the suit of Mst. Nazeer Begum, the learned trial Court was justified in reaching the said conclusion on the basis of facts such as the admitted residence of Mst. Nazeer Begum with Muhammad Shafi prior to his death, the performance of Hajj by Muhammad Shafi and Mst. Nazeer Begum together and the fact that Mst. Rabia Bibi had died in the house of her parents instead of in the house of Muhammad Shafi. The vascillating conduct of they petitioners as depicted in their written statement and through the course of evidence also lended support to the case of the plaintiff/respondent. It is observed that none of the witnesses appearing for the petitioners categorically denied the suggestion that Muhammad Shafi had married Mst. Nazeer Begum after divorcing Mst. Rabia Bibi. Although the factum of marriage with Mst. Nazeer Begum was admitted in their written statement, yet Mushtaq Ahmed D.W.2 asserted to the contrary when he stated that Muhammad Shafi had only one wife namely Mst. Rabia Bibi and that Mst. Nazeer Begum was not the wife of Muhammad Shafi. This finding of fact was assailed before the Appellate Court which, after reappraisal of evidence concurred with, the findings of fact of the trial Court.

11. The learned counsel appearing for the petitioners has strongly contended that the alleged divorce of Mst. Rabia Bibi was not proved on the record. According to him P.W.1 had stated that the divorce was effectuated through a written document and that no credence can be given to the oral evidence alone when no documentary evidence regarding the alleged divorce was produced on the record. It was next contended that impugned Mutation No.355 (Exh.5) was got entered by Mst. Nazeer Begum herself and that the said mutation would carry presumption of correctness. 1t was lastly contended that both the learned lower Courts halve erred in misreading and non-reading of material oral and documentary evidence on the record. The submissions of the learned counsel for the petitioners have no force. As already discussed; both the lower Courts have dispassionately reviewed the entire evidence on the record and have come to the concurrent conclusion that Mst. Rabia Bibi was divorced by Muhammad Shafi before he contracted marriage with Mst. Nazeer Begum. The conclusion drawn by both the learned lower Courts that Mst. Nazeer Begum was the only surviving widow of Muhammad Shafi and thus is entitled to her Muslim Law share of 1/4th in his estate is unexceptionable. The learned counsel for the petitioners has not been able to point out any misreading or non-reading of evidence on the record. The lower Courts have drawn just and reasonable inference from the material on the record. No material irregularity in the exercise of jurisdiction has been indicated. The Civil Revision No.1928 of 1994 has-no merit which is hereby dismissed.

12. As far as, the controversy in Civil Revision No.1929 of 1993 and Civil Revision No.1930 of 1994 is concerned it is pertinent to note that the controversy in these civil revisions shall be restricted to the question whether or not Muhammad Shafi had alienated his half share in land measuring 4 acres, 2 Kanals, 7 Marlas bearing Khasra Nos.4, 5, 7, 12, 13, 19 and 21 in Square No.55 situate in Chak No.20/RB, Tehsil and District Sheikhupura. 'Both the learned lower Courts have justifiably placed reliance upon the documentary evidence produced by Mst. Nazeer Begum respondent. Salient amongst these documents, is the statement of Muhammad Shafi recorded on 21-1-1967 and 26-6-1980 and statement of Nazeer Ahmed and Muhammad Arif sons of Inayat Ali who had admitted the transfer of land in favour of Mst. Nazeer Begum. It was this evidence besides the oral evidence on the record which persuaded the trial Court to decree the suit of Mst. Nazeer Begum and dismissed the suit of Inayat Ali etc. vide judgment and decree dated 30-11-1993. The two appeals filed by the petitioners against the said consolidated judgment and decree were dismissed on 5-4-1994. The learned Appellate Court reappraised the entire evidence on the record and concurred with the findings of fact of the trial Court.

13. The petitioner has mainly assailed the concurrent findings of lower Courts on the ground that the alienation in favour of Mst. Nazeer Begum was not effected through a registered instrument and thus no title could pass in her favour. It is also contended that both the learned lower Courts have erred in misreading and non-reading of material evidence on the record. It is reiterated that it was in the evidence of Saeed Ahmed P.W.2 that Nazeer Begum and Rabia Bibi were both entitled to inherit Muhammad Shafi.

14. As discussed earlier both the learned lower Courts had relied upon the statements of Muhammad Shafi himself which were placed on the record as well as the statements of Nazeer Ahmed and Muhammad Arif the two sons of Inayat Ali who themselves are beneficiaries of half share of the suit-land from Muhammad Shafi and who had admitted the alienation in favour of Mst. Nazeer Begum.

15. The learned counsel for the petitioner has not been able to point out any misreading or non-reading of material evidence on the record. The statement of Saeed Ahmed recorded as P.W.2 would not worthy of any credence in view of the findings consistently recorded by the lower Courts in the connected civil revision that Mst. Rabia Bibi had been divorced before the marriage of Muhammad Shafi with Mst. Nazeer Begum. Resultantly, Civil Revision No.1929 of 1994 and Civil Revision No.1930 of 1994 are devoid of merit which are hereby dismissed.

16. The upshot of the above discussion is that all the three civil revisions are dismissed leaving the parties to bear their own costs. S.A.K./I-145/L Petitions dismissed.