2021 PLP 303 (CLC)

WIQAR AHMAD, J.

My this order is directed to dispose of the petition filed by petitioners under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.').

2. Petitioners Nos. 1 to 3 and predecessor-in-interest of rest of the petitioners namely Mst. Mohammadia (deceased) instituted a suit against the defendants praying for declaration to the effect that they had been co-owners in the property in dispute to the extent of their shares described therein and that the defendants had got no right to deny the said rights of the plaintiffs. In prayer (), the plaintiffs/petitioners had prayed for perpetual injunction while in prayer (), they had made prayer for cancellation of any deed which might be presented by the defendants for denying the rights of the plaintiffs. In prayer () the plaintiff had prayed for a decree for the grant of possession to the extent of their entitlement. It was averred in the plaint that the property in dispute was originally owned by Fazal Ahmad who had two wives. Plaintiff No. 1 was his son and plaintiffs Nos.3 and 4 were his daughters from the second wife i.e. plaintiff No.2. Defendants Nos.1 to 4 had been sons and a daughter of the first wife of the said Fazal Ahmad and rest of the defendants were the legal heirs of other two sons namely Aziz Muhammad and Sher Muhammad. Claim was made in respect of the entire property owned by the predecessor-in-interest of the plaintiffs according to the contents of the plaint, except Khasra Nos. 507 and 509, in respect of which a mutation had already been entered and registered in the name of all the legal heirs including the plaintiffs.

3. Defendants were summoned. On appearance, defendants Nos. 1 to 3 filed their written statement, wherein they rebutted the claim of the plaintiffs and contended that plaintiff No.1 had received his due share in land in the life of their propositus namely Fazal Ahmad (Late), a part of which had also been further sold to one Maqdam Shah. The defendants also asserted that plaintiff No. 1 had relinquished rest of his share in the entire legacy of Fazal Ahmad (Late) by receiving due consideration from rest of his brothers in respect of which some deeds were also claimed to have been executed. A dispute was also stated to have arisen between the brothers in the year 1977 and decided by Tehsildar Puran, District Shangla. The pedigree-table available in Para-2 of the plaint was however not disputed in the written statement. It was also contended in the written statement that plaintiff No. 1 had earlier instituted a suit in the Court of Extra Assistant Commissioner, Chakiasar, Alpuri, which was withdrawn by him un-conditionally and thereafter, a fresh suit could not be allowed to be filed by him.

4. Issues were framed in the case on 10.05.2005, whereafter the parties were invited to adduce their respective evidences by the learned civil Court, which right has been availed by both the parties to their satisfaction. On conclusion of proceedings in the case, the learned Civil Judge/Ilaqa Qazi Puran, Shangla vide judgment and decree dated 20.07.2006, partially decreed the suit of the plaintiffs to the extent of grant of a decree in respect of the constructed houses and dismissed their suit in respect of other property. The plaintiffs/ petitioners filed an appeal in the Court of learned District Judge/Zilla Qazi, Shangla, while the contesting respondents filed a cross objection against the partial decree granted in favour of the petitioners. The learned appellate Court vide judgment and decree dated 25.10.2008 dismissed the appeal of the petitioners and allowed the cross objection, thereby dismissing the whole suit of the plaintiffs/petitioners. Feeling aggrieved there-from, the petitioners have filed the instant revision petition under section 115, C.P.C.

5. Learned counsel for petitioners referred to various deeds and evidence including the oral statements recorded in the case and contended that the plaintiffs have successfully proved their case but despite that they were non-suited. In respect of the deed Ex. DW 1/1, learned counsel contended that the payment of consideration could not be proved as both the witnesses of the defendants have stated during their examination in Court that in their presence, payment of consideration had not been made, therefore, the deed Ex. DW 1/1 as well as the fact of domestic partition was wrongly accepted by the two Courts below as proved.

6. Learned counsel for respondents submitted in rebuttal that the property in dispute had not been the ownership of the propositus Fazal Ahmad at the time of his death as he had already distributed it among all his sons which fact has been admitted by plaintiff No. 1 while deposing as PW-1. He further added that the suit in hand was expressly barred by law of limitation and therefore, same has rightly been dismissed by the learned appellate Court.

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

8. The two Courts below have concurrently accepted the plea of defendants that the suit property had been distributed by the propositus in his lifetime among all his sons which included plaintiff No. 1, (except the constructed properties in the shape of houses etc, in respect of which the learned civil Court had taken a different view and decreed the suit). It was also accepted as proved that plaintiff No. 1 had sold out a part of the property in dispute in Wakho Brakha to one Sanobar in consideration of Rs. 5000/- while rest of his entire share in the property had been sold to the other brothers in consideration of Rs.47,000/- in the year 1977 and thereby relinquished all his rights in the property in dispute. I have no reason to differ with the findings of the learned two Courts below to the said effect. The view of the learned civil Court viz-a-viz the constructed part of the property, shall however be attended to, in later part of this judgment. The facts mentioned above stand admitted in the cross-examination of plaintiff No. 1 to some extent while the rest stand proved from the remaining evidence recorded in the case. Examination-in-chief of plaintiff No. 1 was recorded as PW-1 earlier in the suit on 03.06.2005. His cross-examination has however been recorded on 04.05.2006. In his cross-examination, he has given the following narration; In the same line, the other witness of the plaintiffs namely Ihsanullah while deposing as PW-3 has also admitted certain material facts which need reproduction hereunder;

9. The fact that the property in dispute had earlier been partitioned by the predecessor-in-interest of the parties among his sons stands admitted. It is also an admitted fact that plaintiff No. 1 had acquired even possession of his share in the property which was being utilized by him for sometime until sold out/relinquished as stated above.

