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