2013 PLP 1334 (YLR)

AMIN-UD-DIN KHAN, J.

Through this civil revision, petitioners have challenged the judgment and decree dated 4-1-2005 passed by learned Addl: District Judge Muzaffargarh, whereby the appeal filed by the petitioners was dismissed and the judgment and decree dated 14-7-2003 passed by learned Civil Judge, Kot Addu District Muzaffargarh, whereby the suit filed by the petitioners-plaintiffs was dismissed.

2. Briefly, the facts as leading to this civil revision are that on 16-5-1997 petitioners-plaintiffs filed a suit for declaration alleging therein that they are owner of suit property fully described in the head note of plaint and they challenged various mutations mentioned therein. The case of plaintiffs as pleaded by them is that Muhammad Bakhsh alias Usman son of Piran son of Kaura, was their predecessor, who died 7/8 years ago and further that defendant No.3 is Muhammad Bakhsh son of Piran son of Ditta being similarity with the parentage of predecessor of petitioners-plaintiffs. The suit property was inherited property of plaintiffs and they are in possession of the same. Defendant No.3 dishonestly appointed defendant No.2 as his Attorney and showing the transfer of property of plaintiffs through mutation No.1597 through his Attorney in favour of defendant No.1, who is father of the Attorney, got sanctioned the Mutation on 24-12-1996 and through Mutation No.1598 attested on 24-12-1996 defendant No.1 gifted the suit property in favour of defendant No.2. The plaintiffs stated that they came to know about this forgery during the consolidation proceedings, therefore the suit is being filed. The written statement was filed and suit was contested. Learned trial Court from the divergent pleadings of parties framed issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the close of trial, vide judgment and decree dated 14-7-2003 suit was dismissed by the trial Court. An appeal was filed before the first appellate Court, which also met with the same fate vide judgment and decree dated 4-1-2005. Hence, this civil revision.

3. Learned counsel for the petitioners-plaintiffs states that defendant No.3 was alive and he was bound to appear in the witness box, as he was the person who could state the relationship with the owner of property but he intentionally did not appear as a witness. Further states that both the courts below miserably failed to consider the valuable evidence in shape of un-rebutted documents produced by the petitioners-plaintiffs. He has referred Exh.P-25 which is inheritance Mutation No.1282 of Peera in favour of Muhammad Bakhsh attested in the year 1921, Exh.P-21 Mutation No.1283 of inheritance of Peera son of Kaura in favour of Muhammad Bakhsh son of Peera, which is dated 20-12-1921. Further he has referred Exh.P-8, Mutation No.2548 of inheritance of Ghulam Hussain son of Jeewan in favour of widow Bhiranwan, daughter Sahiban and the maternal cousin Usman. Learned counsel has further connected all these mutations with the predecessor of plaintiffs while referring Exh.P-18, the pedigree table at page 9 of this document, which is at page 216 of this file. The father of Muhammad Bakhsh is written as Peeran and his father Kaura. The other son of Kaura is Jeewan, his son is Ghulam Hussain and Ghulam Hussain's widow is written as Bhirawan and daughter Sahiban, which corroborate with Exh.P-8, Ex.P-21 and Ex.P-25 and the only cousin of Ghulam Hussain is written as Muhammad Bakhsh, in this pedigree table, which shows that this Muhammad Bakhsh is alias Usman. Further at page 17 of this document, which is at page 224 of this file, Peera has been shown son of Ditta, who is son of Gaman son of Muhammad Bakhsh to show the pedigree table of the defendant No.3, learned counsel states that now it is clear that the predecessor of petitioners-plaintiffs, Muhammad Bakhsh was son of Peeran, who was son of Kaura and defendant No.3 is son of Peera, who was son of Ditta, who was son of Gaman, therefore fraud is proved through this documentary evidence and by referring Jamabandi for the year 1997-1998 (Exh.P-13) learned counsel states that the father of Muhammad Bakhsh namely Peera son of Ditta was owner of land measuring 1-kanal 10-marlas only and his uncle Faqeera son of Ditta was also owner of 1-kanal 10-marlas only and no other land was in their ownership, therefore defendant No.3 fraudulently transferred the suit property, which is inherited property of plaintiffs; that the above said mutations and pedigree table were never challenged by defendant No.3 and further that defendants Nos.1 and 2 never proved themselves to be bona fide transferee for value of the suit property; that the way in which the property has been transferred clearly shows the mala fide on the part of the defendants, as defendant No.2 became the Attorney of defendant No.3 and transferred the property in favour of defendant No.1, who gifted the suit property in favour of defendant No.2. Further that though D.W-1 Muhammad Bakhsh appeared as witness, he is not defendant No.3 but learned first appellate Court wrongly noted that defendant No.3 appeared as a witness; that though he is real maternal uncle of plaintiffs but there is criminal litigation between the plaintiffs and said Muhammad Bakhsh and further that this witness has admitted that father of Usman was Peeran and Peeran was son of Kaura and that he admitted that Usman received the inheritance of Ghulam Hussain being his cousin and showed his ignorance about the entry of name of Usman in the Revenue Record as Muhammad Bakhsh. Further states that even Mithoo, one of the defendants, admitted that Muhammad Bakhsh is alive and name of father of defendant No.3, Muhammad Bakhsh is Peer Bakhsh who is son of Ditta. He also replied that he does not know that wherefrom the suit property came to Muhammad Bakhsh. Learned counsel states that the suit was liable to be decreed when this unrebutted voluminous evidence was produced by the petitioners-plaintiffs; that even the learned courts below have admitted that the suit property was the ownership of Peera son of Kaura. While relying upon "2002 MLD 1106 (Mst. Sawaran and 4 others v. Mst. Ghulam Fatima and 2 others)" learned counsel states that this Court can set aside the concurrent findings of learned two courts below when the material documentary evidence has been ignored. He has further relied upon "2007 SCMR 729 (Rehmatullah and others v. Saleh Khan and others)" to state that when no proof of payment of money was on the record under section 54 of the Transfer of Property Act, 1882, sale cannot be proved in absence of proof of money. Further relying upon "2002 SCMR 326 (Mst. Baswar Sultan v. Mst. Adeeba Alvi)" learned counsel states that through oral evidence documentary evidence cannot be excluded.

