2010 PLP 9 (CLC)

IJAZ AHMED CHAUDHRY, J.

This revision petition has been directed against the judgment and decree dated 27-5-2005 passed by the learned Civil Judge 1st Class Sheikhupura whereby the suit for declaration filed by respondent No.1 was decreed and judgment and decree dated 2-3-2009 passed by the learned Additional District Judge Sheikhupura whereby the appeal filed by the petitioners was dismissed.

2. The brief facts narrated in this petition are that the petitioners are the successor in interest of respondents No.1-A to 1-C. Sher Muhammad filed a suit for declaration along with consequential relief on 11-12-1977 while alleging that one Mst. Nooran Bibi daughter of Karim Bakhsh was his sister and she was owner of property consisting of agricultural land measuring 104 Kanals, 13 Marlas bearing square No.196 (Killas Nos.13, 14/2, 15, 16, 17, 18, 23, 24 and 25) and Square No.206 (Killas Nos.18. 19 and 20) entered in Khata No.58 Khatauni No.72, mentioned in the Jamabandi for the years, 1968-1969 and a house along with tube well situated in village Ishreke Tehsil and District Sheikhupura. It was alleged in the plaint that said Mst. Nooran Bibi was about 80 years of age and also an uneducated Paradansheen lady and having no connection or relations with the petitioners or even their successors. It was also alleged that the petitioners were not related to her in any manner whatsoever. It is also alleged that the petitioners persuaded Mst. Nooran to execute a general power of attorney in their favour, so that they could collect the share of produce from the agricultural land in question and also for management of the said property. It is also alleged in the plaint that petitioners in collusion with the staff of Sub-Registrar Sheikhupura got executed Gift-deed in their own favour instead of general power of attorney. It is further alleged that Nooran Bibi neither gifted nor delivered the possession of the suit property to the petitioners and the Gift-deed stated to have been procured through fraud and misrepresentation. Thereafter, Mst. Nooran Bibi in her life time assailed the validity of Gift-deed through a suit for declaration before the Court of learned Civil Judge on 15-2-1977 against the petitioners. During the pendency of the suit respondent No.2 moved an application to be impleaded as sole heir of the deceased Mst. Nooran Bibi and he was impleaded as such. Thereafter, a compromise was effected between the respondent No.2 and petitioners and as such a consent decree was .passed in the suit and the fact of execution of Gift-deed was denied by the deceased lady and in this respect she filed a suit for declaration with consequential relief against the petitioners and respondent No.2. The petitioners while contesting the suit filed written statement in the said suit thereby controverting the inheritance and relationship of Sher Muhammad. According to the petitioner said Mst. Nooran appeared herself before the Sub-Registrar in connection with execution of the Gift-deed. The suit was contested by petitioners and respondent No.2 and due to the divergent pleadings of the parties issues were framed. According to the petitioners at the time of examination of the plaintiff's witness namely Sharif ul Rehman, petitioner No.1 Muhammad Sharif made a statement to the effect that if the said witness deposed on Holy Qur'an that Mst. Nooran Bibi did not execute the gift-deed in favour of the petitioners, the suit, might be decreed. The said witness deposed as desired by petitioner No.1 Muhammad Sharif and thereupon the suit was decreed in favour of Sher Muhammad plaintiff. After the suit was decreed, the petitioners filed an application under section 12(2), C.P.C. and challenged the decree dated 6-3-1985. The said application was dismissed by the trial Court vide order dated 3-6-1996. Thereafter the petitioners filed an appeal against the said dismissal order, which was dismissed by learned Additional District Judge, Sheikhupura vide his order dated 18-9-1999. Then the petitioner filed a writ petition against the said order which was accepted and case was remanded back to the trial Court for its de novo decision on merits. According to the petitioner learned trial Court before whom the case was remanded vide order dated 26-7-2004 observed that proceedings were to be conducted in the original suit and the petition under section 12(2), C.P.C. was consigned to the record. According to the petitioner during the pendency of suit said Sher Muhammad passed away and the respondent No.1-a to 1-c were impleaded as party being successors in interest of the deceased Sher Muhammad The learned trial Court observed while proceeding with the case that since the petition under section 12(2), C.P.C. was, consigned to the record, therefore, the proceedings be conducted in the case of suit filed by the deceased Sher Muhammad. However, the suit filed by the deceased Sher Muhammad was decreed vide order dated 27-5-2005. The petitioners aggrieved by the order and decree passed by the trial Court, filed an appeal, which finally came up for hearing before Mr. Bedar Bakhat the learned Additional District Judge, Sheikhupura, who after hearing the arguments c and perusing the record has been pleased to dismiss the appeal filed by the present petitioners by upholding the order passed by the learned trial Court vide judgment dated 2-3-2009. The petitioners feeling aggrieved by both the impugned judgment and decree have challenged the same through this revision.

