2021 PLP 95 (MLD)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioners have challenged the validity of judgment and decree dated 30.04.2014 passed by the learned Senior Civil Judge, Chiniot whereby suit for declaration filed by the respondents was decreed and judgment and decree dated 02.03.2016 passed by the learned Addl: District Judge, Chiniot dismissing the appeal of the petitioners.

2. Brief facts of the case are that the respondents/plaintiffs filed suit for declaration against the petitioners/defendants contending therein that one Murad was actual owner of land measuring 109 Kanals 19-Marlas comprising Khata No.10, Murabba No.4, Killa Nos.3/1, 8/1, 9, 12, 18, 19, 21, 22, 23/1, 2, 11, 13/1, 20, 1, 10 situated in Chak No.222, Tehsil Bhowana, District Chiniot. After the death of Murad his estate devolved upon his two sons namely Bahadur and Raja. That Bahadur died before partition of Pakistan leaving behind four sons namely Ahmad, Bhai Khan, Ghulam Muhammad and Noor Muhammad as his legal heirs. Ahmad died on 27.1.1962 leaving behind Muhammad Nawaz, Sarfraz, Phaman and Sahib Bibi as his legal heirs, Noor Muhammad died issueless on 14.06.1966, Bhai Khan died on 05.01.1998 Zafar Iqbal, Muhammad Iqbal and Mst. Shazia Jabeen were/are his legal heirs and Ghulam Muhammad died on 12.02.2005. That Raja brother of Bahadur propositus of the litigating parties died issueless on 07.11.1985 but while sanctioning the inheritance mutation of Raja and Noor Muhammad (both issueless-uncle and nephew), petitioners/defendants Nos.1 to 4 showing their father Ahmad as alive fraudulently got sanctioned inheritance mutation Nos. 630 and 631 on 20.09.1995 and obtained shares from the inheritance and mutation No.677 dated 24.05.1997 was also sanctioned in favour of petitioners/defendants Nos.1 to 4 showing Ahmad as alive at the time of opening the inheritance of Raja son of Murad. That another sale mutation was sanctioned in favour of predecessor-in-interest of defendants Nos.5 to 9 which is against the facts and subsequent mutations may kindly be set aside. Defendants Nos.1, 3 and 4 filed their conceding written statement, whereas, defendants Nos.5 to 9 filed their contesting written statement stating that they are bona fide purchasers whereas defendant No.2 was proceeded against ex-parte on 03.11.2002. The learned trial court after framing the issues and recording the evidence of both the parties dismissed the suit of the respondents vide judgment and decree dated 30.06.2010. The respondents filed an appeal, which was allowed by framing additional issues and the case was remanded to the learned trial court to decide the same afresh vide judgment and decree dated 25.10.2011 and after post-remand proceedings, the learned trial court recorded evidence on the additional issues and decreed the suit of the respondents vide judgment and decree dated 30.042014. The petitioners filed an appeal, which was dismissed by the learned Addl: District Judge, Chiniot vide judgment and decree dated 02.03.2016. Hence, this civil revision.

3. Learned counsel for the petitioners submits that the judgments and decrees of the learned courts below are based on misreading and non-reading of evidence, against the law and facts of the case; that the respondents were well aware about the transaction but they remained mum and did not file suit in time.

4. Heard. Record perused.

5. As the controversy relates to inheritance of Raja and Noor Muhammad deceased who died issueless. To better understand the factual and legal aspects of the case it is most appropriate to understand lineal/pedigree table of the parties described in para one of the plaint, which is reproduced as under:-

6. From the divergent pleadings and assertions of the litigating parties, the pivotal controversy involved in this case is to determine as to whether Ahmad entitled to inherit the estates of Noor Muhammad and Raja, which controversy is encompassed in issues Nos. l to 7, 7-A. To prove these issues, Zafar Iqbal appeared as PW-1 and stated that Murad had two sons Bahadur Khan and Raja Khan; that Raja Khan was issueless but Bahadur Khan had four sons Ahmad Khan, Bhai, Ghulam Muhammad and Noor Muhammad and Noor Muhammad died issueless in 1966; that Ahmad Khan, Bhai Khan and Ghulam Muhammad have their issues; that Ahmad Khan died in 1962, Raja died issueless in 1985, Bhai Khan died in 1998 and Ghulam Muhammad died in 2005; that Bahadur Khan died before partition of Pakistan; that Ahmad Khan died in 1962; Sarfraz son of Ahmad showing their father as alive got incorporated a bogus inheritance mutation No. 630 of Raja and mutation No.631 of Noor Muhammad, whereas, his father died in 1962 before the death of Raja and Noor Muhammad, Bhai Khan and Ghulam Muhammad were their legal heirs; that mutations Nos.630, 631 and subsequent mutation Nos. 677, 678, 679 were wrongly incorporated and after knowledge they challenged, which are liable to be cancelled.

