2005 PLP 419 (CLC)

This civil revision calls in question the judgment and decree dated 21‑7‑1996 passed by the learned Additional District Judge, Sargodha, whereby, while he accepting the appeal of the respondent set aside the judgment of dismissal and granted decree in favour of the respondents/plaintiffs to the extent that the respondents/plaintiffs are entitled to get 1/4 share from the remaining land which is in the name of defendants Nos. 1 to 3.

2. Briefly the facts relevant for the disposal of this petition are that the predecessor‑in‑interest of the respondents‑plaintiffs filed a suit for declaration against Mst. Jameela etc. fully detailed and described in the plaint. The defendants entered appearance, filed their written statement. Controversy gave rise to framing of issues. Parties produced their respective evidence. The learned trial Court dismissed the suit of the plaintiffs vide its judgment and decree dated 22‑6‑1993. An appeal was preferred by the respondent/plaintiff which came up for hearing before the learned Additional District Judge who while accepting the appeal, set aside the impugned judgment of dismissal and consequently decreed the suit as mentioned above.

3. The learned counsel for the petitioners contends that the conclusion drawn by the learned Appellate Court in holding Mst. Hakeeman as limited owner is not backed by evidence. Further argues that the plaintiff had not been able to establish their relationship with Mst. Hakeeman and the documentary evidence produced by the plaintiff -respondent does not extend any support to them.

4. Conversely; the learned counsel for the respondent supported the impugned judgment.

5. Heard. Record perused.

6. The plaintiff‑respondent, was successor of Wali‑ud‑Din. He claimed that his father, Wali‑ud‑Din, was son of Jeeto and respondent's predecessor Mst. Hakeeman Bibi, was his real sister. She was widow of Lakhu. Lakhu died issueless in India. Mst. Hakeeman came to Pakistan and settled down in Sargodha. According to the plaintiff, she was limited owner and on her death the property in dispute had to be reverted to the petitioner.

7. Faqir Muhammad was produced as PW.1. He stated that Wali‑ud‑Din was son of Jeeto. Jeeto and Mst. Hakeeman were brother and sister. Mst. Hakeeman was married to Lakhu, who had died issueless in India before partition of the Country. In cross‑examination, he stated that Jeeto had died in India before partition. His son Wali‑ud‑Din migrated to Pakistan: He settled down in Sindh. He stated that he had been visiting Sargodha frequently. Mir Dad appeared as P.W.2. He stated that Lakhu, husband of Mst. Hakeeman, had died issueless and she received the property as limited owner. He further stated that Mst. Hakeeman, predecessor of the petitioners, was real sister of Jeeto. Fateh Muhammad appeared as P.W.3. He, too, stated that Lakhu, husband, of Mst. Hakeeman, died issueless and she inherited his property as limited owner. Mst. Hakeeman was sister of Jeeto. In cross‑examination, he stated that Lakhu was only son of her parents. He is not aware of the name of Lakhu's mother. Chandan appeared as P.W.4. He stated that Lakhu died issueless in India. She received property in dispute as limited owner. He is unaware of the parentage of Wali‑ud‑D.in. He describes the person present in Court namely Bashir Ahmad as Wali‑ud‑Din and stated that he has seen Wali‑ud‑Din in village Wali Kot. He is 70 years of age. He further stated that he is present outside the Court premises. He stated that he can ask. Wali‑ud‑Din to appear in Court. Wali‑ud‑Din appeared as P.W.5 and stated that Lakhu was issueless. His property was transferred to Mst. Hakeeman. She was limited owner. Mst. Hakeeman is real sister of Jeeto. Abdul Hameed appeared as D.W.1. He stated that Mst. Hakeeman was widow of Lakhu. He died issueless. Lakhu was survived by his two brothers Qabza and Jameel. Mst. Siddiqan is widow of Chanda; who is successor of Qabza. Mst. Jameela and Ghani are off‑spring of Chanda. Wali‑ud‑Din was not related to Mst. Hakeeman. Aman Ullah appeared as D.W.2. He supported the petitioner/defendant. D.W.3 claims to be the bona fide purchaser for value without notice after examination of the Revenue Record.

8. Documentary evidence, Exh.P.1 is a sale‑deed on behalf of Siddiquan in favour of Noor Muhammad. Exh.P.2 is mutation entered and sanctioned in consequence of sale‑deed Exh.P.1. Exh.P.3 is copy of Shijra Nasab of Revenue Estate Pharal Tehsil Khethal District Karnal (India). Jeeto is shown in the pedigreetable succeeded by Wali‑ud‑Din. Name of Mst. Hakeeman is not mentioned in the pedigreetable. Exh.P.4 is copy of pedigreetable of the Revenue Estate Noch District Karnal. Hakeeman is shown as widow. Name of Jeeto and Wali‑ud-Din do not appear in the pedigreetable. Exh.P.5 is copy of Mutation No.24, dated 20‑5‑1958. It shows that Mst. Hakeeman expired on 12‑11‑1957. The pedigreetable prepared on the mutation shows that her husband Lakhu and real brother named Dilmeer. He died issueless. Neither Jeeto nor Wali‑ud‑Din are shown in the pedigreetable. Estate of Mst. Hakeeman went to Jange Khan son of Malook.

9. The controversy involves herein is as to whether Wali‑ud‑Din son of Jeeto‑plaintiff was related to Mst. Hakeeman in any‑manner. Oral evidence produced by the plaintiff though not of high probative value is negated by documentary evidence. Exh.P.4 is a copy of pedigreetable of Revenue Estate Noch, It indicates that Mst. Hakeeman is widow of Lakhu. Name of Qabza and Chanda have been mentioned in the said pedigreetable. Name of Jeeto did not appear in the said pedigreetable. So is the case of Wali‑ud‑Din. Had Jeeto been the brother of Mst. Hakeeman, her name would find mention in the pedigreetable. No evidence is available on the record to prove that Mst. Hakeeman died as limited owner. Mutation of her inheritance of the property, having devolved upon her from her husband, has not been produced. Whether she received the disputed property as a full owner or limited owner has not been proved. The plaintiff‑respondent, thus, failed to prove that Mst. Hakeeman was limited owner and that Jeeto was her real brother.

10. The suit was hopelessly barred by time. Inheritance mutation, dated 29‑5‑1960 was put to challenge by a suit on 9‑9‑1991. Knowledge of Mst. Hakeeman's living in Sargodha, allotment in her favour and her death is being claimed through Abdul Rehman, who did not enter in the witness‑box. No evidence is available to show that suit was filed within time.

11. For what has been discussed above, this civil revision is allowed. The impugned judgment of the learned Additional District Judge, dated 21‑7‑1996 is set aside and that of the learned trial Court is restored. H.B.T./J‑55/L Revision allowed.