Main Fazal-e-Kareem and others Vs Khan Muhammad and others

Judgment Sheet

IN THE PESHAWAR HIGH COURT PESHAWAR

TUDICIAL DEPARTMENT

Civil Revision No.556- Pl20t6

JT]DGMENT

Date ofhearinS............... 19.10.202i

ners.

(Mian F aal-e-Kare e m e tc.) : By: SyedShahidShah, Advocate.

Resno nts.

( Khan Muhammad etc) By: Mr.Muhammad Shoaib Khan, advocate

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W@AR A HIAAD, J.. Brief facts of the case me that plaintffi/petitioners filed a suit for declaration as well as perpetual injunction against respondents to the effect tlat they were owners of I5/16 shares in the property in Khata No.2S6/784- 785, 260/294 l(hasra No.88l, 884, 867, 877, 3249, 889-A90, 891 rneasuring 86 Kanals situated at Mauza Tehlal Bala No.2 and entry of 4/16 shares in the revenue record infavow of defendants No.l to 13 was illegal, wrong and inffictive upon the rights of plaintffi/petitioners. The said property was claimed to be oymed by Gul Mian who had four sons, namely, Aldm Gul, Mir

Muhammad, Gul Ahmad and Ayub. Plaintffi/petitioners were the sons of Alam Gul, Mir Muhammad and Gul Ahmadwhereas Ayub died issueless due to which his widow Mst.Bibi Hana became owner of % shares in his legacy and the remaining property had devolved upon the plaintiffs/petitioners. The defendan*/ respondents, (being brothers and sisters of luht.Bibi Hav,a) were alleged to hove transferred the said property in their nanne, in collusion with the revenue staff, whichwas sought to be illegal and inffictive upon their right. The defendants were statedly asked time and again to aclcnowledge rights of plaintffi (and correct the revenue record) but they flatly refused to accede to their request which necessitatedfiling of instant suit

2 Defendan*/respondents No.l to 7, l0 & l2 contested the suit by filing written statement wherein they denied claim of petit ione rs/plaintffi . Plaintiffs/pe titioners als o filed rej oinder for rebutting assertions in the written statement. Conflicting stances talren by the pmties resulted in framing of as many as 11 issues, excluding relief. Plaintiffs in support of their case, produced 4 witnesses. Fazal Maula ADK was examined as PW-I who

v produced Misl-e-Haqiyat for the year 1929-j0 (Fx.PW.l/l), Shajra Nasab (Fx.PW.1/2), Riaz Ahmad Patwari Halqa Tehlcal appeared as PW.2 who produced Shajra-Nasab of parties in the year 1929-30 as Ex.PW.2/l and brought on record Mutation No.2844 attested in 1983 as F.tc.PW.2/23. Faqir Hussain Patwari PDA was examined as PW-3 who produced Qabzul Wasool (Ex.PW.3/I) vide which compensation had been paid by PDAfor acquired 16 Marla of suit property and this witness had furtlwr stated that the plaintffi had not raised any objection on pcyment of compensation to defendants/respondents. Last witruss of plaintffi' side was Fazal Karim, plaintiffNo.l, who appeared as attorney of rest of plaintffi and in his cross-examination he lwd admitted that the suit property was still in possession of plaintiffs In rebuttal, defendants produced special attorney Mian Fazal Amin as DW.l who had stated that deceased Ayub, husband of Iuht.Hawa BIbi, lad transferred his whole proPerty in favout of his wife during his life time and due to this fact and that the impugned mutation had conectly been attested in favow of defendants. The learned civil court afier recording pro and

contra evidence and hearing arguments of learned counsel for parties, dismissed the suit, vide judgment and decree dated 17.3.2012. Appeal filed by plaintffi/petitioners against judgment & decree of the court offirst instance also met same fate and was dismissed, vide judgment and decree dated 2.6.2016. Now, petitioners/plaintffi have Jiled instant Revision Petition with following prayer:-

"It is, therefore, humbly prayed that on acceptance of this revision petition, the

impugned orderc and judgments and decrees

dated 2.6.2016 and 17.3.2012 of both the

leorned courts below, may very kindly be set

aside and the suit of the pelitioners moy very kindly be decreed as prayed for with cost

throughoul."

