2017 PLP 48 (YLRN)

MUHAMMAD YOUNIS THAHEEM, J.

Through this judgment, this Court disposes of instant revision petition directed against the judgment and decree dated 21.07.2014 passed by the learned Additional District Judge/Izafi Zilla Qazi-I, Kabal, Swat, vide which, regular civil appeal preferred by present petitioner against the judgment and decree dated 29.03.2014 passed by learned Civil Judge/Illaqa Qazi-I, Kabal, Swat, was dismissed and judgment and decree passed by learned trial Court was kept maintained.

2. Brief facts of the instant case are that present respondents Nos.1 to 3 instituted a civil suit for declaration to the effect that they are owner in possession to extent of their shari share from the legacy Mst. Komintaja daughter of Mian Gul Saeed and sister of Mian Gul Wahid (present petitioner) and other sister Mst. Zamina wife of Faramosh in the property situated in Moza Damghar Tehsil Kabal, District Swat, relating to Khata No.196 Khatoni Nos.325/326 Khasra No.782 area measuring 07 Marla, Khasra No.783 area measuring 4 Kanal 4 Marla described fully in the plaint along with Makaan Aabad (built house).

3. Present petitioner/defendant along with other defendants were summoned who on appearance submitted his written statement and learned trial Court framed issues in the light of divergent pleas of the parties as given below:--

4. Both the parties led evidence as they wished and after conclusion of trial, learned trial Court on hearing arguments, decreed the suit on 29.03.2014.

5. The petitioner/defendant No.1 feeling dissatisfied from the judgment and decree passed by learned trial Court, filed regular civil appeal before learned Additional District Judge/Izafi Zila Qazi, Kabal, Swat, which after hearing met the same fate and judgment and decree of learned trial Court was maintained, feeling still aggrieved from the judgments and decrees of both learned Courts mentioned above, the petitioner filed present civil revision petition, inter alia, on the grounds mentioned therein.

6. As the instant civil revision is still in pre-admission notice, so, when learned counsel for the petitioner was confronted in this regard he argued the case on merits. The arguments advanced by learned counsel for the petitioner carries weight, therefore, this court admits the instant case and fixed it today for final hearing.

7. Learned counsel for petitioner argued that his father owned half of the share of property mentioned in the suit, which comes to 2 kanal and 2 marla while rest of 2 kanal 2 marla was owned by the brother of his father Noor Said Mian. His father fell ill and for his treatment he was in need of money, so, he mortgaged his property to one Bakht Jamal and after death of his father he redeemed that suit land and house after making payment to Bakht Jamal from his own resources earned by him, thus became owner of share of his father and afterwards out of that redeemed suit property he transferred the suit house to his wife as Mahar. He also asserted that he had spent huge amount on the improvements of suit property in shape of house. He further contended that he had purchased other half of share of the suit property from his real uncle Noor Said Mian vide sale deeds Nos. 338 and 339 dated 23.8.1970, therefore, the suit property was not the legacy left by his father Mian Gul Saeed. The learned counsel further added that the judgments and decrees of both Courts below are the result of misreading and non-reading of evidence, perverse in law, so are liable to be set aside and suit of plaintiff be dismissed.

8. On the other hand, learned counsel for respondents supported the judgments and decrees of both the learned Courts below by arguing that suit property was ownership of their common predecessor Mian Gul Saeed and predecessor of plaintiffs and defendant No.2 and wife of defendant No.3 inherited the same property while defendant No.1 wrongly and illegally entered the same property on his name, so the entries had been rightly set aside. Moreover, the defendant No.1 failed to prove mortgaging of suit property with Bakht Jamal and later on redeeming of it. Lastly prayed for dismissal of present petition.

9. Arguments heard and record perused.

10. From the perusal of record it reveals that both parties are admittedly legal heirs of one Mian Gul Saeed and are related in their degree as follows.

11. Admittedly the property mentioned in the plaint was originally owned by predecessor of the parties namely Amin Gul Bacha. After his death it devolved upon his two sons namely Noor Said Mian and predecessor of present parties namely Mian Gul Saeed and after death of Mian Gul Saeed it devolved upon plaintiff's mother Mst. Khaista Bibi, daughter Mst.Komintaja, defendant No.1 Mian Gul Wahid and other daughter Mst. Zamina wife of Faramosh defendant No.3. Plaintiffs Nos.1 to 3 and defendant No.2 are legal heirs of Mst. Komintaja while defendant No.4 is the husband of Mst. Zamina.

12. Patwari Halqa Syed Asif Shah appeared as PW4 and produced record of Jamabandi pertaining to year 2010-11 as Ex.PW4/1. According to Ex.PW4/1 Mian Gul Wahid defendant No.1 has been entered only as owner upto 7 Marla pertaining to Khasra No.782 Khona Baba Ghair Mumkin Qabristan and area measuring 4 Kanal 4 Marla bearing Khasra No.783. No other record was produced except above by the parties from the said Patwari.

