2017 PLP 178 (YLRN)

MUHAMMAD YOUN1S THAHEEM, J.

By this single judgment, I intend to decide the instant Civil Revision Petition No.1593/2010, titled "Khalid Shah and others v. Jamal Shah and others" and connected Civil Revision Petition No.1740/2010 titled, "Arshad Shah and others v. Khalid Shah and others" as both these petitions arise out of a consolidated judgment and decree dated 19.07.2010, passed by the learned appellate Court/Additional District Judge-II, Charsadda, whereby he set aside the consolidated judgment and decree dated 10.04.2010 passed by the learned lower Court and partially allowed the civil appeal of Khalid Shah, and others.

2. Brief facts of the case are that petitioners/plaintiffs (respondents in connected Civil Revision No.1740/2010) being legal heirs of Wadood Shah, filed a Suit No.3/1 for declaration to the effect that they are owners of landed property pertaining to Khata Nos.50, 61, 62 and 63 situated in Moza Palosa Charsada to the extent of their Shari share from the legacy of their father Wadood Shah fully detailed in the plaint on the basis of deed dated 03.01.2002 being co-heir and the gift mutation No.1503 dated 20.02.2001 is against law, fraudulent, void and ineffective upon the rights of plaintiffs, inheritance rights from their mother Mst. Niaz Parwara received in lieu of dower vide dower deed dated 12.07.1950 and mutation No.1715 and inheritance mutation No.1707 on the basis of fraud and collusion, which are liable to be declared as null, void and ineffective upon their inheritance rights as detailed in the plaint. Suit No.4/1 was filed for permanent injunction regarding suit land detailed in the plaint, claiming the same as their ownership by virtue of alleged Tamleek mutation No. 1503 attested on 20.02.2001 from Wadood Shah, their predecessor in their favour and in response to Civil Suit No.4 of Jamal Shah etc, the present petitioners Khalid Shah etc submitted their written statements while Jamal Shah and others filed their respective written statement in Civil Suit No.3/1.

3. Both the suits were consolidated by the learned trial Court and consolidated issues were framed which are given below: Consolidated Issues:

1. Whether plaintiffs suit No.308/1 have got a cause of action?

2. Whether plaintiffs in suit No.309/1 have got a cause of action?

3. Whether suits Nos.308 and 309 are bad in its present form?

4. Whether plaintiffs in suit No.308/1 are estopped to sue?

5. Whether plaintiffs in suit No.309/1 are estopped to sue?

6. Whether the Court has got jurisdiction to try both the suits?

7. Whether suit No.308/1 and suit No.309/1 are bad for mis/non-joinder of necessary parties?

8. Whether suit No.308/1 is time barred?

9. Whether Suit No.308/1 has not been properly valued for the purpose of Court fee?

10. Whether the deeds dated 12.07.1950 in suit No.308/1 are fictitious, forged and self made?

11. Whether suit No.309/1 is instituted with mala fide intention and is counterblast of Suit No.308/1?

12. Whether mutation No. 1503 attested on 20.02.2001 mutation No.1715 and inheritance mutation No.1707 are forged, fictitious, based on mala fide and are void and ineffective upon the rights of the plaintiffs and are liable to be cancellation?

13. Whether the plaintiff are owners in possession of 22 Kanals, 14 Marlas of land on the basis of deeds dated 03.01.2002 and dated 12.07.1950?

14. Whether the plaintiffs in Suit No.309/1 are owners in possession of 14 Kanals of land through mutation No.1503 attested on 20.02.2001?

15. Whether plaintiffs in suit No.308/1 are entitled to the decree for specific performance of contract as prayed for?

16. Whether the plaintiffs in suit No.308/1 are entitled to the decree for specific performance of contract as prayed for?

