2016 PLP 1 (YLRN)

S. 42

Suit for declaration

Claim of inheritance

Parties had failed to prove their relation with the original owner of suit land shown in the pedigree table

No direct relation had been shown by the plaintiffs with the owner of property in dispute

Plaintiffs should have appeared in person to depose about relation with those from whom legacy had been claimed but they had not entered into witness box

Best evidence had been withheld and adverse inference could be drawn against the plaintiffs

Defendants had also failed to prove that they were legal heirs of the deceased

Defendants did not appear in the witness box in support of their contentions and opted to be examined through attorney

Mutations which were attested for fiscal purpose did not bestow right upon the beneficiaries and burden would lie upon them to prove the same

Beneficiaries had neither examined the marginal witnesses nor any elder from the locality had knowledge of relation of the owner of suit land with the defendants

Neither Patwari Halqa nor attesting officer/Revenue Officer were produced who were important entities to prove the valid attestation of mutations

Person acquainted with the signatures or writing should have been examined if such witnesses were not traceable or no more alive

Presumption was attached to the revenue record but same was rebuttable and when such record was questioned same had to be proved through tangible and cogent evidence

No case had been made out by either party and both the parties had failed to prove their relation qua the entitlement of their share out of legacy of deceased

Trial Court had rightly dismissed the suit but same could not be decreed in favour of defendants as they had failed to prove their stance to be the legal heirs of deceased

Mutations attested in favour of defendants were attested without any proper inquiry and proof of relation and same were declared annulled

Both the parties had no nexus with the property in question and there was no legal claimant of the same

Suit property was declared unclaimed and Collector was directed to proceed in accordance with law

Appeal was dismissed in circumstances. [Paras. 5, 6, 8 and 9 of the judgment] JUDGMENT ABDUL LATIF KHAN, J.

Through the instant appeal, the appellants have called in question the judgment and decree dated 08.12.2012 passed by the learned Civil Judge-VII, D.I. Khan vide which their suit for declaration and permanent injunction was dismissed.

2. Learned counsel for the appellant contended that the trial Court has wrongly dismissed the suit of the appellants, as evidence available on file has been wrongly appreciated by the trial Court. It was contended that findings on issues Nos.1 to 4 are not in line with law. It was argued that the suit for declaratory decree had been filed by the appellants against the revenue record for 2004-2005 and thereafter up to current jamabandi and not for mere cancellation of mutations and to this effect, decision on issue No.5 is misconceived. He contended that Abdul Karim has not come forward in support of defendants Nos.1 to 3 who have attorned them and to this effect that findings of the trial Court are not in accordance with law. He argued that the appellants were not associated in revenue proceedings and therefore, were not aware of any proceedings and have no binding effect upon their rights. It was argued that the decision on issues Nos.1 and 8 has been made in a routine slipshold manner basing upon the findings on other issues. He argued with great vehemence that the appellants are the legal heirs of Ramzan son of Mst. Pathano, who happened to be the daughter of Sheru and are entitled to the legacy of Dost Ali and Fazal Ali sons of Gulan, who were issueless as distant kindred.

3. As against that, learned counsel for the respondents contended that Mst. Zohran, respondent No.1, happens to be the daughter of Dost Ali and Kashmir and Amir were the sons of Fazal Ali, whereas Hassan and Hayat who are in fact one of the same persons but their names are incorrectly divided who died issueless and due to this relation as sons and daughter of Dost Ali and Fazal Ali, they are entitled to get the inheritance and mutations have been rightly attested in their favour. He based his claim on the order of Collector upheld by Additional Commissioner and contended that the appellants have no nexus with the property as they are not related in any degree to the original owners Dost Ali and Fazal Ali.

4. I have given my thoughtful consideration to the arguments of learned counsel for the parties and perused the record with their able assistance.

5. Perusal of the record reveals that mutations Nos.146, 147 and 148 regarding revenue estate of Gara Bakhsha were attested in favour of one Sailani which were challenged before the revenue authorities and subsequently mutations Nos.195, 196 and 197 were attested in favour of respondents. Similarly, mutations Nos.222, 223 and 224 with regard to mouza Gara Jamal were also attested and mutations Nos.1110, 1111 and 1112 of mauza Kurai regarding the inheritance of Dost Ali and Fazal Ali were attested in favour of respondents. The parties failed to prove their relation with the original owners Dost Ali and Fazal Ali who are shown in the pedigree table, available on file as Ex.P.W.4/2. Dost Ali, Fazal Ali, Hassan and Hayat sons of Gulan Khan were claimed by the plaintiffs to have died issueless. It is pertinent to mention that Hassan and Hayat are shown as two persons but both the counsel agreed that in fact he is one and the same person named as Hassan Hayat and the name has been wrongly divided into two portions, who is in fact one person and admittedly died issueless. The claim of the plaintiffs is that they are related to Dost Ali and Fazal Ali as distant kindred. The plaintiffs are the sons of Ramzan, who happens to be the son of Mst. Pathano daughter of Sheru. No direct relation has been shown by the plaintiffs and even remotely, they seem to have no link with Dost Ali and Fazal Ali. The solitary statement of P.W.4 has been recorded in support of his claim, who happens to be the son of Inayatullah, plaintiff No.2, aged about 37 years. None of the other seven plaintiffs has deposed in person including plaintiff No.2 and opted to be examined through a person namely Kifayatullah, who knows nothing about the status of the plaintiffs, with special reference to relation with deceased Dost Ali and Fazal Ali, as he is aged only 37 years and all what happened and related to the issue was much prior to his birth. The pedigree table annexed by the plaintiffs along with the plaint has been produced by him as Ex.P.W.4/2, wherein the plaintiffs are not even shown related to those, whose property has been claimed in the inheritance. He has admitted in cross-examination that previously a suit was filed which was decreed in favour of respondents Kashmir etc. He knows nothing about the facts of the case, rather candidly admitted in cross-examination that Mst. Sabo (mother of Mst. Pathano and grandmother of Ramzan father of the appellants) had no relation with the persons, whose property is disputed in the instant case and as such he has totally devitalized the case of the plaintiffs. Needless to mention that in such like cases, the plaintiffs, comparatively of more than the age of attorney, ought to have appeared in person to depose about relation with those from whom legacy has been claimed but have not bothered to enter into witness box and to this effect, adverse inference can be drawn against them, as the best evidence has been withheld and opted to appear through a person unaware and unacquainted with the facts of the case.

