Khalid Shah Vs Jamal Shah

Judgment S/sect

IN THE PESHA WAR HIGH COURT,

PESHAWAJ

(Judjcj(g/ Deparls,,e,,l) CR No. 1593/20j' K/cal/ti Shah 0//i ers Vs Jamal S/cal, & others

C.R. No. 1740-P/2010 Arsht,d Sisal, & others Vs K/ia/it! Shah & 0/leers

c9 QLIQJUDGMENT

- Date of hearing

Date of decision: 25.03.2016 Petitioner (s) by: 1W/s Maznf/a/, &:rkandj & 11'!n/s atn,,z(ul Ihra/,j,i, K/san, A di'ocat5

Respondent (s) by: 1W/S Mui,w,,111! Dated Khall & TMu/, wnm/ Taif K/i an, Advocates MUHAMMAD YOUNFSrHA By this single

judgment, I intend to decide the instant civil Revls/o,, petitio,, No.1593/2 010 tilled "K/zn/id S/ia/s & others Vs Jansaf Shah & others" and Connected ('lvii Repisjoti

petition No.) 740/2010 lit/ed, "Arshad Shalt & others ATTg ST E K/ia!Id S/u,!, & others" E as both these petitions arise Ph .

out of a consolidated judgment and decree dated

passed by the learned appellate

Court/Additional District Judge-Il, Charsadcla whereby lie set aside the consolidated iudgmn and decree 1ated

10.04.2010 passed by the learned lower Couri and partially allowed the civil appeal of Khalid Sha'' & others.

2.Brief facts of the case are that

petitioners/plaintiffs (respondents in Connected Civil Revisioii No.1740/2010) being legal heirs of Wadood Shah, filed a suit No.3/I for declaration to the effect that they are owners of landed propert'j pertaining

to Khata No.50, 61, 62 & 63 situated in Mow Pa/os0

Oiarsada 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 vde dcwer - •, 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 ineflèctjye upon their mheriunce rights

as detailed in the plaint. Suit No.4/I was tiled for permanent injunction regarding suit land detailed in the plaint, claiming the same as their ownership by virtue of alleged Tamlcejc 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 Khajjd Shah etc submitted ffieir written statements while Iarnl Shah & others filed their respective Written statement in civil suit No.3/1.

Both the suits were consolidated by the learned trial Cowi and Consolidated issues were framed which are given beJow

Whether plaint suit No.308/1 have got a cause 0/action?

Whethe,* plaint n suit No.309/1 hi"e c't a cause of a,jofl?

W/zethp suit No.308 and 309 are bad in its present form? c' TED

H'heth r plaintj(/ in suit No. 3' ?// are estoppe,j losue?

Whet/icr plaintiffs in suit No. 309/1 are estopped to sue?

Whether the Court has got jurisc/ictjo,i to !,y both the suits?

Whether suit No. 308/1 and suit No.309/I are bad for tu iS/non.jo inder of necessari, parties?

Whether suit No.308/I is time barred? Whether suit No. 308/1 /ias not properly valued for the pu, pose of Court fee?

Whether the deeds dated 12.07.1950 in suit No. 308/1 are fictjtioz, Jorgeci and se/f ,nadc?

/ 1. Whether suit No.3091lis instituted wit/i 'n a/afide intention and is counterbla., 0/s z:it No. 30 Whether 'nutation No. /503 attested on 20.02.2001 mutation No.1715 and inheritcince mutation No.1707 (ire Jbrged. fictitious, based on nialcfide and are void and ineffective upon the riphts of the plaint /f/ and are liable to be cance//cigion?

Whether the plainIjJ are owners in posses,cjo of 22 Knobs /4 Allarlas of land on the basis of deeds dated 03.01.2002 and dated 12.07.1950? /4. Whether the plainq/J in suit ffs No.309/I are owne, in possessio,i of 14 Kana/s of land through mutatioi7 No.1503 attested On Whether p/aiflt in suit No. 308/1 .re ntit/ed to the decree for specc peiformance 0/contract as Proj/cc/for?

Whether the plair:t,q. in suit No. 308/i are entitled to the decree for specc peforzan of contract as prai.'edfo,.?

S

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17, Whetljer the plaint// in siii: 1/0.308/J cue e,i;itled to the dec,e for perpetual injunction Q.ç prayed for?

13.Whether the pj,7i,tijj.i in suit No.303/1 are entij/ej to the decree Jor poSsessioj i as prayed / 9. 1417ethe,. the plairitifj in suit No.309/I are entitled to the decree for /'osses.r ion as prayed for?

