2020 PLP 2645 (YLR)

AHMAD ALI, J.

This Civil Revision has been filed against the Judgment dated 26.09.2006, passed by learned Additional District Judge-XI, Peshawar, whereby appeal of petitioners against the Judgment/Decree dated 25.09.2003 of Civil Judge-VIII, Peshawar, was dismissed.

2. Brief and essential facts of the case are that the petitioners/plaintiffs instituted a suit seeking therein declaration to the effect that they are owners in possession of the property, detailed in the head-note of plaint, and entries in favour of defendants Nos.1 to 16 are wrong and ineffective upon their rights. Petitioners / plaintiffs also prayed for issuance of perpetual injunction restraining defendants Nos.1 to 16 from claiming ownership of suit land. They further sought declaration that any sale or gift of land in favour of defendants Nos. 1 to 16 is also ineffective upon rights of plaintiffs.

3. In the plaint, petitioners have contended that the property was originally belonging of their great grand predecessor Muhammad Ameer Khan who was survived by three sons namely Muhammad Hussain Khan, Sharif Khan and Muhammad Azeem Khan. Muhammad Hussain Khan and Sharif Khan were from first wife of Muhammad Ameer Khan while Muhammad Azeem Khan was from his second wife. Upon death of Muhammad Hussain Khan, his three sons inherited all his legacy in three equal shares and Muhammad Azeem Khan was managing the affairs of property. However, Muhammad Azeem Khan with the connivance of revenue staff wrongly inherited the legacy of Muhammad Shareef although he was not entitled to inherit from the legacy of Muhammad Shareef. Besides, the inheritance of Muhammad Ameer Khan was wrongly entered in the record of rights; and similarly, Muhammad Hussain had not sold any land to Muhammad Azeem Khan and any document in this regard would be fake, fraudulent, and ineffective upon rights of plaintiffs. The suit was contested by defendants Nos.1 to 16 and the learned trial court having recorded the evidence of parties, dismissed the same vide Judgment/Decree dated 25.09.2003. The appeal of petitioners/plaintiffs was also dismissed vide impugned Judgment dated 26.09.2006, hence, this Civil Revision by the petitioners.

4. Both the learned counsel, appearing on behalf of parties, have argued the case at length with reference to the record available on file.

5. Thorough sifting of the record reveals that the petitioners/plaintiffs are claiming that the actual owner of the property namely Muhammad Ameer Khan died prior to the year 1890, and his three sons namely Muhammad Hussain, Muhammad Sharif and Muhammad Azeem were held entitled to inherit his legacy according to the Riwaj at that time. Muhammad Azeem was from the second wife of Muhammad Ameer Khan, whereas, Muhammad Hussain and Muhammad Sharif were from his first wife. According to them, upon death of Muhammad Sharif, Muhammad Azeem wrongly inherited his landed property, which is wrong and also that Muhammad Hussain had not sold any land to Muhammad Azeem Khan.

6. According to the pedigree table (Ex.P.W.1/4) Muhammad Sharif was survived by a son namely Muhammad Siddique and admittedly the entre estate of Muhammad Shareef was devolved upon his son Muhammad Siddique and not Muhammad Azeem Khan thus, the contention of plaintiffs that Muhammad Azeem Khan wrongly inherited the estate of Muhammad Shareef is incorrect.

7. It is the case of petitioners/ plaintiffs that Muhammad Azeem was recorded owner of more area, whereas, according to the Riwaj known as Pag Wand (a custom where property was devolved upon male descendants only), each of the brothers was required to inherit the legacy of their father in equal shares. Respondents/defendants rebutted the stance of petitioners on the score that the legacy of Muhammad Ameer Khan was devolved upon his two wives in equal shares as per the custom of 'Chauda Wand' (a custom where property was devolved upon the wives in equal shares); thus legacy of Muhammad Ameer Khan was firstly devolved upon his two wives in two equal shares and then both the parties inherited the property from their respective mothers. As Muhammad Azeem Khan was only son from his mother therefore, he inherited all the property from his mother. Learned counsel for petitioners laid great stress during the course of arguments that the property was required to be devolved upon three sons per custom of Pag Wand; but learned counsel for the respondent/ defendant was stressing that the property was devolved according to the custom of Chauda Wand.

