2017 PLP 285 (CLC)

WAZIR SHAKEEL AHMED, J.

Through the above titled revision petition petitioners named above have called in question the judgment/decree of learned District Judge Hunza Nagar dated 10-04-2015, whereby the learned appellate Court by accepting the C.F.A 16/2013 passed a decree in favour of the respondents by setting aside the judgment/decree of learned trial Judge Nagar dated 13-10-2011. Brief facts of the case are that the respondents filed Civil Suit bearing No.21/2004 before the Civil Judge Nagar on 15-04-2009 for declaration/possession of land measuring 3 kanals situated at Moza Chalat the boundaries of which are mentioned in the heading of the plaint with the contention that respondent No.1 being Shari Waris of Mst. Meher Bano and under document Iqarar nama dated 15-04-2014 attested 01-05-2004 is the sole owner of the suit land which was left with the petitioner No.1 as husband of Mst. Loba/sister of plaintiff by their mother as Amanat. As per contents of the plaint the parties of the suit are maternal brothers inter se and the petitioner No.1 is the brother in law of respondent No.1. According to para No.1 of the plaint late Qadeer Shah had three sons namely Abdullah, Muhammad Jabir, Zaffar Ali and a sister namely Mst. Meher Bano and after the death of said Qadeer Shah his legacy devolved upon his Shari legal heirs while the share of Mst. Meher Bano was left with his brothers as Amanat. Jabir son of Qadir Shah was issues less who in his life time transferred his Shari share (the suit land) to his mother Mst. Meher Bano who in her life time left the same with the sister of respondent/plaintiff No.1 as amanat as the petitioner and respondent No.1 and their sister were co-sharer therefore the suit land is with the Mst. Loba and in possession of her husband present petitioners 1 and

2. According to the averments of para No.5 of the plaint after the death of Mst. Meher Bano in the year 2001 respondent No.1 and Mst. Feroza, Kaniza and Loba were legal heirs while their brother Must Ali had gone to his account 14 years prior to selling of the suit in the life time of his mother Mst. Meher Bano. It is also alleged in the plaint that the present petitioner/plaintiff as legal heir of Mst. Meher Bano and vide Iqrar nama dated 15-04-2004 is the sole owner of the suit land and he is entitled to get the possession of the same from the present respondents. Petitioners/defendants through their joint written statement filed on 15-06-2009 contested the suit of the respondents taking of preliminary objections regarding the maintainability of the suit. On facts it was averred that when Jabir wanted to gift his legacy to his wife Mst. Zubada, her sister Mst. Meher Bano demanded her Shari Share from him and after getting the same measuring approximately 1-1/2 Kanals handed over the same to his brother Abdullah who as donee of the same remained in possession of the above gifted property for a period of 19/20 years and after his death the same has been devolved upon petitioners Nos.1 and 2 who are in possession of the same since then as donees. On the basis of the above divergent pleadings the learned trial court framed the following issues:- The learned trial court after full trial dismissed the suit vide judgment/decree dated 13-10-2011 which was assailed through C.F.A No. 16/2013 and the 1st appellate Court by accepting the same set aside the above judgment/decree dated 13-10-2011 of the trial court and passed a decree as prayed for in favour of present respondent/plaintiff which has been made impugned through this revision petition. I have heard the learned counsel for the parties at length and also gone through the record of the case with their able assistance. The learned 1st appellate court has not dealt discussing each issue separately rather opted to formulate points of determination. (b) Whether Mst. Meher Bano, the mother of plaintiff after receiving the suit property as her shari share from her brother Jabir gifted the same to her brother Abdullah (father of defendants 1 and 2) and on the death of Abdullah devolved in heritance to the defendants 1 and 2 and they are in possession of thereof as such? (a) Whether the mother of plaintiff Mst. Meher Bano had left the suit property as amanat with her daughter Mst Loba (plaintiff No.4 ) who was than in wedlock of defendant No.1 and thus the suit property went in the possession of defendants Nos.1 and