20.Whether the plciiniijfi• in suit No.309/I are en! it/eJ to the clecreefor permanent injunction as prayed for?

21, Relief

After recording pro anJ onrra c'videc sf

the parties and hearing their arguments the learned trial Court dismissed suit No.3/I of petitionci• Khalid Shah and others, while suit No.4/I of Jamal Shah & others was decreed vicle Consolidated judgnient and decree

dated 10.04.2010. Feeling aggrieved from the judgi'uem and decree of learned trial Court, present petitioners 1< halid Shuh & others flIed Regular Civil Appeal which was partially allowed and gill mutation No.1 503 was set aside while suit No.3/1 to the extent of relief regarding inheritance rights arising out of dower dee:] oatid

12.07.19.50 and setting aside of suhsequejn mutation No.1715 and 1707 was dismissed and rest AT of judgment

and decree of learned trial Court was kept intact. ))eing aggi ieved from the ConsoIi(Jate(j juclgn)c,it and decree of Iearnc(1 AppelIat Court, both the Parties have tiled the

decree of learned appellate COLIrt below and prayed for dismissal of connected CR No. 1740 of 2010 of Jamal Shah etc.

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 regardirg dower deed deed !2.07.19S0 is correct and result of proper appreciation t evidence and law while by partially allowing appeal of petitioncl/lcJ)atid 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 muatioii No.1503 is against law and evidence on record. The plaintiffs/petitiojiers Khalid Shah and others had failed to prove the same as outcome of fraud. The possession of gilled 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 I1 added that the gift was made by their father with free gh consent and the evidence produced by them about factum of gill was wrongly not believed by the learned

prcse,t civil revision petitions on the grounds enumerated therein. Since both these petitions arise out of the same judgment and decree, hence are decided together,

Learned counsel for petitioners Khafid 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 ip Moza Palosa Charsaclda vide dower dcccl dated 12.07.1050 The only live witness was Saleemultah 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 PWS Syecl 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.PW3I I Learned counsel further argued that Ptionere/plaintiffc produced entire available documentat'y 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 x.PW3/I 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

appellate Couii. He further argue d that the findings of

learned trial Court are based on proper appreciatio n of

evidence and law. As the alleged dower deed dated 12.07.1950 is about landed property measuring io Kanals valuing more than Rs. 100/- and is Unregistered, so rightly not relied upon by learned trial Court.

Moreove t , Wadood Shah died in the jear 2007 but he did not disclose about the alleged Said dower deed. The learned cc, i,nscl argued that the evidence of' PW.6 is worth reliable but had been disbelieved by the appellate Court to the extetu of gifl 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 alongwith prayer that the connected petition filed by Khalid Shah

& others may kindly be dismissed with cost 7 hav. heard argume,j and care lidlv

Scrutiniyed entire record of the csc with the vaJuabl assistance ci learned counsel lbr the parties.

From perusal of the record it divulges that Wadood Shah is predecessor of both the parties. It is an admitted tact on record that Wadood Shah solemnized first marriage with Mst. Niaz Parwara and contracted second marriage with Mst. Shabtiaii Bibi. The 'y '• petitiones oIC.R. No. 1593 are the sans and daughters from the wedlock of Mst.

Niaz Parvaia vhi le Jamal

Shah and others, respofl(JefltS in above said petitiol) are the sons and daughters from the wedlock of Mst.

Shabnain l3ibi. According to the stance of plaintiffs of civil suit No. 3/I, Khaljd Shah & others, their lather

Wadood Shah when got married with their real mother had scribed dowei deed dated 12.7.1950 in "er fvoir and transferied suit land measuring i u kanals 0 marIa

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/I .i.e.

Khalid Shah & others had produced one Saleemullah,

Deed Writei 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 a'14j Abdufl'1J1 Shah Sons of Tmzab Shah Admittedly both the marginal w1trjese. to the dower

deed are stated to be dead, so, Wali Shah son oi'

Abdullab Shah appeaied as 13\V-4, who stated that his

father Abdullab Shah had died in the year 2006, he is well conversant with his signatuj- e as well as his Writing

style and categorically stated before the Court that hCfr\TTFØTED has seen the original dower deed dated 12.7.1950 and.

testified the signature of his father. Secondly,

4IN

Ila Coum

0 PR?O16

Ghani Shah son of Latif Shah, marginal witness

appc'rei as PW-5, who also testified t:'e signature ofhi,

father on the dower deed dated 12.7.1950, lix. PW-3/1 These WitflCSSs i.e. PW-j scriber, PW-4 and PW- Were put to cross.

