2017 PLP 124 (YLRN)

MUHAMMAD YOUNIS THAHEEM. J:- Through instant revision petition, petitioner has called in question the judgment and decree dated 03.02.2014 passed by learned Additional District Judge/Izafi Zila Qazi-III Swat, whereby appeal of petitioner was dismissed by maintaining judgment and decree dated 24.6.2013 passed by learned Civil Judge/Illaqa Qazi, Khwaza Khela Swat, seeking relief by setting aside both the judgments and decrees of Courts below and decreeing her suit as prayed for.

2. Brief facts of the case are that present petitioner instituted a suit for declaration and permanent injunction etc against the respondents that she is owner in possession to the extent of her Shari share in the suit house fully described in the heading of the plaint, from the legacy of her mother Mst. Baghdadi Bibi.

3. Defendants were summoned, who on appearance, submitted their written statement, denied the claim of petitioner/plaintiff on the ground that their grandfather Saeed Mian had purchased the same suit house vide sale deed dated 06.4.1989 for them in their names. Moreover, further averred that the present petitioner earlier filed a suit at Karachi and after receiving amount of her share in respect of suit house, relinquished her ownership rights vide relinquishment deed dated 29.11.2001 and raised various legal and factual objections. The learned trial Court out of the divergent pleadings of the parties framed the following issues: ISSUES:-

1. Whether plaintiff has got cause of action?

2. Whether suit is not maintainable in its present form?

3. Whether the suit is time barred?

4. Whether suit property is legacy of Mst. Baghdadi, mother of plaintiff?

5. Whether plaintiff relinquished her claim regarding her share vide written deed dated 29.11.2001?

6. Whether suit house was purchased by defendants Nos. 1 to 3 through their grandfather Saeed Mian vide sale-deed dated 06.4.1989?

7. Whether plaintiff is entitled to decree as prayed for?

8. Relief.

4. After framing of issues, both the parties produced their respective evidence; thereafter, the learned trial Court after hearing both the parties, dismissed the suit of plaintiff/petitioner vide impugned judgment dated 24.6.2013.

5. The present petitioner feeling dissatisfied from the judgment of learned trial Court filed regular civil appeal before the learned District Judge/Zila Qazi, Swat, which was entrusted to the learned Additional District Judge-III, Swat for disposal, who after hearing both the parties dismissed the same appeal vide judgment and decree dated 03.2.2014, impugned herein.

6. Valuable arguments of learned counsel for the parties heard and record thoroughly perused with their able assistance.

7. From the perusal of available record, it reveals that pedigree table ( ) given in the plaint has been admitted and Mst. Baghdadi widow of Saeed Khan had one son Akbar Ali and one daughter Mst. Bibi Sarbala. The present respondents Nos.1 to 4 namely Alamgir, Zafar Shah, Nadar Shah and Mst. Noor Begum are descendants of Akbar Ali (son of Mst. Baghdadi Bibi). There is no denial from the respondents' side, about relationship between the parties.

8. The moot question for determination before this Court is as to whether the suit property was ownership of Mst. Baghdadi Bibi and after her death whether it devolved upon the parties and thereafter whether the petitioner had transferred her share through relinquishment deed dated 29.11.2001 or otherwise.

9. In this respect, the attorney for petitioner namely Daud Shah appeared as PW-1 to corroborate the statement on oath along with suit submitted by plaintiff in accordance with Sharia Nizam-e-Adal Regulation, 2009 read with Civil Procedure Code. During cross-examination he admitted that the suit house is in possession of the respondents/defendants. He further admitted that Said Mian was grandfather of defendants/respondents and he had purchased a house in the name of grandsons i.e. respondents Nos.1 to 3 in village Titabat. He further admitted that the plaintiff resides in Karachi. This witness categorically denied the execution of alleged relinquishment/compromise deed and also disputed the thumbed impression over the same by his mother or signature of his brother Qabil Shah.

10. Plaintiff also produced, statements on oath of one Dost Muhammad son of Jehanzeb, Bacha Said son of Qavi Mian, Muhammad Said Mian son of Qavi Mian, however during evidence only attorney of the plaintiff, Daud Shah as PW 1, Bacha Said son of Qavi Mian (Qavi Khan) PW-3, while Muhammad Said Mian son of Qavi Mian appeared as PW-4 for cross-examination.

