P L D 2005 Lahore 218 (PLP)

Ali Akbar Qureshi and Fakhar ul Zaman Akhtar Tarar for Petitioners. Muhammad Anwar Warraich for Respondents. Date of hearing: 17th January, 2005. The case was earlier ex parte heard and by allowing this revision on 23‑9‑2003, the judgments and decrees of the two Courts below were set aside. An application was moved by the respondents, for the setting aside of the ex parte decree, which was accepted on 27‑9‑2004, hence the revision has been reheard.

2. The facts of the case are, that the suit property was admittedly owned by one Ladha, who died somewhere in the year 1924; he was survived by two widows Mst. Resham Bibi and Mst. Muhammadi Bibi and a daughter namely Mst. Nazir Bibi. Under the Customary Law, Mutation No.2 dated 31‑2‑1925 was attested in favour of both the above named, widows as the limited owners; subsequently when Mst. Resham Bibi died, her 1/2 share, under the Customary Law, went to the other widow: The second widow also died in the year 1934, and the suit property fell to the lot of Mst. Nazir Bibi, as the limited owner, being the daughter of Ladha. On 7‑1‑1989, the present petitioners brought a suit for declaration claiming themselves to be the co‑sharers of the property, as 'the collaterals of Ladha, to the extent of 3/8 share in the suit land. This suit was contested by Mst. Nazir Bibi. She denied that the plaintiffs/petitioners have any relation with Ladha and also resisted the matter on the point of limitation.

3. After framing of the issues and recording of the evidence, the learned trial Court, decided issue No. 1 i.e. about the relationship in favour of the plaintiffs, however, dismissed the suit on the point of limitation. This judgment and decree has been affirmed by the learned Court of appeal as well. It may be relevant to mention here, that against the findings of the trial Court on issue No. 1; the respondents also filed cross‑objections, which have been dismissed by the learned appellate Court. This order refusing to allow the objections has not been further challenged independently before this Court by virtue of any cross‑revision, rather the learned counsel for the respondents wants this Court to reverse the findings of the two Courts below on the said issue and to dismiss their suit on that account too.

4. Heard. On the point of limitation, as earlier held in the ex parte judgment of this Court dated 23‑9‑2003 the view, which I reiterate, that because of the termination of the limited estate of Mst. Nazir Bibi, on the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the estate of deceased Ladha reverted back to him for the purposes of its inheritance to his legal heirs, upon whom it instantly and immediately devolved, and they became the co‑sharers of such an estate. It is settled law that in order to seek the enforcement of the rights of inheritance, there is no limitation involved. Resultantly, the view taken by the Courts below, that because the petitioners had attained the knowledge of the termination of the estate and about their rights of co‑ownership in the property, 16 years before the filing of the suit, which should have been brought within the maximum period of six years, as provided by the residuary Article 120 of the Limitation Act, and having not done so, the suit is time‑barred; this is against the law because as mentioned earlier, all the heirs of Ladha automatically and by operation of law on account of termination of the limited ownership of Mst. Nazir Bibi, became the co‑sharers of the property and no limitation runs against the co‑sharer, to assert and enforce his rights, particularly under the inheritance. The findings of the two Courts below thus, on the issue of limitation are set aside and the impugned judgments and decrees on this account cannot sustain. But those are being upheld, as hereinafter reasoned, by reversing the findings of the two Courts on issue No. 1 i.e., whether the plaintiffs are entitled to inherit the' impugned property to the extent of 3/8 share, if so, how and with what effect?