examjfla(jon hut their evideiice

remained Un-impeached

IL

The PIaintffs/present pettiers produced Jehan Shah son of Tawaf Shah as PWo, Qadeem Shah son of Tawaf Shah as PW-7 and Khalid Shah presei[ petitione1. No.!, who appeared as PW-8 for himself as well as on beh&foj'ot1)er llaintiffs. Amongst the above said witnesses, PW-6 recorc!ed 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 of Jirga, Whciiij the defendants i.e.

respondents of 1l;1ajIt pctitio:t anci petit Oner cf Connected C.R. No. 1740-1>of 20 W dmitiecf their mistake to the effect that the suit land has wrongly been transferred through gift mutation in their tvour and made commitlileni that they will return half of the area. lie I'Ll'- dier stated that in this respect a deed was also scribed 00 03.01.2002 amongst the parties and admitted Signature on the deed dated 03.0 1.2002 as correct which, is placed on file as Ex. PW-1/3. Similarly, Qadeem son of Tawab Shah, who appeared as Pw-7 also testified the deed dated 03 01.2002 and admi::ecl his signature Over it as correct. On behalf of Jie lJlaritiiIs KhiiJ

Shah appeat-e d lot- himself and as attorney lbr other plaintili i.e. Sons and daughtei-s from Mst. Niaz Parwara, the first wile of Wadood Shah , who stated in his examina(jon_ifl_j.f that inheritac mutati on No.

1707 to the extent of inclusion of an titea, which their father tranjrred 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 nd got atfcstc'd i Inpugned fraudulent mutation No. 1 5,)3 in their favouj

and when this frud came into their knowledge, a serious dispute arose amongst the brothers, which was retèrj-ed to the Jirga for decision, which was Convened under the headship of l'W-6 Jan Shah, who had settled the disputed via settlement deed dated 03.01.2002 (Ex:PWI/I) witnessed by Qadeem Shah and Aman Son of Abdul Ghani alongwith Aishad etc.

Khalid Shah appeared as PW-8, who stated

MI

that thjr flnler in his lifEjie transfjrec1 lfl kanals of land in lieu of 'Haq-e.Mc,hr' vide 3 dower. deed scribea

on 12.7.1 9.0, to their mother Mst. Niaz Parwara, placed

on 1- ecord as x:PW-3/1. Respondents secretly got mutated 24 kanals area of suit land through impugned gill mutat;)r, NO, 1 5103, Ex. 1 3 W-8/2 in her i?vou'-

deprive petitioners from their inheritance rights.

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 conies out after thcing the test of, cross-examination then it could be relied upon, so, from prepondertrice 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 gifl mutation No. 1503 via settlerneriL deed dated 03.0I,20( marked as Ex. 1 W-1 / 1 which fact is cormoboJ 3 :ate(l from the

evidence of PW 4, PW 5 & PW 8 and also admitted by Amnan son of Abdul Ghani (Dw_4) during cross- exarninatiomi by agreeing that they will cancel the fraudulent gift mutation No.1503 after the death o1 their father Wadood Shah.

14.ro the above evidence it is proved that \ TTST Fm

dower deed dated 12.7.1950 was executed by father of ' the parties Wadood Shah in favour of Mst. Niaz Parwai-a, his first wil and he also tansfcrr,cj lade property admittedly measuring 16 kaiials in fitvour of "is second wife Mst. Shabnaimi i3ibi, which transtér has not been challenged and admitted by the petitioners, so,

it gives strong presumptioii that pvedecesgoj of the

parties wa a thorou gerttlemaii hviny scn nf justice, thus when he translrrecl his landed property measuring 10 kanals to her first wile through said dower deed, then he at the time of contracting second marriage also transferred his landed i)roperty measuring mole than 10 l(aflafs i.e. 16 kaiials in favour of his second wife, the real mother of Jamal Shah etc.

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 adrnisible in evidence nor c:n be gveii eflct in the Revenue Record and it was not ilcoiporte (f 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 ATTST

OldinanLe 1961. / lh. dOWLI ckcl dated 12.7.1950. ' 1 hCOII

3 /F

cbejflg 30 years old document duly Cxecuf,c1 and provea according o law of evidence would have strong presumptioit of genuineness so could be believed, as one olalive witness, the scriber of the same dower deed,

appeaicd P s t'W.3, x'as ross_exa,)lined bu faikI o impeach " is veracity, so, his evidence could nol be brushed aside. The sarne witness PW-3 also stated that Latif Shali & Abdullali Shah witncssed this document and Sons of the marginal witnesses were produced as PW4 & PW5 who tesiuiecl the signatures of their, fathers on the (lower 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 (lower (Iced dated 12.07.1950 which am(,unts worst kit1d of Irisreadire 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/1 In this

respect wisdom is derived from the judgment of l -lonble

Supreme Court of Pakjstaii in case titled as Purveen Ak/igar (1989 SCM!? 1871). The

relevaiit Para enunciated is reproduced as below:- 'The provisions of SeCtions 17 and 49 of lie Registration Act are not attracted to the facts arid as held iii Mst. Allah Jawj' .ase I'LD 197 Lab. 7 3T

' tile transfer to property by the husband to , -- \''. tll( wife iH lieu of her tiower can be effected even without a registered i,isti in en t.''