2. I am fortified with the findings of the learned 1st appellate court regarding the actual controversy involved in the case in hand and of the opinion that in fact the above two points are actually the crux of the case. The first point of the determination which in fact is partially reflected in issue No.3 framed by the trial court pertains to the contents of para No.3 of the plaint according to which it is alleged that among the ofsprings of Qadir Shah, Jabir was issueless who had given the shari share her sister Mst. Meher Bano mother of plaintiffs Joher Ali in his life time which the mother of the plaintiffs handed over to Mst Loba who is admittedly plaintiff No.3 and sister of plaintiff No.1 and as the plaintiff and her sisters were co-sharers and co-heirs therefore the suit land is with the plaintiff No.3 Mst Loba sister of plaintiff No.1 as amanat and the possession of the same was left with the present petitioner who was admittedly the husband of Mst Loba. The other point of determination as reproduced above actually pertains to issues Nos.5 and 6, the burden of proof of the same was on the present petitioners/ defendants according to which the petitioners were to prove that they were in possession of suit land as donees. It was painfully observed that the learned trail court while adjudicating upon the important matter of inheritance between the parties did not apply his judicious mind on the facts and law involved in the matter and passed the impugned judgment in slip shod manner causing great miscarriage of justice. The findings of the learned trial court shall itself speak the truth which is reproduced herein under as ready reference. FINDINGS Issues Nos.1, 2 and 3;- These issues are connected with each other so taken together and decided together. Admittedly plaintiff No.1 is son and the remaining plaintiffs are daughters of Mst. Meher Bano. It is also admitted that the disputed property is obtained by Mst. Meher Bano from her brother Jabir as her shari share. Plaintiffs examined three PWs including one rebuttal to prove this issues. Both PWs deposed that that Mst. Meher Bano kept disputed property in possession of her daughter Mst. Loba

mother of plaintiff as amanat but the plaintiffs witnesses failed to show that why Mst. Meher Bano in presence of his son and other daughters given disputed property to her daughter Mst. Loba. Both PWs were not present on the spot/occasion when Mr. Jabir gave his property to Mst. Meher Bano. While Mr. Jabir is actual owner of the property tells a different story therefore, the statements of PWs cannot be relied. On the other hand defendants examined two D.Ws to prove that the disputed property has been gifted to Abdullah . father of defendants. D.W.1 M. Jabir deposed that he separated shari share of Mst. Meher Bano mother of plaintiff and given to defendant. D.W2 deposed that Mst. Meher Bano stated she has obtained her shari share from her brother Jabir and given to her younger brother Abdullah father of defendants. D.W.2 was present on the above stated occasion. Plaintiff himself admits that property is in possession of defendant which corroborates the statements of D.WS. These issues decided against plaintiffs and in favour of defendants. ISSUES NOs.4, 5 and

6. In view of my findings in issue Nos.1, 2 and 3 these issues decided in favour of defendants. Keeping in view of above findings the suit of plaintiffs dismissed with cost. File be consigned to record after completion. Civil Judge Ist Class Nagar Announced 13-10-2011 (The trial court has wrongly got written mother of plaintiff as amanat instead of sister of plaintiff as amanat). Anyhow it is crystal clear from the perusal of the above judgment/decree of the trial court that the learned trial Judge has without satisfying himself about the necessary ingredients of a valid Hiba wrongly rather illegally got proved the Hiba in favour the present appellants /defendants that also on the basis of the findings of jointly tried issues Nos.1 to 3 as reproduced above. As far as the findings on the above two points of determination are concerned the present respondents/plaintiffs have proved the same through their PWs that the mother of the plaintiffs/respondents has got his shari share from his brother and handed over the same to Mst. Loba and sister of plaintiff who herself as plaintiff No.3 has authenticated the contents of the plaint by relying the examination in chief of respondent/plaintiff as found by the learned first appellate court the controversy in the case in hand was arose on the happening of divorce of Mst Loba from the wedlock of father of present defendant No.1. The getting of her shari share by mother of plaintiff from her brother Jabir is admitted between the parties as the D.Ws have also vide their statements categorically admitted the same by explaining further that after getting the her shari share the mother of the plaintiff handed over to Abdullah who is the father of defendants /petitioners. It is also on record that not a single D.W. has deposed before the trial court that after getting the her share the mother of plaintiff/ respondent from his brother Jabir gifted the same to one Abdullah father of defendants Nos.1 and

2. I am in agreement with the findings of the first appellate court that on the basis of claim of the present appellants/defendants the burden of proof regarding the subject matter of the case was shifted towards the appellants/defendants who had to prove issues Nos.6 and 5 which is actually the first point of consideration formulated by the first appellate Court. The record of the case as is evident even from the impugned judgment of the trial court clearly transpires that the present appellants bitterly failed to prove a valid gift in favour of their father and the possession of the suit land by them as donees. In the light what has been discussed above I find no occasion whatsoever to interfere into the just and legal conclusion arrived at by the learned first appellate court vide impugned judgment dated 10-4-2015, I hereby maintaining the same dismiss the civil revision petition with no order as to cost. File. HBT/126/GB Revision dismissed.