5. The learned counsel for the respondents has attacked the findings of the two Courts below on the above issue. And on the strength of the judgment reported as Khairati and 4 others v. Aleem‑ud‑Din and another (PLD 1973 SC 295), has argued that even without filing a cross- revision or the objections, the respondents by supporting the judgment and decree; can still challenge the findings of the Courts on issue No. 1 going against them and can pray the Court to pass a decree in favour of the respondents on the basis of the findings in favour of the respondents on that issue. He thus, submitted that the petitioners have not been able to prove their relationship with Ladha within the purview of Article. 64 of the Qanun‑e‑Shahadat Order; the above provision of law requires a strict proof through the opinion of a person, who is either a member of the family or has special means of knowledge of the relationship. In the instant case, it is submitted, that Ali Bahadar, who is one of the plaintiffs, has appeared as P. W.1, but has simply narrated the tutored pedigree, however, his statement, being that of an interested person, cannot be given much credence; as regards P.W.2 is concerned, he has not been able to lay down the foundations, on the basis of which, he claims the special means of knowledge, to describe and opine, if Qutab Din, Lutaf Din and Fateh Din were the sons of Sohnda; this witness when the aforementioned died, was not even born and if born, was a child of a very tender age. As regards the pedigree‑table (Exh.P.8) is concerned, on the basis of the judgments reported as Rehman v. Noora through his Legal Heirs (1996 SCMR 300), Muhammad Naeem and others v. Ghulam Muhammad and others (1994 SCMR 559), and Ahmad and others v. Allah Diwaya and others (1998 SCMR 386), it is submitted, that when such is not supported by cogent and corroborative evidence, it does not have much evidentiary value; moreover, Exh.P.8 is rebutted and contradicted by Exh.P.7, the petitioners' own document, which shows Lutaf Din and Fateh Din as the only two sons of Sohnda, whereas Qutab Din is not mentioned in Exh.P.8; the plaintiffs, who claim their entitlement as being the heirs of Qutab Din, but in the light of the above contradiction, have not been able to prove any relationship with Ladha.

6. In responding to the above submissions, learned counsel for the petitioners states, that the petitioners has examined P.W.2, who is the resident of the same village i.e. Kot Panah, since his ancestors and, therefore, has special means of knowledge about the relationship of the plaintiffs with Ladha. It is also submitted that the pedigree‑table (Exh.P.8) is the conclusive proof of relationship and no pedigree‑table in rebuttal has been produced by the respondents Exh.D.2 is not the complete pedigree‑table of the family, rather mentions to only those relations which were relevant for .the purpose of inheritance involved in that case, therefore, mere omission of the name of some in this document, would not discredit Exh.P.8 it is also submitted that P.W.1 and P.W.2 in categorical and unequivocal terms have stated the relationship of the plaintiffs/petitioners with Ladha, but these have not been cross‑examined on material point, resultantly, the principle, that any fact deposed in the examination‑in‑chief, if not subjected to cross examination, shall be deemed to have been admitted, shall squarely apply to the case; moreover, none of the respondents appeared as a witness in this case to rebut the testimonies of P. W.1 and P.W.2.

7. Heard. Before proceeding further in the matter, I feel it expedient to examine and resolve the question, if the respondent No. 1, without filing any cross‑revision or cross‑objections, is entitled to challenge the findings of the two Courts below on issue No. 1, which also encompasses the controversy; whether the petitioners being the legal heirs of Sohnda, are entitled to inherit his estate? Obviously, there is no specific provision in the C.P.C like the cross‑appeal, which a person/party can file under section 96, O.P.C, if he is aggrieved against the part of the decree and seeks its modification; the provisions of Order 41, Rule 22, C.P.C also provides enough room for such a person/party to file cross‑objections by meeting the condition of the said rule even if the cross‑appeal has not been filed and the modification etc. of the decree is sought. However, if the decree‑holder, who is the beneficiary of the decree, is aggrieved of the findings of the Court below on anyone or more issues going against him, but is satisfied with the final verdict of the decree being in his favour. As the respondent in the appeal, can support the judgment and decree, but without filing any cross‑appeal or cross‑objections can verbally request and pray to the Court to reverse the findings on the issue/issues going against him at the trial stage and to award him decree on the basis of such reversed findings as well. In this behalf, the following illustration shall elaborate the proposition:‑‑ "A" filed a suit for the specific performance of an agreement to sell against the "B" and "C", "B" is alleged to have entered into an agreement to sell in favour of "A", whereas, in the sane suit, a challenge is thrown upon the further transfer of the suit property, in favour of "C" by the "B". In defence "B" and "C" both deny the agreement to sell, whereas, the "'C" took further plea that he is bona fide purchaser and thus his rights are protected under section 27‑B of the Specific Relief Act; the Court framed the following issues:‑

