Judgment Sheet
IN THE PESHAWAR HIGH COURT, PESHAWAR. JUDICIAL DEPARTMENT
C.R N0-233 of 2005.
JUDGMENT
Date of hearing……………23.12.2013…………………………...
Appellant/Petitioner (s)( Shad Muhammad) by Mr.Abdul Sattar Khan, Advocate,
Respondent (s) (Mst.Sarwara) by Mr.Mohib Jan, Advocate,
YAHYA AFRIDI, J. – The legal heirs of
Late Shad Muhammad and Late Shamshad
Khan have through this instant petition
challenged the judgment and decree dated
22.6.2004 passed by the learned Additional
District Judge, Peshawar, whereby the
appeal of the petitioners was dismissed and
the judgment and decree dated 25.3.2003
passed by the learned Civil Judge, Peshawar
was maintained.
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2. The brief and essential facts, which
are evident from the record, are noted as
follows:-
Parties.
Afzal Khan, is the ‘predecessor-in-interest’ of the petitioners and respondents Nos.1 and 2 and was survived by two sons; Madat Khan and Sher Ali. The present petitioners are the legal heirs of Sher Ali, who had two sons, namely, Shamshad Khan and Shad Muhammad. Respondents Nos.1 and 2 derive their interest in the present petition through Madat Khan, who had four sons, namely; Mukaram Khan, Saadat Khan (died issueless), Lakhkar Khan (died issueless) and Haider Khan (died issue less) and the present contesting respondents Nos.1 and 2 are the daughters of Mukaram Khan, being his only offsprings.
Disputed property
i) ‘Malkiat’ Land; 23 kanals in ‘mauza Chagharmati’, Tehsil, Peshawar.
ii) ‘Shamilat’ Land: 133 kanals
in ‘mauza Chagharmati’, Tehsil Peshawar.
Disputed Mutations:
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i) Mutation No.461 dated 11.12.1938. This mutation purports to record the transfer of the legacy of Haider Ali, who died issueless, in equal shares to the Shad Muhammad and Shamshad Khan sons of Sher Ali (petitioners) on the one hand and Mst. Sarwara and Mst. Otmul Aisha daughters of Mukaram Khan,(Respondents Nos.1 and 2) on the other hand. (“Mutation No.461”)
ii) Mutation No.1419 dated
26.7.1972. This mutation records the culmination of the partition proceedings of which the present petitioners are aggrieved claiming that respondents Nos.1 and 2 Mst. Sarwara and Mst. Otmul Aisha, have been illegally rendered more property than their due entitlement under the law; In fact, the petitioners’ shares had been transferred to the respondents Nos.1 and 2 and thereby deprived the petitioners of their lawful proprietary rights (“Mutation No.1419).
Events
10.11.1977 Shad Muhammad and legal heirs of Shamshad Khan sons of Sher Ali instituted a suit against Mst. Sarwara and Mst. Omtul Aisha daughters of Mukaram Khan (respondents Nos.1 and 2) claiming that:-
“i) Declaration to the effect that plaintiffs are owners in possession of the property fully detailed in the heading of the plaint. Plaintiffs further seek the declaration that defendants
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have already sold out their entire share out of the suit property and entry of 23 Kanals in the name of the defendants is wrong and liable to be corrected in favour of the plaintiffs. Further that defendants have no share in the shamilat land. Further plaintiffs have challenged the partition proceedings. ii) Recovery of possession in respect of the property fully described in the heading “B” of the plaint.”
Based on the contested pleadings of the
parties, the trial Court framed the following
issues:-
1) Whether the plaintiffs have got a
cause of action? 2) Whether the suit is competent in its
present form? 3) Whether the plaintiffs are estopped
to bring this suit? 4) Whether the Court has got
jurisdiction? 5) Whether the suit is filed within
time? 6) Whether the suit is hit by Section 11
of the Code of Civil Procedure? 7) Whether the defendants 1 and 2 have
not sold their rights to the extent of 23 kanals in the suit land to the plaintiffs and the suit of the plaintiffs is mis- conceived?
8) Whether the suit is bad for non-joinder of necessary parties?
