1994 PLP 2464 (MLD)

MIAN MUHAMMAD AJMAL, J.

This case has been remanded back to this Court from the august Supreme Court of Pakistan with the direction that fresh decision be taken in the case on all the issues, including issue of jurisdiction. It was also desired that in view of close relationship of the parties an effort be made for the amicable settlement of the dispute between them, consequently, an attempt was made for the same but it did not succeed.

2. A suit was instituted by Mst. Bibi Zubaida plaintiff-respondent No. t herein, for declaration that the property bearing old numbers 905 to 909 and present numbers 2286 to 2291 consisting of 6 shops and a Haveli was owned by Mst. Shahjehan Begum her mother, on the basis of gift deed dated 15-12-1931 and after her death it devolved upon the plaintiff-respondent No.1 and that defendants-appellants Nos.1 to 6 have no concern with the property and that defendants 8 to 14 are liable to pay rent of the property to the plaintiff respondent No.1 or defendant No.15 (her husband), she also prayed for permanent injunction against defendants 1 to 6 restraining them to claim ownership of the property and from realising rent from the tenants. It was averred in the plaint that the property in dispute originally belonged to Sir Muhammad Akram Khan, Wali of Amb State which devolved on his son Sir Muhammad Khanizaman Khan who gifted it to Mst.Shahjehan Begum through registered deed, dated 15-12-1931 and on her death the plaintiff (respondent No.]). being her daughter, became the owner of the property; that claim of defendants 1 to 7 to recover the rent from the tenants through Court of Ward is wrong as defendant No.15, her husband, inducted the tenants and he used to realise the rent and the said defendants have no concern with the property and the plaintiff is its owner. Defendants 1 to 6 submitted their written statement through Manager Court of Ward as the property was under its management, wherein they denied the ownership of-the Plaintiff anti claimed their ownership on it. The competency of the suit and the jurisdiction of the Civil Court were also assailed. Defendants 1 to 6 also filed their written statement wherein they disputed the gift deed and termed it to be fake and fraudulent. Defendants 8, 9, 10; 12 and 13 also denied the ownership of the plaintiff and stated that defendants 1 to 6 were the owners of the property which was under the management of Court of Ward. Defendant No.11 claimed ownership of the shop in his possession on the basis of adverse possession. During the proceedings Mst. Zaitoon daughter of Nawab Muhammad Farid Khan applied for impleadment as defendant which was allowed vide order dated 4-9-1980 who in her written statement challenged the genuineness of gift deed and stated it to be bogus and fictitious one and claimed herself to be the owner of the property alongwith defendants 1 to

