2005 PLP 1241 (CLC)

This Civil Revision Petition under section 115, C.P.C. is directed against the judgment and decree, dated 26-5-2001 passed by Additional District Judge-IV, Quetta, whereby appeal filed against the A judgment and decree dated 18-7-2000 passed by Senior Civil Judge-I, Quetta was dismissed and consequently, the suit filed by the petitioner was ordered to be dismissed. Briefly stated the relevant facts of the case are that initially the petitioner filed a suit for declaration and possession against late Shaukat Hussain predecessor-in-interest of respondents Nos.1 to 11 and against the respondents Nos. 12 and

13. During pendency of the suit, the respondent Shaukat Hussain died. Thus, his legal heirs i.e. respondents Nos.1 to 11 were impleaded as party. It was averred in the plaint that the petitioner had purchased the property bearing Municipal No.2-21/8(1): 678-679 Kasra No.415 Khatoni No.242, Khewat No. 167 measuring 349 sq. ft. situated at Teju Mal Lane, Roop Chand Lane, Masjid Road Quetta from its previous owners Yahya Bai and Tahir Ali vide sale-deeds dated 14-9-1993 and 16-4-1992 duly registered with Sub-Registrar, Quetta. On the basis of such sale-deeds, the property was transferred in the name of the petitioner in Revenue Record. It was further averred in the plaint that actual owners Yahya Bai and Tahir Ali had leased out the property to Shaukat Hussain who without the consent of the previous owners sublet the same to respondent Haji Yar Muhammad and Allauddin. It was prayed that possession of the said premises be given to the petitioner. The respondents filed a joint reply repudiating the claim of the petitioner. It was stated in the written statement that the property in dispute belongs to Evacuee Trust Property Board, out of the pleadings following issues were framed:-- (1) Whether the suit is bad for non joinder of parties as well as cause of action, therefore, the same is liable to be dismissed? (2) Whether the suit is not competent under section 42 of the Specific Relief Act? (3) Whether the present suit is time-barred by time in view of Article 120 of the Limitation Act? (4) Whether the predecessor-in-interest of the plaintiff had never been in possession of the disputed property and Yahya Bai and Tahir Ali had lost their title in the disputed property? (5) Whether the defendant No. 1 was in possession of the disputed property as a licensee of predecessor-in-interest of the plaintiff namely Yahya Bai and Tahir Ali and without permission or consent of the previous owner the defendant No.1 has given unauthorized given the possession to the defendants Nos.2 and 3? (6) Whether the plaintiff has purchased the disputed property and has thus, became the owner of the same? (7) Whether the plaintiff is entitled for the relief claimed for? (8) Relief? Thereafter following additional issues were also framed:-- (1) Whether Evacuee Trust Property Board is a necessary party to the suit, if so, to what effect? (2) Whether the suit property or any party thereof is an Evacuee Trust Property, if so, to what effect? (3) Whether the defendant No. 1 (late Shaukat Hussain) was the tenant of Evacuee Trust Property Board in respect of the premises in dispute? (4) Whether the predecessor-in-interest of defendants Nos.1 to 11 were inducted into the suit property as Licensee? (5) Whether the suit has been instituted within time? In support of his contention, the petitioner produced the following witnesses:-- P.W.1 Gul Muhammad representative of the Sub-Registrar Office, he tendered documents Exh.P./1 to Exh.P./4, the registered sale deed executed by Yahya Bai and Tahir Ali respectively in favour of the petitioner regarding the property in dispute. P.W.2 Zohaib Ali, he executed the registered sale-deed in favour of the petitioner as attorney for Yahya Bai and Tahir Ali. He acknowledged his signatures on Exh.P./1 to Exh.P./4. P. W .3 Muhammad Azam representative of, the Excise and Taxation Department, he produced P.T-1 Form Exh.P./5 regarding the property in dispute. P.W.4 Javed Iqbal Superintendent Board of Revenue, he tendered documents Exh.P./11 to Exh.P./15 being the taxation documents and certificate Exh.P./13. wherein the Khasra number and Municipal number of the property in dispute are mentioned. P.W.5 Khudai Dad, Patwari, he produced Fard Exh.P./7, report of the Revenue Authorities Exh.P./8, inspection report of the property in dispute Exh.P./9 and application filed on 12-1-1992 by the venders Yahya Bai and Tahir Ali through their attorney for rectification of the record. P.W.6 Shaukat Ali, representative of the Quetta Municipal Corporation, he produced site plan and building permit Exh.P./16 and Exh.P./17 issued by Municipal Corporation. P.W.7 Shafi Muhammad, Patwari, tendered documents Exh.P./18 to Exh.P./20 being the record of Fard pertaining to the year 1993 showing Yahya Bai and Tahir Ali as the owners and Intiqal Exh.P./19 and Exh.P./20. P.W.8 Ali Muhammad, Patwari, he produced documents Exh. P. /21 showing Yahya Bai and Tahir Ali as owners of the property in dispute during the settlement of 1941 and 1945. P.W.9 Farid Ahmed Tax Clerk, Q.M.C., he produced documents Exh.P./22 to Exh.P./23 being tax receipts paid by the petitioner regarding the property in dispute. P.W.10 Abdul Qadir, he deposed about the sale transaction and execution of sale-deeds in favour of the petitioner. P.W.11 Mr. Kailash Nath Kohli, he issued notice to the respondents on behalf of the petitioner Exh.P./24. Statement of the petitioner was recorded in support of his contention. In rebuttal the respondents/defendants produced D.W.1 Abdul Samad, he deposed that the respondent No.1 Shaukat Hussain was tenant in the said premises and now respondents Nos. 12 and 13 are doing business in the same and are paying rent to the Evacuee Trust Property Board. D.W.2 Muhammad Farooq also deposed that the respondents are doing business in the said premises and none had claimed the ownership of the property in dispute for the last 20 years. D.W.3 Ali Muhammad produced documents Exh.D./1 in respect of property bearing Khewat No.150 Khatoni No.165 Khasra No.2429 measuring 195 sq. ft. D.W.4 Muhammad Yousaf stated that the respondents are tenants in the property in dispute belonging to Evacuee Trust Property Board and Yahya Bai and Tahir Ali had nothing to do with the said property. D.W.5 Farhad Ahmed Tax Clerk, tendered document Exh.D./2 pertaining to property bearing Khasra No.811, 67879 showing Shaukat Hussain predecessor of respondents Nos.1 and

