2011 SCMR 1648 (PLP)

GHULAM RABBANI, J.

By way of this petition, leave is sought to appeal against the judgment dated 7-10-2010 passed by a learned Division Bench of Lahore High Court, Multan Bench, Multan in R.F.A. No.1 of 2004 arising out of two consolidated suits, respectively filed by both the parties.

2. Precisely stated the facts of the case are that respondents Nos.1 to 3 instituted in the year 2001 a suit for declaration, permanent injunction etc. They stated that the petitioner No.1 and late Abdul Haq predecessor-ill-interest of petitioners Nos. 2 to 9 are brothers and sisters. Their father Noor Muhammad died in the year 1946 and left agricultural land in dispute in District Multan and some other land in District Sheikhupura to devolve on his legal heirs namely petitioner Abdul Ghafoor, late Abdul Haq, respondents Nos. 1 to 3, and Ghulam Fatima being his sons, daughters and a widow. The land in District Sheikhupura was mutated in the name of all the legal heirs of late Noor Muhammad vide mutation No. 1564 dated 21-2-1953, whereas, the disputed land in District Multan, had already been got fraudulently mutated in 1946 by the petitioner No.1 and late Abdul Haq in connivance with other relatives in their names and mother Ghulam Fatima in equal shares, yet they continued paying to the respondents their share of produce even after they attained majority and were married. Later, on the death of Mst. Ghulam Fatima in the year 1963 her share in the property was, too, mutated in favour of her sons and the daughters viz. the respondents vide mutation No. 466 dated 31-5-1963. Whereafter, petitioner No.1 and late Abdul Haq got prepared a forged sale deed No.10564 dated 30-6-1979 in connivance with the field staff of revenue department whereby shares of respondents Mst. Marriam Bibi and Mst. Tasmiya Bibi were got transferred in the names of brothers viz. petitioner No.1 and late Abdul Haq vide mutation No. 514 dated 20-12-1979. It was stated that since a stadium was constructed near the land in question; its value enhanced, the respondents Nos.1 - 3 intended to sell their property when they came to know about above-noted transaction and fraudulent entries, they filed suit against the petitioner No.1 and the legal heirs of late Abdul Haq who had in the meantime expired.

3. On the other hand the petitioners, too, instituted an other suit against respondents claiming that the estate of their predecessor-in- interest namely Noor Muhammad was transferred in favour of his sons namely petitioner Abdul Ghafoor, Abdul Haq and his widow Mst. Ghulam Fatima as per the customary law the widow being the limited owner of 1/3rd share of the estate which was bound to revert to sons, therefore, her share could not be inherited by lady respondents. They prayed that mutation No.466 dated 31-5-1963 required rectification.

4. Both the above-noted suits were contested by respective opposition parties by filing written statements. The trial Court consolidated the suits vide order dated 10-4-2003, framed consolidated issues, the parties led their respective evidence on evaluation whereof the suit instituted by the respondents was decreed with costs whereas the suit instituted by the petitioners was dismissed; late Ghulam Fatima was held entitled to 1/8th share from the estate of late Noor Muhammad and rest of the property; so also the 1/8th share of late Ghulam Fatima on her death, was deemed to have devolved on his legal heirs vide judgment dated 23-12-2003 passed by Civil Judge Ist Class, Multan. The petitioners preferred there-against an appeal bearing No.RFA-1 of 2004 which was dismissed by a bench of learned Lahore High Court, Multan Bench, Multan vide impugned judgment dated 7-10-2010.