9) Whether the rights of the defendants 3 to 6, 15, 82, 89, 102, 103, 46, 137, 199, 140 to 143, 62 to 64, 59 and 69 are protected under section 41 of the T.P. Act?
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10) Whether the defendants mentioned above have purchased the suit land from the defendants Nos.1 & 2 in the column of cultivation?
11) Whether the plaintiffs are entitled to the declaration as prayed for?
12) Whether the plaintiffs are entitled to the alternative relief as prayed in Bai of the heading of the plaint? 13) Relief.
17.3.1997 The trial Court partially decreed the suit in favour of the plaintiffs/ petitioners and against the defendants/respondents.
19.9.1998 Application of the petitioners before
the Appellate Court to place on record documents relating to auction of property of Saadat Khan and his father Madad Khan.
26.11.1998 The appellate Court also partially
allowed the appeal of the present respondents/defendants by setting aside the judgment of the trial Court and remanding the case back to the trial Court with the direction to record fresh evidence of the ‘Patwari Halqa’ and the ADK and also to place on file the entire record with regard to the confiscated property with full details.
25.3.2003 The trial Court partially decreed the
suit to the extent of 504 kanals and 15 marlas of the ‘shamilat’ land. The remaining claim of the plaintiffs/present petitioners was dismissed for want of proof.
22.6.2004 The appellate Court maintained the
judgment and decree passed by the
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trial Court and dismissed the appeal of the present petitioners.
Hence, this revision petition.
3. Learned counsel for the petitioners
contended that the Courts below left undecided the
issue, as to who was entitled to inherit of estate of
Haider Khan; that the petitioners had submitted an
application before the learned appellate Court for
production of certified copies of auction proceedings to
prove the confiscation of property of Madad Khan,
which was also left undecided; that the appellate Court
neither decided the fate of the said application nor
considered the documents annexed with the same; that
the legacy of Haider Khan deceased has been wrongly
decided because Petitioners fall within category of
clause IV ‘residuaries’ being the male descendants of
the ‘Remote Grandfather’, while respondents Nos.1 and
2 fall within the definition of category V of ‘Distant
kindred’ and thus section 49 of the Muhammadan Law,
after satisfaction of the shares of the ‘sharers’, the
residue of the legacy of the deceased is to be inherited
by the ‘residuaries’; and that ‘distant kindred’ will be
only entitled to inheritance, where there are neither
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‘sharers’ nor ‘residuaries’ otherwise they are not
entitled to inherit the ‘Estate’ of deceased and so
mutation No.461 dated 12.12.1938 about inheritance of
Haider Khan to the extent of devolution of his ‘estate’
in favour of respondents Nos.1 and 2 being ‘distant
kindred’ was legally incorrect, rather the petitioners
being ‘residuaries’ are entitled to inherit the same
property exclusively; that the devolution of inheritance
of Mukaram Khan in favour of respondents Nos.1 and 2
exclusively, is also illegal and is hit by sections 3 and 5
of West Pakistan Muslim Personal Law (Shariat
Application) Act, 1962 (‘Act of 1962’) and that the
inheritance of Mukaram Khan should have been in
favour of the legal heirs, who were alive at the time of
death of Mukaram Khan (Last full owner) and thus
respondents Nos.1 and 2 were entitled to 2/3 share in the
estate of Mukarram Khan, while the rest of 1/3 share
would devolve upon Haider Khan, who was alive at the
time of death of his brother Mukmaram Khan; that the
petitioners were owners of 665 kanal 14 marlas in
‘Milkiyat’ land as well as ‘shamilat’ land plus the land
inherited from Haider Khan and that partition
proceedings, respondents Nos.1 and 2 were wrongly
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recorded owners of 133 kanals in ‘Shamilat’ land and 23
kanals in ‘Malkyat’ land, while the petitioners share was
reduced from 665 kanal 14 marla to 504 kanal 14 marla.