11. D.W.6 Faiz Muhammad, he tendered document Exh.D./3 being the latest Fard of the property bearing No. 194 Khatoni No. 191 Khasra No.414 measuring 195 sq. ft. D.W.7 Muhammad Ali, he deposed that the respondents are doing business in the said premises for the last 25/30 years and none has claimed the ownership of the same and Yahya Bai and Tahir had never visited the property in dispute. D.W.8 Shakil Ahmed, he produced documents Exh.D./4 to Exh.D./30 being agreements between Evacuee Trust Property Board and respondent Shaukat Hussain, certificate regarding the said property wherein Khasra numbers have been mentioned and rent receipts of property bearing municipal No.2-21/8-A. Shaukat Hussain predecessor-in-interest of respondent stated that he was tenant of the Evacuee Trust Property Board. However, Yahya Bai and Tahir Ali had nothing to do with the property in dispute. Respondent No.12 Haji Yar Muhammad in his statement stated that he is doing business as partner of Shaukat Hussain who is tenant of Evacuee Trust Property Board. Respondent No. 13 Allauddin also stated that he is, partner in the shop and are paying rent to the Evacuee Trust Property Board. Muhammad Aslam, Administrator, Evacuee Trust property Board, he produced documents Exh.D./32 and Exh.D./33 showing Shaukat Hussain as tenant. After hearing the parties, the learned Senior Civil Judge-I, Quetta decreed the suit vide judgment and decree, dated 30-4-1997. Being aggrieved from the same, the respondents filed an appeal before the District Judge, Quetta which was transferred to the file of Additional District Judge-II, Quetta who also dismissed the appeal vide judgment and decree dated 2-12-1998. Thereafter, the respondents filed a revision petition before this-Court which was registered as Civil revision Petition . No.22 of 1999 and the same was partly accepted and remanded the case to the Court of Senior Civil Judge-I, Quetta with the directions for impleading the Evacuee Trust Property Board as party and reconstituting the issues. On such directions, the Evacuee Trust Property Board was impleaded as party and additional issues were framed. The parties relied upon the evidence already produced by them in the first round and only the representative of Evacuee Trust Property Board appeared and tendered documents Exh.P./32 to Exh.P./33 and thereafter, the learned Senior Civil Judge-I, Quetta dismissed the suit vide judgment and decree, dated 18-7-2000. Being aggrieved from the same, the petitioner filed an appeal before the District Judge, Quetta which was transferred to the Court of Additional District Judge-IV, Quetta, who after hearing the parties upheld the judgment and decree, dated 26-5-2001. Hence the instant revision petition. I have heard Mr. Sundar Dass, Advocate for the petitioner, Mr. Tahir Muhammad Khan, Advocate for the respondents Nos.1 to 13 and Mr. Rashid Awan, Advocate, for the respondents Nos. 14 and

