2010L2524 (PLP)

S. ALI HASSAN RIZVI, J.

The petitioners challenged the legality and vires of judgment and decree, dated 27-9-2005 passed by the learned Civil Judge whereby suit for declaration with permanent injunction was decreed in favour of respondent No.1 Mst. Jannat Bibi and, dated 24-4-2008 learned Additional District Judge dismissed the appeal.

2. Brief facts necessary for the disposal of the suit filed by the respondents for declaration with permanent injunction alleging therein that father of the respondent Dondi was allotted the land described in Para. 1 of the plaint. Respondent No.1 claimed that Dondi above said was his father who expired in 1957 but respondents Nos.1 to 3 given in plaint got sanctioned Mutation No.5, dated 6-4-1957 in their favour showing Dondi as issueless. The respondent/plaintiff (Mst. Jannat Bibi) claims that she is a real daughter of Dondi and entitled for 1/2 share from the inheritance of his deceased father. She came into knowledge about the mutation in 1996 when respondents Nos. 1 to 3/defendants got exchanged their property through Mutation No.1703 with defendants Nos.7 to

9. This mutation was challenged iii' appeal before the Assistant Collector,. Sheikhupura. The Assistant Collector accepted this appeal. The respondent in the meanwhile withdrew her civil suit but the appeal of the petitioners/defendants was accepted by the learned Additional Commissioner (Revenue). The respondent was constrained to file afresh civil suit against Mutation No.5, dated 6-4-1957, Mutation No.1703, dated 10-3-1987, Mutation Nos. 1800, 23 and 24 as illegal and prayed for decree of declaration with permanent injunction.

3. The petitioners/defendants jointly contested the suit while respondent No.5 Muhammad Boota (purchaser of the land from Muhammad Siddique respondent No.3) filed independent written statement. The petitioners/defendants denied the claim of respondent Mst. Jannat Bibi. In the written statement specifically denied respondent No.1 Mst. Jannat Bibi was real daughter of Dondi deceased. Learned trial Court framed the following issues arising out of the pleadings of the parties. Issues:--

1. Whether the plaintiff is daughter of Dondi deceased? OPP

2. When did the plaintiff got the knowledge of the fraud committed by the defendants? OPP

3. Whether the defendant was paying share of produce to the plaintiff? OPP

4. Whether the Mutation No. 5, dated 6-4-1957 is illegal, based on fraud and collusion hence, liable to be cancelled? OPP