11. PW-3 almost narrated the same facts as of his statement on oath. He during cross-examination deposed that he knows nothing as to whether the same relinquished/compromise deed was executed between the parties at Karachi. He also denied the suggestion that his statement is belied one. The said witness was not cross-examined by the defendants with regard to relinquishment deed dated 29.11.2001. Similarly, Muhammad Said Mian was examined as PW-4, who during cross-examination admitted the relationship between the parties. He also denied about the said compromise between the parties at Karachi. He admitted during cross-examination that the Said Mian was grandfather of the parties, who purchased one house at village Titabat and stated that he is well aware of the description of that house, situated in village Titabat. This witness was not cross-examined about passing of consideration amount from the hands of defendant 4 to the petitioner with regard to relinquishing of rights by plaintiff regarding suit house.

12. On the other hand, Alamgir son of Akbar Ali appeared as DW-1 for himself as well as attorney on behalf of other defendants by stating that he is attorney of other defendants vide attorney deed Ex.DW-1/1. He stated that the suit house is in ownership of defendants/ respondents Nos. 1 to 3, which was purchased by their grandfather namely Said Mian vide sale deed dated 06.03.1989, which later on shown to be attested by Oath Commissioner Sher Ali Shah, Advocate on 06.4.1989 and since then they are in possession of the same. Copy of unregistered sale deed dated 06.3.1989 is placed on record as Ex. DW-1/2. He further stated that they are residing at Karachi in connection with earning of their livelihood as their phopho i.e. sister of their father insisted to get her Shari share from the legacy of her father "Said Mian" in the suit house, so, in this respect a Jirga was convened to decide the dispute amongst the parties at Karachi and in consequence of that Jirga proceedings a written decision dated 29.11.2001 was executed, which was signed by "Masharans" of the Illaqa and thumb impressed by one son of the plaintiff namely Qabil Shah, which is placed on record as Ex. DW-1/3. He reiterated his stance that respondents Nos. 1 to 3 are owners in possession of the suit house and the plaintiff has got no nexus whatsoever with the suit house and suit of plaintiff being wrong, baseless and time barred is liable to be dismissed with costs. The said Alamgir appeared as DW-1 for cross-examination on 05.3.2013 who during cross-examination deposed that he did not know that from whom the suit house had been purchased and again stated that the same was purchased from Qavi. He further stated that he did not remember that his grandfather accompanied him in order to scribe a document/Iqramama with Miangan for the purpose of executing sale deed of a house for them. He admitted that Ex. DW-1/2 does not bear his signature or thumb impression. He during cross-examination further deposed that he did not remember that at the time of scribing of deed dated 06.3.1989 except Zahir Mian who else was present. During cross-examination, this witness replied to a suggestion put by the opposite side that the suit house was purchased from Qavi Mian, this witness was confronted with alleged Iqrar-Nama dated 06.3.1989 that the suit house was shown to be purchased, from one Sher Muhammad Khan, upon this, the said witness changed his statement and deposed that the suit house was purchased from Sher Muhammad Khan, so, changed his previous stance that it was only and only purchased from one Qavi Mian. He also admitted in cross-examination that the suit house is now in possession of a tenant belonging to Kohistan and they (defendants) are receiving rent worth Rs.1400/- per month from him. He further deposed that his father died before the death of his grandfather, he negated the suggestion that his grandfather had purchased half of the suit house earlier and half of it later on and it is correct that in the said deed dated 06.3.1989 the house of Mst. Baghdadi situates in the North. The relevant portion of his cross-examination is reproduced as under:-- From the above deposition it is proved that the house in north of purchased house described in the deed dated 06.03.1989, Ex:DW1/2 was owned by Mst. Bughdadi, the wife of "Said Mian" mother of petitioner and grandmother of respondents Nos.1 to 3.

13. This witness DW1 in his statement on oath and even in cross-examination did not utter a single word about relinquishment deed or payment of Rs.80,000/- to Mst. Sarbala Bibi petitioner in lieu of relinquishment of her share in the suit house i.e. owned by Mst. Baghdadi, in favour of defendants, however, he produced two witnesses Muhammad Ishaq and Asmat Ali, who annexed their statements on oath along with written statement under ibid Nizam-e-Adel Regulation, 2009.