15. Mr. Sundar Dass, learned counsel appearing on behalf of the petitioner, contended that both the Courts below have misread and mis appreciated the documentary evidence produced by the petitioner and g have committed a grave illegality and irregularity by rejecting the documents without giving any cogent reasons. Thus, serious prejudice has been caused to the case of the petitioner. Learned counsel further contended that both the judgments and decrees have been passed on the basis of conjectural and erroneous presumptions and wrong assumptions, of law and prayed that both the judgments and decrees be set aside an suit be decreed in favour of the petitioner. Mr. Tahir Muhammad Khan, learned counsel for the respondents Nos. 1 to 13 contended that the Courts below have rightly dismissed the suit of the petitioner on proper appreciation of evidence and cogent: reasons, have been given in discarding the oral and documentary evidence, thus, this Court in revisional jurisdiction may not interfere with concurrent findings of facts arrived at by the Courts below. Mr. Rashid Awan, learned counsel appearing on behalf of Evacuee Trust Property Board; adopting the arguments of Mr. Tahir Muhammad Khan, Advocate, contended that the property in dispute belonged to Evacuee Trust Property Board. Adverting to the contention of Mr. Sundar Dass, learned counsel for the petitioner that the title of the petitioner is based on the registered sale-deed dated 14-9-1993 and 16-9-1992 executed by Yahya Bai, and Tahir Ali in favour of Haji Jan Muhammad through attorney whereby Yahya Bai and Tahir Ali have sold the property in dispute to the L petitioner. The learned counsel contended that the property in dispute belonged to vender Yahya Bai and Tahir Ali. He referred to document Exh. P. /21 being the Fard of the property pertaining to the year 1941 and 1945 whereby they were shown as owners of the property in dispute. The old Khewat No. 18 Khatoni No.81 Khasra No.2430 and further referred to documents Exh. P. / 18 Fard pertaining to the year 1985 whereby the property still existed in the name of Yahya Bai and Tahir Ali i.e. Khewat No.167, Khatoni No.242 Khasra No.415 and further stated that on the basis of said entries in Revenue Record, the sale-deeds Exh.P./1 to Exh.P./4 were executed and thereafter, the property was transferred in the name of petitioner vide Exh.P./19 i.e. mutation dated 19-9-1993. While referring to the said documents, the learned counsel contended that as far as the ownership of Yahya Bai and Tahir Ali is concerned, the same is proved through the said documents which has not been challenged. He further contended that the Courts below have not appreciated the said documents and had erroneously held that Yahya Bai and Tahir Ali were not the owners of the property in dispute. Perusal of the aforesaid document would reveal that Yahya Bai and Tahir Ali were the initial owners of the said property even prior to partition of sub Continent and the property remained in their names till its transfer in the name of petitioner. It may be mentioned here that the title of Yahya Bai and Tahir Ali from whom the petitioner got his title has never been challenged before any Court of law. Even during the course of proceedings before the lower Court, the learned trial Court has erroneously held that the sale-deeds in favour of the petitioner are invalid as the original power of attorney of P.W. Zohaib Ali was not produced. Suffice it to observe that at the time of registration of sale-deeds, the power of attorney was produced before the Sub-Registrar who after considering the same had registered the sale-deed which remained unchallenged throughout and on the basis of such sale-deed, the petitioner was recorded as owner in the Revenue Record vide Fard Exh. P./6. Thus, the contention of Mr. Tahir Muhammad Khan, learned, counsel that Yahya Bai and Tahir Ali had lost their title in the property is, repelled. Coming to the next contention that the property in dispute was leased out to Shaukat Hussain predecessor-in-interest of respondents Nos.1 to