8. According to the record of rights in the year 1929-30, the joint property of Muhammad Sharif Khan and Muhammad Husain was equal to the property owned by Muhammad Azeem alone. There is absolutely no record which may reflect that when and how the inheritance of Muhammad Ameer Khan was given effect in the revenue papers. Nothing is there to show as to whether the property of Muhammad Ameer Khan was devolved on his three sons or his two wives; and if it was devolved upon his three sons by way Pag Wand, then how the share of Muhammad Azeem Khan was increased. And if it is presumed that the legacy of Muhammad Ameer Khan was devolved upon his two wives through Chauda Wand then, in that case too, there is nothing on the record to show that how and when the property was further shifted from wives of Ameer Khan to his sons. Petitioners/plaintiffs had neither brought on record any document to show the origin of the said transfer of more area in favour of Muhammad Azeem Khan nor the mode of such transfer has been challenged. Therefore, in the absence of any authentic document, I am not inclined to give any verdict for or against any of the customs of Pag Wand and Chauda Wand.

9. There is no cavil with the proposition that petitioners have not challenged the mode and manner of the inheritance either in favour of wives of Muhammad Ameer Khan or in favour of Muhammad Azeem Khan. Similarly, plaintiffs had not challenged the authenticity of any inheritance mutation rather they are simply seeking the increase in their shares and decrease in the share of Muhammad Azeem Khan only on the basis of oral assertions.

10. Apart from above, the oldest record which could be produced during evidence was pertaining to the year 1929-30 and no record previous to that was made available by plaintiffs. The presumption of truth being attached to the record prior to the year 1929-30, and legality of more than a century-old record cannot be questioned on the basis oral contention of plaintiffs particularly when the same are only assumptions and presumptions. A heavy burden was lying on the shoulders of plaintiffs to prove that the increased/additional share of Muhammad Azeem Khan was due to the inheritance from Muhammad Ameer Khan and not otherwise. Plaintiffs have failed to discharge the burden of proving their case.

11. It is also noteworthy that plaintiffs are seeking the distribution of the estate of Muhammad Ameer Khan by contending that as per Sharia the legacy of Muhammad Ameer Khan was required to be devolved upon his sons equally. But, as mentioned in the preceding para, this contention of plaintiffs is just based on bald assumptions and presumptions without any proof or record. Even otherwise, the record is speaking a volume of the twofold conduct of plaintiffs as attorney for plaintiffs in his cross-examination as PW-3 stated that Muhammad Shareef was survived by son Muhammad Siddique and daughters Mst. Dur Marjana, Mst. Kishwaro and Mst. Gulaba. After that, the legacy of Muhammad Shareef was transferred to his son Muhammad Siddique only; and then from Muhammad Siddique (died issue-less) in favour of his cousin Muhammad Hassan son of Muhammad Hussain and thereby the sisters of Muhammad Siddique and also the sister of Muhammad Hassan namely Mst. Sarwaro daughter of Muhammad Hussain were excluded. Thus, petitioners have not come to the court with clean hands and equity demands "He who comes into equity must come with clean hands". It is an admitted fact that the legal heirs of Mst. Kishwaro and Mst. Dur Marjana have not been arrayed as parties to the suit. It is also an undeniable fact that petitioners themselves have not given Shari shares to female descendants namely Mst. Dur Marjana, Mst. Kishwaro, Mst. Gulaba daughters of Muhammad Shareef and Mst. Sarwaro daughter of Muhammad Hussain. PW-3 admitted in cross-examination:

12. Thus, the Mst. Dur Marjana, Mst. Kishwaro and Mst. Gulaba were deprived from their shari rights on two counts; firstly, they had deprived from the inheritance of their father Muhammad Shareef and secondly from the legacy of their brother Muhammad Siddique; thus, petitioners are blowing hot and cold together which disentitle them to seek the relief in view of maxim allegans contraria non est audiendus (contradictory statements will not be listened to). Petitioners are taking refuge of the N-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 but they themselves, by their own conduct, are negating the same. Petitioners are not fair and impartial in their claim and have not come to the court with clean hand; then in view of the maxim, "He who seeks equity must do equity" thus, petitioners cannot revert back from their own acts of depriving female heirs. The august Supreme Court of Pakistan in the case of Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446 was pleased to held that relief of declaration is discretionary and plaintiff who seeks discretionary relief must come to court with clean hands.

