2018 PLP 44 (YLRN)

MUHAMMAD ALAM, J.

Judgment/order dated 08-05-2015 of the District Judge Ghizer, passed in C.F.A. No.34/2014, whereby, he has upheld judgment/order dated 15-05-2014 of the Civil Judge Gupis/Yasin, passed in Civil Suit No.37/96, 02/2011, has been challenged through this petition.

2. Petitioners/plaintiffs filed a Civil Suit (C.S. No.37/96, 02/2011) for declaration with possession of half of the suit land. Said Civil Suit was given two numbers, one C.S. No.37/96 and another C.S. No.02/2011. The initial suit is Civil Suit No.37/96 in which, on 28-04-2009, the then Civil Judge passed a partial decree, and on appeal, suit was remanded to the trial court. On 15-05-2014, the learned trial court gave his decision by dismissing the suit. On appeal (C.F.A. No.34/2014), the learned first appellate court passed judgment/order dated 08-05-2015.

3. Respondents/defendants contested the suit and filed written statement. In their written statement, respondents/ defendants averred that they are in possession of the suit land on the basis of gift deed dated 20-03-1983 (Exh.D-1/BL Learned trial court framed issues and after completing trial proceedings, passed the following order: "In view of my finding on issues of parties it is proved that the whole property of father of plaintiffs is in possession of defendants, the registered gift deed made dated on 13-04-1983 by late father of plaintiffs is executed after fulfilling its legal requirements and the plaintiff did not challenge it within time, so the same is intact and carries legal effect. Therefore the suit of plaintiff is hereby dismissed. Parties to bear their own costs. File after completion be consigned to record. Announced 15-05-2014 Sd/- CIVIL JUDGE 1ST CLASS GUPIS/YASIN On appeal (C.F.A. No.34/2014), the District Judge Ghizer upheld judgment/ order of the trial court and passed the following order:- "The upshot of the above discussion is that the gift in question was validly made by the donor to the respondents in his lifetime. No restriction as claimed to be placed by any provision of Islamic Law was brought to light by the appellants/ plaintiffs. I do not find any cogent reason to interfere with the judgment/decree of the trial Court, hence the same is upheld. Appeal being meritless, is hereby dismissed with cost. File be consigned to record." Announced 08-5-2015 Sd/- (MUHAMMAD UMAR) District Judge District Ghizer

4. I have heard counsel for parties and have gone through the file. Petitioners/plaintiffs are admittedly daughters of Mr. Quram Shah son of Mr. Yadgar Shah. So, it is not disputed that petitioners/plaintiffs are the only legal heirs of said Mr. Quram Shah. Therefore, the question for determination is the plea of defense taken by respondents/defendants. From plain perusal of contents of written 'statement, it is evident that respondents/defendants have very specific-ally divided suit land in two parts. One part of the suit land is admittedly- ownership of Mr. Quram Shah, father of petitioners/plaintiffs, while as to second part of suit land, respondents have claimed their title on the around that they obtained the same on their own. In my opinion, burden of proof has, therefore, shifted to respondents/ defendants, who are bound to establish that:-- a) Suit land is comprised of two parts as described above. b) As to one part of suit land, respondents/ defendants are bound to establish that they obtained the same on the ground of evidence of gift in their name. c) As to second part they are bound to prove that they obtained the same on their own.

