2005 PLP 1538 (CLC)

This civil revision is directed against judgments/decrees dated 9-5-1994 and 20-4-1998 passed by learned Civil Judge and learned Additional District Judge, Okara whereby suit and appeal of the petitioner's were dismissed, respectively.

2. Precisely relevant facts, as deciphered from the plaint of the petitioners, are that one Natu was owner of land measuring 278 Kanals in Mauza Satgarah, Tehsil and District Okara, who on his death was succeeded by three sons namely Haleem, Nihal and Lal. The petitioners are successor of Haleem whereas the respondents are successors of Lal. Nihal son of Natu died issueless whose widow Mst. Tajaan Bibi acquired 1/3rd share of estate of her deceased husband, under Customary Law for maintenance purposes, till her remarriage or death. Mst. Tajaan died on 27-1-1987 issueless hence, the estate was to revert on the nearest collateral heirs of her husband Nihal i.e. descendants of his brothers Lal and Haleem. Mutation No.9 was "sanctioned on 17-11-1887 on termination of limited estate of Mst. Tajaan wherein, on the basis of incorrect pedigree-table drawn by the Revenue Officials, the land was mutated in the names of descendants of Lal alone and Haleem, third son of Natu was shown as son of Inayat, brother of Natu. It was pleaded by the petitioners that the respondents in collusion with Revenue Field Staff, fraudulently excluded their predecessor Haleem who was incorrectly shown as son of Inayat. According to them, their predecessor who was alive at that time namely Murad son of Ghulam Hussain son of Haleem, was not present at the time of sanctioning of mutation and was not summoned to verify the correctness of pedigree-table; drawn on the mutation. Precise claim of the petitioners was that they were entitled toinherit share in the estate of Nihal on termination of limited interest of Mst. Tajaan Bibi but they were illegally deprived of it and the mutation was kept in a guarded secret. It was further asserted that Khata amongst the parties remained joint and the respondents had been paying share of produce of the petitioners/plaintiffs and their denial to pay share of produce only two days earlier to the filing of the suit, gave them the cause of action to maintain the lis.

3. The respondents being defendants in the suit, contested the same from tooth to nail by filing their written statement wherein they pleaded that the petitioners are not agnates of Natu. A number of preliminary objections like, suit being barred by limitation, title of the respondents having matured into ownership through adverse possession and lack of cause of action etc. were raised. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter, after doing the needful decreed the suit of the petitioners vide his judgment and decree dated 28-4-1992. The respondents being aggrieved of the decision of the trial Court dated 28-4-1992 filed an appeal before the learned Additional District Judge in which they succeeded as the Appellate Court accepted their appeal, framed two additional issues 9-A and 9-B and remanded the case to the trial Court for fresh decision.

4. In post-remand proceedings, the learned Civil Judge afforded the parties fresh opportunity of leading evidence and on the basis of his appraisal of evidence, he dismissed the suit of the petitioners through judgment/decree dated 9-5-1994. The petitioners then filed an appeal before the learned Additional District Judge but remained unsuccessful as their appeal was dismissed through Appellate judgment/decree dated 20-4-1998. Thereafter they filed instant revision petition, which was admitted to regular hearing and after notice to the respondents who were represented through their counsel, the same has now been laid for final determination.

5. Learned counsel for the petitioners submitted that it was proved on the file, beyond any shadow of doubt that predecessor of the petitioners namely Haleem was son of Natu and his name was correctly reflected in the Revenue Record till the sanctioning of Mutation No.9 but both the Courts below fell into an error of law in relying on documents subsequent to the said mutation which were tampered/forged. It was also submitted that the respondents failed to prove that how entries of pedigree-table Exh. P.1 which was prepared at the time of settlement of 1872 were changed in subsequently Revenue Record. According to him, entry if any, in the Revenue Record could not have been changed without following the prescribed procedure. It was assertively argued that documents Exh.P.6 and Exh.P.7 on the face of those have unauthorized cuttings deleting the name of predecessor of the petitioners. It was also emphasized that on termination of limitation estate of Mst. Tajaan Bibi property of Nihal her husband, was to devolve to the extent of 1/2 share on the descendant of Haleem i.e. Murad who was alive at that time but he was deprived of his right of inheritance fraudulently by drawing an incorrect pedigree-table. According to him, Murad predecessor of the petitioners was undisputedly co-sharer along with the respondents and their predecessors, having inherited property by descent from his great grandfather Natu through his grandfather Haleem. It was further submitted that entire land of the parties including that of Nihal formed a joint Khata wherein the predecessor of petitioners was a co-sharer hence neither any period of limitation would start against them in filing the suit nor possession of a co-sharer can be adverse to his other co-owners. It was also added that the respondents and their predecessors had been paying due shares to the petitioners and their predecessor hence the cause of action for filing the suit, would arise only on denial by them of their ownership rights.