4. In rebuttal the learned counsel for
respondents Nos.1 and 2 vehemently opposed the
contention of the learned counsel for the petitioners and
contended that no evidence was produced by the
petitioners to prove their stand that the property of
Madat Khan was confiscated to the State; that ‘Shajara
Nasab’ produced by the ‘patwari halqa’ also support
the stance of the respondents/defendants Nos.1 and 2;
that only the share of Saadat Khan has been confiscated;
that presumption of truth is attached to the ‘pedigree
table’ being official record under section 52 of the West
Pakistan Land Revenue Act; that oral evidence does not
exclude the documentary evidence under Articles 102
and 103 of Qanun-e-Shahadat Order, 1984 (‘Order’);
that neither any jurisdictional defect has been pointed
out, nor any illegality or irregularity committed by the
lower Courts and thus revisional power/scope being
very limited, therefore, this revision is liable to be
dismissed with cost.
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5. The Valuable arguments of the learned
counsel for the parties heard and the available record of
the case thoroughly considered.
6. In essence, the learned counsel for the
petitioners has argued the claimed the disputed property
essentially on three legal and factual premises;
Firstly, that the present respondents No.1
and 2, namely; Mst. Sarwarna and Mst. Otmul Aisha,
could not inherit the property of Mukaram Khan, as
8/15 of his father Madad Khan’s ‘Milkyiat’ land and his
entire ‘shamilat’ land had been purchased by the
petitioners in an official auction in the year 1937; and
Secondly, Mst. Sarwana and Otmul Aisha
(respondents Nos.1 and 2) could not inherit the legacy
of Mukarmam Khan, their father and Haider Ali, their
uncle, as they had sold more than their share during
their life time and that even other wise, the legacy of
Haider Ali, who died issue less, could not devolve upon
the respondents Nos.1 and 2 being his ‘distant kindred’,
when the petitioners being ‘residuries’ were alive and
thus the half share transferred to respondents Nos.1 and
2, was illegal and ought to have been totally transferred
in favour of the petitioners and;
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Thirdly, that the legacy of Mukaram Khan
in favour of respondents Nos.1 and 2 exclusively was
against the injunction of Islam and Act of 1962 as at the
time of Mukaram Khan’s death, his brother Haider
Khan was alive, thus on the death of Haider Khan, his
entire property would devolve upon the petitioners, who
being ‘residuries’ , excluded respondents Nos.1 and 2,
who were ‘distant kindred’.
7. Taking up the First Claim of the
petitioners, the two Courts below have concurrently
rejected this stance taken by the petitioners, while
deciding issues Nos.7 and 10. Both the Courts have
been influenced in their decisions by the evidence of the
‘Patwari Halqa’, (PW-1) and ADK, (PW-2), in
particular the “Pedigree Table” of the parties
(Ex.PW1/D-1), which clearly noted under the name of
Saadat Khan that his share in the ‘shamilat’ land due to
his abscondence had been auctioned by the State. While,
Madat Khan and his son Mukaram Khan along with his
two daughters, the present respondents Nos.1 and 2,
were duly recorded as owners of their respective landed
property.
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8. When the learned counsel for the
petitioners was confronted with the said finding of the
two Courts below, he vehemently argued that the
property purchased by the petitioners in public auction
was that of Madat Khan and his son Saadat Khan. In
this regard, the learned counsel drew the attention of the
Court to the application dated 19.4.1998 for placing on
record certain documents, which according to the
learned counsel, clearly showed that in fact the auction
of the landed property was that of Madat Khan along
with his son Saadat Khan. He further argued that this
application had not been decided by the Courts below,
hence the case be remanded back to the learned
appellate Court to decide the same.
9. This Court is not in consonance with this
line of submissions of the worthy counsel for the
petitioners. The application was only to the extent of
placing certain documents on the record, which was
accordingly done even prior to the conclusion of the
first round of litigation and thereafter no attempt,
whatsoever, was made by the present petitioners to
pursue the said application. Surely, this conduct on the
part of the petitioners would not aid the present request
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of the learned counsel to remand the case and that too at
this belated stage. Even otherwise, it would not be
appropriate to prolong the litigation any further. To
render justice and ensure that none is prejudiced, this
Court would consider the documents mentioned in the
said application of the petitioners. On reviewing the
documents attached with the said application of the
petitioners, it is noted that the same are
notices/proclamations issued under the enabling
provisions of Criminal Procedure Code of 1898 and the
receipts of payments made regarding property of Saadat
Khan only. The only document, which has reference to
the property of Madat Khan, is the note of the worthy
Deputy Commissioner in response to the application of
Khushal Khan son of Muhammad Shah, who was
alleged to have been murdered by Madat Khan and
Saadat Khan.