5. In view of the above circumstances, evidence of respondents/ defendants attained very importance. I am taking said evidence and attempting to give full appraisal of the said evidence. Record shows that the learned trial court has recorded statements of two attorneys of respondents, namely, Mr. Mohammad Ashraf and Mr. Mohammad Jahangir, at two different times, one prior to remand of the case, referred above, and another after remand. Statement of Mr. Mohammad Ashraf has been recorded on 05-06-2007 and statement of Mr. Mohammad) Jahangir has been recorded on 12-03-2014. I am taking statement of Mr. Mohammad Ashraf first for discussion. From plain perusal of statement of Mr. Mohammad Ashraf, attorney for respondents, it is evident that at the time of gift, i.e., in the year 1980, Mr. Quram Shah, father of petitioners/ plaintiffs, gifted his whole properties to the respondents/defendants. In cross-examination part of his statement, attorney for respondents has very clearly stated that at the time of gift (Exh.D-1/B), properties of Mr. Quram Shah, the donor, and Mr. Adena Shah were common and no partition had by then taken place between the said two persons. So, for arguments sake, if we accept the statement of said attorney as correct, the alleged gift was of a property which can be termed as Musha. From statement of Mr. Ashraf, attorney for respondents, it is further evident that the alleged gift was affected in the year 1980 and was given legal shape, i.e., into a proper gift deed, in the year 1983. In his statement, said attorney has further stated that yet another gift deed Exh.D-1/A was also affected but was not registered. Attorney for defendants further stated that lands in Nazbar and Gindai are also part of the gift deed. But when we place this part of the statement of attorney for defendants in juxtaposition with the gift deed Exh.D-1/B, it is very clear that the gifted land is comprised of four pieces and is situated in Yaseen. Exh.D-1/B very clearly described the gifted land in boundaries. Exh.D-1/A is in fact copy of statement of Mr. Quram Shah, termed as a gift deed, which clearly shows that Mr. Quram Shah, the donor of Exh.D-1/B, gifted out his properties to respondents and in the said gift deed we find mention of movable and immovable properties situated in Gindai, Nazbar and Yaseen. Statement of Mr. Jahangir, attorney for defendants, is quite different from statement of Mr. Mohammad Ashraf and the said two statements are quite different from Exh.D-1/B. In his statement, Mr. Jahangir stated that three pieces of lands had fallen in the share of Mr. Quram Shah while the gift deed Exh.D-1 /B shows four pieces. At this stage of the case, we are supposed to see the proof of Exh.D-1/B through evidence. In this connection, a very important aspect is that the land described in Exh.D-1/B is quite different from the land described in pieces No.1 to 4 of the suit land. Pieces of suit land described in plaint as pieces No.5 to 12 are the land situated in Mouza Gindai. In this connection I have gone through Exh.D-1/B placing the same in juxtaposition with amended plaint. From perusal of evidence of respondents, it is very clear that the two documents, referred as gift deeds, have been affected at different times and at different places.

6. In proof of Exh.D-1/B, respondents have produced DW-1 to DW-9. It is very important to note that DW-1 is the only witness of Exh.D-1/B. After remand of the case, Mr. Mohammad Aziz Khan was not produced in the court as marginal witness of Exh.D-1 /B. The third witness of Exh.D-1/B is Mr. Tati Khan. Respondents did not produce the same also after remand of the case. DW-1 has stated in proof of Exh.D-1 /B, but this DW has stated that the same was affected in the year 1973. In his statement, this DW has stated that Tehsildar neither signed on the said documents on spot nor registered the same but directed the parties to the said deed to produce the same in the office next day. In cross-examination part of his statement, the said DW has stated that neither he nor donor Quram Shah went to the office of Tehsildar next day. Statement of Mr. Soram Khan, DW-2, is not relevant as said DW is stating about a piece of land but he himself is not clear as to the identification of said piece of land. Mr. Abdullah Khan, DW-3, is stating about piece No.4 of the suit land and his statement is also not relevant as he is stating about possession of defendant No.4 on the said suit land. Possession of respondents/defendants on the suit land is not disputed. DW-4 has stated about his signature on Exh.D-1/B. In cross examination, said DW has stated that 6 pieces of land were described as gifted lands in the gift deed while plain perusal of gift deed shows that only 4 pieces are described as gifted lands. DW-4 has contradicted DW-1 on many aspects. DW-1 is stating about direction of Tehsildar for coming to the office next day while DW-4 is stating that all the formalities regarding Exh.D-1 /B were completed in the home. Statement of DW-5 is not relevant as he has no powers to record statements of any person. In my opinion, proceedings regarding Exh.D-1/A are illegal and incorrect as the persons who conducted said proceedings had no legal powers to do the same. Statement of Syed Baba Jan, DW-6, is also irrelevant as he is stating about a piece of land but is silent that whether said piece of suit land is part of suit land or not. From plain perusal of statement of Mr. Sahib Gul, DW-7, it is clear that half of suit land described as piece No.6 is still in possession of the said DW. So, statement of DW-7 is against respondents/ defendants, as respondents have claimed their exclusive title to said piece of land. Statement of Mr. Mohammad Yaseen, DW-8, is also irrelevant as said DW is stating about a piece of land and from his statement, it is not clear that whether said piece of land is part of suit land or not. Mr. Mirza Wali, DW-9, is also stating about title to the part of suit land described as piece No.1, therefore, said statement is also irrelevant. In cross examination part of his statement, said DW clears position of his statement that the same is hearsay.