6. Learned counsel appearing on behalf of the respondents refuted the arguments of the petitioners, supported concurrent judgments/decrees of the two Courts below and urged that Murad predecessor of the petitioners was present at the time of sanctioning the Mutation No.9 who never raised any objection or challenged the mutation being incorrect hence, the petitioners were estopped from filing the suit in hand. He further contended that in view of note in Column No. 15 of Mutation No.9, Murad had already received his share of inheritance hence, no further share was to be given to the petitioners. Learned counsel for the respondents further submitted that Murad the predecessor of the petitioners in the year 1916 filed a suit for partition of joint Khata in which a decree in his favour was passed whereafter the petitioners could not filed the suit in hand as Murad was given his due share under the partition decree. It was alternatively argued that Murad being descendant of Inayat who was brother of Natu, could not inherit his brother's property in presence of sons of the propositus. It was argued on behalf of the respondents that though the petitioners were not entitled to any share in the land in dispute yet the same was in open hostile possession of the respondents which according to the law applicable at that time, had matured into title, as they were in possession of the land claiming it to be owners, without interruption by anybody. Principle of estoppel was also relied against the petitioners as the suit in hand was filed after about a century. Concurrent findings of facts were said to be sacrosanct and were said to be immune from interference in revisional jurisdiction.

7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record with their assistance. The primary controversy, which hinges for determination is, as to whether Haleem was son of Natu or Inayat because subsequent chain connecting the petitioners with Haleem is undisputed. The petitioners had produced voluminous Revenue Record to show that they are descendants of Natu through his son Haleem. The first document produced by them is Exh.P.1, which is a pedigree-table of the year 1872, in this pedigree-table, Natu is shown to have three sons in the names of Lal, Nihal and Haleem. This document was never challenged by any of the parties before any competent forum. In presence of Exh.P.1, pedigree-table drawn on Mutation No.9 dated 27-1-1887 was apparently incorrect because in the mutation, Haleem was shown son of Inayat who was shown as son of Khola and brother of Natu. The other fact which goes to negate the pedigree-table on the mutation is that there is a note in Column No.15 of the Mutation No.9 that Murad grandson of Haleem who was alive at that time had already received his share of inheritance hence, he was not given his share in mutation. This entry leads one to think that if Murad was not descendant of Natu then there was no occasion for making this entry on the mutation which in itself acknowledged his hereditary rights and the reason of his deprivation was that he was earlier given his share. Record is absolutely thirsty of the proof that Murad ever received his share out of the property held by Mst. Tajaan Bibi as limited owner. Neither the respondents have brought any proof to this effect in form of mutation etc. nor to my mind this land could be available in the lifetime of Mst. Tajaan Bibi. How Murad could get any share out of this property because the Mutation No.9 was sanctioned on her death.

8. The other Revenue Record in support of the stance of the petitioners is Exh.P.7, which though is of later time but clearly proved that Haleem was son of Natu. This Exh.P.7 is pedigree-table of the year. 1893. Similarly, Exh.P.6, pedigree-table of 1916-17 though has some overwriting but proved the fact that Haleem along with his two brothers Nihal and Lal, was son of Natu. The respondents had attempted to prove that Haleem was son of Inayat by producing Exh.D.1. In this pedigree-table name of Natu was struck off and in his place name Inayat was written. Though this cutting is not proved on the file that under what authority it was made but the same is of no help to the respondents because both Haleem and Lal the predecessors of the respondents, have been shown as real brothers. On the basis of even this document, if the property was to be inherited by the respondent being descendants of Lal then the descendant of Haleem could not have been deprived of his rights.

9. Pleas of the respondents as put forth before this Court that initially Murad was deprived of his share at the time of sanctioning of Mutation No.9, for the reason that he earlier had taken share in the property and that, Murad in the year, 1916 took his due share through a decree of partition, are not only self-contradictory but are also self-destructive because of Murad was not given share in Mutation No.9 then how he could get the same share through partition decree, without cancellation of Mutation No.9. As a matter of fact, Murad being descendant of Natu, as noted above, was co-sharer along with the respondents/their predecessors and in this capacity he got separated his share from the joint holding. The 'respondents have not proved that Murad was given equal share to the extent of 1/2 share, along with other descendants of brother of his grandfather. In absence of any such proof, it was hard to hold that Murad was given due share in the property.

