Roman vs Maqbali

2014 C L C 108

[Peshawar]

Before Musarrat Hilali, J

ROMAN and others----Petitioners

Versus

MAQBALI and others----Respondents

Civil Revision No.395-P of 2012, decided on 13th September, 2013.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.64---Civil Procedure Code (V of 1908), S.11--- Suit for declaration---Limitation---Inheritance---Pedigree table---Constructive res judicata, principle of---Applicability---Contention of plaintiffs was that they were minors and when they attained the age of majority, they challenged the matter---Suit was dismissed concurrently--- Validity---Claim of plaintiffs was based on pedigree table which connected them with their predecessor---No evidence was available on record in support of their claim---Pedigree table by itself was not a proof of relationship unless same was proved by some reliable and independent evidence---Such table not corroborated by convincing and independent evidence did not have much evidentiary value---Relationship on which the right of inheritance of the plaintiffs was based had failed for lack of independent evidence---Predecessor of plaintiffs brought suit claiming inheritance with regard to property in question and all the rights and obligations stood adjudicated which was never challenged---Present suit was hit by principle of constructive res judicata---Plaintiffs were bound to file suit within 3 years after attaining majority---Suit filed by the plaintiff was time-barred---Father of plaintiffs died 35 years back who did not challenge the inheritance of his mother during his life time---Plaintiffs had no locus standi to question the same---Both the courts below had recorded concurrent findings which were not open to exception---No illegality or irregularity was shown to have been committed by the courts below---No misreading or non-reading of evidence had been pointed out---Revision was dismissed in circumstances.

Abdul Haq and others v. Mst. Surraya Begum and others 2002 SCMR 1330 rel.

Malik Zeb Khan for Petitioners.

Arshad Jamal for Respondents.

ORDER

MUSARRAT HILALI, J.--- The petitioners have assailed the judgment and decree of learned Additional District Judge-IV, Peshawar dated 18-1-2012 whereby their appeal against the judgment and decree recorded by learned Civil Judge-XXII, Peshawar dated 14-3-2011 has been dismissed.

2.Succinctly, facts of the case are that the petitioners filed a suit for declaration against the respondents in respect of disputed property measuring 150 kanals, fully detailed in the heading of the plaint, in terms, that they are owners of the same to the extent of 1/4th share belonging to their predecessor, namely, Mst. Bakhtawara and the entries in the revenue record are liable to be rectified. It is averred in the plaint that the petitioners are legal heirs of Mst. Bakhtawara as mentioned in the pedigree table attached with the plaint. As per plaint, the said Mst. Bakhtawara became owner of 1/4th share being issueless in the property of her deceased husband, namely, Ali Muhammad and after his death, the petitioners became owners to the extent of 1/4th share in the property in question. It is alleged that the entry of the disputed property in favour of the petitioners was not incorporated in the revenue record to the said effect, therefore, the same is liable to be rectified. The respondents were asked to rectify the revenue record but to no avail.

Respondents were put on notice, who contested the same by filing written statement. After framing of issues and recording of evidence, the learned Civil Judge-XXII, Peshawar dismissed the suit vide judgment and decree dated 14-3-2011. Dissatisfied with the same, the petitioners filed appeal, which was also dismissed by learned Additional District Judge-IV, Peshawar, hence necessitated the filing of instant revision petition.

3.Learned counsel for petitioners contended that both the learned courts below have wrongly held that the matter has already been resolved by competent court of law; that the predecessor of the petitioners Mst. Bilqees during her life time had never questioned the legacy of her mother Mst. Bakhtawara nor was it the subject-matter at that time before any court; that the learned courts below have wrongly declared the lis of the petitioners as time-barred because the Hon'ble apex Court in its numerous judgments has held that there is no time limit for challenging the legacy of a person, if the same has wrongly been incorporated in the revenue record; that the petitioners were minors but when they attained the age of majority, they challenged the matter before the court of learned Civil Judge; that both the learned courts below have ignored the said aspect of the matter and non-suited the petitioners on flimsy grounds.