11. Learned counsel referred to the documents Exh.P./5 P. T.-1, Form pertaining to the years 1984 to 1989, whereby the petitioner was shown as recorded owner whereas Shaukat Hussain as a tenant. This P.T-1 Form Exh.P./5 has been prepared on the basis of old record, whereby Yahya Bai and Tahir Ali were owners from whom the petitioner, received the ownership of the property in dispute, which lends support to the plea of petitioner that late Shaukat Hussain was a tenant of previous owners. The contention of learned counsel for the respondents that they were owners of Evacuee Trust Property Board, is repelled; for which separate reasons will be given later on. Mr. Tahir Muhammad Khan, learned counsel for respondents Nos.1 to 13 strenuously argued that in fact the property in dispute was a Temple (mandir) which was in possession of the respondents and the property in dispute in fact never existed. He further argued that with connivance of the Revenue Authorities, the petitioner and previous owners prepared forged documents. With due respect to the learned counsel for the private respondents, I am unable to subscribe to the said contention. It may be noted that an application Exh. P./10 was submitted by the previous owners through their attorney for rectification of the record wherein it was stated that in the year 1941 and 1945, the property measuring 349 sq. ft. was shown as an open piece of land whereas in the settlement in the year 1985, the said property was shown to be a temple (ghair mumkin mandir). On such application, the Collector directed the Revenue Authorities to visit the site. The Patwari along with Gardawar visited the site and submitted report Exh.P./9 stating therein that on the site the property in dispute is a separate unit and no temple exists. Thus, on the basis of the same, Patwari also submitted report Exh.P./18 and thereafter, rectification was made in the Revenue Record. The learned counsel for the petitioner contended that the property in dispute never belonged to Evacuee Trust Property Board, in this respect Member, Board of Revenue issued a certificate that the property in dispute was never an Evacuee Trust Board Property. However, the temple has been shown as an Evacuee Trust Property Board vide certificate Exh.P./15 dated 19-6-1994. Certificate Exh.P./13 was issued by Board of Revenue wherein it has been certified that the property in dispute never belonged to Evacuee Trust Board Property, but the same belonged to Yahya Bai and Tahir Ali who sold the same to the petitioner Haji Jan Muhammad. The respondents to support their contention that they are tenants of Evacuee Trust Board, produced documents Exh.D./3 being the Fard of the property, shown as Mandar bearing Khewat No. 194 Khatoni No. 291 and Khasra No.414 measuring 195 sq. ft. and Exh.D./7 to Exh.D./31 being the rent receipts issued by Evacuee Trust Property Board regarding property bearing Municipal No.2-21/8-A which pertains to the Temple. It is pertinent to mention that the Municipal number of property in dispute is 2-21/8(1). Thus, from perusal of the said documents inference can be drawn that the Municipal No.2-21/8'(1) pertains to Khasra No.415 measuring 349 sq. ft. whereas the Municipal No.2-21/8-A pertains to document Exh.D./5 belonging to Evacuee Trust Property Board and the respondents are tenant of the same. Though the representative of the Evacuee Trust Property Board appeared and he produced document Exh.D./32 and Exh.D./33, but it may be mentioned here that the said documents do not pertain to Khasra No.2-21/8(1) being the property in dispute. Thus, the Courts below fell in error in discarding the said evidence and the findings arrived at by both the Courts are based on misreading of the aforestated documents and conclusions drawn are on conjectural presumptions and wrong assumption of law. The learned counsel for the respondents was at pains to argue regarding PT-1 Form Exh.P./5, whereby the petitioner has been shown as owner and respondent Shaukat Hussain was shown as tenant. He only contended that the same are forged documents but it may be mentioned here that none has' come forward to challenge the same. Thus, the said documents cannot be discarded merely on oral assumptions without anything to the contrary. Mr. Sundar Dass, learned counsel for the petitioner contended that once the Court comes to the conclusion that findings are based on misreading of evidence, thus, it becomes incumbent on the High Court in revisional jurisdiction to set at naught such findings. In this regard, reference is made to the, following case-laws:-- (1) Saheb Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162 "But it is well-settled that if a material document or material evidence is not duly considered, the High Court could interfere in revision. It is also settled that if an Appellate Court bases its decision on a wrong proportion of law the High Court in its revisional jurisdiction could interfere with it." (2) Samar Gul and others v. Mohabat Khan and others 2000 SCMR 974 "It is trite law that if the concurrent findings of the Courts below "Dictates". No one should go beyond the limits set by God. Those who go beyond those limits they are cruel (to themselves). Putting forward the fear of punishment to prevent contravention of the dictates is sectional. Apparently, therefore, the Verse proves the fact that Khul'a, without unpleasantness and difference among the couple, is not valid". Zamakhshari.

