2020 PLP 1677 (CLC)

WIQAR AHMAD, J.

This order is directed to dispose of C.R. No. 16-M of 2017 filed by the petitioners under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") for setting aside judgment and decree dated 13.12.2016 of the Court of learned Additional District Judge/Izafi Zila Qazi Malakand, whereby suit of plaintiff/respondent was decreed by setting aside judgment and decree dated 16.09.2015 of learned Civil Judge/Illaqa Qazi-1 Malakand.

2. Respondent/plaintiff had brought a suit against the petitioners/defendants for declaration to the effect that he was owner and in possession of the suit property fully described in the head-note of the plaint to the extent of 1/3rd shares being his ancestral property and defendants had got no right whatsoever to deny his ownership. In prayer "Bay" they had prayed for perpetual injunction that the defendants be restrained from construction on the property in dispute (to the extent of his 1/3rd share).

3. The defendants/petitioners were summoned, who appeared and contested the suit by filing their written statement raising various legal and factual objections. Issues were framed and both the parties produced their respective evidence. On conclusion of the proceedings in the case, the suit of the plaintiff/respondent was dismissed by the learned Civil Court vide judgment and decree dated 16.09.2015. Appeal was filed against the said judgment, which was allowed by the learned appellate Court vide impugned judgment dated 13.12.2016 and the suit of the plaintiff (respondent herein) was decreed as prayed for. Feeling aggrieved from the judgment of the learned appellate Court, the petitioners have invoked the revisional jurisdiction of this Court under section 115, C.P.C.

4. I have heard arguments of learned counsel for the parties and perused the record.

5. The predecessor-in-interest of the parties namely Wahid Shah had died in the year 1996. The property in dispute was admittedly owned by him. It was the case of the petitioners before the learned civil Court that vide deed Ex. DW-2/1 mentioned above, the predecessor-in-interest of the parties had made a will that whoever among the sons, pay for his funeral and other related expenses shall be the owner of the property in dispute. If the said expenses were shared by all the sons, then all would be deemed to be co-owners in the same. One of the marginal witness namely Sultan Amir was produced as DW-3. This witness has stated in the opening line of his cross-examination that he had not been present at the time of execution of the deed. He has however added that he went to the house of Wahid Shah who had given the said deed to him for signature and that he affixed his signature thereon. He further added that it was prior to 1992 but same was shown to have been scribed on 28.11.1996 in the written statement and no application for correction of the said date has ever been filed. So much so, that in the statement of affidavit of the said witness Ex. DW-3 the date of 28.11.1996 has been given. The two Courts below were at variance in respect of deed Ex. DW-2/1. The date of the said deed was doubtful whether it had been executed on 28.11.1996 or 28.11.1991. In the written statement of the petitioners/defendants the said deed have expressly been shown to have been executed on 28.11.1996 (preliminary objection No. 4 as well as in Para 1 of the reply on facts). In the evidence also the said date of 28.11.1996 had been repeated time and again.

6. The other marginal witness of the deed namely Sher Nawab Khan had died, therefore his son was produced as DW-2 but in his cross-examination he has stated that he had never witnessed the execution of the deed and that he had not been an expert for recognizing the thumb impression of his father. He has further added that his father never told him that he had ever signed the deed. The learned appellate Court has therefore rightly disbelieved the execution and existence of the deed. The learned appellate Court has also rightly expressed its view that a will according to Islamic Law of Inheritance cannot be given effect without the consent of other legal heirs when it is made in favour of all the legal heirs. The extent of 1/3rd share is also supposed to be observed in the said case. Reliance in this respect is placed on the judgment of Hon'ble apex Court in the case of " Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi" reported as "PLD 1990 Supreme Court 1", wherein the Hon'ble Court held as follows; "Impugned mutation had been attested on the basis of will which was made in favour of one of the legal heirs without the consent of other legal heirs. "Will" could not be executed in favour of legal heir until and unless other legal heirs who had right to inherent from the legacy had consented for the same. Right of inheritance would devolve on the legal heirs soon after the death of deceased Muslim. Attestation of mutation was not a sine qua non for devolving inheritance. Appeal was disposed of, in circumstances.

7. When the deed Ex.DW-2/1 was not proved then the benefit of section 41 of the Transfer of Property Act, 1882 (hereinafter referred as "the Act") cannot be given to petitioner No. 1 as bona fide purchaser on the basis of deed Ex.DW-5/1. The learned appellate Court has also held that the said deeds would only be operative in respect of the property in dispute to the extent of Shari share of petitioner No.

2. No exception could be taken to the judgment of the learned appellate Court impugned herein which is otherwise based on proper appreciation of evidence and law on the subject. It has been held by the Hon'ble Apex Court that when the two Courts below are at variance then preference would normally be given to the judgment of learned appellate Court. In this respect, reliance is placed on the case of "Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary Finance and others reported as "2007 SCMR 969", wherein the Hon'ble Court held as follows; "

10. It is well-settled proposition of law that in the event of a conflict between the Judgments of trial Court and the First Appellate Court, preference should be given to the views of the Appellate Court, who had the opportunity of examining and analyzing the evidence of the parties." In support of the same ratio, further reliance is also placed on the judgment of Hon'ble apex Court reported as "2007 SCMR 576".

8. In light of what has been discussed above, the revision petition in hand was found meritless and same is accordingly dismissed. ZC/58/P Petition dismissed.