13. It also appeared from the record that petitioners and their forefather were aware of the distribution of the estate and extra share of Muhammad Azeem Khan. However, they remained silent and never agitated their purported rights. The attorney for petitioners/plaintiffs while appearing as PW-3, made several admissions in his cross-examination which not only constitute estoppel on their part but also establish a waiver of their alleged rights. Some of the important admissions, made by PW-3 during his cross-examination are as under:

14. From the above, it is crystal clear that Muhammad Hussain Khan, Muhammad Shareef Khan and Muhammad Hassan Khan during their lifetime had never challenged the additional land of Muhammad Azeem Khan. And even the plaintiff who is the son of Muhammad Hassan Khan also kept mum for about 40 years after the death of his father, Muhammad Hassan Khan. According to the attorney for plaintiff, they got the knowledge after one or two years when they shifted to Pakistan in the year 1979. It means that they got knowledge in the year 1980 or 1981 but present suit was filed on 16.03.1983 wherein entries prior to year 1890 have been challenged. Besides, plaintiffs have not mentioned the date of their alleged knowledge in their plaint. Guidance derived from the case of "Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others" PLD 2014 Supreme Court 167 wherein it was held: Inheritance

Limitation

Scope

Property claimed on basis of inheritance

Acquiescence of claimant-heir

Effect

Waiver of inheritance right in property

Scope

Plaintiff-heir filed suit in the year 1991 assailing registered sale deed dated 8-6-1916 and sale mutation dated 23-12-1917

Plaintiff had also challenged inheritance and gift mutations dated 5-12-1930, 1-9-1949 and 11-11-1959 respectively along with further mutations attested from time to time up to the year 1987

Plaintiff-heir was more than 80 years old at the time of filing the suit in the year 1991, and according to evidence she was 6/7 years old, when entire suit property was inherited by her as a limited owner

Plaintiff-heir married in the year 1930 and as a result had to give up her property in favour of her step-sister, and since then plaintiff remained out of possession of suit property

Plaintiff-heir was aware as to how property was handled thereafter and of her rights therein

Plaintiff-heir was well aware of the transfer of suit property made by her step sister and the subsequent gift transfer, but never questioned the sale deed of the year 1916 till filing of suit in the year, 1991

Suit property was further sold and re-sold, constructed and re-constructed upon, but the plaintiff took no action to annul or prevent the transfers of suit property

When plaintiff filed suit in the year 1991, there were as many as 251 transferees of suit property-Conduct of plaintiff clearly demonstrated acquiescence in all the impugned transfers of property which amounted to waiver of her right

Transferees of suit property, on account of plaintiff-heir's in action, led to believe that defendant-heir transferor had a valid title in the suit property

Suit of plaintiff-heir had been rightly dismissed. This Court in the case titled "Shad Muhammad through L.Rs. and others v. Mst. Sarwara" (2015 MLD 582) had already held: Finally, the petitioners lack 'locus standi' to seek the legacy of Mukaram Khan, as they claim the same through Haider Khan, who during his life time never agitated the said claim. Faced with similar circumstances, the apex Court in Abdul Haq's case (2002 SCMR 1330), has laid down in terms that: "Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his life time. The petitioners claimed the property through Atta Muhammad as his heirs, who filed the suit as late in 1979 about 9 years after the sanction of mutation, which had already been given effect in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his life time." The aforementioned principle has been consistently followed in other decisions of the apex Court including the case of Ghulam Haider's case (2008 SCMR 1425).

18. This court is adjudicating the present petition in its revisional jurisdiction, the scope thereof as provided under section 115 of the Civil Procedure Code, 1908 has been dilated upon by the august Supreme Court in Muhammad Idrees v. Muhammad Parvez (2010 SCMR 5) and held that:-- "The High Court in exercise of its revisional jurisdiction under section 115, C.P.C. unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC

26. With regard to section 115, C.P.C. it is observed by the Privy Council as under:-- (i) This section empowers the High Court to satisfy itself upon three matters:-- (a) That the order of the subordinate Court is within its jurisdiction. (b) That the case is one in which the Court ought to exercise jurisdiction. (c) That in exercising jurisdiction, the Court has not acted illegally, that is breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law. "