17. Whether the plaintiffs in suit No.308/1 are entitled to the decree for perpetual injunction as prayed for?

18. Whether the plaintiffs in suit No.308/1 are entitled to the decree for possession as prayed for?

19. Whether the plaintiffs in suit No.309/1 are entitled to the decree for possession as prayed for?

20. Whether the plaintiffs in suit No.309/1 are entitled to the decree for permanent injunction as prayed for?

21. Relief

4. After recording pro and contra evidence of the parties and hearing their arguments, the learned trial Court dismissed suit No.3/1 of petitioner Khalid Shah and others, while suit No.4/1 of Jamal Shah and others was decreed vide consolidated judgment and decree dated 10.04.2010. Feeling aggrieved from the judgment and decree of learned trial Court, present petitioners Khalid Shah and others filed Regular Civil Appeal which was partially allowed and gift mutation No.1503 was set aside while suit No.3/1 to the extent of relief regarding inheritance rights arising out of dower deed dated 12.07.1950 and setting aside of subsequent mutation Nos.1715 and 1707 was dismissed and rest of judgment and decree of learned trial Court was kept intact. Being aggrieved from the consolidated judgment and decree of learned Appellate Court, both the parties have filed the present civil petitions on the grounds enumerated therein. Since both these petitions arise out of the same judgment and decree, hence are decided together.

5. Learned counsel for petitioners Khalid Shah and others argued that Wadood Shah is the father of both the parties who contracted marriage twice, one with Mst. Niaz Parwara in the year 1950 and in lieu thereof transferred 10 Kanals of land in Mouza Palosa Charsadda vide dower deed dated 12.7.1950. The only live witness was Saleemullah deed-writer, who appeared as PW3 and testified the scribing, thumb impressions of Wadood Shah and witnesses Latif Shah and Abdullah Shah marked as Ex.PW3/1. He argued that PW4 Wali Shah is son of marginal witness and PW5 Syed Ghani Shah is son of other marginal witness Latif Shah, they appeared and testified the signatures of their father on dower deed dated 12.07.1950 Ex.PW3/1. Learned counsel further argued that petitioner/plaintiffs produced entire available documentary evidence to discharge legal burden upon them. The learned counsel added that both the Courts below by non-reading and misreading of evidence with regard to proof of dower deed Ex.PW3/1 had erred in law, so to this extent judgments and decrees of both Courts below are liable to be set aside while supported the partial judgment and decree of learned appellate Court below and prayed for dismissal of connected C.R. No. 1740 of 2010 of Jamal Shah etc.

6. On the other hand, learned counsel for respondents/Jamal Shah and others argued that judgment and decree passed by learned appellate Court below to the extent of maintaining judgment and decree of trial Court regarding dower deed dated 12.07.1950 is correct and result of proper appreciation of evidence and law while by partially allowing appeal of petitioner/Khalid Shah etc; is squarely bereft of merits and law is the result of misreading and non-reading of evidence. The same document was not in the knowledge of respondents and had come in light and lime for the first time when they filed suit for possession. The learned counsel vehemently argued that the judgment and decree of learned appellate Court by setting aside gift mutation No.1503 is against law and evidence on record. The plaintiffs/petitioners Khalid Shah and others had failed to prove the same as outcome of fraud. The possession of gifted land is with them and gift was made by their father after fulfilling all legal requirement of offers, acceptance and delivery of possession. He further added that the gift was made by their father with free consent and the evidence produced by them about factum of gift was wrongly not believed by the learned appellate Court. He further argued that the findings of learned trial Court are based on proper appreciation of evidence and law. As the alleged dower deed dated 12.07.1950 is about landed property measuring 10 Kanals valuing more than Rs.100/- and is unregistered, so rightly not relied upon by learned trial Court. Moreover, Wadood Shah died in the year 2007 but he did not disclose about the alleged said dower deed. The learned counsel argued that the evidence of PW.6 is worth reliable but had been disbelieved by the appellate Court to the extent of gift mutation No.1503, thus learned appellate Court had committed illegality. Lastly prayed, that judgment and decree of appellate Court be set aside and that of trial Court be restored along with prayer that the connected petition filed by Khalid Shah and others may kindly be dismissed with cost.

8. I have heard arguments and carefully scrutinized entire record of the case with the valuable assistance of learned counsel for the parties.