5. Whether the mutation of exchange No.1703, dated 10-3-1988 is liable to be cancelled? OPP

6. Whether the Mutation No.23 is liable to be cancelled? OPP

7. Whether the Mutation No.24 is liable to be cancelled? OPP

8. Whether the Mutation No.1800 is liable to be cancelled? OPP

9. Whether the plaintiff is in possession of 1/2 share of the disputed land? OPP

10. Whether the suit is hit by res judicata? OPD

11. Whether the suit is barred by time? OPD

12. Whether the plaintiff is estopped by her words and conduct from filing this suit? OPD

13. Whether the suit is bad for misjoinder of parties? OPD

14. Whether the suit is bad for non joinder of necessary parties? OPD

15. Whether the suit is mala fide, vexatious and the defendants are entitled for special costs? OPD

16. Relief. The evidence of the parties was recorded. The respondent examined Lilu P.W.1. Mehar Din P.W.2. and herself as P.W.3. The petitioners examined D. W.1. Ghulam Saad, Abdur Rasheed D. W.2 and Nanah D. W.3. The petitioner as defendant produced in evidence the copy of previous suit filed by respondent titled "Jannat Bibi v. Juni etc." as Exh.D.1, copy of application to withdraw the suit as Exh. D.2., copy of general power of attorney as Exh.D.3, copy of plaint titled "Sabir. Hussain v Akbar Ali" as Exh.D.4, copy of order, dated 22-10-1998 as Exh.D.5, copy of plaint in a suit titled "Jannat Bibi v. Akbar Ali" as Exh.D.6, copy of order, dated 22-12-1998 as Exh.D.7, general power of attorney as Exh.D.8, copy of cancellation of deed as Exh. D.9. copy of agreement, dated 13-10-1997 as Exh.D.10., copy of order of Additional Commissioner, Lahore as Exh. D.11 and copy of Jamabandi as Exh. D.12. The respondent/plaintiff was allowed to. produce the additional evidence under Order XVIII, Rule 1, C.P.C. and she produced Mutation No.5 as Exh.P1, copy of Mutation No.1800 as Exh.P2, copy of Mutation No.24 as Exh.P.3, copy of Mutation No. 1703 as Exh.P.4, copy of Mutation No. 5264 as Exh.P.5, copy of Khasra Girdawari as Exh.P.6, copy of memorandum of appeal as Exh.P.7 and copy of order of Assistant Collector, dated 27-9-1997 as Exh.P.8. The learned trial Court on Issue No.1 observed the respondent/plaintiff is a daughter of Dondi. Issue No.2 was decided in the manner that defendants Nos.1 and 2 exchanged the property with defendants Nos.7 to 9 against the right of respondent/plaintiff. Issues Nos.3, 4 to 8 were also answered in favour of the respondent/plaintiff. Issue No.9 was decided that respondent/plaintiff is entitled to her share in the property of her deceased father Dondi being a legal heir to the extent of her legal share. Issues No.10 and 11 were decided by the learned Additional District Judge in appeal and the learned trial Court had observed that the judgment and decree of the learned appellate Court is in field, therefore, need no comments. The learned Civil Judge passed the decree in favour of the respondent No.1/plaintiff (Mst. Jannat Bibi).

4. The petitioner/defendant preferred the appeal against the judgment, dated 27-9-2005 of the learned Civil Judge while remaining respondents failed to file the appeal which was dismissed and the judgment and decree of the learned Civil Judge was upheld.

5. It is argued by learned counsel for the petitioners that defendant No.3 Muhammad Siddique their real brother had not contested the suit, because he had already sold away his share. That respondent No.1 is neither the daughter of deceased Dondi nor was entitled to inherit any share out of his inheritance. The Mutation No.5 was validly sanctioned in favour of the petitioners. Respondent No.1 had failed to produce any kind of Nikah Nama of her mother or corroboratory documentary evidence to the effect that she was daughter of deceased Dondi. That both the learned Courts below had failed to appreciate the evidence and have exercised the jurisdiction not vested with it by law. Also argued that the impugned judgments and decrees are result of misreading and non-reading of evidence. No other ground has been pressed.

6. On the other hand, learned counsel for the respondent argued' that the petitioner failed to rebut the evidence of the respondent/plaintiff. Mst. Jannat Bibi was daughter of Dondi deceased whereas the respondents are sons of Munshi. The above said Munshi was real brother of Dondi and the Mutation No.5,- dated 6-4-1957 was got sanctioned by use of deceptive tactics with fraud. The respondent came into knowledge in the year, 1996 when the petitioner and defendant No.3 Muhammad Rafique exchanged the land with defendants No.7 to 9 on 10-3-1988 through Mutation No.1703 and thereafter defendants Muhammad Siddique (not party) sold his land to defendants Nos. 5 and 6 (not party). That she had been receiving share of produce but when defendants Nos. 1 to 3 got exchanged the land and denied the share of produce she came into knowledge their fraud and forgery. The respondent filed an appeal before the learned Assistant Collector, which was accepted. The suit filed before the Civil Judge was withdrawn because her grievance was redressed but the petitioner/defendant preferred an appeal before the learned Additional Commissioner (Revenue) and the suit, again was necessitated. The right of succession could not be defeated by law of limitation or on the principle of res judicata. He went on arguing that right of inheritance cannot be deprived merely on account of possession of the co-sharer. The respondent proved by oral and documentary evidence that she is a daughter of Doundi deceased and entitled for share according to Sharia.

