2017 PLP 148 (YLRN)

WAZIR SHAKEEL AHMED, J.

Through the above titled application the petitioner named above has called in question the judgment/decree dated 10.08.1999 passed by this Court on the plea of fraud and misrepresentation played by plaintiff/respondent No.1 Mst. Bano daughter of Mst. Jano by representing before the court as sole heir of Mst. Khatoon through her mother Mst. Janoo for getting the inheritance of Mst. Khatoon.

2. Brief facts of the case, are that the respondent No.1 Mst. Bano daughter of Mst. Janoo filed a Civil Suit against the respondents before the Civil Court Skardu for the inheritance of Mst. Khatoon. The suit was fully contested between the parties and it was finally dismissed by the trial court vide judgment/decree dated 21.07.1997. The above dismissal was challenged before the 1st appellate court which was partially accepted vide judgment/decree dated 18.05.1998 of the learned District Judge to the extent of shari share of late Muhammad by setting aside the impugned judgment/decree of the trial court dated 21.07.1997. The above partial judgment/decree of learned District Judge dated 18.05.1998 was assailed before this court through civil 2nd appeal by the parties. This court by converting the civil 2nd appeal into revision petition, dismissed the same by maintaining the partial judgment/ decree of learned District Judge dated 18.05.1998 which has been made impugned before this court through the instant petition filed under section 12(2), C.P.C.

3. The gist of the grounds of the above titled petition are that in fact Mst. Janoo mother of present respondent Mst. Bano is daughter of Mst. Khati, who was the first wife of Shakoor and from his wedlock Mst. Khati has 4 daugthers including Mst. Bano and one son namely Yousaf and it is alleged in the petition that Mst. Bano has filed a suit excluding all brother and sisters. It is also alleged that Mst. Khatoon was married to Muhammad and gave birth one son namely Mirza from his wedlock, after the death of Muhammad she married to Shakoor as his third wife and from his wedlock she gave birth two issues namely Naqi and Bekim. Naqi further had two issueless sons namely Hadi and Taqi while the petitioner is son of Mst. Bekim and it is alleged that as such Mst. Khatoon is not the mother of Mst. Janoo and the respondent No.1 representing herself as granddaughter of Mst. Khatoon imtead of Mst.Khati is not true. It is also claimed by the petitioner the real daughter of Mst Khatoon is Mst. Bekim and the (petitioner) is the only grandson of Mst. Khatoon who is entitled to get the inheritance of Mst. Khatoon. The petitioner has accepted the fact contained in the plaint to the extent that Mst. Khatoon is entitled to get the inheritance of Mst. Khatoon. The petitioner has accepted the fact contained in the plaint to the extent that Mst. Khatoon inherited from his issueless son Mirza who inherited from his father Muhammad but negated the other facts on the basis of allegations mentioned above. Further explaining that Shakoor son of Hussain Malik had married three wives namely Khati, Sultan Bi and Mst. Khatoon which is shown in the para 6 of the instant petition. It is further alleged in para 7 of the petition that the respondent No.2/plaintiff daughter of Ms.Janoo who is the daughter of Mst. Khati the first wife of Shakoor as such she cannot represent himself as daughter of Mst. Khatoon the real daughter of Khatoon is Mst. Bekim and mother of present petitioner.

4. The above petition was contested by respondent No.1 Mst. Bano through her attorney by filing replication while respondent No.2 did not opted to contest the petition by admitting fraud and misrepresenting committed by the respondent No.1 by alleging that he is already filed a suit for 4/6 share from the inheritance of Mirza son of Ali Khan admitting the 2/6 share of Muhammad son of Mirza.

5. On the basis of above pleadings the court has framed as many as 10 issues but the copy of the same could not be found in file except a typed as proposed ones. Record reveals that in fact both the learned counsel have jointly proposed issues duly signed by them in their handwriting while the types issue are also the same by the court as proposed and also not signed which is reproduced as under for ready reference:

6. The parties managed to adduce pro and contra evidence in support of their claim. The petitioner besides his statements managed to get adduced statements of 04 PWs while the respondent No.1 got her statement through her attorney and also managed to adduce 02 RWs in defence while respondent No.2 just got his short statement, stating therein that he does not want to contest the present petition as he had already initiated legal proceedings before the civil court. The onus of proving issues Nos.1 and 2 are on the contesting respondent No.2 but there is no evidence in support of the same as neither the respondent No.2 or any of the RWs uttered a single word in support of the same. The burden of proving of issue Nos.3 and 4 were also on the shoulder of RWs vide which they had to prove that the pedigree in paras 4 and 6 are correct according to revenue record. Record reveals that the contesting respondents No.2 has bitterly failed to prove the same as discussed above. None of the RWs including the attorney of the respondents manage to support the pedigree mentioned in the paras. 4 and 6 of their replication except the following 03 line narrated by the attorney of respondent No.1, which is reproduce for read reference:--

7. It is also on record that no revenue record was got exhibited regarding the correctness of the alleged pedigree by the respondent No.1. The issue No.5 is in fact a major issue required to be proved by the RWs as the mother of respondent No.1 Mst. Janoo is in fact the daughter of Mst. Khatoon and Shakoor and as discussed above as far as the respondent No.1 is concerned nothing has been stated in the examination in chief except the above reproduced three lines. The adduced RWs No. 1 namely Yousaf son of Ghulam is admittedly the maternal brother of present respondent No.1 being son of Mst. Janoo but he also did not utter a single word regarding the issue that the name of grandmother of him and that of his sister respondent No.1 is Mst. Khatoon, likewise statement of RW No.3 Haji Ali is also devoid of single sentence regarding prove of the crucial issue No.5, so I hold that the present respondent No.1 has bitterly failed to prove this issue in her favour.

