2018 PLP 133 (YLRN)

MUHAMMAD ALAM, J.

This civil revision petition has been directed against the judgment/decree dated 17/05/2014, passed by the learned District Judge Hunza-Nagar, in CFA No.31/2013, whereby, the learned District Judge has dismissed the appeal of petitioner/plaintiff and upheld the judgment/ decree of the Civil Judge First Class Gilgit, passed in Civil Suit No.01/96.

2. Petitioner/plaintiff filed Civil Suit No.01/1996 in the court of Civil Judge Gilgit, for declaration to the effect that he is the real owner of the suit land and is in possession also. Alienating of suit land by respondent No.1/defendant No.1 through gift deed, registered through Registry No.43/95 in the names of his daughters, i.e., defendants Nos.2 to 4, is against fact and law, therefore, merits to be cancelled. Through written statement, respondents/ defendants contested the suit and claimed their possession on the same. In para No.3 of parawise written statement, respondents/defendants very specifically averred that Mst. Zainaba, paternal grandmother of petitioner, alienated her landed property through a process of distribution of the same between petitioner and respondent No.1 in two equal shares, each for petitioner and respondent No.1. Mst. Zainaba did so about 20/25 years ago. Since then petitioner/plaintiff and defendant No.1 are in possession of their respective shares. Learned trial court framed issues and, after completing the trial proceedings, dismissed the suit holding that:- "In the light of my findings on all the issues recorded herein above, I am of firm opinion that the suit of the plaintiff is bound to fail. It has no merits. Therefore, the same stands dismissed. No orders as to costs. File be consigned to record room after completion." On appeal (CFA No.31 /2013), the learned District Judge passed the following order:-- "In view of the above arguments and perusal of the record the suit of plaintiff/appellant is not proved through any document or oral evidence. The evidence adduced by the plaintiff/appellant has not stated in support of plaintiff/appellant. While 2 DWs. Shaban Ali aged 80 years, Ramzan Ali 60 years have verified oral gift deed of the father of respondent and plaintiff could not rebut. The 2 DWs also admitted the services of the father of the respondent. The Trial Court has decided the case issue wise and applied very well judicious mind. The decree/ judgment of the Trial court dated 30/09/2012 is hereby up-held and dismissed the appeal of the appellant finding meritless. Order announced in the open Court. This appeal be consigned to record after due completion." Announced 17-05-2014 Sd/xxx DISTRICT JUDGE HUNZA-NAGAR

3. I have given thoughtful consideration to the arguments of the learned counsel for parties and have minutely perused the record of the case. Relationship of parties with Mst. Zainaba is not disputed but is explained as under. That the real owner of the suit land was Mst. Zainaba and petitioner is her real grandson. Likewise, respondent No.1 remained husband of Mst. Zainaba. Petitioner is the only heir of said Mst. Zainaba and suit land is share of Mst. Zainaba, therefore, title of the same belonged to her. From plain perusal of pleadings of parties, it is evident that although petitioner/plaintiff did not mention his relationship with Mst. Zainaba in the plaint but admitted state of affairs between parties is that petitioner/plaintiff is the only legal heir of said Mst. Zainaba. Claim of title of petitioner/plaintiff to the suit property is on the ground of his relationship with Mst. Zainaba while respondents/ defendants claimed their title to the suit land on the basis of the partition averred in para No.3 of the parawise written statement. Therefore, the main question or the only question for determination, in the case, is whether Mst. Zainaba, the paternal grandmother of petitioner, alienated suit property through a partition averred in para No.3 of parawise written statement? It is also very important to note that respondent No.1 has no title, whatsoever to the suit property, in case he failed to establish said partition. In case of proof of such partition, the subsequent actions of the respondent No.1, i.e., alienating suit property by respondent No.1 to his legal heirs, i.e., rest of the respondents, become correct. I have also to see that the impugned judgment is result of any misreading of evidence or not?