10. Oral evidence produced by the respondents consisted of statement of Muhammad Yousaf D.W.1 who deposed that Haleem was son of Muhammad Inayat and this version was also pleaded by the respondents in their written statement but it runs counter to the documentary evidence available on the record. The respondents' own document Exh.D.1 which was tampered, revealed that Haleem was brother of Lal. In view of this, there was no doubt about the fact that Haleem was son of Natu and Murad being his grandson was entitled to inherit the estate of Nihal, on termination of limited interest of his widow i.e. Mst. Tajaan. Before parting with the judgment, I must observe that both the Courts below have not only miscomprehended the controversy but also misread the record. The Appellate Court repeatedly remarked that Murad predecessor of the petitioners was present at the time of sanctioning of Mutation No.9 but this document revealed that his presence was not marked anywhere. This finding of the Appellate Court that Murad was present at the time of sanctioning of Mutation No.9 appears to have been given on account of an entry beneath the name of Murad in the pedigree-table drawn thereon, to the effect "present". This word "present" beneath the name of Murad denoted that he was alive at A that time but it does not convey that he was personally present at the time of sanctioning of Mutation No.9. Misreading of this document or misunderstanding of Revenue Record by the Appellate Court, has resulted into incorrect and unsustainable findings by it. Likewise, the Appellate Court has not attempted to compare all the four pedigree-tables, three produced by the petitioners and one by the respondents and the other appearing on Mutation No.9 (Exh.P.3). Had this exercise been undertaken, fate of the case would have been altogether different. Ignoring all the documents on the file, the only document relevant was Exh.P. 1 (pedigree-table of 1872) as no other document till the time of sanctioning of mutation, had come into field and according to it, Natuwas succeeded by three sons including Haleem whose grandson was IA Murad, the predecessor of the petitioners.

11. Taking up the point of limitation which in the given circumstances of this case, would not run against a co-sharer to whom undeniable share of produce was being paid by the co-sharer in possession of the land, I am confident in my place that since Mutation No.9 was ab initio, void and would not fix the point for starting of limitation against the persons in whose absence, it was sanctioned. For this proposition we can refer to the judgment in the case of Muhammad Nawaz and others v. Mst. Ismat Jan 1986 SCMR 1238. Besides entries in the Revenue Record, it is admitted that parties were holding joint Khata which was said to have been partitioned in 1916 but was not proved on the file. Now question of suit being barred by time by a co-sharer and possession of one of those becoming adverse to the others was considered by the Honourable Supreme Court in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 where in it was mandated that even adverse entries in the Revenue Record and non-participation in the profits of the suit property, would not amount to ouster of co-sharer, as wrong sanctioning of mutation conferred no right in the property to the persons in whose favour it was sanctioned. In this judgment, it was also held that co-sharer/co-owners were not obliged to file a suite for declaration that mutation had wrongly been sanctioned because such persons could file suit on denial of their rights, by their adversaries. In the instant case, the petitioners had averred in their plaint that the respondents had been paying their share of produce and this assertion was supported by their oral evidence which remained unrebutted and according to their stand, their proprietary rights were denied by the respondents only two days earlier to the suit. I respectfully following the view of the Honourable Supreme Court in the case of Ghulam Ali and 2 others (supra) hold that neither the respondents were in adverse possession which could mature in title nor suit of the petitioners was barred by limitation and were also not estopped from filing suit under adjudication.

12. Objection of the petitioners that since their suit was dismissed by the trial Court only on Issue No.6 which related to the limitation of the suit, Issues Nos.9-A and 9-B were answered in their favour but respondents did not challenge findings on those issues through any cross appeal/objections, thus, Appellate Court was not competent to reverse findings on those issues. This argument, overlooked provisions of Order XLI, rule 22, C.P.C. whereunder respondents could support decree in D their favour, even on the points decided against them, without filing cross-appeal/objections. This controversy stands already settled through judgment of the Honourable Supreme Court in the case of Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74.

13. For the reasons noted above, the judgments/decrees passed by the two Courts below are in clear conflict with evidence on the file hence, the same are not sustainable at law, being tainted with material irregularities/ illegalities, consequently the same are set aside and this revision petition is accepted with the result that suit of the petitioners is decreed, as prayed with costs throughout. M.B.A./M-1065/L Petition accepted.