Shah Jahan vs Mst.Sadu Bibi

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, D.I.KHAN

BENCH

(Judicial Department)

C.R No. 318-D of 2012

JUDGMENT

Date of hearing ________07/05/2015______________ Appellant-petitioner (Shah Jahan ) by Muhammad Waheed Anjam advocate

Respondent (Mst. Sadu Bibi) by Zain ul Abideen and Qurban Ali Khan advocates.

MUHAMMAD GHAZANFAR KHAN, J.- Through the instant revision petition, the petitioners have assailed the validity of judgment and decree dated 16/7/2012 recorded by learned Additional District Judge-IV, D.I.Khan, whereby the appeal filed by petitioners against the judgment and decree dated 27/3/2012 of learned Civil Judge-VII, D.I.Khan was dismissed.

2.The facts giving rise to the instant revision petition, in brief, are that Mst. Sadu Bibi plaintiff- predecessor of respondents No.1 to 8 filed a suit against petitioner and respondent No.9 for declaration claiming that she is owner of land measuring 51 kanals 15 marlas and 07 Kanals 08 Marlas situated at Kotla Habib, fully detailed in the heading of plaint. She challenged

mutations No.698 dated 30/5/1956 and 929 dated

3.The suit was contested by petitioners by submitting their written statement. The learned trial Court framed issues from divergent pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing arguments, the learned Civil Judge-VII, D.I.Khan decreed the suit vide judgment and decree dated 27/3/2012.

4.Feeling dissatisfied from the judgment and decree dated 27/3/2012, the petitioners filed an appeal which was dismissed by learned Additional District Judge-IV, D.I.Khan vide impugned judgment and decree dated 16/7/2012.

5.Learned counsel for petitioners argued that the suit mutation No.698 was attested on 30/5/l956 whereas the respondents challenged the same through the instant suit on 23/7/2007 after about more than forty years, so, the suit was hopelessly barred by time. He kept on saying that after the gift mutation the suit land is in possession of the petitioners which fact is proved through long standing entries in the revenue papers and by admission of the respondents, hence, he maintained that all the ingredients of a valid gift have been proved

through reliable evidence, so, the judgments and decrees of both the Courts below are result of misreading and non-reading of evidence, besides are suffering from jurisdictional defect.

6.Conversely, the learned counsel for the respondents supported the concurrent judgments and decrees of the Courts below by saying that both the Courts below have rightly passed the judgments and decrees impugned herein after proper appraisal of evidence on record and there are no exceptional grounds to set aside the concurrent judgments and decrees passed by the lower forums.

7.Arguments heard and record perused.

8.It is admitted fact that the parties derived their title from the legacy of one Shera who was the original owner of the suit property. On his death, his legacy devolved upon Mst. Ghulam Fatima widow, Ramzu son and Mst. Sadu Bibi daughter and to this effect inheritance mutation No.697 dated 30/5/1956 was attested. On the same day another mutation bearing No.697 was attested vide which Mst. Ghulam Fatima and Mst. Sidu Bibi gifted their shares in the suit property to Ramzu. This mutation became the bone of contention between the parties. It is pertinent to mention

here that this mutation was incorporated in subsequent jamabandies and uptil now the entire property is in the name of Ramzu after he gifted the suit property through different mutations in the name of petitioners and their names are entered as owners in possession, meaning thereby that since 1956 i.e. the year in which the suit gift mutation No.698 was attested in favour of Ramzu, the property is in continuous possession of the defendants and this fact is fully proved by the revenue papers, so, the ingredients of a valid gift are proved by long standing entries in the revenue record. Another thing which is worth mentioning is that the suit mutation was never challenged by Mst. Sadu Bibi in her life time, so, in the light of judgment of apex Court the successors are precluded to challenge the validity of mutation after her death. Reliance placed on the judgment of Apex Court reported in 2002 SCMR 1330 wherein it is held that:

“Atta Mohammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Mohammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation, which had already been given effect to in the record of rights. The petitioners therefore, had no locus standi to challenge the mutation independently, for Atta Mohammad through whom they claimed inheritance himself had

not challenged the same during his lifetime.”

Similarly, it was held by their lordships in case reported in 2013 SCMR 299, in the following manner that:

“Having herd petitioners’ learned counsel at some length, we find that admittedly the impugned mutation of inheritance bearing No.571 dated 09/07/1927 was never challenged by Mst. Karam Jan; that she remained alive till 1975 and no reason whatsoever is reflected either in the plaint or in the evidence led to indicate as to why she did not challenged the said mutation, it has never been the case of petitioners that either they or their predecessor-in- interest were unaware of the said mutation. In the afore-referred circumstances, the judgment of the learned High Court is unexceptional.”

9.Now coming to the share of Mst. Sadu Bibi allegedly transferred through impugned mutation.

Tough she has challenged the impugned mutation after more than fifty years and that too after death of the donee and when the entire property has been transferred by him in his life time to the defendants, but fact remains that the plaintiff (now deceased) survived by her legal heirs was an illiterate pardanasheen lady, so in such situation, heavy burden lies on the beneficiaries to prove the authenticity of the impugned mutation No.698. The evidence on record is deficient to prove the transfer on behalf of Mst. Sadu Bibi, so, the impugned

mutation to the extent of her share which she received from inheritance mutation No.697 dated 30/5/1996 is wrong and to this extent only the suit of plaintiff (now deceased) is correct and has rightly been decreed.

10.So far as inheritance of Mst. Ghulam Fatima is concerned, she has left nothing as her legacy because she had transferred her share in the suit property in her life time in the name of his son and till her death she did not question and validity of the gift, so, as discussed above, in the light of judgment of apex Court, the legal heirs cannot challenge the validity of the impugned mutation.

11.For the reasons mentioned above, this revision petition is partially allowed, the judgments and decrees of both the Courts below are modified in a manner that decree in favour of respondents is passed to the extent of the share of Mst. Sadu Bibi which she received through mutation No.697 dated 30/5/1956 and rest of the decrees are set aside.

Announced.

Dt:07/5/2015.

JUDGE