6. On the pleadings of the parties the following issues were framed:

(1) Whether the plaintiff has a cause of action? (2) Whether the suit is competent in its present form? (3) Whether the boundary of the suit property has been correctly given? (4) Whether the plaintiff is estopped by his conduct to bring the present suit? (5) Whether the Civil Court has no jurisdiction to try the present suit? (6) Whether the suit is in time? (7) Whether, the suit is properly valued for court-fee and jurisdiction? (8) Whether the suit is bad for non-joinder and misjoinder of necessary parties? (9) Whether the suit is barred by the principle of res judicata? (10) Whether Nawab Sir Muhammad Akram was the owner of the suit property and he transferred the suit property on the basis of deed, dated 15-12-1931 to Mst. Shahjehan? (11) Whether the property devolved on plaintiff after the death of Mst. Shahjehan? (12) Whether the defendants 1 to 6 became owners of the property, being heirs of Sir Muhammad Akram Khan? (13) In case the plaintiff is held owner of the suit property, whether defendant No.7 was entitled to receive rent from the defendants/tenants? (14) Whether the deed dated 15-12-1931 is forged and fictitious? (15) Whether Nawab Muhammad Saeed gifted property No.2289 to Dost Muhammad defendant and the said defendant is in adverse possession of the suit property? (16) Whether the plaintiff is entitled to claim permanent injunction against defendants Nos.1 to 7 to the effect that they are not entitled to receive the rent and the plaintiffs- are entitled to receive the rent from the defendant/tenants? (17) Relief. The parties led their respective evidence and on the assessment thereof the trial Court decreed the suit of the plaintiff -vide judgment and decree, dated 14-12-1985. This decree was appealed against before this Court through R.FA. No.46 of 1986 which was dismissed with costs by this Court on 28-2-1989 and aggrieved of the same the appellants filed Petition for Special Leave to Appeal before the Supreme Court of Pakistan wherein leave was granted and ultimately the august Supreme Court of Pakistani while accepting the Appeal No.219 of 1990 remanded the case back to this Court with the direction to decide it afresh after taking into consideration all the issues including issue of jurisdiction. .3. Learned counsel for the appellants contended that the suit property alongwith other property of the minor sons and daughters of late Nawabzada Muhammad Saeed Khan were under the superintendence of Court of Wards and the Deputy Commissioner, Hazara was Incharge of the said property vide notification dated 25-6-1975. According to section 19 of the Punjab Court of Wards Act, no suit could be instituted with regard to the property under the superintendence of Court of Ward unless a notice of two months had been given. If the plaintiff had any claim with regard to such a property, she could file the same before the Deputy Commissioner under sections 26 and 27 of the Punjab Court of Wards Act within the time and in the manner prescribed therein. As such the civil suit was incompetent and in turn the Civil Court had no jurisdiction to entertain any claim with regard to the property under the superintendence of Court of Wards. The Deputy Commissioner under section 28 of the said Act, after inquiry had to decide the claim and if no claim as per sections 26 and 27 is filed, it shall be deemed to have been abandoned. Since no claim was filed under the Punjab Court of Wards Act by the plaintiff respondent No.1, therefore it would be deemed to have been abandoned and that there was no genuine claim against the property under the Court of Wards. The leaned counsel also pointed out contradictions in the pleas of the plaintiffs as asserted in the plaint vis-a-vis in her evidence. He stated that the plaintiffs case in the plaint was that she was in possession of the property and her husband used to realise the rent, whereas the tenants who were defendants in case, in their written statement unequivocally denied this fact and admitted that the property was in the ownership of defendants 1 to 6 and after the assumption of the property by the Court of Wards they have been paying the rent to the Court of Wards. The plaintiff confronted with such a situation had to change her stand and in her statement she raised a new plea and stated that the rent of the suit property was collected by the general attorney of Nawab of Amb on her behalf. The plaintiffs plea was that the suit property was gifted to her mother Mst. Shahjchan Begum by Nawab Khanizaman Khan through a registered Deed No.437 attested on 15-12-1931 but the record shows that she was never delivered the possession of the property and it remained throughout in possession of Nawab Khanizaman Khan and thereafter Nawab Muhammad Farid Khan, and then Nawabzada Muhammad Saeed Khan and his legal heirs remained in possession thereof. In this respect the rent deeds and different Applications Exh.P.W.2/D-3, Exh.P.W.2/D-7, Exh.P.W.2/D-S, Exh.P.W.2/D-9, Exh.D.W.I/P-1, EXh.D.W.l/1, Exh.D.W.l/2, Exh.D.W.4/5 to Exh.D.W.4/36 would show that the property throughout remained in possession of Nawab of Amb. As such the gift being incomplete was not proper and valid as the deed was never acted upon, consequently no legal sanctity can be attached to it. It is pertinent to point out that Nawab Khanizaman Khan filed a suit during his lifetime against Hakeem Fariduddin a tenant, wherein an objection was raised that he was not the owner of the suit property and could not file a suit. Nawab Khanizaman Khan took the plea that alleged deed in favour of Mst. Shahjehan Begum was not acted upon and had been cancelled and that he himself was the owner of the property. This plea was accepted by the Court and ejectment order was passed as is evident from Exh.D.W.2/1. It is also on record that after the death of Nawab Khanizaman Khan, Mst. Shahjehan Begum attempted to take forcible possession of the suit proper,\ and she occupied one of the rooms in the suit property but when Nawab Muhammad Farid Khan came to know of this incident, he by physical force ousted her from there. From all these documents placed on pages 141 to 154 on the original file, it is abundantly proved that Nawab Khanizaman Khan had denounced the gift. Learned counsel argued that the suit of the plaintiff was hopelessly time-barred. After the denouncement of the gift by the donor himself having a stamp of Court Case No.349 decided on 9-11-1934 (Nawab of Amb v. Hakim Fariduddin) and open hostilities shown in the matter followed by his successors, she did not file any suit agitating her title to the property in dispute, as such she after the lapse of over 50 years could not file a suit claiming ownership on the basis of the deed which was never given effect to. He contended that as it has been amply proved that the property was never passed on to the donee and it remained the property of Nawab of Amb which devolved upon his heirs turn by turn, which has also been acknowledged vide Memo. No.l/125-H(SO-1) TA/60 dated 16-10-1961 from the Secretary to Government of Pakistan, Home Department to the Commissioner, Peshawar Division, Peshawar. It is also pertinent to point out that the original Deed No.437 attested on 31-12-1931 had not been produced in any Court nor permission was sought from the Court for production of secondary evidence. In view thereof the plaintiff's suit was bad and was liable to dismissal.