7. Heard. Record perused.

8. The learned counsel for the petitioners has confined his arguments only on Issue No.

1. My findings on Issue No. 1 is as under.

9. There is no denial of the fact that Doundi and Munshi were the real brothers. The present petitioners and Muhammad Siddique are sons of Munshi. Respondent No.1 Mst. Jannat Bibi had expired and now legal heirs are the respondents. Mst. Jannat Bibi claimed herself as real daughter of Doundi whereas the petitioners denied. They claimed the deceased Doundi expired as unmarried and issueless. The respondent/plaintiff examined Lilu as P.W.1., Mehar Din as P. W.2 and herself appeared as P.W.3. P.W.1. is a close relative of Mst. Jannat Bibi. He had seen the Munshi real brother of deceased Doundi and also stated that the third brother of Doundi had expired who was residing at that time at Okara. P.W.2. Mehar Din was aged about 60/70 years. He replied to a question that the name of the wife of Doundi was not into his knowledge but when Doundi expired the respondent/plaintiff was of young age. The respondent/plaintiff had stated that her brothers Noor Muhammad, Phalia and Nazara expired, after her marriage. Her brother Noor Muhammad was married with Mst. Bano Bibi and after death of her brother. Mst. Bano Bibi married with Nannah (petitioner No.2). The petitioner/defendant failed to rebut her evidence. P.W.3 in reply of a question, denied the agreement to sell her share to Sabir Munir and Rehana in lieu of Rs.20,00,

000. This question was asked by learned counsel for the petitioner which itself speaks that she had executed some agreement to sell of her share. Although she denied the execution of agreement to sell and of power of attorney but leads to the conclusion that she always claimed herself as daughter of deceased Doundi. The evidence of the petitioner/defendant failed to point out name of the father of respondent, and did not put even a single question. Another question was put that she had no relation with Doundi deceased .but did not ask any question to any P.W. that Doundi was not married person. The petitioner absolutely failed to rebut her statement with regard to her brothers Noor Muhammad, Phalia and Nazara who had expired. Mst. Bano Bibi widow of her deceased brother Noor Muhammad now is married with petitioner No.2 but she had not been produced to rebut the version of respondent. In rebuttal the petitioner examined Ghulam Saad D.W.1. who is a tenant of the petitioner/defendant, and replied in a question that he is not into knowledge if the respondent/plaintiff is a daughter of Doundi. He also replied to a question if Mst. Zohra Bibi was the wife of Doundi. D. W.2. Abdur Rasheed had seen to the Doundi deceased when he was 4/5 years old. This witness conceded that one Lal Char is a son-in-law of respondent/plaintiff but is not into knowledge where respondent resides. Both these witnesses of the petitioners/ defendants are not consistent and reliable. The petitioner nowhere could establish that deceased Doundi was not married. There was no rebuttal of the fact that all the sons of the deceased Doundi had expired. The name of the father of the respondent has not even been asked or suggested. Similarly, D.W.3 did not deny the relation of Mst. Zohra Bibi as wife of deceased Doundi. He preferred to reply only that he had not seen her. Ghulab Din petitioner is real brother of D.W.3. but did not know even the name of his wife. This witness is not reliable. The other brother of the petitioners Siddique was defendant No.3 and he did not file any appeal or revision because in fact had reconciled with himself and accepted the right of respondent. 9-A. The strange aspect of the matter is that the petitioners refused to accept the offer of special oath on Holy Quran in trial and at appeal stage. The identity card Exh.P.9 of respondent showing her daughter of deceased Doundi despite knowledge has also not been challenged before any forum and even did not ask any question to say it had been obtained by fraud.

10. The respondent remained successful to prove that she was daughter of Daundi deceased and is entitled of inheritance of her deceased father according to her share. Her rights of succession could neither be defeated by law of limitation or on the basis of principle of res judicata because Sharia is a Supreme Law. Both the learned courts below in appreciation of evidence decided the civil matter in accordance with law. The petitioners failed to point out any illegality in appreciation of evidence and at the last learned counsel for petitioners conceding the real fact that Mst. Jannat Bibi respondent was daughter of deceased Daundi but one of their brother Muhammad Siddique had already disposed of her share and to that extent the decree should not be given into effect against them, because they are responsible to the extent of their share received only. This submission shows their obduracy, to deny the legal right of inheritance of the respondent. This revision petition has no merit and the same stands dismissed. S.A.K./G-77/L Revision dismissed.