3 Arguments heard and record perused.

4 Perusal of record reveals that it was an admiltedfact between the parties that property in dispute lad originally been owned by Gul Mianwho was havingfour sons namely Alam Gul, Mir Muhammad, Gul Muhammad and Ayub. It was also admitted

fact that property had been devolved upon four brothers to the extent of 1/4h each. The disputed part ofcontroversywas relating to legal capacity in which lvht. Bibi Hawa had been entered in the revenue record to be owner in possession. Bibi Hawa was widow of Muhammad Ayub and she had been co-owning property in dispute to the extent of l/4h share alongwith Alam Gul, Mir Ahmad and Gul Ahmad sons of Gul Mian. Excerpts of record of rights for the year 1929-30 was brought in evidence as Ex.PW 2/2, where same share of Muhammad Ayub has been shown in the name of Bibi Hawa with the addition, "widow of Muhammad Ayub". This is also not disputed that the property had been acquired by Bibi Hawa through Muhammad Ayub, her deceased husband. Similar entry of Bibi Hawa has been rurming in the revenue record till death of Bibi Hawa. Her inheritance mutation bearing No.2844 was attested in the revenue estate Tehkal Bala on 5.6.1983 through which the properly from name of Bibi Hawa had been transferred infavour ofher legal heirs. Contest in suit in hond was between said L.Rs. of Bibi Hawa and petitioners

(L.Rs. of MulamamdAyub), who had been claiming their rights in respect of legacy of Muhammad Ayub

5 It was case of petitioners/plaintffi before the civil court below that Bibi Hawa had been inserted in reyenue record as limited owner at the time of her first entry in the revenue record (as per Riwaj of the time) and under the law of Riwaj the property was supposed to have been reverted to other male L.Rs of Muhammad Ayub. The entry of Bibi Hawa as full owner continued subsequently afier promulgation of Klryber Pakhtunl;lwa (NWFP) Muslim Persorrul Law (Shariat) Application Act, 1935 as well as West Pakistan Muslim Personal Law (Shariat) Act, 1962, which was wrong to the extent of showing Bibi Hawa owner of entire property owned by Ayub in his life time. According to them Bibi Hawa being widow of Muhammad Ayub, was entitled to extent of her Shari share i.e l/8'h in the estate left by Muhammad Ayub but her name had wrongly been running in the revenue record to the extent of % shqre in the entire property in which Muhammad Aytb (ate) had himself been owner to the extent of t/4'h share

6 The two Courts below have no doubt concurrently held that plaintiffs had not been able to prove their case but fi.ndings of two Courts below in this respect has not been arising from due appreciation of evidence available on record. Most of evidence have been misread by both the Courts below. Ihe appellate Court had rather not applied its mind to facts of case and have disposed of appeal in a very cursory and slipshod manner The evidence has entirely been misread by both the Courts below

7 In Jamabandi for the year 1929-30 Bibi Hawa has been shown widow of Ayub and owner to same extent to which Ayub has been owner in his life time. It is also an establishedfact that Ayub had died in the period of Riwaj i.e., before Promulgation of Khyber Pakhtunkh,va ( NWFP) Muslim Personal Law (Shariat) Application Act, 19i5. There is nothing on record from which it could be inferred, how had Bibi Ha,va acquired title of entire property of Muhammad Ayub except the explanation that she hod been shown as co-owner in the capacity of widow of deceased Muhammad Ayub. In the prevailing custom of society at

the releyant time widow used to be having property of her deceased husband but as a limited owner. On her death property used to revert back to male members among the legal heirs of her deceased husband. Hon'ble Supreme Court of Pakistan while giving its judgment in the case obool A hmad and others Vs.

Faml-i-Hao and others repor ted as 2012 SCMR 917 has dealt with the case of limited owner namely trht. Lal Sain in the manner thot her leg*y was held to revert back to legal heirs of her deceased husband and then same was to be distributed according to la,v of Sharia in the legal heirs of her husband and not those of her legal heirs exclusively. Relevant observation recorded in said judgment are also reproduced hereunder for ready reference:- *3. Upto this stage, things were shaping smoothly, however, after the death of Mst. Lal Soin on 5-3- 1962, dispute arcse between lhe parties i.e. legal heirs of Rehmat Ali and legal heirs of Mst. Lal Sain, when her estate wus mutated in favour of the legal heirs of late Rehmat Ali as well os her own legal heirs, but only to the erteil of her share os widow of deceased Rehmat Ali. These mutations were challenged by the legal heirs of Mst. Lal Sain on the plea that she was full owner of land and not its limited owner, therefore, other legal heirs of Rehmat Ali were excluded and not entitled to get any share out of it. Collector Sahiwal, vide his ofier dated 23- 4-1968, accepted such claim of the legal heirs of Mst. Lal Sain and accordingly set aside earlier mutotion with the direction to mutate the land only in favour of her own legal heirs i.e. of Mst. Lal Sain, treating her to be its fall owner. The order of Collector was