4. On the other hand, learned counsel for the respondents-defendants states that there are concurrent findings of facts in the matter recorded by two courts below, therefore need not be reappraised. Further states that even the maternal uncle of plaintiffs deposed against them, therefore this civil revision be dismissed.

5. I have heard the learned counsel for the parties at full length, perused the voluminous documentary evidence produced by the petitioners-plaintiffs and also gone through the findings recorded by the courts below.

6. It is not a case of reappraisal of evidence, rather it is a case of ignoring the material documentary evidence on the basis of oral evidence by the courts below. The oral evidence cannot exclude the documentary evidence. Both the courts below fell in error while ignoring the documentary evidence on the basis of oral evidence. Even I have noticed that the courts below, to some extent admitted the case pleaded by the plaintiffs. Learned first appellate Court admitted that the suit property was the ownership of Peera son of Kaura. When defendant No.3 claims Peera to be son of Ditta son of Gaman, then certainly the pedigree table produced by the plaintiffs is proved on both sides, which proves the relationship of predecessor of plaintiffs with them and also it proves the predecessor and line of inheritance of defendant No.3 also. When it is proved that the plaintiffs have proved their relationship with the predecessor, whom first appellate Court has admitted to be the owner of suit property, then I am astonished that why the decree of dismissal of suit was upheld by the first appellate court. The case-law referred to by learned counsel for the petitioners-plaintiffs is fully applicable to the facts of this case. The defendants Nos.1 and 2 absolutely failed to prove the sale in their favour as well as they being the bona fide transferee, the mode which was adopted for transfer of property in their favour is also important to be looked into, as defendant No.2 became the Attorney of owner i.e. defendant No.3 and sold the property in favour of defendant No.1 and then defendant No.1 gifted the said property to defendant No.2, which itself is sufficient to prove the fraud. In this view of the matter, the judgments and decrees passed by the courts below are not only result of misreading or non-reading of evidence but also ignoring the unrebutted documentary evidence, which is the part of revenue record and pedigree table which has not been denied by the defendants and their witnesses. Therefore, the findings recorded by the courts below against the voluminous documentary evidence as well as ignoring the law referred above are nullity in the eye of law.

7. In the light of what has been discussed above, this civil revision is allowed and the impugned judgments and decrees passed by the courts below are set aside. Resultantly, suit filed by the petitioners-plaintiffs shall stand decreed with costs throughout. MH/K-3/L Revision allowed.