2010 PLP 240 (MLD)

ABDUL SATTAR GORAYA, J.

By means of this revision petition filed under section 115, C.P.C., the judgment and decree, dated 10-2-2000 of the learned Additional District Judge, Gujrat has been brought under impeachment.

2. The facts in brief are that Imam Din son of Haji initially owned the property in dispute and it was transferred to his son Allah Ditta by means of Mutation No.245, dated 1-4-1910. Allah Ditta died issueless and after his death, the land was transferred under the custom to Mst. Zainab Bibi, mother of Allah Ditta, through Mutation No.320, dated 3-1-1930 who by means of gift deed No.273, dated 23-5.1952 transferred the said property to defendant No.1 and mutation bearing No.925, dated 7-7-1955 was attested thereunder. The issue in this case necessarily relates to the property of Imam Din son of Haji. The pedigreetable runs as under: -- Muhammad Alam, predecessor-in-interest of the petitioners, instituted a suit praying that the declaratory decree be passed that the disputed gift No.273, dated 23-5-1952 by Mst. Zainab Bibi in favour of the defendants was against law and thus inoperative qua the rights of the suitors. It was claimed that the plaintiff is entitled to the extent of 5/6 share out of the total property measuring 84-kanals 17-marlas. It was averred that the mutation ought to have been sanctioned in accordance with Sharia and Mst. Zainab Bibi was a limited owner for all purposes. Facts in detail have sufficiently been given in the judgment of the learned trial Judge, dated 17-9-1998 which need not be repeated here with full details. In the written statement filed by the petitioners-defendants, the averments made in the plaint were emphatically denied. Apart from the merits, certain preliminary objections with regard to locus standi, the suit being barred by time and res judicata etc. were also taken. Divergent pleadings of the parties resulted in following issues:-- (1) Whether the suit is barred by time and is liable to rejection under Order VII, Rule 11 C.P.C.? OPD (2) Whether the suit is bad under principle of res-judicata, if so, its effect? OPD (3) Whether the suit is collusive, if so, its effect? OPD (4) Whether the Court lacks jurisdiction to adjudicate upon the matter in question? OPD (5) Whether Mst. Zenab Bibi was a limited owner and she was having no authority to gift away the property in favour of defendant No.1, if so, its effect? OPP (6) Whether the registered sale deed, dated 23-5-1952 and mutation, dated 7-7-1955 are illegal, void, without jurisdiction, hence are ineffective against the rights of the present plaintiff? OPP (7) Whether the plaintiff is entitled to the decree as claimed for in the main suit? OPP (7A) Whether the plaintiffs have not come to the Court with clean hands? OPD. (7B) Whether the plaintiffs have no locus standi to file this suit? OPD (7C) Whether the plaintiffs are owners in possession of the suit land? If not whether suit cannot proceed in its present form? OPD. (7D) Whether suit is bad under Order X, Rule 4, C.P.C.? OPD (7E) Whether amended plaint has not been filed according to law and is mala fide? If so, its effect? OPD (7F) Whether Muhammad Alam deceased raised any objection at the time of attestation of mutation on 1-12-1952, if so, its effect? OPP (7G) Whether Aisha Bibi was not alive at the time of filing of amended plaint and her signature on amended plaintiff if forged, if so, its effect? OPD (7H) Whether mutation of gift was attested on 7-7-1955 in absence of Muhammad Alam, without notice to the plaintiff, he was necessary and he was lunatic at that time? OPP (7I) Whether Asiha Bibi was dead at the time of filing of amended plaint on 1-4-1992, if so; its effect? OPD (7J) Whether plaintiff has no cause of action? OPD (7K) Whether value for the purposes of court-fee and jurisdiction is not correct, if so, its effect? -OPD (8) Relief. Respondents in their evidence examined Nusrat Haib Rana (P.W.1), Muhammad Mukhtar (P.W.2), Muhammad Fazal (P.W.3), Muhammad Alam, attorney of the plaintiffs (P.W.4) and produced medical report Exh.P-1, special power of attorney Exh.P-2, copy of Jamabandi for 1982-83 (Exh.P-3), copy