10. So what we have before us are the
consistent long standing entries in revenue record
produced by the ‘Patwari Halqa’ and ‘ADK’, which are
in favour of respondents ladies, while on the other hand,
we have a single remark of the Deputy Commissioner
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on a note dating back to 1938 in favour of the present
petitioners.
11. There is no doubt that a person, who claims
a fact, has to prove the same himself by producing
cogent and reliable evidence and cannot seek refuge
behind the weaknesses of the other side. However, when
there are contesting claims of the parties backed by
supporting evidence, the adjudicating Court is to weigh
the evidence produced by the rival parties and to see on
whose side the “preponderance of evidence” rests. It is
only when the evidence produced by the parties are
evenly balanced and the Court is unable to decide the
matter on the available evidence, only then the issue of
burden of proof would come into play. In this regard,
the august Supreme Court of Pakistan in the case title
Mst. Qaiser Khatook Vs. Molvi Khaliq (PLD 1971 S.C-
334) held that;
“In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Manaka v. Madha Rao) (2). The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no
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definite conclusion- (Vide PLD 1948 PC 171). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not case here, for, the evidence is, by no means, evenly balance.”
12. In the present case, the ‘preponderance’ of
‘evidence’ is surely in favour of the respondent ladies
and against the petitioners. Moreover, the petitioners
being the plaintiffs were bound to prove their own claim
through cogent and reliable evidence, as is the mandate
of Article 126 of the Order. This onus to prove their
claim has not been fulfilled positively by the present
petitioners. Hence, the two Courts below were correct in
disallowing the First Claim of the petitioners.
13. Before this Court passes any legal finding
on merits of the Second Claim of the petitioners,
whereby they have asserted that Hiader Khan during his
life time sold more than his due share and thus had no
property left to be inherited by respondents Nos.1 and 2
and further that the half share of legacy of Haider Ali,
which had devolved upon Mst. Sarwana and Otmul
Aisha (Respondents No.1 and 2), as recorded in the
Mutation No. 461, it will be pertinent to note that there
is no specific issue framed by the trial Court thereon.
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However, the petitioners did take a specific and express
stance regarding this claim in para. No 7 of the plaint,
which had been denied by the respondents Nos.1 & 2 in
their written statement. When faced with this situation,
this revisional Court has two options; either to proceed
and decide the said issue itself or to remand the same to
the Courts below to decide it after framing a specific
issue and seek evidence of the parties thereon. Opting
for the former option, as presently the parties are in their
second round of litigation and also to avoid further
agony of the parties in prolonging the litigation, this
Court on canvassing the record notes that not only are
the assertion of the petitioners in their pleadings vague
and lacking particulars on essential materials but in fact
they have failed to produce any credible evidence to
substantiate this crucial claim; there is no particulars as
to how much property was lawfully owned by Haider
Khan; how much property he has sold exceeding his
lawful share; even no evidence in support of these
general assertions were produced by the petitioners; and
more importantly, even the crucial mutation No.461 has
not been placed on record, so as to dilate upon the
challenge made by the petitioners to the said transaction.
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The ‘Patwari Halqa’ (P.W.1) and ‘ADK’ (PW2) did not
produce the said crucial document and in fact the latter
explained that despite his efforts, he was unable to find
the said mutation, as fire had destroyed the said record.
14. Now, to the merits of the second claim of
the petitioners under the ‘Shariah’; it is admitted fact
that Haider Khan died issueless and had no ‘sharer’,
while petitioners were his ‘residuary’ being the male
descendant of the ‘Remote Grand Father’, while
respondents No.1 and 2 clearly come within the purview
of ‘Distant kindred of Haider Khan, being the female
descendant of the ‘Remote Grand Father’. When we
place the claim of the petitioners in juxtaposition with
that of Respondents Nos.1 and 2, the results are obvious
and as there are no ‘sharer’, the legacy of Haider Khan
was to devolve upon the ‘residuary’ as provided under
section 52 of Muhammadan Law, which provides that:-
“52. Residuaarites.----If there are no sharers, or if there are sharers, but there is a residue left after satisfying their claims, the whole inheritance or the residue, as the case may be, devolves upon Residuaries in the order set forth in the annexed table.” (emphasis provided).