14. Muhammad Ishaq appeared as DW-2 who relied on his statement on oath and during cross-examination deposed that compromise proceedings were held in his Baitak and at that time Asmat Ali, Inamullah, Haji Muhammad and Bakht Baidar were present and in lieu of Rs.80,000/- the compromise was effected. He further deposed that he did not know the name of person, who scribed the deed (relinquishment deed), however, amongst us, someone had scribed the said deed. He also admitted that in relinquishment deed dated 29.11.2001, the description of suit property has not been mentioned. He further admitted that usually such like documents are scribed on stamp papers, voluntarily stated that stamp paper was purchased in his presence. He categorically deposed that he did not scribe the same (relinquishment) deed.

15. Asmat Ali appeared as DW-3 who during cross-examination introduced a new fact that according to him plaintiff was paid Rs. 80,000/-however, stated that in his presence only compromise/ relinquishment deed was executed. He also stated that the Jirga was convened at Karachi and he did not know that who scribed the deed.

16. From the perusal of statements of the witnesses of defendants, it transpires that deed Ex. DW-1/3 has not been proved. Moreover, the only persons, who signed the deed is Muhammad Ishaq, DW-2 and Asmat Ali, DW-3. It further divulges, that in the deed there is no mention of payment of consideration amount alleged by witnesses as DW1 and DW3 paid for relinquishing of share in the suit house to petitioner, the same deed also did not bear thumb impressions of the petitioner. The defendants also badly failed to prove that who scribed the document/deed dated 06.03.1989 also. From the evidence produced by the defendants, it transpires, that the stance of defendants taken in the written statement as well as statements on oath that share in the suit house was relinquished by the petitioner vide relinquishment deed dated 29.11.2001 has not been proved on record.

17. As defendants/respondents badly failed to prove the payment of consideration amount of her share and the very execution of the relinquishment deed, so, the learned trial Court of Civil Judge while rendering findings on issues Nos.4, 5 and 6 did not consider these material depositions made by witnesses of the defendants, as attorney of the defendants DW-1 did not mention about the payment of Rs. 80,000/- in lieu of relinquishment , of share of petitioner in the suit house, meaning thereby, the suit house owned by Mst. Baghdadi is common ancestral property. The other witnesses of the defendants also introduced all together new fact that the Jirga was convened and the plaintiff was paid Rs. 80,000/- in lieu of her Shari share in the suit house, so, this important improvements in the evidence are departure from pleadings made in the written statement escaped the judicial notice by the learned trial Court while giving findings on issues Nos. 4, 5 and 6 in the impugned judgment and this evidence too, has been misread, non-read and over looked by the learned appellate Court at the time of reappraisal.

18. This Court while perusing the record and after hearing the arguments observed that both the two courts below did not adhere to the actual position of the case set forth through evidence on record that as to whether relinquishment deed had been proved in view of Article 79 of the Qanun-e-Shahadat, 1984 by producing of scribe and witnesses before whom passing of consideration amount from the hands of respondents Nos.1 to 3 to the petitioner in lieu of her Shari share taken place. No such like evidence is available on record, so, the judgments and decrees passed by the learned Courts below are the result of misreading and non-reading of evidence as well as non-appreciation of law.

19. It further transpires from record that suit property with description given in Ex:DW1/2 had been purchased by the grandfather Said Mian in the name of Alamgir, Zafar Shah and Nadir Shah while property situated in North of purchased house mentioned above was already there, so, in the description of Ex:DW1/2 the name of Mst.Baghdadi Bibi existed prior to the purchase of house in the name of respondents and above description has been admitted by DW1 during his cross-examination which is reproduced below: Therefore, the suit house in name of Mst. Baghdadi is proved and from the legacy of Mst.Baghdadi Bibi petitioner is entitled to her Shari share. Moreover, plaintiff has not asked for specific relief for possession through partition and as her share in the legacy of Mst. Baghdadi Bibi's house has been established. Thus, preliminary decree for partition is also granted to save the parties from the other round of protracted litigation in view of Shari Nizam-e-Adel Regulation, 2009 as it is within the domain of this Court to grant any ancillary relief even if not prayed for and in this regard wisdom is derived from the judgment of Hon'ble Supreme Court in case titled "Ahmad Nawaz Khan v. Muhammad Jaffar Khan 2010 SCMR 984".

20. In view of above, impugned judgments and decrees passed by learned Courts below are set aside and suit of plaintiff/petitioner to the extent of her Shari share in the suit house as prayed for, is preliminary decreed, with no order as to costs. ZC/8/P Revision allowed.