2014 PLP 1127 (MLD)

M. SOHAIL IQBAL BHATTI, J.

Through this C.R. the petitioners have challenged the judgment and decree dated 2-7-2010 passed by the learned Civil Judge Ist Class, Rawalpindi through which the suit for declaration, permanent and mandatory injunction was dismissed as well as the judgment and decree dated 15-5-2012 passed by the learned Addl. District Judge, Rawalpindi whereby the appeal filed by the petitioners was also dismissed.

2. Brief facts giving rise to the filing of the present writ petition are that the petitioners filed a suit for declaration, permanent and mandatory injunction against the defendants on the ground that one Ghulam Nabi was owner of land measuring 600 kanals in revenue estate Chokar Tehsil and District Rawalpindi. The said Ghulam Nabi died issueless in the year 1932 leaving one widow Mst. Rasoolan Bibi as only legal heir. Under the inheritance law Mst. Rasoolan Bibi was entitled to inherit 1/4th share and the remaining property was to be reverted back to his ancestors-brothers and sisters and upwards. Mst. Rasoolan Bibi in league with defendant No.3 got Mutation No.48 sanctioned in respect of the whole estate of Ghulam Nabi including the share of Shamlat and Haveli in her name. Afterwards another predecessor-in-interest of the plaintiffs namely Mst.Safaidan daughter of Ali Muhammad also died issueless and again Mst.Rasoolan Bibi got mutation of inheritance No.69 sanctioned in her favour. It was averred that the plaintiffs were entitled to inherit 3/4th share of both the estates of deceased Ghulam Nabi and Mst.Safaidan Bibi. The father of the plaintiffs namely Sadda Khan continued to demand transfer of 3/4th share of the estate in his favour but she kept avoiding his demand. Thereafter, Mst.Rasoolan Bibi transferred the entire estate in the name of her sister Mst.Sakina Bibi and Mansab Khan through Mutations Nos.336 and

559. Mst.Sakina Bibi was the mother of defendant No.1 Mansab Khan and after her death defendant No.1 namely Mansab Khan is in possession of the entire property mentioned above. The defendants contested the suit and upon the divergent pleadings of the parties, the following issues were framed:- (1) Whether the suit is barred under section 142 Transfer of Property Act? OPD. (2) Whether the plaintiff has no cause of action? OPD (3) Whether the suit is time barred? OPD. (4) Whether the plaintiff has not come to the court with clean hands and suppressed the material facts from the court? OPD (5) Whether the plaintiff is entitled to the decree of declaration to the effect that the plaintiffs are ancestors of deceased Ghulam Nabi and Mst. Safaidan and are entitled to inherit share 3/4th of property of deceased Ghulam Nabi and Mst. Safaidan? OPP. (6) Whether the mutation of inheritance of deceased Ghulam Nabi and Mst. Safaidan in favour of Mst. Rasoolan and further transfer of land in favour of defendant No.1 and Mst. Sakina and mutation of inheritance of estate of Sakina Bibi in favour of defendant No.1, or any transfer of above said land in excess of 1/4th share is illegal, void, null and liable to be cancelled? OPP. (7) Whether the plaintiff is entitled for permanent injunction restraining the defendant No.1 from alienating the ownership of land excess to share of estate of deceased Ghulam Nabi and Mst. Safaidan? OPP. (8) Whether the plaintiff is entitled for temporary injunction directing the defendant No.3 to cancel the above said mutation and record names of plaintiff as owner in possession of 3/4th share of Ghulam Nabi and Mst. Safaidan? OPP. (9) Whether the plaintiff is entitled for possession of suit land as consequential relief? OPP. (10) Relief.

3. The most important issue, upon which the entire case was hinged, was issue No.5 as to whether the plaintiffs were entitled to the decree of declaration being the ancestors of deceased Ghulam Nabi and Mst. Safaidan as alleged by the plaintiffs. It was observed by the learned trial court while giving its findings on issue No.5 that the plaintiffs have placed on record an unattested copy of pedigree table which shows their relationship with Ghulam Nabi whereas the attested pedigree table Exh.D.1 shows no such nexus. It was further observed that father of the plaintiffs namely Sadda Khan remained alive for more than 50 years after the first mutation No.48 was sanctioned in favour of Mst.Rasoolan Bibi and he never claimed any right whatsoever regarding the property inherited by Mst.Rasoolan Bibi. The issue was decided against the plaintiffs. Since the entire case of the plaintiffs was hinged upon this issue the findings on other issues become insignificant. The petitioner filed an appeal against the judgment and decree dated 2-7-2010. Learned Addl. District Judge, Rawalpindi dismissed the appeal after observing that the present petitioners do not have any relationship with Ghulam Nabi and Mst.Safaidan, as is apparent from Exh.D-1 and as such the present petitioners failed to establish their entitlement over the suit property.

4. Learned counsel for the petitioner submits that findings of both the learned courts below on issue No.5 are the result of misreading of evidence. It is further contended that the petitioner filed an application under Order XLI, Rule 27 read with section

151. C.P.C. for producing an attested copy of Shajranasb (pedigree table) but the learned appellate court while deciding the appeal also dismissed the application under Order XLI, Rule 27, C.P.C.

5. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioners and perused the record.

6. Upon query made by this Court it was frankly conceded by the learned counsel for the petitioners that the suit was filed on 25-6-2001 and decided on 2-7-2010 and the pedigree table, which was sought to be produced in evidence, was not included in the list of reliance and it was produced during the course of appeal; the petitioner sought permission to produce the attested copy of Shajranasb (pedigree table) prepared on 2-8-2010. I am afraid that this argument that application under Order XLI, Rule 27, C.P.C. should have been accepted, cannot be agreed with; as inordinate delay of more than nine years cannot rule out the fabrication of this document. Moreover, Rule 27 of Order XLI, C.P.C. is in itself couched in negative language as under:-- "

27. Production of additional evidence in Appellate Court.

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or "

7. The petitioners had never made any attempt to produce the attested copy of the pedigree table before the learned trial court and the learned appellate court had rightly dismissed the application of the petitioners.

8. For what has been discussed above, I do not find it appropriate to interfere into the concurrent findings of both the learned courts below and in view of my observations made above, the instant civil revision is dismissed in limine. AG/G-1/L Revision dismissed.