2006 PLP 652 (CLC)

JAWWAD S. KHAWAJA, J.

Talib Hussain Shah petitioner-defendant impugns the appellate judgment and decree dated 5-11-1999 whereby the decree of the learned trial Court dated 22-9-1998 was set aside and a declaratory suit filed by the respondents-plaintiffs was decreed.

2. The facts of this case are relatively simple. The dispute between the parties relates to land measuring 42 Kanals and 3 Marlas which was originally owned by one Gulab Shah. On the death of Gulab Shah vide inheritance Mutation No.1648 sanctioned on 15-10-1987, the suit property was mutated in the name of the petitioner as the sole legal heir of Gulab Shah. Here it may he mentioned that the petitioner is the nephew (Bhatija) of Gulab Shah. This relationship is not in dispute.

3. The case of the respondents-plaintiffs is that Gulah Shah did not die issueless and was survived by two sons namely Welayat Shah and Sonay Shah who are predecessors-in-interest of the respondents-plaintiffs. One" Sardar Begum (respondent No.20) also claimed shat she was a daughter of Gulab Shah. She was not initially arrayed in the suit but was impleaded as a defendant on an application filed by her under Order I, rule 10, C.P.C. Mutation No.1648 was, therefore, challenged on the ground that it had been fraudulently procured by the petitioner who otherwise was not entitled to any inheritance in the estate of Gulab Shah.

4. In view of the controversy brought out from the pleadings of the parties, number of issues were framed by the learned trial Court. However, issue No.8 is the only issue argued before me, which was framed by the learned trial Court in the following terms: Whether Welayat Hussain and Sonay Shah were sons of Gulab Shah? OPP

5. The learned trial Court after considering the entire evidence on the record came to the conclusion that the case set up by the respondents-plaintiffs was not proved. The appellate Court as noted above has reversed this finding. The learned appellate Court has relied only on the death certificate (Exh.P.6) which shows one Welayat Hussain Shah as son of Gulab Shah. The respondents-plaintiffs were required to prove their relationship with Gulab Shah through witnesses who had special means of knowledge and who had the requisite qualifications set out in Article 64 of the Qanun-e-Shahadat Order. The respondents-plaintiffs produced Sardaran Bibi as D.W.1. She deposed that she was the daughter of Gulab Shah and stated that Gulab Shah had died prior to the creation of Pakistan. She conceded that the disputed land was in the possession of petitioner Talib Hussain since 2/3 years prior to 1947. As to Welayat Shah she testified that he died approximately 12 years earlier. Since her testimony was recorded on 1-4-1997 this would mean that according to her Welayat Shah died in 1985 approximately. On this score her testimony is in line with the date of death of Welayat Shah i.e. 4-6-1984 mentioned in the death certificate Exh.D.6. She did not prefer any explanation as to why she and her brother did not take any steps to obtain a mutation or possession of the suit-land for almost fifty years. Very strangely she deposed that the plaintiffs did not have the knowledge that the suit-land was in possession of Talib Hussain petitioner-defendant.

6. P.W.3 Hayat Muhammad stated that Welayat Shah had died 8/9 years earlier. According to this testimony the date of Welayat Hussain's death would be around 1989. P.W.4 Muhammad Inayat made a contradictory statement by testifying that Welayat Shah had died 40/50 years earlier.

7. The contradiction in the testimony of the P.Ws. as to the date of death of Welayat Shah clearly shows that they are not credible witnesses. Furthermore, even though the respondents-plaintiffs claimed to be grand-children of Gulab Shah, they were not able to produce any family member apart from the dubious and self-serving Sardar Bibi to prove the relationship between them and Gulab Shah. Sardar Bibi's testimony even otherwise should be treated with caution because she herself is a beneficiary of her own evidence. It is also difficult to believe that the sons after the death of Gulab Shah would be so oblivious of their rights in the suit property as to be unaware that the same was in possession of Talib Shah and that they should remain silent for decades without asserting their alleged claim in the suit property. In the light of these circumstances, the mere existence of Exh.P.6 is not sufficient to prove the case of the respondents-plaintiffs. The learned Appellate Court has not taken into account the above circumstances and nor has it 'net the reasoning of the learned trial Court. The impugned appellate decree, therefore is net legally sustainable which is set aside. As a consequence the decree of the learned trial Court stands restored.

8. The petitioner shall also be entitled to his costs throughout. H.B.T./T-108/L??????????????????????????????????????????????????????????????????????????????????? Revision allowed.