Zamakhshari in his commentary on the Holy Qur'an known as Tafsir Al-Kashshaf `an Ghawamid Al-Tanzil quoting the above .Verse (2:229) has stated. "If it is said that the Verse is addressed solely to the Ruler and officials, it is not they who receive the compensation from or pay it on behalf of the women. I, however, maintain, that it is correct to say that firstly it is addressed to the couple and secondly to the Ruler and official. Nasafi.

Al-Nasafi, too, in his commentary of the Holy Qur'an, Modorik Al-Tanzil, known as `Tafsir Nasafi' has explained that the words "Fa in Khiftum" refer to officials. It is firstly addressed to the couple and secondly to the officials. Opinions of Abu Hanifah and Al-Shafi'i.

In the event of such a F difference between the couple that they are apprehensive of not maintaining the limits set by God, Imam Abu Hanifah holds that getting Khul'a effected is perfectly valid. According to Imam Shafli, however, doing so is not valid. Imam Shafi'i, in his `Khitab Al-Umm' says, "If the husband, says that he would not allow separation to his wife nor would he do justice to her, he could be forced to do justice to her but would not be forced to separate her from him. Opinion of Ibn Hazm.

Ibn Hazm says that God has laid down, "If a wife fears cruelty or desertion on her husband's part, there is no blame on them if they arrange an amicable settlement between themselves and such settlement is best" (IV:128). Further, God has laid down, "Except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom" (II:229). These two Verses with respect to Khul'a are conclusive. Ibn Hazm further states that "Khul'a is forbidden without the sanction of the Sultan (the Ruler)". On the authority of Waki through Yazid b. Ibrahim Al Tustari and Rabi' (and he is Ibn Sabih) who narrates from Hasan Al-Basri that he (Hassan Al-Basri) said: "Khul'a cannot be effected without the intervention of the Sultan " Further, Hammad Bin Zayd on the authority of Hajjaj b. Minhal has stated the narrative through Yahya who is Ibn Atiq that he heard Muhammad b. Sirin saying, "Khul'a is not valid without the intervention of the Sultan". Khul'a, therefore, shall not be valid unless the husband in such a situation first advises his wife to be reasonable. If she is reconciled it is well and good. If she is not reconciled, she must be chastised and beaten (lightly such as slapping on the back). If she is reconciled, it is as it should be. Otherwise they both should take their case to the Sultan (Ruler). He ought to appoint a mediator front the wife's family and another from that of the husband's family. Each of them should present their case before the Sultan exactly as they heard from them. The Ruler (now Courts) should (in their discretion) either separate or untie them (the couple). Traditionists Illustrations.