challenged by the respondents Qegal heirs of Rehmat Ali) before the Additional Settlement Commissioner, Multan, who, vide order dated 24-6-1969 dismissed their appeal. Revision petition ftled by them before the Member, Board of Revenue, Punjab was also dismissed, vide order dated 24-9-1970. It will be pertinent to mention here that in both lhese ordersSudgments of lhe appellate Court and the revisional Court against the legal heirs of Rehmat Ali, categorical obsemations were made about the pendency of litigation on the same legal issue regarding the status of legal heirs of a widow acquiring the estate ofher husband under the custom as limited owner, which was at that time suh judice before the apex Court. The said judgment of the apex Court was announced on 23-5-1971, in the case of Additional Settlement Commissioner (Land), Sorgoda v. Muhammod ShaJi (PLD 1971 SC 791) and other connected petitions involving similar controversy, wherein, precisely, it was held that a femole, who was recorded in special jamabandis as limited owner under lhe custom, when allotted property in Pakistan in lieu of such claim, even when such property was perrnanently settled in her narne, would remain ils limited owner, therefore, on her demise, such property will revert and devolve on the legal heirs of the last male owner of property in India ond not on her own heirs alone. In addition to it, on 3I-3-1975, Act No)O(W of the Punjob Muslim Personal Law (Shariat) Application (Removal of Dfficulties) 1975, was also promulgated to the same effect, under which it was further provided that the percons effected by mutations sanctioned in favour of widows of the deceosed land owners, who have been declared as limited owners by the apex Court, could move the reyenue ollicer within a period of one year to seek review of these mutations and to get decided inheritance in favour of the legal heirs of lost male land holder, in accordance with Muslim Personol (Shariat) Law. This Act was given retrospective effect from 15-3-1948.

Further ahead in said judgment it was also held :-

8.In reply to the above submissions of the learned Senior Advocate Supreme Courts for the appellants and some of the respondents, Mr. Gulzarin Kiyani, learned Senior Advocate Supreme Court for olher

v

respondents contended that a careful reading of jadgment of the apex Court in the case of Additional Settlement Commissioner (supra) clinches the whole controversy involved in these oppeals in favour of the respondents/legal heirs of Rehmat Ali, inasmuch as, Msl. Lal Sain could not acquire under the custom any better stalus than a limited owne4 to the ertefi of l/jrd share. He went one step further in his arguments ond contended that as a matter of fact, in the presence of two sons of late Rehmat Ali, which is an andisputed position, Mst. Lal Suin could not claim her slatus in the 1/3rd share ofthe land even as its limited owner, but only as maintenance holder, which legal position will totally disentitle the legal heirs of Mst, Lal Sain to claim any share in her estare in any capacity, as the whole land in her khata, in such eventuality, will revert and devolve solely on the heirs of the last mole owner of lands left in India i,e. Rehmat Ali"

Further reliance in this respect may also be placed on the ju.dgment of Hon'ble Supreme Court of Pakistan in the case of Additional Se nt Commissioner (Lanil. Sarsodha Vs. Muhommod Shafi and others reported as PLD 1971 SC 791 and Fawaz Hussain and others Vs. Haii Jan Muhammad and others reported as 2018 SCMR 698.

8 The fact that Bibi Havya had acquired tille in respect of whole share of her deceased husband, either by wcy of purchase or by way of dower, lied on defendant/respondent but they could not produce any reliable eyidence in this respect. From

available record only one inference could have been drawn by Court below, which was that Bibi Hawa had acquired rights in the property from her husband on his demise but as a limited owner at that time. On Promulgation of Khyber Pakhtunkhwa (NWF?)

Muslim Personal Law (Shariat) Application Act 1935, Bibi Hawa was living therefore she would be deemed to have become full owner ofproperty but to the extent ofher right ofinheritance as per Islamic Inw in the estate left by her deceased husband Muhammad Ayub and rest of his property should have been devolved on other L.Rs, as per Islamic Sharia. h is adrnitted that Bibi Hawa and Ayub had not been survived by any son or daughter. This fact is also evident from impugned inheritance mutation. A custom having force of la,v need not be proved separately in each case but a Court may take judicial notice in accordance with Article-L|2 (2) of Qanun-e-Shahadat Order 1984. There was no doubt about prevailing customs in those days (also evident .from the earlier referred jtilgment). On Promulgation of Khyber Pakhtunklrwo Muslim Personal Low (Shariat) Application Act 1935 the property would be deemed to