of gift deed No,273, dated 23-5-1952 Exh.P-4, copy of Mutation No.925 Exh.P-5, Mutation No.1847 Exh. P-6, Khasra Girdawri Exh.P-7, copy of Mutation No.865 Exh.P-8 and copy of Mutation No.320 as Exh.P-9. Petitioners-defendants in their evidence examined Zulifqar Ali as D.W.1, Iqbal Hussain as D.W.2, Aftab Ahmad, one of the defendants, as D.W.3 and tendered the following documentary evidence:-- i. Copy of Plaint (Nazir Ahmad v. Bashir) Exh.D-1 ii. Copy of written statement. Exh. D-2 iii. Decree sheet. Exh. D-3 iv. Copy of order of Court. Exh.D-4 v. Copy of Mutation No.865. Exh.D-5 vi. Copy of Mutation No.989. Exh.D-6 vii. Copies of Mutations No.925, 1040, 1131 and 1520 Exh.D-7 to Exh.D-10 viii. Copy of record of right for 1982-83 Exh.D-11 ix. Mutation No. 1040 Exh.D-12 x. Copy of Mutation No.1210 Exh.D-13 xi. Copy of Mutation No. 1267 Exh.D-14 xii. Copy of order of A/C Kharian. Exh.D-15 xiii. Copy of plaint (Muhammad Alam v. Basharat) Exh.D-16 xiv. Copy of Wakalat Nama. Exh.D-17 xv. Copy of plaint (Alam v. Basharat Exh.D-18 xvi. Copy of application titled Alain v. Said Begum Exh.D-19 xvii. Copy of Wakalat Nama. Exh.D-20 xviii. Copy of plaint (Alam v. Said Begum) Exh.D-21 xix. Copy of decision of A/C. Waqalat Nama. Exh.D-22 Exh.D-23 xx. Copy of plaint (Alam v. Said Begum) Exh. D-24 xxi. Wakalat Nama. Exh.D-25 xxii. Copy of decision of A/C Kharian. Exh.D-26 xxiii. Copy of plaint (Alam v. Muhammad Din) Exh.D-27 xxiv. Copy of Mutation No. 1267. Exh.D-28 xxv. Copies of Mutation Nos. 1210, 1040, 933 and 942 Exh.D-29 to Exh. D-32. xxvi. Copy of order of Collector. Exh. D-33 xxvii. Copy of record of rights 1950-51 Exh.D-34 xxviii. Copies of record of rights for the years 1966-67, 1930-31 and 1982-83. Exh.35 to Exh.37 xxix. Copy of statement of Fateh Ali son of Fazal. ?Exh.D-38 xxx. Statement of Bashir Ahmad. Exh. D-39 xxxi. Copy of notice to Bashir. Exh. D-40 xxxii. Copy of report on notice. Exh. D-41 xxxiii. Copy of death certificate. Exh.D-42 xxxiv. Copy of death certificate of Aisha Bibi. Exh.D-43 xxxv. Copy of record of rights 1943-44. Exh. D-44 xxxvi. Copies of record of rights for the years, 1956-57, 1958-59, 1962-63, 1966-67, 1970-71, 1974-75, 1978-79, 1982-83, 1986-87 and 1991-92. Exh.D-45 to Exh.D-54 xxxvii. Khasra Girdawri. Exh.D-55 xxxviii. Special power of attorney. Exh. D-56. The learned trial Judge decided issue No.1 in favour of the defendants and came to the conclusion that the suit was filed on 1-7-1987 to challenge the transaction, dated 23-5-1952 which was hopelessly barred by time. Onus with regard to issue No.3 was proposed upon the defendants and it was decided as having not been proved. Issue No.4 was decided in the negative. Issue No.7B was decided as having not proved. In issues Nos. 7I and 7G, it was held that the plaint was filed by the unauthorized person and thus the findings returned went against the suitors. Issue No.2 was decided in favour of the defendants. Issues Nos.5 and 6 were decided against the plaintiffs and in favour of the petitioners. Issues' No.7B, C & J were also decided against the suitors by having held that they have no locus standi to maintain the suit. On issue No.7E, it was held that the suit to the extent of Mst. Aisha Bibi was mala fide. Issue No.7K was answered against the respondents and in favour of the petitioners. On issue No.7, it was said that on account of findings returned on issues Nos.1, 2, 5, 6, 7A, 7C, 7G, 71 and 7J, the plaintiffs are not entitled to the, decree as prayed for. Issue No.7D was held to be not proved. On issue No.7F, it was said that notice to Muhammad Alam, the original plaintiff, was not necessary. On issue No.7H, it was held that Muhammad Alam was not lunatic and the suit on its face value was incompetent. On issue No.7A, it was held that the suitors have not approached the Court with clean hands. Resultantly, the suit was dismissed with costs. On appeal having been taken by the petitioners before the learned Additional District Judge, the findings recorded by the learned trial Judge were reversed and the appeal was accepted vide impugned judgment and decree, dated 10-2-2000 passed by the learned Additional District Judge, Gujrat.

