2001 PLP 1727 (CLC)

(3) Whether the suit is within time? OPD (4) Whether the suit is not maintainable in its present form? OPD (5) Whether the impugned order of S.O. Sialkot, dated 8‑4‑1975 and of Additional Commissioner (Revenue), dated 8‑4‑1980 are illegal, void and ineffective upon the rights of the plaintiff? OPP (6) Whether the plaintiff the owner of the suit‑property? OPP (7) Relief. Evidence of the parties was recorded. The learned trial Court decreed the suit of Mst. Aisha Bibi vide judgment and decree, dated 2‑11‑1985. A first appeal filed by the petitioner was heard by a learned Additional District Judge, Narowal who dismissed the same on 27‑2‑1990.

2. I may state here that the present respondents Nos.1 to 3 are the children of said Mst. Aisha Bibi from another husband and they were impleaded as L.Rs. during the pendency of the first appeal. Respondents Nos.4 to 14 were impleaded as defendants in the suit by Aisha Bibi as her transferees vide sale‑deed, dated 27‑4‑1967.

3. Learned counsel for the petitioner contends that the impugned judgments and decrees passed by the learned Courts below are wholly without jurisdiction. According to the learned counsel there is no evidence on record of any gift having been made by Karam Dad, an admitted last male owner of the suit‑land, in favour of Aisha Bibi. Further contends that the decree, dated 22‑7‑1969 dismissing the suit filed by the petitioner ceased to exist upon the promulgation of the said Act of 1975 and the learned Courts below have committed a serious error of law in relying upon the same. Learned counsel for respondent No.2 does not opposed the civil revision. However, learned counsel appearing for respondents Nos.4 to 14 has tried to support the impugned judgments and decrees.

4. I have gone through the copies of the records appended with the civil revision, with the assistance of the learned counsel for the parties. I have already reproduced above the material contents of the plaint. It is manifest in the plaint itself that the last male owner of the suit‑property was Karam Dad, admittedly the father of petitioner and husband of Aisha Bibi. The plea raised by Aisha was that Karam Dad had gifted the land in India, to the two widows in equal shares and it was on the basis of the said alleged gift that Aisha claimed to be the full owner of the suit‑land. After examining the record I find myself in complete agreement with the learned counsel for the petitioner that there is no evidence in support of the said alleged gift. Abdur Rehman P.W.1 is the son‑in‑law of Aisha Bibi. All that he has stated is that, Karam Dad had said that he will transfer the land in favour of Aisha Bibi and Zohra Bibi in equal shares and 3/4 years before independence of the countn, he transferred the land; that Aisha Bibi got allotted the suit‑land while Mst. Zohra got allotted land in Tehsil Daska. In his cross‑examination he admits that mutation of the land was not effected in his presence; that he had not even seen the mutation. The second witness is Shah Muhammad, P.W.2 who has stated that he had heard the residents of the village saying that Karam Dad had transferred his land in favour of his wives. He has stated in his examination‑in‑chief that he had never met Karam Dad. In his cross examination he states that he had never talked td the said Aisha Bibi on the subject. This is the entire evidence in support of the said plea apart from the statement of Aisha who has appeared in the witness‑box as P.W.3. She does state that Karam Dad transferred his land in equal shares in her favour and in favour of Zohra. In her cross‑examination she admits that regarding the other half of the land the claim was filed by Rauf i.e. the petitioner.

5. A bare perusal of the said evidence would show that the gift has not been proved. No witness has stated that Karam Dad made a declaration of gift that the two ladies accepted the gift and that Karam Dad delivered possession of the land to the ladies under the gift. On the other hand, the entire plea is belied by the admission of Aisha, P.W.3 that Rauf filed the claim in respect of the other half of the land. This latter admission goes to! prove the plea of the petitioner that on the death of Karam Dad the land was mutated under custom half in favour of the son and one half in favour of the sonless widow. There is no evidence at all that she had a daughter, as alleged by her, from Karam Dad.

6. An examination of the impugned judgment of learned trial Court would reveal that the question of gift has been deliberately by‑passed. In fact it would be evident from reading of the findings recorded under Issue No.6 that even the learned trial Court did not dare to hold that a gift by Karam Dad in favour of Aisha Bibi had been proved. The learned trial Court had after zigzagging hither and thither ultimately referred to the order of Civil Judge (Exh.P.9) and proceeded to declare that the plaintiff (Aisha Bibi) shall be deemed to be a full owner.

7. The learned Additional District Judge faced with the said situation proceeds to state that although there is no evidence in support of the gift, yet since in the Revenue Record she is recorded as the full owner, the learned trial Court has rightly declared Aisha Bibi to be full owner. In the process the learned Additional District Judge has attributed to the learned trial Court that the oral evidence led by Aisha was found to be confidence inspiring by the learned trial Court. .

8. The Revenue Record referred to by both the learned Courts below is Jamabandi for the year 1964‑65 (Exh.P.1) 1975‑76 (Exh.P.2) and 1977‑78 (Exh. P.3). Both the learned Courts below obviously forgot that all these records were based on the allotment made to Aisha Bibi in Pakistan and what they were required to find out was as to whether she owned the land in India which was otherwise admitted to be lastly owned by Karam Dad or not. There is no gain saying the fact that the said post partition record was hardly of any avail in resolving the controversy.

9. Both the learned Courts below have placed implicit reliance on the judgment, dated 2‑7‑1969 of the learned Civil Judge (Exh.P.9). Learned Additional District Judge complains that instead of filing an appeal against the said judgment, the petitioner went to a Settlement Officer for relief. I cannot help but to express regret on the said finding of the learned Additional District Judge. He has proceeded to reproduce section 2 of the said Act XXV of 1975 in his judgment but apparently did not care to read the same. The learned Additional District Judge also failed to read section 3 of the said Act. To my mind the said section 3 provides an independent remedy to a person in a case of instant nature to call in question an order of succession in a Court or before any other authority. within one year of the commencement of the said Act. The Application before the Settlement Officer was filed within the said period and the proceeded to pass the order accordingly. The said judgment, therefore, was of no legal effect and was not even relevant to decide the controversy in the present suit.

10. As stated by me above, Karam Dad being the admitted owner of the land and the gift having not been proved as alleged by Aisha Bibi, the land had been mutated in favour of Aisha and the petitioner under custom as is reflected in the pedigree‑table (Exh.D.1) Exh.D.2 proves that Zohra Bibi had died on 27‑11‑1964 i.e. more than 14 years after 1947 and Aisha Bibi herself admitted that the other claim was filed by the petitioner. The order Exh.D.9 was correctly passed by the Collector by mutating 1/8th in favour of Aisha and 7/8th in favour of the petitioner in the suit‑land. 11 . The learned lower Courts have grossly misread the evidence on record and have also failed to take note of the correct legal provisions while decreeing the suit filed by Mst. Aisha. The impugned judgments and decree, therefore, cannot be sustained. This civil revision is accordingly allowed. Both the judgments and decrees passed by the learned Courts below are set aside and the suit filed by Mst. Aisha plaintiff is dismissed leaving the parties to bear their own costs. H.B.T./M‑521/L Revision accepted.