have been devolved on all the legal heirs of Ayub regardless of entries in the reyenue record in the name of Bibi Hmua. Since Bibi Hawa had lived till late therefore, her inheritance mutation had been attested on 05.06.1983. Entire property of Mulammad Ayub running in the name of Bibi Hawa (his widow), had been transferred in favour of L.Rs. of Bibi Hawa deceased to the exclusion of other L.Rs. of Ayub deceased through impugned mutation. Entry and attestation of such mutation was not justified at all and same could not be justified by respondents either in written statement or in the course of evidence 9 Regarding existence ofestoppel against the plaintffi of the suit, both the courts below have relied on afact that a part of property in dispute to the extent of 16 marlas had been acquired and when some of the respondents were receiving cornpensation thereof, Mian Fazal Karim (petitioner No.l) had identifud them by signing the receipt/acquaintance role on 05.08.2000. Said fact was found ueating estoppel against petitioners and their suit was dismissed. This document hqs been brought on record as Ex.PW.3/D3. It was a simple receipt

whereof one of the contesting respondents, i.e.Mian Shaukat Ali had received certain amount in respect of the acquired part of the property. In this respect, it is important that petitioners have not been denytng title of the respondents, particularly the proportiorute shqre to [66 which they were entitled as legal heirs of lulst. Bibi Hawa. It was their case that lvlst. Bibi Howa was co- owner in the property in disputed but to the extent of her sharee share. It was also their case that legal heirs of lulst. Bibi Hawa would be entitled to the property owned by luht. Bibi Hawa. The property in dispute had not been acquired as a whole but only part of that i.e. 16 Marlas had been acquired. In such circumstances, if petitioner No.l had not raised objection on receipt of compensation by the respondents, regarding acquired property, same fact could not be considered to be creating an estoppel against the petitioners. To said extent the property or compensation received by them may be adjusted according to their shctre in the property in dispute which was not denied by the petitioners in toto. The Plea ofestoppel raised by learned counsel for contesting respondents was therefore not holdingwater.

10 So far as the second plea ofrespondents regarding limitation is concerned, it is important to be noted that physical possession of the property in dispute had remained with the petitioners. This fact has sfficient been proved in eyidence.

Khasra Girdawari have been brought on record as Ex.pW 2/tg and same was showing the property in dispute to be in possession of the owners as self cultivated property (Khud KashQ. It was true that in the column of ownership Mst. Hashmat Bibi has been shown to be owner to the extent of t/t share but it cannot be perceived that she had herself been cultivating the proryrty Naturally the tlree brothers ofher deceased husband hqve been cultivating the same. In all the Jamabandis brought on record same position of self cultiyation of the owners have been shown which was expressly indicating that the three brothers of the deceased husband of lulst. Hashmat Bibi, have been culttvating the property in dispute. Mian Fazal Karim, plaintiffNo.l, while appearing as PW.4, has also ffirmed that the suit property was still in their possession. From the above discussion, it can safely be concluded that petitioners have been in continuous possession

of the property in dispute. When they were in possession thereof then mere wrong entries in the revenue record would be deemed to be refreshing cause of action with each repetition 11 Another aspect of the case was that entries in the revenue record had been running in the name of ldst. Hashmat Bibi but there had not been any actual dispute o'wtership of the property between Mst. Hashmat Bibi and brothers ofher deceosed husband throughout her life. There is no such evidence in this respect. Her inheritance mutation i.e impugned mutation was entered and registered in the revenue record. The impugned mutation would also have been all right, had it been entered and registered to the extent of devolution of shari share of lulst. Hoshmat Bibi in her legal heirs. It wqs not that the petitioners/plaintffi were aggrieved of entry and attestation of inheritance mutation of MsL MsL Hashmat Bibi in favour of her legal heirs but they were in fact aggrieved of assigning them more than their due shnre. It appears that on the acquisition of property and asserting of ownership by the contesting respondents (L.Rs. of Hashmat Bibi) in respect of the

t6

property in dispute to the extent as mutated in their favotr, (on

dent of impugned mutation), that the petitioners/ptaintffi had found a real threat of invasion of their rights and in this respect the assertion in paras-3, 4 and 5 of the plaint were believable.