3. Learned counsel for the petitioners states that even if it is presumed that Mst. Zainab Bibi was a limited owner, she gifted the land measuring 84 Kanals 17 Marlas through a gift deed No.273, dated 23-5-1952 and it became a matter of past and closed transaction. Bitterly argued that the learned Additional District Judge while passing the impugned judgment and decree over-stepped the limit of his jurisdiction. It was also argued that the learned Additional District Judge while passing the impugned judgment and decree totally misread and misinterpreted the evidence available on the record and reached at incorrect conclusion.

4. Learned counsel for the respondents argued and defended the judgment of the learned Additional District Judge almost for the same reasons which have been given in the impugned judgment. Learned counsel for the respondents admitted in clear and unambiguous terms that the suit was incompetent and the declaration to sue as a lunatic ought to have been obtained from the District Judge but it hardly furnishes any ground to set aside the impugned judgment and decree and the defect is curable and the matter be remanded to the learned trial Judge for adopting curative measures.

5. I have given conscious thought to the submissions made at the bar by the learned counsel for the parties and perused the record with their assistance.

6. This is a common ground between the two that Mst. Zainab Bibi was transferred land under the custom who gifted the land measuring 84-kanals 17-marlas by means of registered gift deed bearing No.273, dated 23-5-1952. West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962) was promulgated on 31st December, 1962. Section 2-A(a) ibid in terms provides that notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim, shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat). Sections 3, 4 and 5 of the Act were made applicable with no retrospective operation. On 31st March, 1975, Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 was promulgated. Section 2 of the said Act provided .that notwithstanding anything to the contrary contained in any other law for the time being in force, all decrees, judgments or orders passed in any suit, appeal or other proceedings by any Court or other authority treating a refugee female allottee as full owner of the property allotted to her in lieu of the property abandoned by her in India or to which she otherwise entitled, as a limited owner, shall be of no legal effect and such suit, appeal or other proceedings shall, on an application made by an affected person within one year of the commencement of this Act, be decided afresh. Similarly section 3 of Act No. XXV of 1975 in terms provides that any person aggrieved by an alienation or an order of succession with regard to any property allotted to a refugee female in lieu of the property abandoned by her in India or to which she was otherwise entitled as a limited owner under custom, and who could not challenge such alienation or succession, may call it in question in a Court or before any other authority within one year of the commencement of this Act. One thing is manifest that the gift deed No.273, dated 23-5-1952 (Exh.D-4) has been brought under impeachment by a suit in the nature of declaration by Muhammad Alam on 1-7-1987. The suit in the nature of declaration by Muhammad Alam could have been brought within a period of three years under section 91 of the Limitation Act and no explanation has been furnished for the inordinate delay occasioned in institution of the suit, There are reasons to believe that the suit has been filed posing himself to be lunatic and this was done with a view to create justification but sufficient evidence has been brought on the record beginning from Exh.D-6 to Exh.D-30 which discernibly show that Muhammad Alam in his lifetime himself was fighting the legal battle in various Courts and at no stage of proceedings, he was shown as lunatic. Even if it is presumed that Mst. Zainab Bibi was a limited owner, it being a matter of past and closed transaction, the case could not have been reopened in view of reiteration in Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 Supreme Court 407). Relevant portion of the judgment reads: "(1) If a male heir had before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948? acquired any agricultural land under Custom from the person who at the time of such acquisition was a Muslim' (2) he `shall be deemed to have become an absolute owner...as if such land had devolved on him under the Muslim Personal Law (Shariat)'. (g) Thus, it will neutralize the effect of section 6 on 2-A. Not only this, sub-clause (b) of section 2-A also makes it more clearly retrospective because it not only affects pending suits but also proceedings which have culminated into final decrees. They, if contrary to the purview of the main substantive provision in section 2-A or in any way coming in conflict with any of the provisions of the Muslim Personal Law (Shariat) Act, 1962 as amended, would now become inexecutable and of no legal effect under sub-clause (b). (h) Same is the effect of sub-clause (c) which provides that all suits or other proceedings including the execution proceedings seeking possession of land under such decrees shall abate forthwith. (i) Notwithstanding the foregoing reading of section 2-A, visualizing it in substance as having application prior even to 15th March, 1948 as well and in this sense being retrospective, the proviso to sub-clause (c) thereof clearly excludes its operation in so far as the past and closed transactions are concerned. They, as explained therein would include only those cases where possession of land has also already been delivered under such decree as is referred to in sub-clauses (b) and (c). To this limited extent, therefore, the inherent retrospectivity of section 2-A has been controlled by the proviso to clause (c)." ?