4.Conversely, learned counsel for respondents contended that the suit of the petitioners is hopelessly time-barred; that the petitioners are not legal heirs of Ali Muhammad, the predecessor of respondents; that the petitioners have not produced any independent witness or documentary evidence to prove that they are the legal heirs of Mst. Bilqees; that the learned courts below after appraisal of entire evidence have recorded concurrent findings, which are based on sound reasons, therefore, the same require no interference by this court in its revisional jurisdiction.

Arguments heard. Record perused.

5.A reference to the record shows that the suit property was owned by one Ali Muhammad who died issueless. He was survived by two widows, namely, Mst. Khawray and Mst. Bakhtawara. Mst. Bilqees, the predecessor of petitioners was born from the previous wedlock of Mst. Bakhtawara. Mst. Bilqees died leaving behind a son Arifullah and a daughter Mst. Kharo. The record also reveals that the suit property belong to Mst. Bakhtawra widow of Ali Muhammad has also been transferred to the predecessor of respondents vide inheritance Mutation No.1447 Exh.P.W.2/2 and the share of Mst. Bakhtawara has not been transferred to Mst. Bilqees. The petitioners are the legal heirs of Arifullah to the extent of 1/4th share in the legacy of Mst. Bakhtawara. They brought a suit, which was contested by respondents, who rejected the petitioners' claim having any relation with the predecessor of respondent, namely, Ali Muhammad and resisted the matter on the point of having no locus standi and limitation also.

6.The claim of the petitioners is mainly based on the pedigree table which connects the petitioners with Ali Muhammad. Except the sole statement of petitioner No.2, (the special attorney for the remaining petitioners), there is no evidence available on record in support of their claim. Mere a pedigree table by itself is not a proof of relationship unless the same is proved by some reliable and independent evidence. The pedigree table, not corroborated by convincing and independent evidence, does not have much evidentiary value within the purview of Article 64 of Qanun-e-Shahadat Order, 1984, which reads as under:--- Article 64. Opinion on relationship when relevant.--- When the Court has to form any opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the exercise of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.

Thus, the relationship on which the right of inheritance of the petitioners being based fails for lack of independent evidence.

7.Another important aspect of the matter is that Mst. Bilqees, the predecessor of petitioners made an unsuccessful attempt by bringing a suit against Mst. Muqaisha claiming inheritance of Ali Muhammad in the year, 1928 regarding the suit property questioned in the present case. The purpose of the suit filed earlier in the year, 1928 was with regard to the 1/4th share of the predecessor of the petitioners Mst. Bilqees, wherein, all rights and obligations stood adjudicated in the case which was never challenged by her legal heirs, the predecessor of the petitioners, thus, the present suit of the petitioners is hit by principle of constructive res judicata.

8.The petitioners have challenged the entries in the revenue record pertaining to the year, 1929/1930 and have taken the plea of minority in their plaint. Even, if it is presumed that on gaining information, the petitioners were minors, P.W.-3 (petitioner No.2) while appearing before the learned trial Court disclosed his age to be 50 years, however, it is pertinent to mention here that the said witness has two elder brothers and one elder sister (petitioners Nos.1, 3 and 4), the petitioners were legally obliged to file the suit within 3 years after attaining majority, thus, the suit filed by them is hopelessly time-barred.

9.The record is suggestive of the fact that the father of petitioners, who died 35 years back, had not challenged the said entry in the revenue record during his life time, therefore, the petitioners had no locus standi to question the same. Moreover, no reason much less plausible is reflected in the evidence of the petitioners showing as to why their father did not challenge the inheritance of his mother Mst. Bilqees during his life time.

10.In similar circumstances, the august Supreme Court of Pakistan in the case of "Abdul Haq and others v. Mst. Surraya Begum and others (2002 SCMR 1330)" has held in the following manner:---

"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".

11.Apart from the above, both the courts below after appraisal of entire evidence have recorded concurrent findings, which ordinarily are not open to exception. No illegality or irregularity is shown to have been committed by learned courts below occasioning failure of justice. No misreading or non-reading of evidence has been pointed out justifying interference by this court in its revisional jurisdiction, a limited one.

As a corollary to the above, this petition being meritless is dismissed with no order as to cost.

AG/580/P Petition dismissed.