9. From perusal of the record it divulges that Wadood Shah is predecessor of both the parties. It is an admitted fact on record that Wadood Shah solemnized first marriage with Mst. Niaz Parwara and contracted second marriage with Mst. Shabnam Bibi. The petitioners of C.R. No. 1593 are the sons and daughters from the wedlock of Mst. Niaz Parwara, while Jamal Shah and others, respondents in above said petition are the sons and daughters from the wedlock of Mst. Shabnam Bibi. According to the stance of plaintiffs of Civil Suit No. 3/1, Khalid Shah and others, their father Wadood Shah when got married with their real mother had scribed dower deed dated 12.7.1950 in her favour and transferred suit land measuring 10 kanals 0 marla and she became lawful owner and after her death, they inherited same dowered land, which is placed on record as Ex. PW-3/1.

10. The plaintiffs of Civil Suit No. 3/1 i.e. Khalid Shah and others had produced one Saleemullah, Deed Writer as PW-3, who stated that he scribed the above said dower deed on 12.7.1950, which was thumbed impressed by Wadood Shah, witnessed by Latif Shah and Abdullah Shah sons of Tawab Shah. Admittedly both the marginal witnesses to the dower deed are stated to be dead, so, Wali Shah son of Abdullah Shah appeared as PW-4, who stated that his father Abdullah Shah had died in the year 2006, he is well conversant with his signature as well as his writing style and categorically stated before the Court that he has seen the original dower deed dated 12.7.1950 and testified the signature of his father. Secondly, Ghani Shah son of Latif Shah, marginal witness appeared as PW-5, who also testified the signature of his father on the dower deed dated 12.7.1950, Ex. PW-3/1. These witnesses i.e. PW-3 scriber, PW-4 and PW-5 were put to cross-examination, but their evidence remained un-impeached.

11. The plaintiffs/present petitioners produced Jehan Shah son of Tawaf Shah as PW-6, Qadeem Shah son of Tawaf Shah as PW-7 and Khalid Shah present petitioner No.1, who appeared as PW-8 for himself as well as on behalf of other plaintiffs. Amongst the above said witnesses, PW-6 recorded his statement with regard to mentioning of facts relating to the convening of Jirga over the dispute regarding impugned mutation No. 1503 and stated that during the Jirga he was appointed as Chief/"Mashar" of Jirga, wherein the defendants i.e. respondents of instant petition and petitioners of connected C.R. No. 1740-P of 2010 admitted their mistake to the effect that the suit land has wrongly been transferred through gift mutation in their favour and made commitment that they will return half of the area. He further stated that in this respect a deed was also scribed on 03.01.2002 amongst the parties and admitted signature on the deed dated 03.01.2002 as correct which is placed on file as Ex. PW-1/3. Similarly, Qadeem Shah son of Tawab Shah, who appeared as PW-7 also testified the deed dated 03.01.2002 and admitted his signature over it as correct. On behalf of the plaintiffs Khalid Shah appeared for himself and as attorney for other plaintiffs i.e. sons and daughters from Mst. Niaz Parwara, the first wife of Wadood Shah , who stated in his examination-in-chief that inheritance mutation No. 1707 to the extent of inclusion of an area, which their father transferred to their mother vide dower deed dated 12.7.1950, is wrong, ineffective, as their father had already transferred the land measuring 10 kanals mentioned in above said dower deed but its effects were not incorporated in the revenue record. He stated that his father did not transfer suit land vide disputed gift mutation No. 1503 placed on record as Ex. PW-8/2 as on the basis of fraud they took him (Wadood Shah) on the pretext of medical treatment and got attested impugned fraudulent mutation No. 1503 in their favour and when this fraud came into their knowledge, a serious dispute arose amongst the brothers, which was referred to the Jirga for decision, which was convened under the headship of PW-6 Jan Shah, who had settled the dispute via settlement deed dated 03.01.2002 (Ex:PW1/1) witnessed by Qadeem Shah and Aman son of Abdul Ghani along with Arshad etc.