In connection with the validity of Khul'a the incident to Khul'a of the wife of Thabit b. Qays b. Shamas forms the basis of legislation. This incident has, as the basis of the validity of Khul'a, been referred to by most of the traditionists. Imam Bnkhari thus, has reported through Ibn Abbas that the wife of Thabit b. Qays came to the presence of the. Holy Prophet and said, "O" Prophet of God! I do not find fault with the good behaviour and beliefs of Thabit b. Qays but I do abhor ingratitude (for hating my husband) in the state of Islam". The Prophet said, "Would you give the garden back to him?" She said, "Yes". The Prophet said to Thabit b. Qays, "Take back the garden and pronounce one divorce to her". Imam Bukhari, in another narration, has used in this tradition the Words of the Prophet ordered him, then, he separated her, instead of i.e., (the Prophet ordered) "pronounce her one Divorce". Besides, two names of the wife of Thabit b., Qays (one Habibah and the other Jamilah) have been mentioned in different versions of the tradition .... Ikramah has stated that her name was Jamilah. In the report by `A'ishah, the lady is named as "Habibah bt. Sahl" which has been recorded by Abu Daud. In some of the versions instead of one garden, two gardens are mentioned. In the version reported by Abu Al-Zubayr it is also said that when the wife of Thbit b. Qays offered to give more besides giving back the garden, the Prophet by saying, asked, her to give back only the garden and forbade her to give anything more. Abu Da'ud in his Sunan has reported the version of "Aishah in the following manner: That Habibah bt. Sahl was in the marriage of Thabit b. Qays b. Shamas. Thabit gave beatings to her and she received a bone-fracture. She came to the presence of the Prophet and lodged complaint against Thabit. The Prophet called Tahbit in his presence and said, "Take some of Habiba's property and give her up". Thabit b. Qays inquired, "O Prophet of God! Will that be correct?" The Prophet replied, "Yes". Thabit said "O Prophet of God! I have given her two gardens and they are in her possession". The Prophet said, "Take those gardens back and give up Habibah". Thabit did the same." So for the judgment of Lahore High Court in the case of Umar Bibi (supra) is concerned, it already stands overruled and I again place reliance on the observations made by Justice (R) Dr. Tanzilur-Rehman, which reads as follows:-- "Consent by the husband.

The permission of the husband or his agreement is not necessary for dissolution of marriage by Khul'a because the Court can give effect to an offer of Khul'a by the wife when it comes to the conclusion that the parties would not be able to observe the limits of God. PLD 1967 SC 97, PLD 1959 Lah. 566, PLR 1959 (2) W.P. 321-11 DLR W.P. 193, PLD 1975 (AJ&K) 21, PLJ 1975 (AJ&K) 27 (DB), PLD 1975 Lah. 805, 1136. The old view as reported in 8 MIR 379, ILR 1943 Lah. 542 and PLD 1952 Lah. 113 that the consent of the husband was necessary has now been superseded." The entire law on the subject has been discussed in great detail in the celebrated judgment of the erstwhile West Pakistan High Court, Lahore Bench, in the case of Mst. Balqis Fatima v. Naiin-ul-Ikram Qureshi PLD 1959. Lah. 566 and by their Lordships of Supreme Court of Pakistan, in the case of Mst. Khurshid Bibi v. Muhammad Amin PLD 1967 SC

97. It has been held in the above judgments that Khul'a is right of wife and is not dependent on the consent of husband and that it can be enforced through the decree of Court and the Courts have jurisdiction to H dissolve the marriage by way of Khul'a without consent of husband. This view has been consistently followed in Pakistan by all the superior Courts and consequently, I find no substance in the contention that the family Court has no jurisdiction to dissolve the marriage by way of Khul'a without consent of the husband or can merely ask the husband to accept the compensation and divorce his wife and in case of refusal on the pal t of husband, cannot itself issue a decree dissolving the marriage and I enforce the same. The petition is without substance, which stands dismissed accordingly. After hearing the learned Advocates for the parties on 7-3-2005, the petition was dismissed by a short order. These are the detailed reasons in support thereof. M.B.A./G-54/K Petition dismissed