Respondent Jamal Shah and petitioner

Arshad Shah etc producctl one l'aslifeen Ahinad l)urarii

as DW-I, who stated that at time of scribing of document dated 17.52008 Ex. DW-I/i, he alongwjth lkramullah DW-2 were present with Saleemttj lah petition..writcr. During cross_exallliflation DW-2 deposed that Saleernuijal) was unable to write himself,

and Arshad Shah took them alongwith Jhsan in his

motorcar. Ihsan also appeared as DW-3, who staled that he at the time of scribing deed dated 07.5.2008 was

present and during doss-examination admitted that he is lther-in_law of Tan.1 Shah, one of defe'day)t

respondent Fio this document, defindams/respofldei I

tried to prOve that dower deed dated 12.5.1950 was fikc tke and not scnibed by Sale=Ldlah PCtitiofl-wrjtej

Admittedly the fact which detèndatits wanted to prove

was fleitJiei mentioned in their written statement not - in

plaint, nor such documents Ex. DW-1/2 to Ex. DW-5/8 Were annexed with wnitleii statement or plaint in civil suit No. 4/ 1 jut their list of reliance in view of law

envisage(l undci Orders VI], Xl, XII & XIII of C.P.C, as laid down in case of Mugt,/jt,s. MIlnz ,orit itiq another

LSTEY

So such kind oi evidence ' could not b consideted or looked into, therefore, it 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 dllect, in this respect wisdom is derived from the judgment of I Ion'ble Supreme Court

Jo

of Pakistan in Binywnee,, ly Case C!1C(/ aS 1996 ScMR

336, wherein their Lordships held as under:- "It is a well settled principle of law (ha a party can prove a ease which has been pleaded by it. In Support of his COntcnIioi,, (he learned coun se l for the al)pellants relerred to Government of l'akistan (Now Pu nja b) through Collector, Bahawalpu r V. Haji iIuhanuni ( l (PU) 1976 Supreme Court 469). It is also a well-settled prir.ciplc that no evidence can be ie!

or k,o)(ecl 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 lie would be entitled to produce evidence to prove those pleas. Variation in pleading and proof is not permissible in law."

The whole exercise of scribing document dated 17.5.2008 attributed to Saleemullaji, rather strengtheui the case of Petitioners that impugned gift mutation No 1 503 was act of fraud as when Saleeniullali appeared as I'W-J, he vizs jo cross- examined from this angle and beneficiaries! Jamal Shah, Arshad Shah etc later on tried to establish through said

EV

document dated 17.5.2008 (Ex. DW-J/l) that the dower deed dated 12.5.1950 is fake one.

DW-4 is one of verifying witness of impugned gift mutation No. 1503, who during erss-

ph examijatjon admitted that his wife is sister of Jamal Shah, lie 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 WaIj Shah, nor the same was produced. Similarly, Khaista son of Flazrat the other \'eriJ'ing s'itne 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 requiierneiits and ingredients of gift as to oflr, acceptance, delivery of l)OSsession, indepenclejt 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 be poved by the beneficiary failed to prove the facium of gift, thus the learned appellate Court correctly appreciated the evidence on record about - impugned gift mutation No. 1503.

19.'FX Ft Coo Arshad Shah appeared as DW-5, who di

not litter 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_exII.flj1iation admitted that they had not challenged dower deed dated 12.7.1950.

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 Lmpugred gifled mlltatiom 1 No. I 03 as oull

and void is correct and based on propem' appreciatmoji of evidence and law while the learned trial Court as well as appellate Court erred in law by riot 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/I, instituted by Khalid Shah & others is decreed, while in terms of above findings the judgment & decree with regard to suit No. 4/1 by the iearne,l appe;lae Court are mnaintajfle t 'l'h..

No. 1593-1) of' 2010 is allowed, while petition No. 1740 is dismissed with no order as to Costs.

All"O "zceI.

e1117

JUDGE

.30 I2 6