10. Beside producing documentary evidence in the form of Ex.DW-1/1 to Ex. DW 1/6, defendants have examined disinterested witness namely Abdul Bais as DW-3 in support of the factum of relinquishment by plaintiff No.

1. This witness has stated that he had scribed the deed in his own hand at the time when he had been posted as Reader to the then Tehsildar, Puran. He stood consistent in his statement. He has frankly conceded that plaintiff No. 1 had not been given the amount of consideration amounting to Rs. 47,000/- in his presence but has stated that receipt of the said amount has duly been mentioned in the deed scribed by him. Same was the case with another witness namely Sahib Zar Khan examined as DW-2. Copy of the relinquishment deed was available on the record but same could not be exhibited in evidence for the reason that original relinquishment deed had not been available with the defendants. DW-1 while mentioning the said deed in examination-in-chief had stated that same had been written by Abdul Sais (DW-3) but the original was not available at that time. DW-3 has also given a supporting statement in the said respect but the relinquishment deed could not be exhibited in evidence due to the fact that its original had not been available with the defendants. The oral evidence coupled with the documentary evidence in shape of Ex. DW 1/1 to Ex. DW 1/6 establishes the factum of domestic partition among the six (6) brothers, relinquishment of his share by plaintiff No. 1 for a consideration of Rs. 47,000/-, therefore non-exhibition of the relinquishment deed would not make much difference. No discrepancy could be found in the statements of defendants who have remained consistent on the issue that the property had earlier been partitioned among all the six (06) brothers and that plaintiff No. 1 had relinquished his share in the property in dispute by receiving a sum of Rs.47000/-from rest of the five (05) brothers. In such circumstances, the two Courts below have rightly deduced from the evidence that the payment of consideration had been made to plaintiff No. 1 by rest of the five (05) brothers and the property had in-fact been relinquished by plaintiff No. 1 and left to the five brothers. The learned civil Court had taken the view however that the property relinquished by plaintiff No. 1 had not included the constructed and residential houses mentioned in the heading of the plaint, in respect of which no evidence was found by the learned civil Court to have been produced. The learned appellate Court has rightly disagreed with the learned trial Court in this respect. The evidence discussed above shows that plaintiff No. 1 had relinquished all his share in the inherited property except in Khasra Nos. 507 and

509. While relinquishing his part in the property in dispute, no exception had been created for any part of the property be that residential or commercial. Plaintiff No. 1 could not prove that while relinquishing his share in the inherited property, he had not relinquished his share in respect of the constructed or residential portion. The findings of the learned appellate Court in the said respect were based on proper appreciation of evidence on record. It has been held by the Hon'ble Supreme Court of Pakistan in the case of Enayat Sons (Pvt.) Ltd. v. Government of Pakistan through Secretary, Finance and others reported as 2007 SCMR 969 that when the findings of the learned two Courts below are at variance, then the revisional Court should give preference to the findings of the lower appellate Court. The relevant part of the judgment is reproduced hereunder for ready reference;

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. Reliance in this respect is also placed on the judgment given in the case of Muhammad Hassan Khawaja Khalil-ur-Rehman reported as 2007 SCMR 576.

11. The judgments of the two Courts below are totally silent about the entitlement of the lady plaintiffs i.e. plaintiffs Nos. 2 to

4. The relinquishment and acts on part of plaintiff No, 1 cannot be attributed to plaintiffs Nos. 2, 3 and legal heirs of plaintiff No. 4 to the effect that they may not be deprived of their rights in the legacy of their predecessor. There is nothing on record to establish that they had ever relinquished their shares in the legacy of their propositus or had received the same. DW-1 has expressly admitted in his cross-examination the denial of rights of the female heirs in the inheritance as follows; Even on the face of accepted and proved facts of domestic partition, this can safely be said that the ladies plaintiffs had never been party to the said transaction and they cannot be presumed to be part of the same with the presence and participation of plaintiff No.

1. Through deed Ex. DW 1/5, it was claimed that the lady plaintiff No. 2 namely Mst. Begum had been paid a sum of Rs.9000/- through plaintiff No. 1 Gulzar Muhammad. It is not clear whether the lady plaintiff No. 2 had received the said amount because signature or thumb impression of the said lady could not be found on the said deed. No relinquishment deed is also available, where the lady plaintiff may have relinquished her share in the legacy of Fazal Ahmad (Late). This Court has already held that plaintiff No. 1 had duly received his entitlement in the property in dispute but this could not be proved by the defendants that the lady plaintiffs had ever been given their due shares in the legacy of their propositus or that they had relinquished the same out of their free consent. The deed Ex. DW 1/5 cannot be construed to be a relinquishment deed on their part.

12. In such situation, the question of limitation shall not come in the way of ladies because when they have been deprived of their shares in the legacy of their propositus, the possession of the other co-owners i.e. brothers shall be deemed to be their joint possession and the wrong entries in the revenue record shall be deemed to have been providing them a recurring cause with every repetition of the said entries in the periodical record. Reliance in this respect is placed on the judgments of the 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 and the case of Khan Muhammad through L.Rs and others v. Mst. Khatoon Bibi and others reported as 2017 SCMR 1476.

13. Resultantly, the judgments and decrees of the learned two Courts below are modified to the extent that a preliminary decree is granted in favour of the petitioners Nos.2, 3 and legal heirs of petitioner No. 4 namely Mst. Mohammadia (deceased) in respect of their shari shares in the property left by their propositus namely Fazal Ahmad (Late). The revision petition in hand to the extent of petitioner No. 1 is dismissed. ZC/46/P Order accordingly.