8. Now I would like to take the issues, the burden of proving of which were upon the petitioner. These are in fact issues Nos.6 to

10. In support of these issues the petitioner has got recorded a detailed statement wherein he states that his father's name is Muhammad and Mst. Bekim is his mother name. The name of his mother and father Mst. Bekim and Shakoor and his wife is Mst. Khatoon. From the wedlock of above Khatoon the said Shakoor had two issues namely Naqi and Bekim the mother of the petitioner. He further narrates that Shakoor Ali had 03 wives namely Khati, Sultan Bi and Mst. Khatoon. From the wedlock of Sultan Bi, Shakoor had a deaf son namely Ali issueless and from the wedlock of Khati, Shakoor had a daughter namely Janoo who had two daughters and a son and also 2/3 other daughters whom the petitioner does not know. The grandmother of the Mst. Khatoon was married twice firstly she was married one Muhammad in the wedlock of the same a son named Mirza was born and was died issueless. The above Muhammad had also a brother Abdu and two sisters Haider Bi and Haleem Bi. The petitioner further narrates that Khatoon had two issues namely Naqi and Mst. Bekim, Naqi had 02 sons namely Taqi and Hadi who died issueless, therefore, her mother is firstly entitled to the inheritance of her mother and thereafter the petitioner is entitled for the same being son of Bekim mother of Khatoom. In the last leg of his statement the petitioner has claimed that the respondent No.1 in lieu of her real grandmother got a decree by claiming Mst. Khatoon as her real grandmother and sought setting aside the same through this petition. The petitioner has subjected to a lengthy cross-examination but nothing material was unearthed during the same.

9. In support of his claimed as enumerated in issues Nos.6 to 10 the petitioner has also got recorded statement of one Mst. Kalsoom daughter of Oul aged 72 years who claim that his father name is Oul and his mother name is Jano. From the wedlock of her parents one is the present respondent No.1 and she herself is the other as such this lady is the sister of respondent No.1. She further states that the name of the father of the Jano is Shakoor and that of his mother is Khati and Khati is her grandmother, she further narrates that her grand maternal father Shakoor had three wives namely Khati (mother of deaf Ali), Haleem Bi and Khatoon. Khatoon had a son Naqi and a daughter Bekim. She further states that Ibrahim is son of Bekim while she does not know about any issue of Naqi. She finally once again affirms that respondent No.1 Bano is her real sister. This important witness was also subjected to a lengthy cross-examination except to the question that it is correct that he has not brought any written proof that she (Mst. Kalsoom) is the daughter of Mst. Janoo and also to the extent that said Jano is daughter of Khati and she herself replied by saying that there is no need of furnishing any written statement regarding the above relationship rather it has been confirmed through cross-examination that deceased Shakoor had two male and two female issues namely Ali (deaf), Naqi, Janoo and Bekim. It is futher got affirmed that she (Kalsoom) had no relation with Mst. Bano (respondent No.1) since 04/05 years. It is further got affirmed that respondent No.2 Mst. Bano and RW Kalsoom are not on talking terms. The petitioner has got statement of another lady RW namely Mst. Fatima Bibi daughter of Muhammad age 70 years, who categorically states that her father name is Muhammad and that of her mother is Khati. Her mother had got married with a man named Shakoor and after getting divorced from him she married with her father. She further states that Janoo was bound with wedlock of Shakoor. Further states that Kalsoom RW is daughter of Janoo and RW Kalsoom and Bano is sister sister inter se. She further states that she also knows Khatoon who had two issues Naqi and Bekim, and Bekim has a son named Ibrahim (petitioner). The other 02 RWs have categorically stated the relation of the present petitioner with regard to the present categorically according to which it has been proved that Mst. Khatoon has two issueless Naqi and Bekim, and Bekim is the mother of present petitioner Ibrahim.

10. The above contentions of the petitioner and the DWs is also proved and admitted by the respondent No.2 herself during the cross-examination in which it has categorically been admitted that Mst. Jano had five female issues namely Bano, Kalsoom, Rozi Bi, Hamida and Sakina. Further confirming that from the wedlock Oul and Mst. Jano had two female issues namely Kalsoom Bi and the present respondent No.1. It is also admitted in cross-examination by the learned counsel for the respondent No.1 that from the wedlock Mst. Khatoon and Shakoor a son Naqi born, however, it is stated in cross-examination that he has no knowledge if from the said wedlock a female issue namely Mst. Bekim was born or not. It is worth mentioning here that not a single Rws had denied the existence of two issues namely Naqi and Bekim by answering that they have no knowledge about the same in their cross-examinations.

11. In the light of what had been discussed above I am of the firm opinion that the present petitioner has prove all the issues Nos.7 to 10 beyond any shadow of doubt and in the result of which the crucial issue No.6 has also stand proved, so I have left no option but to except this petition by setting aside the impugned judgment/decree dated 10.08.1999 of this court. Petitioners for his redressal can recourse to the court of competent jurisdiction if he is so advised. File be consigned to record after due completion. ZC/26/GB Petition allowed.