I*amed counsel for petitioners has placed reliance on judgment of this Court in the case of Feroz Khan etc, Vs. Mir Azam and others (CR No.lI96P/2010), but situation in said case has totally been dffirent. In said case, the predecessors of the plaintiffs had not challenged wrong entries in the revenue record in their life time while in this case the petitioners were themselves adversely affected by the inheritance mutation entered and attested in the year, 1983. Petitioners herein hqve themselves brought the suit. Additionally they have also been in continuous possession of the property tn dispute and therefore, each successive Jamabandi may be dealt to be renewing their cawe of action, as per judgment of the Hon'ble Supreme Court of Pakistan in the case of Salamat Ali Vs Muhammad Din, reoorted as PLD 2022 Sunreme Court- 353. Before acquisition of land and receipt of compensation or asserting of right as mentioned in the plaint,

there has not been any evidence on record showing that rights of the petitioners/plaintffi had actually been invaded either by fuIst.

Hashmat Bibi or by her successor. Mere wrong entries in the reyenue record would therefore be deemed to be threatened denial ofrights only and in such cases each Jamabandi shall be deemed to be refreshing cause of action for the petitioners/plaintffi. Further reliance in this respect may also be placed on judgment of Hon'ble Supreme Court of Pakistan in the case of Saadol Khan and others Vs Shohid ur Rehmon and others ( P L D - 2023 Sunreme Courl - 362 ).

12 It is also true that a revisional court does not normally interfere with concurrent finding of facts of the courts below unless there is a case of misreading or non-reading of evidence. In the case in hand it is apparent that there was not only misreading and non-reading of evidence but law of limitation and estoppel have also been wrongly applied against the petitioners/plaintiffs , by both the courts below. A revisional court is not supposed to follow wrongfindings offacts of the two courts below and to become a contributory thereto. Hon'ble Supreme

court of Pakistan while giving its judgment in the case of Muhammad Akhtar Vs Mst. Manna and 3 others reoored as 2001 SCMR - 1700 , has held that concurrent findings of facts which me peryerse or fanciful, could not be ffeated as sacrosanct for the revisional court and that a revisional court may well reverse suchJindings. Relevant part ofobservations ofthe august Apex Court is reproduced hereunderfor ready reference:- "We are of the considered opinion that d the concurrent lindings are perverse, arbitrary or lanciful the sflme cannot be termed as 'sacrosancl' and can be interfered with."

Further reliance in this respecl may also be placed on iudgment of Hon'ble Supreme Court of Pakistan in the case of Samat Gul and others Vs h abal Khan and others rted as 2000

SCMR_974,

t3. In light ofwhat has been discussed above, iudgments and decrees of the two courts below are set aside. The suit of the petitioners/plaintffi is decreed but to the effect that ltlst Hashmat Bibi deceased shall be deemed to have been owner to the extent of Sltari share in the legacy lefi by her deceased

husband and similarly to said extent her shari share would be deerned to have been deyolved upon her legal heirs. Petitioners and their predecessor would be deemed to be entitled to the legacy of Muhammad Ayub in accordance with their shari slwre The revenue fficials shall redraw entries in the revenue record to said ffict and shall enter inheritance mutation in respect of legacy of M*. Hashmat Bibi. The earlier mutation bearing No.2844 attested on 28.04.198i in revenue estate of Tehlcal Bala No.2, Peshawar is set aside. It also needs to be mentioned here that although petitioners had not specifically challenged the mutation in the plaint but as a corollary of a declaration sought in the plaint and particularly the relief in lespect of necessary correction in the revenue record, grant ofthis reliefhas become inevitable. Besides a civil court or revisional court is also having jurisdiction to mould the relief and afier recordingfindings to the above stated ffict moulding of the relief and setting aside of the inheritance mutation was required in the interest ofiustice

14.So far as prayer 'Bai' in tlrc plaint is concerned, it is decreed to the effect that whatever compensation has been

received by the parties shall be re-adjusted in accordance with their rights proportionately and the compensation recetved by the respondents shall also be adjusted against their share in the property in dispute at the old rates. If they have received amount of compensation for an area in accordance with their entitlement then it shall be deemed that their property had been acquired and if any part remains outstanding, same shall be adjusted in the proceedings of final decree. In both these respect the instant decree granted shall be deemed to be preliminary in nature and for grant of final decree in accordance with terms of this prelininary decree the petitioners/plaintffi shall be at liberty to move an application before competent civil court

UDGE

Date ofhearing and announce me nt of Judgme nt 19.10.202i

Date ofPreparation and Signing of Judgment ...... 28.1 I .2023

M.Ishaq Shah,P.S, (SB) Hon'ble Mr.Justice Wiqar Ahmad