13. The plaintiffs in support of their stance had produced Patwari Halqa and one Umar Ali son of Muhammad Bashir as PW-2, Mst Jehanzeba as PW-1, Fazal Mahbood as PW-2 and Toor Ali as PW-3. All the witnesses supported the stance of the plaintiffs.

14. As discussed earlier, relationship between the parties in light of the pedigree table given above is admitted and proved. The defendant No.1 raised specific plea of mortgage and redeeming of it as well as purchasing of share of Mian Noor Saeed the brother of Mian Gul Saeed, so, in this regard, the learned trial Court framed issues Nos. 3, 4, 6, and 7 which are reproduced as below:

15. Before the fora below the above-mentioned issues remained the most important in context of the present case and after discussing evidence in details, the learned trial Court decreed the suit by holding that the entries in the revenue record to the extent of defendant No. 1 are null and void and declared half of the property mentioned in Ex.PW-4/1 along with house as ownership of Mian Gul Saeed, the predecessor of the parties while remains half measuring 2 kanal 2 marla as share of other brother of Mian Gul Saeed namely Mian Noor Saeed along with Khasra No.782 which is Qabristan (graveyard).

16. As the burden of proof regarding mortgaging of suit land as alleged by the defendant No. 1 by his father Mian Gul Saeed and payment of mortgage amount to the mortgagee Bakht Jamal was upon him, which he badly failed to prove through cogent and confidence inspiring evidence as the petitioner was legal bound to have proved the factum of mortgage and payment of mortgage money of redeeming and in this respect he failed to produce any oral or documentary evidence except mere assertions by DWs. So in this respect wisdom is derived from the judgment of Hon'ble Supreme Court of Pakistan, in a case titled "Sultan Muhammad and another v. Muhammad Qasim and another" (2010 SCMR 1630), relevant excerpt therefrom is recorded as under:-- "It is well recognized legal principle about the discharge of burden of proof that a party approaching the Court of law for grant of relief has to discharge its own burden and has to stand on its own legs to succeed, and no benefit of any weaknesses in the case of opposite party can be availed by him". Similarly, in the judgment cited in a case titled "Abdul Haque v. The State and another" (PLD 1996 SC 1), wherein, it was held by the larger bench comprised five Hon'ble Judges of the Supreme Court of Pakistan as under:-- "When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person in view of Article 121 of the Qanun-e-Shahadat".

17. So, in the light of above referred principle of law laid down by Hon'ble Supreme Court of Pakistan, the learned trial Court rightly disbelieved the plea of the defendant No.1 in respect of allegation of mortgaging the suit property and afterward its redeeming, he became sole owner of the share left by his father and afterward out of the same property he transferred suit house to his wife in lieu of Mahar, but in this respect he also failed to produce cogent evidence that property was mortgaged, redeemed and thereafter transferred in lieu of Haq-e-Mahar to his wife.

18. After the death of his father defendant No.1 was owner to the extent of share which legally devolved on him and if he had transferred the suit house in lieu of Mahar to his wife that would be considered to extent of his devolved share from the legacy of his father and transfer of entire suit house including shares of other legal heirs was unauthorized and against law, thus, in this regard, the findings of learned trial Court are correct, well-reasoned and in accordance with law.

19. The stance of defendant No.1/ petitioner that he purchased other half of the suit property from his paternal uncle Mian Noor Saeed, which was devolved upon him by their common predecessor Amin Bacha through ( ) Nos. 338 and 339 dated 23.8.1971 and this fact was further corroborated by son of Noor Said Bacha, who appeared as DW-2 during pendency of suit another development took place and an agreement between defendant No. 1 and defendant No. 4 Faramosh Khan the husband of late Mst. Zamina took place, the same agreement deed is placed on record as EX. DW-1/3. So, Mian Gul Saeed was owner of the property up to 2 kanal and 2 marla i.e. suit property, therefore, from this property, the learned trial Court decreed the suit to the extent of share of their mother Mst. Komintaja i.e. 1/4th Shari share to the plaintiffs/ respondents including defendant No.4 the son of Mst. Komintaja.

20. The respondent did not challenge the judgment and decree of learned trial Court by way of filing civil appeal or cross objection, so, to that extent the judgment of learned trial Court attained finality, however only present petitioner filed regular civil appeal against the judgment and decree of learned trial Court before the learned appellate Court and same appeal was dismissed.

21. This Court after going through the record is of the view that the findings of the learned trial Court regarding issues Nos. 3, 4, 6 and 7 are based on proper appreciation of evidence and law, which were rightly upheld by the learned appellate Court below after proper reappraisal of evidence on record, thus, the findings arrived at by the learned two Courts below are exceptional in nature and call for no interference by this Court.

22. In view of what has been discussed above, the instant revision petition being bereft of merits stands dismissed. ZC/291/P Revision dismissed.