15. As all the mutations relating to the inheritance of Muhammad Ameer Khan etc have been sanctioned prior to 1890 and the same have been given effect in the record of rights which effect was repeated in the Jamabandi of the year 1929-30 besides, said entries were not challenged by the father and grandfather of petitioners during their lifetime, therefore, petitioners have no locus standi to challenge the same and there is nothing on the record to indicate as to why they had not challenged the said entries or inheritance mutations. Reliance is placed on the case of "Abdul Haq and another v. Mst. Surrya Begum and others" (2002 SCMR 1330) and "Muhammad Rustam and another v. Mst. Makhan Jan and others" (2013 SCMR 299). Besides, in the supra case of Atta Muhammad august Supreme Court of Pakistan was of the view that, "findings of the learned two Courts is that the plaintiffs were out of possession and they have not been able to establish receipt of rent and profits from the land, although the appellant claimed to the contrary. This was the second misrepresentation which disentitled the plaintiffs to any relief in equitable jurisdiction. The learned two Courts held that the suit was barred by time but the learned High Court, by making a sweeping statement, that there is no limitation in the cases of inheritance has, in fact, rewritten the law of limitation."

16. Now coming to the contention of plaintiffs that Muhammad Hussain Khan had not sold any property in favour of Muhammad Azeem Khan. DW-1, the Registration Moharrir, produced registered deeds Nos. 1166 and 1356 executed in the year 1900, as Ex.D.W.1/2 and Ex.D.W.1/2. Admittedly, both the said deeds have not been challenged by plaintiffs in the plaint. Moreover, plaintiffs also failed to prove the alleged fraud in the execution of said deed. It is also worthy to note that Muhammad Hussain or his son Muhammad Hassan had not challenged the said deeds during their lifetime. Therefore, no have no locus standi to challenge the same at this belated stage particularly when presump-tion of truth is attached with the said documents.

17. The long and short of the above findings is that: a. Inheritance of Muhammad Ameer Khan taken place prior to the year 1890 and neither petitioners have challenged the validity of any inheritance mutation nor they have called in question the entries of record previous to the year 1929-30; and even vires of Jamabandi of the year 1929-30 have not been called in question. Besides, the validity of Registered Deeds Nos. 1166 and 1356 has not been challenged. Plaintiffs are bound by their pleadings and they in no way can be allowed to take departure from the pleadings and adduce the evidence, which does not correspond the pleadings. For rendering this view, I am fortified by the dictum laid down by the Hon'ble Apex Court in "Shafi Muhammad and others v. Khanzada Gul and others" 2007 SCMR 368, "Ghulam Murtaza v. Abdul Salam Shah and others" 2010 SCMR 1883, "Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others" 2010 SCMR 1840 and "Muhammad Shafi and others v. Sultan" 2007 SCMR 1602. b. Presumption of truth is attached to a century-old revenue record and registered deeds, particularly when the same was not objected upon at that time by the forefathers of petitioners. c. There is nothing to suggest that the entries in favour of Muhammad Azeem Khan were due to the inheritance from Muhammad Ameer Khan and no purchased property was included in his share. Therefore, provisions of the N-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935, cannot be applied to an unknown transaction/mutation particularly when it is not known that whether such entries were the result of purchase or inheritance. Apart from this, plaintiffs in their plaint have not pleaded their rights under the said Act of 1935 and even in the evidence too PW-3 stated in his cross excavation: d. Petitioners and their forefathers themselves have deprived the female descendants of the due Shari rights of inheritance, therefore, they cannot cut the stem on which they themselves are standing. Hence, they are not entitled to the relief in view of the maxim, "Nemo Contra Factum Suum Venire Potest" i.e. no one can go against his own act. e. The suit is badly and hopelessly time-barred as the plaintiffs despite having knowledge did not file the suit after 40 years of the death of their father. Law of limitation is a harsh law and the court cannot award any relaxation in this regard unless provided by the statute itself. The passage of time sets the law of limitation in operation. Reliance is placed on the case of "Umer Baz Khan through L. Hrs v. Syed Jehanzeb and others" (PLD 2013 SC 268). f. There is no misreading and non-reading of evidence and also there is no error, illegality and irregularity in the exercise of jurisdiction by the courts below, therefore, this court cannot interfere in the concurrent findings of the fact recorded by both the learned courts below. Reliance in this regard is placed on the case of "Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others" 2016 SCMR 24; hence, decrees of concurrence passed by the two Courts below about the dismissal of the petitioners' suit are quite justified and clearly unexceptionable

18. For what has been discussed above, the judgments and decrees passed by the two learned courts below do not warrant any interference and hence, the same are hereby confirmed and resultantly, this Civil Revision is dismissed with no order as to cost. ZC/43/P Revision dismissed.