2022 PLP 181 (YLR)

SYED MUHAMMAD ATTIQUE SHAH, J.

This single judgment shall also decide connected C.R. No.121-P of 2019 titled "Mst. Muntaha v. Sartaj and 6 others", as both these cases have been filed against one and same consolidated judgment and decree dated 27.10.2018 rendered by learned Addi-tional District Judge-III, Swabi; whereby, the appeals filed by the parties against the judgment and decree dated 30.4.2016 in Suit No.253/1 of 2011, were dismissed.

2. Background of the case is that, a suit for declaration, permanent/mandatory injunction and possession through partition was instituted by respondents (Mst. Muntaha and Mst. Waheeda Gul); being widow and daughter respectively of Baz Muhammad; in respect of his legacy fully detailed in the head note of the plaint. The learned trial Court partially decreed the said suit in favour of respondent No. 1 / plaintiff No.2 and Mst. Waheeda Gul through impugned judgment and decree dated 30.4.2016; which was challenged by both the parties before the learned Appeal Court; however, the appeals so filed were dismissed through consolidated judgment and decree dated 27.10.2018; hence, both these petitions.

3. Heard; record carefully gone through.

4. Record depicts that issue in hand revolves around the legacy of one Baz Muhammad son of Rasool Khan, predecessor in interest of Mst. Muntaha (widow), Mst. Waheeda Gul (daughter) and Habib Khan (brother), who was suffering from Tuberculosis and; died due to such illness in the year, 1968. Respondents instituted Suit No.301/1 in the year, 2006 for declaration etc to the effect that Habib Khan, predecessor of the petitioners, fraudulently transferred entire legacy of Baz Muhammad in his own name vide Inheritance Mutation No.18006 in the year 1987. During pendency of said suit, it was also unearthed that said Habib Khan, had also fraudulently obtained General Power of Attorney No.65 dated 02.4.1964 from late Baz Muhammad; hence, they withdrew the said suit on 02.02.2011 with permission to file a fresh one. Thus, instant suit was filed; wherein they challenged the said Power of Attorney, as well as, subsequent Sale Mutations Nos.12467 dated 14.4.1969, 12582-83 dated 01.11.1969 and Inheritance Mutation No.18006 attested on 28.3.1987. Petitioners contested the said suit by taking the plea in their written statement that during his lifetime, Baz Muhammad divorced Mst. Muntaha and; he was also issueless. In order to substantiate their respective claims, both the parties produced their pro and contra evidence.

5. Respondents/plaintiffs in support of their case, recorded their statements through attorney, who appeared as PW-1; he reiterated the same stance as was taken by the respondents in their plaint. PW-2 also recorded his statement in support of the respondents. Respondents also recorded statement of Naveed Iqbal (RC), Record Keeper of NADRA Swabi; who produced NADRA record as EX-APW.1/1 and EX-APW.1/2; wherein respondents were shown recorded as wife and daughter of the said Baz Muhammad respectively. Besides, EX-DW-1/P1 (birth certificate) of respondent No 1 was placed on record of the case, wherein, she had been recorded as daughter of Baz Muhammad. On the other hand, petitioners/defendants produced Mahmood Ullah, Retired Secretary Union Council, Kota; who stated that EX-DW.1/1 is the certified copy of the divorce register; he further deposed that he entered the factum of divorce of Mst. Muntaha in EX-DW.1/1 on the instructions of one Haji Fazal Qadir (late), Chairman of Union Council Kota, which was also signed by him. Indeed, DW.1; neither, produce any authority letter from the concerned UC; nor, could he produce any proof qua his being so employed in the said UC. Moreover, EX.DW1/1 was not brought on record through an official of the concerned UC and; at the time of its exhibition, the original was also not before the Court. Besides, the said DW.1 has clearly stated in his cross-examination that neither, Mst. Muntaha; nor, Baz Mohammad was known to him; he also stated that he is not in possession of the record of reconciliation; hence, the ibid statement could not be relied upon; being insufficient to prove the purported divorce of respondent No.

2. Petitioner No.1, recorded his statement as DW-2, wherein, he reiterated their stance taken in their written statement. However, he in his cross-examination clearly stated that Baz Muhammad was suffering from Tuberculosis and; he remained in hospital from 1963 to 1969. He has also expressed his inability to bring anyone; who could support the factum of the death of Baz Muhammad in 1970 and; that Baz Muhammad in his life time alienated property in favour of Habib Khan or appointed him as his Attorney. He also showed his inability to produce anyone in support of the fact qua divorce by Baz Muhammad to respondent No.

2. He also stated that he cannot say that whether Waheeda Gul was born first or Baz Muhammad died first. He also stated that he cannot say that at the time of birth of Waheeda Gul, Baz Muhammad was dead or alive. Another pronounced aspect of the case is that property in question is situated in District Swabi, whereas, general power of attorney was purportedly shown attested at District Abbottabad.

6. The ibid discussion leads this Court to believe that respondent No. 2 was the wife of said Baz Muhammad and; the factum of her divorce could not be established by the petitioners; though, they made an attempt to prove the same through EX-DW1/1; albeit, neither the same has been brought on record from proper custody; nor, its witnesses had been produced and examined; therefore, the same is discarded. The factum of divorce had to be established through independent, cogent, reliable and confidence inspiring evidence; which the petitioners failed to produce. Thus, mere blatant assertion qua divorce is not sufficient for disbelieving the existence of marriage between the parties at the time of death of Baz Muhammad. No doubt, husband can divorce his wife if he wishes, during subsistence of marriage; however, under the provisions of section 7 of the Muslim Family Laws Ordinance, 1961, a notice to that effect shall be given to the Chairman of the Union Council or a person appointed by the Government in this behalf and; shall also supply a copy thereof to the wife and; after receipt of the notice, Chairman shall constitute an Arbitration Council for the purpose of reconciliation between the parties and; the Arbitration Council shall take all steps necessary to bring such reconciliation and; upon failure of such reconciliation and expiration of ninety days, Talaq would become effective. However, petitioners could not bring on record such proceedings to substantiate their alleged stance of divorce. Undoubtedly, depriving a wife from legacy of her husband on the strength of a purported divorce requires evidence of unimpeachable character; because on one hand, it deprives the wife from legacy of her husband and on the other hand it stigmatizes her character. Likewise, petitioners could not substantiate their stance through confidence inspiring evidence that respondent No. 2 was not the daughter of Baz Muhammad. A person cannot be deprived from his parentage on the basis of bald allegations; rather, strong, independent and confidence inspiring evidence of highest standard is required; as allegation qua parentage of a person not only divests a person from the legacy of his/her parents; but also raises serious questions qua his/her legitimacy. In addition to above, petitioners also failed to discharge the burden of proof qua issuance of General Power of Attorney in favour of Habib Khan their predecessor and; subsequent sale and inheritance mutations in their favour. It is settled that burden of proof always lies upon the person, who is the beneficiary of a document and; the petitioners in the case in hand miserably failed to discharge the said burden. On the other hand, respondents produced sufficient evidence qua their stance being wife and daughter of Baz Muhammad; which could not be rebutted by the petitioners.

7. With the above observations, instant Revision Petition is dismissed; being meritless; while connected C.R. No.121-P/2019 titled "Mst. Muntaha v. Sartaj and 6 others" is allowed as prayed for and; the impugned findings of the learned Courts below to the extent of petitioner Mst. Muntaha stand modified. SA/103/P Order accordingly.