5. We have heard learned counsel for parties and with their assistance we have gone through the material made available before us. The main contention of learned counsel for the petitioners is that customary law was applicable to late Noor Muhammad, propositus of the parties, therefore, on his death the disputed land in District Multan was rightly distributed amongst his two sons namely Abdul Ghafoor and Abdul Haq and Ghulam Fatima being widow as the limited owner only for life time whereafter it was to revert back to the sons. Learned Counsel contended that the Trial as well as the Appellate Courts misread and misconceived that the Sharia law was applicable to late Noor Muhammad, therefore, they wrongly decided the matter in the suit and appeal as the deceased was not governed by Sharia law. In this behalf, it may be stated that record reveals that the parties have origin in village Bheenee Tehsil Ferozewala of District Sheikhupura. Their predecessor -in-interest in i.e. Muhammad Ismail father of late Noor Muhammad with his Chacher Arain tribe had, shifted to settle in the District of Multan. Late Noor Muhammad owned property in both the districts. On his death his property in the District Sheikhupura devolved on his legal heirs namely his sons Abdul Ghafoor and Abdul Haq, his widow Ghulam Fatima and daughters viz. the lady respondents and to this effect entry No.1564 (Exh.F.2) dated 21-2-1953 was made in the mutation register patently under Islamic law of inheritance. It is, thus, evident that had it been that late Noor Muhammad was governed by the customary law his property would have been distributed accordingly in both the districts. This aspect of the matter has been considered by the trial Court in detail as observed as follows:-- "While touching another aspect of' the dispute I refer mutation No. 1564 attested on 21-2-1953 in respect of the agricultural land of the deceased Noor Muhammad situated in village Bhenee District Sheikhupura. The Mutation No. 1564 Exh.D.5 reveals that the property of the deceased Noor Muhammad was divided amongst the legal heirs in accordance with Shariat Law and not with customary law. The contention by the learned counsel for the defendants that at that time Shariat' Act had become applicable, therefore, customary law was not applicable there. In this respect it is sufficient to say that the said Noor Muhammad died in the year, 1946. His property was to be distributed in accordance with existing law of title and not according with subsequent law, if any. The defendants have not produced a single instance that the customary law was existed in village Bhenee District Sheikhupura. The D. Ws. and documents relate to village Bhenee District Sheikhupura. The contention of the defendants that the custom was a rule of inheritance in their family is not fortified. It is not discernible when the customary law was not existed in their native village, how it should be applicable to then in Tehsil and District Multan, where they subsequently settled ". Learned Division Bench after evaluation of the evidence also affirmed the above findings by observing as follows:-- " Learned counsel for the appellants has failed to reconcile their contradictory positions that at one place (Multan) they are claiming applicability of customary law to exclude respondents from inheritance and supporting the impugned mutation No.274 (Exh.P.3 and Exh.D-13) while on the other place (Sheikhupura) through mutation No. 1574 (Exh.P-2), inheritance was opened according to Sharia and respondents were also given their share from the estate of their deceased father. If the customary law was in fact applicable to the parties, at the time of death of their father, then at both places, inheritance would have opened accordingly, but inconsistency on this issue is so obvious which proves that this law was not applicable on the parties and. the respondents were excluded from the inheritance not because of customary law but by way of fraudulent means and by showing the respondents as non-existent which is illegal and unlawful,. Even otherwise application of two different laws at one time on the estate of the said deceased is against the rule of consistency and mutation No. 274 (Exh.D-13) is hit by this rule. It may not be out of place to mention here that the learned trial Court has rightly observed that mutation No. 1574 (Exh.P-2) has never been disputed by the appellant or anyone else which is still intact and the appellants have failed to establish that inheritance was governed through customary law in their native place Sheikhupura. Learned counsel for the appellants has been unable to dislodge these findings of the learned trial Court. Therefore, findings of the learned trial Court on issue No. 6 coupled with our aforementioned observations leave no room for doubt that mutation No. 274 (Exh.D-13) is not sustainable in the eye of law."

6. Here, it may be stated that record shows that the petitioners/defendants had examined Muhammad Shafait (D. W.2) and Muhammad Saleem (D.W.3). Muhammad Shafait is resident of village Bheenee Tehsil Ferozewala District Sheikhupura. He was of the age of 15 years when Noor Muhammad had expired. He admitted in his evidence that he did not witness any mutation being entered on the basis of customary law. The Trial Court observed that he had no personal knowledge of custom, which was pivotal question to be determined. It is also found from his evidence that he had benefited from favours of petitioners in elections. In this, he stated that he has been contesting elections while the petitioners/defendants remained his voters. Muhammad Saleem (D.W.3) is son of late Abdul Haq and is co-petitioner and at the time of examination, he was of the age of 33 years and the disputed mutation took place in the year 1946 i.e. 30 years before his birth. He stated that whatever he disclosed in his evidence was learnt by him from elders of community. The trial Court, observed, rightly so, that he himself knew nothing about the customary law.

7. It may further be stated that the petitioners had also attempted to take benefit of register of Riwaaj (Exh.D-14) which was produced and relied upon by the defendants/petitioners to prove the customary law. As regards this document, learned Trial Court observed that this document related to the area of the Tehsil and District Multan whereas the defendants were basically residents of village Bheenee Tehsil Ferozewala and District Sheikhupura, therefore, it did not prove the Riwaaj of the tribe which originally migrated from Sheikhupura. Learned Division Bench has also examined the validity of this document and observed that "it is also amazing that the document, which the appellants have placed on record to support their contention that their tribe was governed by customary law, is a copy of Riwaj-e-aam, Siwal No.35 for the year 1919-1920 (Exh.D-14), belies their claim as the reverse side thereof shows that the daughters were also inheriting from the estate of their predecessors."