4. So, instead of taking up all the evidence of parties for discussion, I prefer to take up evidence of respondents in proof of the alleged partition averred in para No.3 of the parawise written statement. In this connection, issue No.10 attains very importance which goes as under:- I have noted that use of the word, in issue No.5, is wrong as petitioner/plaintiff did not use the said word anywhere in the plaint or even in the replication. The use of the said word clearly indicates that petitioner was legally bound to prove suit land as his paternal legacy. While giving reply to para No.3 of the parawise written statement, petitioner specifically denied the contents of the said para and averred that the share of Mst. Zainaba devolved on petitioner as her heir. So, I am very certain in holding that the real dispute between parties is covered in proof or otherwise of issue No.10. In this connection, respondents have, as referred above, admitted in para No.3 of the parawise written statement that Mst. Zainaba alienated suit land to respondent No.1 through a partition between petitioner and respondent No.1. For ready reference, I deem it very appropriate to reproduce the contents of para No.3 of parawise written statement hereunder:

5. From perusal of record, it is evident that respondents have produced 3 DWs as oral evidence in proof of alleged partition. First I am taking up statement of respondent No.1 for discussion. In his statement, respondent No.1 admitted relationship of petitioner with Mst. Zainaba. In his statement, defendant No.1 stated that after partition referred above, Mst. Zainaba gave the suit land to him through a written gift which is in his possession but he admitted not to have filed the same. Respondent No.1 has given names of 6 persons, who were present when Mst. Zainaba conducted the above referred partition, but none of the said persons produced as DWs. Mr. Shaban Ali is DW-1 and he stated in his statement that Mst. Zainaba divided her share of property in 2 equal parts in her life time and gave each part to petitioner/plaintiff and respondent No.1 DW-1, Shaban Ali, stated that since then, said petitioner and respondent No.1 are in possession of said suit land. In cross-examination part of his statement, this DW has very clearly stated that he does not know that Mst. Zainaba gave suit lands to petitioner or respondent No.1. Mst. Zainaba had separated 2 parts of her landed property for herself which she gave to petitioner. Rest of the part of statement of DW is hearsay. In cross-examination part of his statement, DW-1 Shaban Ali, admitted that father of petitioner was son of Mst. Zainaba. Mst. Zainaba gave her lands to Meherban Ali. In cross-examination part of his statement, DW Shaban Ali has admitted the relationship of petitioner with Mst. Zainaba. In cross-examination part of his statement, DW Haban Ali has also stated that he does not know about the alienation of suit land to petitioner or respondent No.1. Said DW has further stated that he was not present when Mst. Zainaba distributed lands. In cross-examination part of his statement, said DW has stated that petitioner has enjoyed benefits of suit land for 10 years and he does not know about the real owner of suit land. In answer to a very specific question of counsel for petitioner, the DW replied:- Statement of DW-2 is also relevant regarding gift of suit land but said DW is stating what he heard from Mst. Zainaba. In cross-examination part of his statement, DW-2 has stated that:- In cross-examination part of his statement, DW-3 has stated that suit land was ownership of Mst. Zainaba. DW-3 has repeatedly stated that he is not witness of any partition between petitioner and respondent No.1. So the result is that respondents failed to establish any partition conducted by Mst. Zainaba that resulted to handing over of suit land to respondent No.1. Thus the alienation of suit and by respondent No.1 to the rest of respondents through the alleged gift is incorrect and against law.

6. Para No.3 of the parawise written statement is important, wherein, distribution of properties of Mst. Zainaba in two parts is mentioned. Yet another very important aspect of the case is that burden of proof shifted to respondents/ defendants, to establish a partition resulting to falling of suit land in share of respondent No.1/defendant No.1, in view of defense raised in para No.3 of the parawise written statement.

7. In the sequel of above discussion, I hold that burden of proof of the case shifted to respondents/defendants, who failed to prove issue No.10. In my opinion, respondents cannot be declared owners of suit land without proof of issue No.10. The above referred evidence of respondents/defendants is never sufficient in proof of issue No.10. In view of admission of relationship between petitioner/plaintiff and Mst. Zainaba, the real owner of suit land, title of petitioner/plaintiff to the suit land is established. Impugned judgment dated 17-05-2014 of the court of learned District Judge Hunza-Nagar, that he passed in CFA No.31/2013 and judgment dated 30-(sic)-2012 of the learned Civil Judge First Class Gilgit, that he passed in Civil Suit No.01/1996, are result of clear misreading of evidence. I, therefore, set aside both the judgments and pass a decree in favour of petitioner/plaintiff. Suit of petitioner/plaintiff decreed throughout. Parties to bear their own costs. This file be consigned to record. ZC/46/GB Revision allowed.