7. Now I am turning to the findings of the learned trial court on issues. Findings of the learned trial court on issues are very important. Learned trial court has given its findings in favour of petitioners/plaintiffs on issues Nos. 1, 2, 3, 5, 6, 7, 8, 10 and

11. It is very important to note that respondents have not challenged findings of the trial court in any of the appellate forums, therefore, said findings have attained finality. For ready reference, I reproduce findings of the learned trial court on issues Nos.1, 2, 3, 5, 6, 7, 8, 10 and 11, hereunder:-- Issue No.1. Whether the plaintiffs have cause of action against defendants? OPP Onus to prove this issue placed on plaintiffs. The plaintiffs averred in their amended plaint that the defendants are in possession of their inheritance suit land and refusing to handover the legal share of plaintiffs but the defendants denied all these facts. Therefore as per averment of plaint the plaintiffs have good cause of action against defendants. Issue held proved. Issue No.2. Whether the suit of plaintiffs is within time? OPP Onus to prove this issue was placed on plaintiffs. In order to prove this issue the counsel for plaintiffs relied upon citation Allah Dita v. Mst. Hussain Bibi reported as 1983 CLC page

228. The plaintiffs filed this suit on 1996 and then lastly filed amended plaint dated on 04-07-2002. In the above quoted reported judgment the Hon'ble Lahore High Court held that bar of limitation not apply such cases where inheritance involved. Since the plaintiffs filed the instant suit for their legal share of inheritance of their late father, therefore no limitation attracts, to the case in hand, according to Islamic injunction. Issue held proved. Issue No.3. Whether the plaintiffs being legal heirs of late Qurarn Shah, have rights to get one half (1/2) share of suit land, house and trees? OPP Onus to prove this issue was placed on plaintiffs. It is admitted by parties that the plaintiffs are legal heirs of late Quram Shah. The plaintiffs could not produce any material evidence that the suit land described in the head note of the plaint is all undivided inheritance between plaintiff's father and defendant's grandfather. Being legal heirs the plaintiffs are owner of whole legacy of their late father. Therefore the plaintiffs have right to get the inheritance left by their late father. Hence this issue held proved partially to the extent of inherited share of plaintiffs by their father in the suit land. Finding accordingly. Issue No.5. Whether the plaintiffs have no cause of standee against defendants therefore the suit is liable to be dismissed? OPD Issue held not pressed. Issue No.6. Whether the suit of plaintiffs is liable to be dismissed under O. 7 rule 11, C.P.C.? OPD Issue held not pressed. Issue No.7. Whether the boundaries of suit piece of land Nos.4,5,6 and 8 are entered wrong and piece of suit land No.12 has no existence on the ground, therefore suit of plaintiff is liable to be amended? OPD Onus to prove this issue was placed on defendants. Regarding the wrong description of boundaries of piece of suit land No.4,5,6 and 8 defendants did not produced any evidence upto extent of piece of suit land No.12 the attorney for defendants in his cross examination admitted that this piece of suit land is situated at village Nazbar which grand father of attorney for defendants purchased from one namely Musta Wali, hence attorney for defendants himself negated 2nd part of this issue. Issue No.8. Whether the plaintiffs instituted the suit in hand for more land then their share inheritance and more part of piece of suit land No.6 and piece of suit land No.7 are in the share of grand father of defendants while the defendants created piece of suit land Nos.1,2,4 and 8 by developing land. In the same way the remaining part of piece of suit land No.6 purchased by defendants No.1 to 3? OPD Onus to prove this issue was placed on defendants. Defendants did not produce any evidence documentary or oral, as the plaintiffs claimed for more land than their share. Attorney for defendants in his examination-in-chief stated regarding abovementioned piece of suit land, that these are belong to defendants. Statement of DW/1, DW/2, SW/4, DW/5, DW/6, DW/7, DW/8, DW/9 is not related to this issue. DW/3 only stated that he constructed a water channel to piece of suit land No.4. Upon asking by defendant No.4 and also cultivated grass on this field, returned. The defendant could not able to produce any reliable evidence to substantiate, this issue hence disproved. Issue No.10. Whether the donor of gifted deed dated 13-04-1983 namely Quram Shah has died therefore his daughters (plaintiffs) have no legal right to get cancelled the gifted deed and whether the defendants changed nature of suit land by developing and making improvements on it? OPD Onus to prove this issue was placed on defendants. It is admitted fact that the donor Quram Shah passed away. The defendant failed to prove as to under what law the legal heirs of late Quram Shah (plaintiffs) have no legal right to get cancelled the gift deed dated 13-04-1983 when their right of inheritance is snatched under the grab of gift deed. However plaintiff did not challenge gift deed within time, up to extent of changing nature of gifted land by improvement on it the defendants did not adduce any oral or documentary evidence. Issue partially proved as to death of donor. The remaining part of issue held also disproved. Issue No.11. Whether the defendant expending lakes of Rupees in the gifted land situated at Gindai and Yasin by planting trees, making boundary walls, constructing houses and developing land? OPD Onus to prove this issue was placed on defendants. The attorney for defendants only mentioned this fact in his statement and D1/4// 3 also stated that the defendant No.4 planted some trees in the piece of suit land No.4. DW-7 also mentioned that the defendant No.4 planted trees in piece of suit land No.8. The defendants did not bring on record any correct evidence as to their development made on gifted land. Mere assertion does not amount to prove. Issue held disproved.