4. On the other hand, the learned counsel for the respondents submitted that the property was gifted in lieu of dower, therefore the same was irrevocable. Moreover the document being more than 30 years old would be presumed to be correct and properly executed document. He submitted that there was no bar to file a suit without notice after the expiry of 3 months from the notification under sections 6 and 8 of the Court of Wards Act and if a suit has been brought after the withdrawal of the notification the suit will continue to proceed. He defended the decree granted in her favour and submitted that the learned Court has passed the decree after taking into consideration the evidence on the record.

5. We have heard the learned counsel for the parties and have gone through the record of the case. The learned counsel for the parties mainly focussed their arguments on the competency of the suit, jurisdiction of the Civil Court and to the entitlement or otherwise of the plaintiff for the suit property.

6. Admittedly the property in dispute had been notified vide Notification dated 25-6-1975 Exh.D.W.4/1 and was under the superintendence of Court of Ward. In such an eventuality section 19 would come into play and unless and until requisite notice had been given no suit could be filed. Section 19 of the Punjab Court of Wards Act provides that no suit relating to the person of any ward or to any property under the superintendence of the Court of Wards, shall be instituted in any Civil or Revenue Court until the expiration of two months after notice in writing, has been delivered to, or left at the office of Deputy Commissioner of the District specified in the order of assumption in the notification under section 9 of the Act. The bare reading of the section would show that its provision is mandatory in nature, and without its compliance, no suit could be filed. As such the suit tiled by plaintiff-respondent No.1 was not competent. If she had any claim to the property, she could present the same alongwith all the documents under section 27 of the Act to the Deputy Commissioner, who would have held inquiry into it and passed appropriate orders under section 28 of the Act; and if no claim within the time and prescribed manner is notified to the concerned Deputy Commissioner, the same under section 29 of the Act, would be deemed for all purposes and on all occasions, whether during the continuance of the superintendence of the Court of Wards or afterwards, to have been duly discharged. Section 3o provides if document on which claim is based is not produced as required under section 27, the same shall not be admissible in evidence in any suit or proceedings brought against the Ward or as affecting any property under the superintendence of the Court of Wards by the claimant, or by any person claiming under him. In the instant case, no claim was lodged before the Deputy Commissioner within the time and in the manner prescribed in the aforesaid provisions of the Act, therefore even under section 32 of the Act, suit could not be filed on the basis of an inadmissible document, and the same being incompetent and un-maintainable was liable to dismissal. The statute or the statutory rules requiring an act to be done in a particular manner, such act has to be done in that manner and in no other manner, and deviation from the prescribed manner would vitiate the entire action. The incompetency of the suit would also in turn oust the jurisdiction of the Civil Court as in view of legal provisions discussed above, the jurisdiction of the Civil Court could not be C invoked unless claim had been notified to the Deputy' Commissioner as envisaged in section 32 of the Act.