7. From the perusal of oral as well as documentary evidence, it reveals that actually the suit property was owned by one Murad who had two sons namely Bahadur and Raja. Bahadur died before partition of Pakistan who had four sons namely Ahmad, Noor Muhammad, Bhai Khan and Ghulam Muhammad out of them Noor Muhammad also died issueless. Defendants Nos. 1 to 4 got incorporated and sanctioned inheritance mutation showing that their father Ahmad died before the death of Noor Muhammad and Raja. In documentary evidence, they produced copy of the death certificate Ex.P-11 of Noor Muhammad who died on 14.06.1966, copy of death certificate of Raja Khan who died on 07.11.1985 as Exh.P-12, copy of death certificate of Bhai Khan who died on 05.01.1998 as Exh.P-13 and copy of death certificate of Ghulam Muhammad who died on 12.02.2005 as Exh.P-14. Ahmad died much prior to the death of Raja Khan, as such, inheritance mutation No.630 regarding the inheritance of Noor Muhammad and mutation No.631 regarding inheritance of Raja Khan were illegally and fraudulently incorporated in the revenue record. The petitioners/defendants Nos.5 to 9 have not rebutted the oral as well as documentary evidence and failed to prove that mutation Nos. 630 and 631 were correctly incorporated in the revenue record. It is settled principle of law that mere oral assertion is not sufficient to rebut the documentary evidence whereas documentary evidence legally take preference over the oral assertion as the document does not tell lie. A document can only be rebutted by the document having superior legal value. In this regard, reliance is placed on the cases of Abdul Ghani and others v. Mst. Yasmeen Khan and others (2011 SCMR 837) and Saleem Akhtar v. Nisar Ahmad (PLD 2000 Lahore 385). Further, petitioners/defendants Nos.2 to 4 admitted the legacy of Bahadur Khan while filing written statement but they did not appear as witnesses, as such, they were proceeded against ex-parte. Moreover, on the basis of inheritance mutation Nos.630 and 631, subsequent Mutations Nos.676, 677 and 679 were got sanctioned on 24.05.1997 by committing concealment of true fact which amounts to commission of a clear fraud. Under paras. 55 and 56 of Muhammadan Law only the surviving residuary can inherit the estate of their deceased propositus when the succession of deceased so opened. Admittedly mutation Nos.630 & 631 were sanctioned in violation of the law which mutations have no legal worth and value as the same were the result of fraud, concealment of true facts, misrepresentation and collusivity of the petitioners with the revenue official, as such, subsequent mutations No.676, 677 and 679 based on mutation Nos. 630/631 have to no independent worth and the same have to be reversed accordingly as it is settled law that any superstructure built on the basis of an alleged mutation have to crumble down automatically. Reliance is placed on the case of Mst. Sughra Begum and 4 others v. Mst. Akbari Begum and 5 others (PLD 2016 Sindh 232). Further, the alleged mutations in favour of the petitioners which were illegally got incorporated in the revenue record would not create title in favour of the petitioners as settled by Hon'ble Supreme Court of Pakistan in a case of Mst. Gohar Khanum and others v. Jamila Jan and others (2014 SCMR 801), wherein it is held that the moment a person joins the majority his entire estate/assets opens to inheritance and by operation of law the same devolved upon all the legal heirs automatically. The mutations are merely a subsequent formality which does not create any right or title, as such, both the learned courts below have rightly passed the impugned judgments and decrees and no illegality has been committed.

8. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect.

9. The concurrent findings of fact are against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the cases of Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304), Rashid Ahmad v. Said Ahmad (2007 SCMR 926), Asmatullah v. Amanat Ullah through LRs (PLD 2003 SC 155) and Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

10. In view of above, this civil revision is dismissed being devoid of any merit. No order as to costs. SA/M-142/L Petition dismissed.