6. On the other hand, the respondents badly failed to prove that they are the daughter and sons of Dost Ali and Fazal Ali. They too relied upon the solitary statement of Jehangir (DW-1), special attorney of the defendants. They also did not brother to come to the witness box in support of their contentions and opted to be examined through attorney. His statement hinges upon three lines by stating that Mst. Sabo and Mst. Pathano have no relation with their family and their entries in the revenue record have been rightly made. He did not utter a single word that how the defendants are related to the persons, the inheritance of whom has been claimed in the instant suit by the defendants and mutations have been attested in their favour. Needless to mention that mutations, which are attested for fiscal purpose, bestow no right upon the beneficiaries and burden heavily lies upon them to prove the mutations to the effect that the mutations have been validly attested in their favour. About 120 kanals of land is involved in the instant suit but the beneficiaries have neither examined the marginal witnesses nor any elder from the locality having at least a little knowledge of the relation of Dost Ali and Fazal Ali with the defendants. Similarly, patwari halqa and attesting officer/Revenue Officer were not produced who were the most important entities to be produced to prove and valid attestation of mutations and if for any reason, any of the witness was not traceable or no more alive, the person acquainted with their signature or writing ought to have been examined under the law. The contention of the attorney that the entries in the revenue record have been correctly made in their names is not supported by cogent evidence, as no doubt presumption is attached to the revenue record, but the same is rebutable and when questioned, has to be proved through tangible and cogent evidence. DW-1 has showed his ignorance about the relation of Mst. Sabo and Mst. Pathano. He showed ignorance about the relation of Dost Ali and Fazal Ali with plaintiffs or defendants. He admitted in the cross-examination that as the matter is too old, therefore, he does not remember as to whether Mst. Pathano had any sister namely Mst. Bakhsho, born out of the wedlock of Mst. Sabo with Sheru. He was also unable to disclose anything about the sons, daughters and husband of Mst. Pathano. The learned counsel for the respondents laid much stress on the judgments of the Collector, duly affirmed by Additional Commissioner, which are not placed on file properly, however, the photocopies produced and when perused, do not speak about the relation of parties, as it was a matter regarding the attestation of mutations or otherwise, which was disposed of by the revenue hierarchy in summary manner, as intricate questions of law and facts have not been resolved, with special reference to relations of parties with those whose legacy has been claimed by both the parties and as such either party could not claim any benefit out of those judgments.

7. Another judgment was vehemently referred by the learned counsel for the respondents, which has not seen the light of the day so far, as far as record of the instant case is concerned. However, a specific question was put by the learned counsel to PW-4 to the effect that as to whether any previous suit was filed which was later on decided in favour of Kashmir etc. in reply to which, he admitted the suggestion, however, in the said admission. he also deposed that he had no knowledge of that decree. The learned counsel for the respondents was asked by the Court about that judgment, but neither it was available with him nor produced during the proceedings before the trial Court and as such, mere reliance on a judgment, not produced at any stage, would be of no avail to the defendants.

8. The scanning of evidence in proper perspective reveals that no case has been made out by either party as both of them claim the inheritance from Dost Ali and Fazal Ali from different angles, but neither; documentary nor oral evidence has been produced and as such both the parties failed to prove their relation qua the entitlement of their share out of the legacy of Dost Ali and Fazal Ali, therefore, the trial Court has rightly dismissed the suit but that could not be decreed in favour of the respondents/ defendants, as they too have badly failed to prove their stance to be the legal heirs of Dost Ali and Fazal Ali and as such the mutations attested in their favour were attested without any proper inquiry and proof of relation and as such are annulled

9. For the reasons mentioned above, the instant appeal being bereft of any merit is hereby dismissed. However, as both the parties have no nexus with the property and there is no legal claimant of the same, therefore, it shall vest in the Provincial Government as being unclaimed property and to this effect, Collector D.I. Khan is directed to proceed in the matter strictly in accordance with law with report to the Additional Registrar of this Court within shortest possible time. No order as to costs. ZC/303-P Appeal dismissed.