7. As pointed-out in the preceding paragraph, section 3 of the Removal of Difficulties Act, 1975 provided that any person aggrieved of any such transaction can come to knock at the Court of law within a period of one year but none challenged the said transaction of gift within the specified time. The suit was filed on 1-7-1987 after about more than three decades, thus, this transaction could not 'have been reopened. Reference may be made to Hashmat Ali and another v. Mst. Jantan and 6 others (1993 SCMR 950) and Mst. Salamat Bibi through L.Rs. v. Yameen through L.Rs. and others (2006 CLC 726).

8. There is yet another reason which will surely steal the eminence that Nazir Ahmad son of Fateh Ali falling in the line of succession of Hassan Muhammad, instituted a suit way back on 28-7-1970, in which Muhammad Alam was arrayed as defendant No.2. He was proceeded against ex parte and ultimately the suit was dismissed on 28-6-1973 (Ref: Exhs. D-3 and D-4). It was held that the gift in respect of property measuring 84-kanals 17-marlas, subject matter of the suit, was validly made and that judgment passed by the Civil Judge, Gujrat was not challenged any where and it was clothed with finality. Principle of Res Judicata for all purposes was applicable and the subsequent suit on the same subject matter was hit by the principle of Res Judicata. Reference may be made to Sahera Bibi and others v. Abdul Motaleb (minor) and others (PLD 1967 Dacca 384), Shri Ramo Barman and others v. Smt. Dagripriya Kachari and others (AIR 1992 Gauhati 72), Iftikhar Ahmed and others v. Syed Meharban Ali and others (AIR 1974 Supreme Court 749), Fazal Dad and others v. Ahmed Ali and others (PLD 1960 (W.P.) Lahore 106), Jalaluddin Shaikh v. Kshirode Chandra Tikadar and others (PLD 1960 Dacca 948) and Zaighum Salim Khan v. Muhammad Salim Khan and another (1992 MLD 1388). , It was a case of straightaway rejection of plaint under Order VII Rule 11, C.P.C. The learned Additional District Judge while passing the impugned judgment and decree did not give conscious thought to this aspect of the case and the said decree has been passed in oblivion of the naked fact that the judgment in the earlier round of litigation the issue stood concluded.

9. Admittedly the suit was instituted by Muhammad Alam on 1-7-1987 through next friend and in the plaint it was stated in specific terms that he was lunatic not being capable of understanding right or wrong and there was no declaration granted by the District Judge under section 62 of the Lunacy Act, 1912. In absence of such declaration, neither any medical evidence could have been produced nor a decision could be made on the basis of such evidence. Medical report Exh.P-1 was tendered before the learned trial Judge to demonstrate that Muhammad Alam was lunatic and he was not being capable of understanding right or wrong. No suit could have been entertained on the basis of the said Certificate until the learned District Judge grants the declaration. The submission made by the learned counsel that in order to take curative measures, the case may be remanded, has no force. Muhammad Alam died during the pendency of the proceedings and he is now being survived by his legal heirs, therefore, sending the matter back for re-trial and to adopt curative measures will be an exercise in futility. Even otherwise the suitors cannot be permitted to fulfill the lacuna.

10. Perusal of the record would discernibly show that not even a single person out of the progeny of Muhammad Alam appeared in the witness box in support of the contents of the plaint. What to talk of the legal heirs, even the next friend did not grace the witness box to support the contents of the plaint. In the written statement, objection was taken in specific terms in para. No.4 that Muhammad Alam was not lunatic at all. The position, therefore, in any event, which emerges from the record is that the suit through the next friend was incompetent and could not proceed further and there was no justification available with the learned lower appellate Court to pass the decree in the terms prayed for.

11. For whatever has been stated above, this revision petition is accepted with costs throughout and the impugned judgment and' decree, dated 10-2-2000 of the learned Additional District Judge is set-aside and the findings recorded on all the issues answered against the petitioners are reversed. Resultantly, the judgment and decree, dated 17-9-1998 passed by the learned trial Judge is restored and maintained. M.H./A-182/L???????????????????????????????????????????????????????????????????????????????????? Revision allowed.