12. Khalid Shah appeared as PW-8, who stated that their father in his lifetime transferred 10 kanals of land in lieu of "Haq-e-Mahr" vide dower deed scribed on 12.7.1950, to their mother Mst. Niaz Parwara, placed on record as Ex:PW-3/l. Respondents secretly got mutated 24 kanals area of suit land through impugned gift mutation No. 1503, Ex. PW-8/2 in their favour to deprive petitioners from their inheritance rights.

13. It is settled law that the civil cases are adjudicated upon on the principle of preponderance of evidence if it is confidence inspiring, believable, coherent and comes out after facing the test of cross-examination then it could be relied upon, so, from preponderance of the evidence, in the instant case it is proved that a Jirga was convened who had settled the dispute between the parties regarding the gift mutation No. 1503 via settlement deed dated 03.01.2002, marked as Ex. PW-1/l which fact is corroborated from the evidence of PW 4, PW 5 and PW 8 and also admitted by Aman son of Abdul Ghani (DW-4) during cross-examination by agreeing that they will cancel the fraudulent gift mutation No.1503 after the death of their father Wadood Shah.

14. From the above evidence it is proved that dower deed dated 12.7.1950 was executed by father of the parties Wadood Shah in favour of Mst. Niaz Parwara, his first wife and he also transferred landed property admittedly measuring 16 kanals in favour of his second wife Mst. Shabnam Bibi, which transfer has not been challenged and admitted by the petitioners, so, it gives strong presumption that predecessor of the parties was a thorough gentleman having a sense of justice, thus when he transferred his landed property measuring 10 kanals to her first wife through said dower deed, then he at the time of contracting second marriage also transferred his landed property measuring more than 10 Kanals i.e. 16 kanals in favour of his second wife, the real mother of Jamal Shah etc.

15. The submissions of learned counsel for the respondents Arshad Shah and Jamal Shah etc. that the dower deed dated 12.7.1950 is unregistered, therefore, it is neither admissible in evidence nor can be given effect in the Revenue Record and it was not incorporated just after its execution in the revenue record in the shape of mutation, so, the suit for decree on that basis is time barred thus learned trial Court as well as appellate Court had rightly not believed that dower deed dated 12.07.1950 are not convincing, as this Court after having gone through the record with regard to dower deed dated 12.7.1950 found that the same was executed before the promulgation of Muslim Family Laws Ordinance, 1961. The dower deed dated 12.7.1950 being 30 years old document duly executed and proved according to law of evidence would have strong presumption of genuineness, so could be believed, as one or alive witness, the scriber of the same dower deed, appeared as PW-3, cross-examined but failed to impeach his veracity, so, his evidence could not be brushed aside. The same witness PW-3 also stated that Latif Shah and Abdullah Shah witnessed this document and sons of the marginal witnesses were produced as PW4 and PW5 who testified the signatures of their fathers on the dower deed. So, the learned trial Court erred in law by not considering and believing this cogent and confidence inspiring piece of documentary as well as oral evidence with regard to proof of dower deed dated 12.07.1950 which amounts to worst kind of misreading and non-reading of evidence as well as non-appreciation of law on the subject, as non-registration of dower deed dated 12.7.1950 did not invalidate the same. In this respect wisdom is derived from the judgment of Hon'ble Supreme Court of Pakistan in case titled as Inayat Ullah v. Mst. Parveen Akhtar (1989 SCMR 1871). The relevant Para enunciated is reproduced as below:-- "The provisions of sections 17 and 49 of the Registration Act are not attracted to the facts and as held in Mst. Allah Jawai's case PLD 1975 Lah. 1399, the transfer to property by the husband to the wife in lieu of her dower can be effected even without a registered instrument."