1. Whether there is a validly executed agreement to sell in favour of "A" by "B"?

2. Whether the "C" is a bona fide purchaser and therefore, his rights are protected under law." The Court after conclusion of the trial, dismissed the suit, holding that the agreement to sell has not been proved by the plaintiff, but the findings on the other issue are that : "C" i.e. he is not a bona fide purchaser. The appeal is filed by the "A" against the decree dismissing his suit, and no cross‑appeal or cross‑objections are filed by the "C" against the findings of the Court on the second issue. The "C" while supporting the judgment and decree and seeking the dismissal of the appeal on the basis of the findings of Court on issue No.1 without filing the cross‑objections and cross‑revisions, can attack the findings of the trial Court on the issue of "bona fide purchaser" and can request the Court of appeal to reverse the findings of Court below and to Grant the decree on the basis of the second issue as well. The aforesaid views of law is supported by the judgment reported as Khairati and 4 others v. Aleem ud Din and others (PLD 1973 SC 295). However, in the case of revision petitions, there is no express provision in the C.P.C., enabling an aggrieved party, of either filing the cross‑revision or the cross‑objection in the revision of the other side. But the question is, if for example the findings of both the Courts below on the issue of "bona fide" as in the aforementioned illustration are against "C" whether the doors of justice are shut for "C" to further challenge those findings, even if the findings on the face of it are erroneous, illegal and cannot be sustained. To my mind in such an eventuality, the rule of law stated above, which otherwise is applicable in the cases of appeals, shall by analogy be applicable to the revisions. Moreover, under section 115, C.P.C, the revisional Courts have been clothed with special and extraordinary powers to make such orders as it deems fit. Obviously, this power has been conferred upon the Courts with an object to supervise and correct the decision of the Courts subordinates to the higher forums, coming before it for the consideration. And the purpose behind is to dispense justice and prevent injustice. Therefore, if the respondent in a revision petition has a genuine and strong case on a issue going against him at the forums below, only for the reason that there is no specific provisions in the C.P.C, enabling him to challenge the findings through a cross‑revision or cross‑objection, such respondent cannot be held to be remediless and the revisional Court powerless to ratify a decision, which otherwise is patently illegal. As stated above, in such a situation, the special powers of revisional Court shall be resorted to and the findings of the Court below, on any issue thus, can be considered by the revisional Court without there being any cross‑revision or cross‑objections. My this view is supported by the judgment of the Honourable Supreme Court reported as Zakirullah Khan and others v. Faizullah Khan and others (1999 SCMR 971), wherein it has been held that "No exception can be taken to the above view of the High Court that in this case where the High Court was seized of the matter, in the revision petition filed by the appellants, the High Court had the jurisdiction under section 115 to pass such orders in the case as it thought fit to modify the judgment of the lower Court to correct any error of jurisdiction or where the lower Court, had in the exercise of its jurisdiction acted illegally or material irregularity." Therefore, on account of the above discussion, I am of the considered view that without even filing any cross‑revision or cross -objection, the respondents are entitled to attack the findings of the Court below on issue No.1 and to show and establish this Court that such findings are illegal unlawful, perverse and against the record.

8. While considering the findings of the Courts below, it seems expedient to state the case of the petitioners/plaintiffs, as has been set out in the plaint. In paragraph No.3 thereof, the plaintiffs/petitioners, who are Ali Bahadar and Muhammad Hussain, mentioned their pedigree as follows:‑ This pedigree has been refuted by the respondents, resultantly, the controversy has been encompassed issue No.

1. In order to prove this issue, the petitioners have placed on the record pedigree‑table (Exh.P.8), but does not correspond to the pedigree mentioned in the plaint. Fateh Din has been shown to be another son of Sohnda, whose name is missing in the plaintiffs. Besides, in the plaint, the plaintiffs are shown to be the sons of Gehna and Yar Muhammad, who respectively are the sons of Karam and Hassan, whereas in Exh.P.8. Karam and Hassan have no sons by the names of Muhammad Yar and Gehna, rather Gehna is the son of Dara. Therefore, Exh.P.8 does not correspond to the relationship of the petitioners with Sohnda. Exh.P.7 is also the document produced by the petitioners, which is a mutation regarding the inheritance of the same family and in this Qutab Din is not shown to be the son of Sohnda, rather only Lutaf Din and Fateh Din, therefore, on account of the plaint, Exh.P.8 and Exh.P.7, which contradicts each other, it cannot be held, if the petitioners have proved their relationship with Sohnda, which primarily and initially was their duty to establish. Even otherwise, according to the judgments reported as Ahmad and others v. Allah Diwaya and others (1998 SCMR 386), Muhammad Naeem and others v. Ghulam Muhammad and others (1994 SCMR 559) and Rehman v. Noora through his Legal Heirs (1996 SCMR 300), the pedigree‑table without E the corroboration thereof, cannot be a proof of the relationship.