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15. However, the aforementioned principle
would not help the case of the petitioners, as the
particulars of the actual due share of Haider Khan has
not been correctly and legally proved and more
particularly the disputed mutation No.461 having not
been produced in evidence, this Court cannot despite the
legal proposition stated hereinabove, pass any finding
on this Second Claim made by the petitioners. Vague
pleadings coupled with no supporting documentary
evidence, has proved fatal to this claim of the
petitioners.
16. Moving on to the third claim made by the
petitioners, where they seek share in the property of
Mukarram Khan, claiming it through Haider Khan, who
was stated to be alive at the time of Mukarram Khan’s
death. This claim, too, is not asserted by the petitioners
with particulars in the plaint and in addition thereto the
evidence in support thereof is also wanting. Having said
that, there is no cavil to the legal proposition that on the
death of a person his legacy is open and the share of
each legal heir is to lawfully devolve in accordance with
the principles laid down in ‘sharia’. The non-recording
of the said transfer in the revenue record would not
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defeat the said rights, so gained under the law. In fact,
the apex Court has by now settled this issue in Ghulam
Ali’s case (PLD 1990 SC 1) and followed consistently
by the superior Courts of our jurisdiction.
17. What is strikingly interesting in the present
case is that the petitioners are seeking legacy in the
‘estate’ of Mukaram Khan, father of respondents Nos.1
and 2, through Haider Khan. In essence, this claim of
the petitioners is that at the time of Mukaram Khan’s
death 1/3rd of his property ought to have devolved upon
Haider Khan and thus at the time of Haider Khan’s
death, who as mentioned above died issue less, his
legacy was to devolve upon the petitioners exclusively,
being his residuaries. This Court does not agree with
this line of argument advanced by the learned counsel
for the petitioners;
Firstly, allowing the petitioners any relief
in this regard would be to go beyond the pleadings of
the parties and;
Secondly, the supporting evidence to
substantiate this claim is also not forthcoming and;
Finally, the petitioners lack ‘locus standi’
to seek the legacy of Mukaram Khan, as they claim the
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same through Haider Khan, who during his life time
never agitated the said claim. Faced with similar
circumstances, the apex Court in Abdul Haq’s case
(2002 SCMR 1330), has laid down in terms that:-
“Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his life time. The petitioners claimed the property through Atta Muhammad as his heirs, who filed the suit as late in 1979 about 9 years after the sanction of mutation, which had already been given effect in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his life time.”
The aforementioned principle has been
consistently followed in other decisions of the apex
Court including the case of Ghulam Haiders’ case
(2008 SCMR1425).
18. This court is adjudicating the present
petition in its revisional jurisdiction, the scope thereof as
provided under Section 115 of the Civil Procedure
Code, 1908 has been dilated upon by the august
Supreme Court in Muhammad Idrees Vs. Muhammad
Parvez (2010 SCMR 5) and held that:-
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“The High Court in exercise of its revisional jurisdiction under Section 115, C.P.C. unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras’ case PLD 1949 PC 26. With regard to section 115, C.P.C. it is observed by the Privy Council as under:---- (i) This section empowers the High
Court to satisfy itself upon three matters:--
(a) That the order of the subordinate Court is within its jurisdiction.
(b) That the case is one in which the Court ought to exercise jurisdiction.
(c) That in exercising jurisdiction, the Court has not acted illegally, that is breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law.”
19. Keeping in view the above guiding principle
regarding exercise of revisional jurisdiction, this Court
considers that the Courts below had the jurisdiction to
adjudicate upon the matter and that while exercising the
said jurisdiction they applied their conscious mind to the
facts of the case and correctly applied and interpreted the
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applicable law. On facts, both the Courts have rendered
their concurrent findings and this Court does not find the
same as arbitrary, capricious or out rightly absurd
warranting a positive exercise of revisional jurisdiction
by this Court.
20. Accordingly, for the reasons stated
hereinabove, this revision petition being without
substance is dismissed.
Announced on: 20th November, 2013 J U D G (GULAB