7. The record shows that the donor during his lifetime denounced the gift but the donee did. not take any legal action except for making certain applications to the Government high ups who too, did not entertain the donee's claim over the property in dispute. The Chief Secretary in one of the letters dated 22-12-1936 addressed to Deputy Commissioner, Hazara asked him to inform Begum Shahjehan, widow of late Nawab of Amb that the property belonged to Nawab and she had no right in it. As per note recorded on Exh.DW.2/1, a Civil Suit No.349 decided on 9-11-1934; was filed by Nawab Khanizaman Khan against Hakim Fariduddin wherein an objection was taken by the latter that the former was not the owner of the shop in dispute as the same had been gifted by him to his wife vide gift deed dated 23-12-1931, but the Court overruled the objection and held Nawab Khanizaman Khan to be the owner of the property. It appears that soon after the execution of the gift deed. the relations of the spouses got strained and in consequence thereof the deed was not given effect to and as such it was rendered ineffective. There arc several copies of applications of Mst. Shahjehan Begum on the record wherein she had been requesting that the deed be given effect to but in response the Chief Secretary, Government of N.-W.F.P. and the Deputy Commissioner. Hazara had been informing her that she had no right in the property and she was never acknowledged as owner or even limited owner. Despite all these hostilities, neither the alleged donee herself filed any suit in her lifetime to establish her title over the disputed property which factually remained under the control of the Nawabs nor the plaintiff filed the suit within the prescribed limitation.

8. P.W.2 attorney of, the plaintiff, in the cross-examination admitted that the property in dispute was occupied by the tenants but the plaintiff had no rent deeds executed in her favour. He also admitted that the property was under the superintendence of the Court of Wards and that plaintiff had not filed any objection/representation against it. The plaintiff in the cross- examination stated that she did not know the names of tenants who were occupying the property from 1931 to 1947 and from 1947 to 1960 the tenants were not changed. She stated that Dost Muhammad would be in the knowledge of the whole affair. P.W. Abdullah Jan's statement is not confidence inspiring who in the same breath have been blowing hot and cold. He admitted that he was inducted as tenant by Nawab Farid Khan after executing a rent deed on 11-9-1947. He was confronted with Exh.P.W.2/D-1 to Exh.P.W.2/D-9, which were admitted to be correct having been executed by him, in which he had attorned to Nawab Farid Khan as tenant. On the other hand, D.W.4 produced the copy of Notification dated 25-6-1975 Exh.D.W.4/1, whereby the property came under the supervision of the Court of Wards, who started realising the rent from .the tenants and also produced rent deeds Exh.D.W.4/5 to D.W.4/27 which had been executed in favour of Nawab Muhammad Farid Khan through Dost Muhammad attorney. Exh.D.W.4/28 was the copy of the agreement executed by P.W. Abdullah for the repair/construction of the disputed property belonging to Nawab Muhammad Farid Khan. Exh.D.W.4/29 to D.W.4/37 were the copies of different applications wherein the property had been acknowledged to be the ownership of the Nawabs. D.W.5 Dost Muhammad stated that from 1951 he has been acting as attorney of the Nawabs and realising rent from the tenants. He deposed that neither Mst. Shahjehan Begum nor her daughter ever remained in possession of the property nor they ever received the rent of the property. The overall review of evidence would show preponderance in favour of the appellants, who hay successfully rebutted the claim of plaintiff to the property in dispute on the basis of inheritance as the very title of her predecessor was in obscurity.

9. The plaintiff conceded that the original deed has been lost and consequently she was unable to produce and bring on record the original gift deed, in such circumstances, provisions of Article 100 of Qanun-e-Shahadat would not be attracted to the present case. Article 100 provides that where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case consider proper, the Court may presume that the signature and every other part of such document to be duly executed and attested. The production of the document purporting or proved to be thirty years old from the proper custody is the condition precedent of this Article and unless and until these conditions have been fulfilled, the provisions of Article 100 cannot be made applicable. Moreover, in absence of the original deed which was denounced by the executant in his lifetime, no presumption of genuineness can be attached.

10. The plaintiff's case as set out in the plaint was that tenants were inducted by her husband and he used to collect the rent, but when this plea was controverted by the tenants in their written statements and her possession was denied, she in her statement changed the earlier plea and stated that the attorney of the Nawabs rented out the property and he used to realise the rent from the tenants and then used to pay the same to her. This does not appeal to reasons at all for the simple reason, that the Nawabs were not on good terms with the plaintiffs mother and the plaintiff herself, for the dispute on the suit property, therefore, there was no question that the Nawabs' attorney after recovering the rent would pay the same to her. It is settled law that if a question of fact has not been specifically taken in the pleadings, the party cannot be allowed to make up a new case in the evidence and any such point raised in evidence would be not worth consideration.

11. The upshot of the above discussion is that this appeal is allowed, judgment/decree of the lower Court is set aside and the suit of the plaintiff is dismissed. No order as to costs. AA./1619/P Appeal accepted.