16. Respondent Jamal Shah and petitioner Arshad Shah etc produced one Tashfeen Ahmad Durani as DW-1, who stated that at time of scribing of document dated 17.5.2008, Ex. DW-1/1, he along with Ikramullah DW-2 were present with Saleemullah petition-writer. During cross-examination DW-2 deposed that Saleemullah was unable to write himself and Arshad Shah took them along with Ihsan in his motorcar. Ihsan also appeared as DW-3, who stated that he at the time of scribing deed dated 07.5.2008 was present and during cross-examination admitted that he is father-in-law of Tariq Shah, one of defendants i.e. respondent. From this document, defendants/ respondents tried to prove that dower deed dated 12.5.1950 was false, fake and not scribed by Saleemullah petition-writer. Admittedly the fact which defendants wanted to prove was neither mentioned in their written statement nor in plaint, nor such documents Ex.DW-1/2 to Ex. DW-5/8 were annexed with written statement or plaint in Civil Suit No. 4/1 in their list of reliance in view of law envisaged under Orders VII, XI, XII and XIII of C.P.C., as laid down in case of Mutali v. Mannzoora and another (PLD 1994 Lahore 298). So, such kind of evidence could not be considered or looked into, therefore, it is held that document dated 17.5.2008 was introduced and produced without adopting legal course as prescribed by law, so, it has no any legal effect. In this respect wisdom is derived from the judgment of Hon'ble Supreme Court of Pakistan in Binyameen's case cited as 1996 SCMR 336, wherein their Lordships held as under:- "It is a well settled principle of law that a party can prove a case which has been pleaded by it. In support of his contention, the learned counsel for the appellants referred to Government of Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad (PLD 1976 Supreme Court 469). It is also a well-settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading. A party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove those pleas. Variation in pleading and proof is not permissible in law."

17. The whole exercise of scribing document dated 17.5.2008 attributed to Saleemullah, rather strengthen the case of petitioners that impugned gift mutation No. 1503 was act of fraud as when Saleemullah appeared as PW-3, he was not cross-examined from this angle and beneficiaries/ Jamal Shah, Arshad Shah etc later on tried to establish through said document dated 17.5.2008 (Ex. DW-1/1) that the dower deed dated 12.5.1950 is fake one.

18. DW-4 is one of verifying witness of impugned gift mutation No. 1503, who during cross-examination admitted that his wife is sister of Jamal Shah. He further admitted that he did not know as to whether impugned mutation No. 1503 was about gift or sale. Moreover, the name of verifying witness Wahid Shah is appearing over the said impugned mutation, but it bears no thumb impression or signature of said Wali Shah, nor the same was produced. Similarly, Khaista son of Hazrat, the other verifying witness of impugned gift mutation No. 1503 was also not produced, nor Patwari, Girdawar or revenue officer have been produced. So, from admissions of DW-4 and non-producing of verifying witnesses of mutation, it is proved that the requirements and ingredients of gift as to offer, acceptance, delivery of possession, independent advice particularly when the donor was aged and sick person residing with sons of his second wife i.e. with the Jamal Shah and Arshad Shah etc. were necessarily required to he proved by the beneficiary failed to prove the factum of gift, thus the learned appellate Court correctly appreciated the evidence on record about impugned gift mutation No. 1503.

19. Arshad Shah appeared as DW-5, who did not utter a single word that when, at what time and in whose presence their father Wadood Shah made offer for alienating the suit land through impugned gift mutation and during cross-examination admitted that they had not challenged dower deed dated 12.7.1950.

20. In wake of the above discussion and after giving deep thought and perusing the evidence on record, this Court reaches to the conclusion that the judgment and decree of appellate Court to the extent of declaring the impugned gifted mutation No. 1503 as null and void is correct and based on proper appreciation of evidence and law while the learned trial Court as well as appellate Court erred in law by not appreciating the evidence according to law with regard to dower deed dated 12.7.1950. So, to that extent the judgment and decree of both the Courts below are set aside and suit of plaintiffs bearing No. 3/1, instituted by Khalid Shah and others is decreed, while in terms of above findings the judgment and decree with regard to suit No. 4/1 by the learned appellate Court are maintained. Thus, Petition No. 1593-P of 2010 is allowed, while petition No. 1740 is dismissed with no order as to costs. ZC/63/P Order accordingly.