8. From plain perusal of above findings, it is evident that issue No.3 pertains to the rights of the petitioners/ plaintiffs. It is very astonishing that, even after proof of issue No.3, learned trial court has instead of granting a decree dismissed the suit. Issues Nos.5, 6, 7, 8, 10 and 11 have been framed as OPD and findings of the learned trial court on the said issues is against the respondents/ defendants. In that case also, learned trial court was legally bound to grant the decree prayed for instead of dismissing the suit. Findings of the learned trial court on issues No.7, 8, 10 and 11 are also astonishing. Learned trial court has given a contradictory decision in conclusive part of her judgment regarding her finding on issue No.2.

9. The above appraisal clearly shows that the two courts below have wrongly relied on the evidence of respondents. In my opinion, petitioners/ plaintiffs are the only legal heirs of their father and the above described gift deeds are an attempt on the part of respondents/defendants to deprive the legal heirs from their due shari share in the property of their father. From above appraisal of evidence, it is very clear that respondents have failed to establish all ingredients of a valid gift for the following reasons:-- a) Some of the DWs are stating about joint property of Mr. Quram Shah, father of petitioners, and Mr. Adina, the real brother of father of petitioners. So the suit property is share of Mr. Quram Shah, as regarding the same, respondents pleaded that part of the same was gifted to respondents Nos.1 to 3 but failed to establish the same. In this connection, findings of the trial court on issues Nos.1, 2, 3, 5, 6, 7, 8, 10 and 11 have attained finality and will certainly operate against respondents. b) Respondents specifically pleaded that they have obtained part of the suit property on their own but failed to prove the same version through independent evidence. c) Findings of the learned trial court on issues Nos.1, 2, 3, 5, 6, 7, 8, 10 and 11 have attained finality and in the light of the same, respondents failed to prove their title to the suit land.

10. In sequel of above discussion, I hold that the judgments/orders of the two courts below are result of misreading of evidence and non-reading of evidence and the learned two courts below have committed material irregularities in coming to the conclusion which is obviously erroneous. I, therefore, accept this petition, set aside impugned judgments/orders of the two courts below and pass a decree in the following words:-- "Petitioners/plaintiffs are only legal heirs of their father Mr. Quram Shah and whole of suit land was ownership of Mr. Quram Shah, therefore, petitioners are entitled to be declared owners of suit land and are entitled to possession thereof. Suit of petitioners/plaintiffs decreed accordingly. Respondents to bear costs. This file be consigned to record." ZC/40/GB Revision allowed.