3. The learned counsel for the petitioners contends that suit filed by Imam Bakash was decreed with the consent of the parties and application under section 12(2), C.P.C. was only remedy available to the respondent Sher Muhammad and the decree should have been passed in the said suit filed by Imam Bakash instead of the suit which was filed by Sher Muhammad respondent; that decree could not be declared as of legal effect and suit filed by Sher Muhammad which is lacking in said judgment and revision petition may be admitted for regular hearing; that Sher Muhammad respondent failed to prove his case that he was son of the real brother of Mst. Nooran Bibi and he was entitled to the property while the gift-deed was fully proved, which was registered in the name of the petitioners and findings arrived at by both the Courts below are liable to be set aside.

4. I have heard the learned counsel for the petitioners and perused the documents attached with this petition.

5. The learned trial Court and learned Additional District Judge Sheikhupura had rightly come to the conclusion that the petitioners who claimed a gift-deed dated 25-11-1976 in favour of the petitioners had already failed to prove the said gift-deed and they remained unable to produce marginal witnesses. During the proceedings of the said suit an offer was made by the defendants that if Sharif-ul-Rehman who is marginal witness took oath on Holy Qur'an that gift-deed was executed in their favour, the suit would be decreed and in consequence thereof said Sharif ul Rehman made oath on Holy Qur'an that gift-deed was not executed, hence both the parties were entitled to 50% land and they are in possession of the said land since 1977. The said Sharif ul Rehman in the present proceedings appeared as P.W.4 on behalf of respondent Sher Muhammad and made statement that gift-deed was not genuine and Mst. Nooran Bibi had met him when in Katchehri/Courts and told him that she had come to execute power of attorney for supervising her land in favour of petitioners. So the gift-deed was not proved as the marginal witnesses did not appear in the Court in support of the respondents. Even otherwise Mst. Nooran Bibi in her life time had challenged the gift-deed by filing civil suit and she subsequently died and onus to prove the gift-deed was on the respondents, which they had failed to discharge and learned trial Court decided the matter regarding genuineness of the gift-deed against the petitioners.

6. Sher Muhammad respondent being Special Attorney of Mst. Nooran Bibi produced five witnesses in his support that Mst. Nooran Bibi was real sister of father of Sher Muhammad and he was a genuine heir of deceased Mst. Nooran Bibi and was entitled to his due share from the property and gift-deed was a bogus document. It is also proved that Mst. Nooran Bibi had filed suit through Mr. Zahid Hussain Bokhari Advocate who appeared as P.W.3 and both the Courts have rightly decided the matter in favour of respondent Sher Muhammad that he was real brother of Mst. Nooran Bibi while the gift-deed was bogus and the petitioners are not entitled to any share. The findings of both the Courts for declaring the gift-deed as a bogus document do not need any interference as the learned counsel for the petitioners has failed to point out any illegality. The contention that proceedings of the case were not taken in which consent decree was passed on 28-5-1977 and the said decree could be assailed by filing application under section 12(2), C.P.C.

7. From the perusal of the judgment it is clear that the application under section 12(2), C.P.C. was also filed in the suit which was decreed on 28-5-1977 and the said application was dismissed. The revision petition filed against the said application was also dismissed. Writ petition filed by Sher Muhammad was accepted and decree was set aside and proceedings were initiated by the learned Civil judge after consolidating the application 12(2), C.P.C. and the suit filed by Sher Muhammad respondent vide order dated 26-7-2004 which was never challenged by the petitioners despite the fact that the petitioners were very much aware of the proceedings in the suit. Even otherwise it is admitted by the learned counsel for the petitioners that the petitioners are in possession of the property of Nooran Bibi from the year, 1977. On the other hand it has been proved on merits that the claim of the petitioner, which was based on relationship with Mst. Nooran Bibi deceased being sister of their mother was falsified during the proceedings before both the Courts and on the other hand Sher Muhammad was genuine owner/heir of Mst. Nooran Bibi being his brother and he was entitled for his share from the property of Mst. Nooran Bibi who has been deprived of since 1977 after the death of Mst. Nooran Bibi and on technicalities this Civil Revision cannot be accepted in order to further deprive the heirs of said Sher Muhammad from their due share. Even otherwise the procedures are being made in order to facilitate the just decisions of the cases and not to thwart the justice and, however, it is not an illegality that the order has been passed in a suit which was filed by Imam Bakash for setting aside the consent decree. The arguments of learned counsel for the petitioners have no force to convince this Court. This petition is devoid of any force and concurrent findings of both the Courts below cannot be interfered with having been passed on the evidence available on the record. Dismissed in limine. H.B.T./M-441/L Petition dismissed.