2020 PLP 101 (YLRN)

ALI BAIG, J.

Through the instant civil revision petition filed under Section 115, C.P.C. the petitioners/ defendants have assailed the impugned judgment/decree dated 30/12/2017 passed by the learned Additional District Judge Skardu whereby the learned 1st appellate court has dismissed the civil 1st appeal of the present petitioners/defendants by maintaining the judgment and decree passed by the learned trial court dated 03.06.2017.

2. Precisely relevant facts necessary for the disposal of the instant civil revision petition are that the present respondent/plaintiff filed a suit for declaration and permanent injunction against the present petitioners/defendants in the trial court claiming that he had married with the deceased Mst. Roqia Begum in the year 1964 and out of said wedlock the defendant No.1 Mst. Kaniz Sakina was born and Mst. Roqia passed away in the year 2003 leaving behind the immovable property. The present petitioners/defendants took into their possession the entire landed property of Mst. Roqia Begum and defendant/ petitioner No.2 sold-out some pieces of land to different persons. Accordingly the plaintiff/ respondent demanded the defendants/petitioners for handing over of his sharie share measuring one kanal 17 marlas from the legacy of his late wife. The parties appointed the sole mediator namely Sheikh Ismail resident of Kamango Kharmong giving him authority for settlement of dispute vide agreement/ Iqrar Nama dated 26.08.2011. The above named mediator vide his verdict/award dated 05.11.2011 declared the plaintiff/ respondent entitled for 1/4th share out of property left by the above named deceased lady. In compliance with the award of arbitrator the defendant No.1/ petitioner handed over one kanal 17 marlas land under khasra No.695 to the plaintiff/respondent vide Iqrar Nama dated 27.11.2017 and possession of said land was delivered to the plaintiff. Later on, on the measurement the land found 07 marlas deficit/less, hence the plaintiff/ respondent filed suit in the trial court.

3. The present petitioners/defendants resisted the suit by filing their joint written statement in the trial court raising certain legal objections and denying the averments of plaint.

4. On the basis of divergent pleadings of the parties, the learned trial court has framed the following issues: -

1. Whether the suit of plaintiff is within time? OPP

2. Whether the plaintiff is entitled to get 1/4 share viz 1 kanal 17 marlas from the legacy of late Mst. Roqia Begum? OPP

3. Whether the suit in not maintainable in its present form? OPD

4. Whether the Registry is based on fraud if so its legal consequence? OPD

5. Relief.

5. In addition to the aforesaid issues, the learned 1st appellate court has also framed one additional issue as under:: - "Whether the possession of the property lies with the defendants? OPD

6. After framing of issues both the parties examined their oral evidence and produced documentary evidence in support of their respective contentions/ claim. The plaintiff/respondent examined three oral witnesses namely Ikhlaq Hussain son of Ghulam Ali, Muhammad Hussain son of Muhammad Ibrahim and Wazir Muhammad Hussain son of Wazir Muhammad Ali besides recording of his own statement in the trial court. The plaintiff has also produced some documentary evidence. Likewise the petitioners/defendants have got recorded their statement through defendant No.2 namely Syed Amjad Hussain and have got examined two oral witnesses namely Akhond Muhammad Iqbal and Ali Raza and have also produced some documentary evidence.

7. On conclusion of the trial court the learned trial court vide the judgment/decree dated 03.06.2017 has decreed the suit in favour of the plaintiff/respondent and against the petitioners/defendants.

8. The present petitioners/defendants being aggrieved from the judgment/decree passed by the learned trial court had filed civil 1st appeal in the court of the learned Additional District Judge, Skardu which was also dismissed by the learned 1st appellate court vide the impugned judgment/decree dated 09.12.2017, hence this civil revision petition.

9. The learned counsel for the petitioners/defendants submitted that the impugned judgment/decree passed by the learned trial court is contrary to law and facts on the record of the case as such the impugned judgment/decree passed by the learned 1st appellate court is not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that the plaintiff/present respondent had contracted temporary marriage/Mutah with the deceased Roqia Begum, therefore, plaintiff is not entitled to get his Sharie share from the legacy of late Mst. Roqia Begum. The learned counsel for the petitioners further argued that the plaintiff/respondent has not mentioned total landed property/legacy of late Mst. Roqia Begum in the plaint and suit land is in the possession of the present petitioners/defendants, therefore, declaratory suit is not maintainable as the plaintiff/respondent has not sought possession of suit land in the plaint.

10. Conversely, the learned counsel for the respondent/plaintiff vehemently opposed this civil revision petition and defended the concurrent findings handed-down by the learned courts below by contending that admittedly the plaintiff/ respondent being husband of the deceased Mst. Roqia Begum is entitled to get his 1/4th Sharie share from the legacy of his deceased wife Mst. Roqia Begum. The learned counsel for the respondent/ plaintiff further argued that the plaintiff/ respondent has proved his claim by adducing reliable and cogent oral and documentary evidence in the trial court and as such both the courts below have rightly decreed the suit of the plaintiff in his favour through its concurrent findings which may be maintained in the interest of judgment.

11. I have heard the learned counsel for the parties at the considerable length and gone through the record with the able assistance of the learned counsel for the parties.

12. Admittedly the present respondent/plaintiff was legally wedded husband of the deceased Mst. Roqia Begum and as per personal law of inheritance the plaintiff/respondent is entitled to get 1/4th sharie share from the estate left behind by his late wife. Main contention of the learned counsel for the petitioners/defendants is that Nikah of the plaintiff/respondent with the deceased lady was not permanent rather he had contracted temporary marriage/Nikah with the deceased lady, therefore, the plaintiff/respondent is not entitled to get his 1/4th shari share from the legacy of his above named deceased wife. The petitioners/defendants have got examined two oral witnesses namely Akhond Muhammad Iqbal and Ali Raza as Dws in the trial court. I have gone through the statements of above named DWs and found that they have not uttered a single word that the Nikah/marriage of deceased Mst.Roqia Begum with the plaintiff/ respondent was temporary and nor the defendants/petitioners have produced any document to prove that the plaintiff had contracted temporary marriage with the deceased Roqia Begum. In absence of any reliable evidence in this respect the Nikah of the plaintiff/respondent with his deceased wife, the temporary Nikah shall be presumed as permanent Nikah. I have also gone through the entire evidence produced by both the parties and found that the plaintiff/respondent has proved his case/claim by adducing unimpeachable and cogent oral and documentary evidence in the learned trial court and the present petitioners/defendants have failed to rebut the evidence of the plaintiff/respondent.

13. In view of the above peculiar facts and circumstances of the case this Court has reached at the conclusion that the concurrent findings of the both the learned court below are based on material facts and law. The learned Courts below have passed the impugned judgments/ decrees after proper appreciation of evidence of the parties and relevant provisions of law which do not call for any interference by this Court in its revisional jurisdiction.

14. For what has been discussed above, this revision petition being devoid of any merit is hereby dismissed leaving the parties to bear their own cost. ZC/159/GB Revision dismissed.