8. Next is the question of sale of share of Mst. Marriam and Mst. Tasmiya, respondents Nos. 1 and 3, herein, in favour of petitioners which, according to them, stood proved hence the findings of trial Court as well as that of learned Division Bench going against them, were liable to be set aside. In this behalf, it may be stated that the burden to prove the sale was on the petitioners, as was rightly said by the trial Court. It appears that neither the original sale deed was produced nor the attesting witnesses, reported alive, were produced. The trial Court decided this question in favour of the lady respondents. Learned Division Bench of High Court adverted to this aspect of the case of the petitioners and maintained the findings of trial Court by observing that "The findings of the learned trial Court that the appellants failed to produce the marginal witnesses of the said documents despite the fact they were alive" and that, Neither D. W.1 nor D. W.4 are witness of the said sale-deed and original of the same has also not been produced by the appellants, therefore, findings of the learned trial Court on the issue whereby it held that execution of the said sale deed has not been proved, are unexceptionable and supported by the record, therefore, are upheld."

9. Lastly, the case of the petitioners is that while the appeal preferred by petitioners was pending before High Court, Mst. Hajran respondent No. 2, herein, had moved an application requesting the Court that she had no objection to the acceptance of appeal of petitioners and requested to set aside the judgment and decree dated 23-12-2003 passed by the trial Court. Inter alia, she stated that all the 3 sisters including herself had already received their due shares in the properties; that the suit (Mst. Marriam and others v. Abdul Ghafoor and others) was instituted with bad intentions on instigation of her two sisters as a pressure tactics on account of family dispute; that she was kept unaware of the facts, therefore, she remained disinterested and that when the matter reached the stage of appeal she realized that her brothers were victimized.. In this behalf it is to be noted, in the first place, that suit (Mst. Marayum and others v. Abdul Ghafoor and others) was instituted on 27-7-2001 by the respondent Mst. Hajran along with her two sisters namely respondent Nos. 1 and 3 herein. The plaint available at pages 62-68 of the paper book reflects that it was thumb-marked by all three plaintiff-sisters meaning thereby that Mst. Hajran had joined her sisters in every word stated in the plaint. She 'neither denied the filing of the suit and nor she denied her being co-plaintiff in that suit. Rather, it is on the face of it clear from her following own statement that she had instituted the suit:-- From her affidavit, which she placed before High Court, appellate Court and now copy of that is available at pages 206-209, it is evident that equally, she raised no voice on any point involved in the suit till trial Court passed decree on 23-12-2003. However, when the decree was passed in their favour and albeit against her brother/legal heirs of her other deceased brother Abdul Haq, she happened to take a somersault after about 5 years of passing the decree at the stage of appeal filed by her brother/legal heirs of other brother, coming up with a version totally contrary to what was, on the face of it, put-forth by her in the plaint. Be that as it may, learned Division Bench of the High Court does not seem to have accepted her version or acceded to her request for setting aside the judgment/decree of trial Court.; rather passed on 28-9-2009 a brief order, copy of which available on record at page 205, reads as follows:-- "Through this application under section 151, C.P.C., respondent No.2 Mst. Hajran Bibi has expressed her no objection to acceptance of the appeal and setting aside of the impugned judgment and decree dated 23-12-2003. In other words to her extent she has conceded the claim of the appellants. This regular first appeal to her extent is accordingly disposed of. She would not be required to be represented again. Learned counsel for rest of the respondents is not available. Relist. " (Emphasis by us) As such, the regular first appeal to her extent was disposed of and she was not required to be represented again. Except that, the facts and circumstances of the case on the basis of which, the trial Court passed judgment and decreed the suit in favour of lady respondents, remained un-altered. Be that as it may, impugned judgment reflects that no such ground was taken before the High Court/Appellate Court, therefore, it loses its force at this stage.

9. Having discussed the matter as above and on going through the material, we are of the view that trial Court as well as Appellate Court, after evaluation of the evidence of both the parties, had, rightly so, decided the matter in favour of lady respondents, who claimed to be illiterate and Pardah Nashin ladies. There are two concurrent findings going against the petitioners vide Judgments/Decrees passed with jurisdiction. This petition, therefore, merits no consideration and is dismissed accordingly. Leave refused. S.A.K./A-45/SC Leave refused.