9. Confronted with the above, learned counsel for the petitioners have argued, that Exh.P.8 has not only been corroborated by, rather the relationship has been independently established through the statements of P.W.1 and P.W.2. But I am of the view, that P.W.1 is a party to the litigation and much importance and credence cannot be given to his testimony, particularly when such statement is not in line with the plaint. Exh.P.8 and Exh.P.7, when these documents are read together. The statement of P.W.2 also suffers from the same vice; besides, according to the provisions of Article 64 of the Qanun‑e‑Shahadat Order, 1984, the opinion of a person shall be relevant and admissible. And shall not be hit by the rule of hearsay, only when such a person is the member of the family of whose relationship is in issue or otherwise has special means of the knowledge on the subject. P.W.2 is not the family member and he in his examination‑in‑chief has not set out the foundations about his special means of knowledge, which is a condition precedent for making his opinion relevant/admissible under the Article ibid. He has also not been able to state as to the basis of his source and the information, or interaction by express conduct, through which, he knows the relationship of the plaintiffs with the deceased Ladha, ultimately having geneses with Sohnda, whereas, in the cross‑examination, he has conceded that:‑ This is sufficient to show, that even on account of being the resident of Kot Pannah, he would have no special and personal knowledge of the disputed relationship. Both the Courts below have grossly misread the pedigree‑tables and also the statements of the two witnesses. For example, Court of appeal has held that "On the other hand the appellants have produced pedigree‑table for the year 1905‑1906 Ex h.P.8 where upon it is also established that the appellants stand linked to Ladha, that last male owner of the suit‑land through their common ancestor namely Sondha. It is pertinent to add here that the respondent/defendant has not appeared in the witness box herself to deny the stand point of the appellants relating to the relationship with the last male owner of the suit‑land." Suffice it to say that as earlier mentioned, Exh.P.8, is contradicted, by the pedigree given in the plaint and also Exh.P.7, and this shall have no much evidentiary value. Moreover, the pedigree mentioned therein, as held, was not corroborated by independent evidence, such as the one falling within the purview of Article 64 of the Qanun‑e‑Shahadat Order. For the inference of the Courts below about the non‑appearance of the respondent in the witness box, it may be held that primarily it was the duty of the petitioners to have proved their relationship by cogent, positive and forceful evidence, but on the basis of the documentary evidence produced by them and also on account of Exh.D.1 pedigree‑table for the year 1985‑1986, Exh.D.2 for the year 1923‑1924, which is also Exh.P.7, it was enough for the respondents to have disproved the relationship of the petitioners, which they themselves failed to establish.

10. Furthermore, the appellate Court while considering the discrepancies of the pedigree given in the plaint and Exh.P.8, has erroneously concluded that it is not fatal, because on the strength of both the oral and documentary evidence, the petitioners have been able to prove their relationship. I am afraid that the learned Court of appeal was oblivious of the rule that no one can be allowed to prove the case beyond the scope of his pleadings and any evidence led in contradiction or out of the purview of the pleadings, shall be inadmissible and ignored by the Court. Therefore, such findings of the Courts below cannot be considered to be the findings based upon proper reading .of the evidence on the record, rather it is a case of mis‑consideration, misreading of the plaint, Exh.P.8. Exh.P.7. Exh.D.1 and Exh.D.2 (Which also is Exh.P7). And also are the violative of the rules, about the proof of pedigree enunciated in the aforementioned judgment of the Apex Court, and the provisions of Article 64 of the Qanun‑e‑Shahadat Order, as having been elaborated in the judgment of this Court reported as Ghulam Muhammad and another v. Allah Yar and others (PLD 1965 (W.P) Lahore 482). Resultantly, such findings cannot be sustained, which are hereby reversed, with the result that on account of the reversal, the suit of the petitioners remains dismissed, but on the issue and the failure of the petitioners to prove their relationship. And not on account of the bar of limitation. For whatever has been stated above, the revision petition is dismissed. M.B.A./A‑370/L Petition dismissed.