Mst:Mah Rukh Jan etc vs Mst.Nusrat Bibi etc

2010 C L C 887

[Peshawar]

B ef o re Mazhar Alam Khan Miankhel, J

Mst. MAH RUKH JAN and others----Petitioners

Versus

Mst. NUSRAT BIBI and others----Respondents

Civil Revision No.811 of 2006, decided on 16th March, 2010.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and possession to the extent of 2/3 share of suit property on the basis of respective Kabinnama/Nikahnamas of plaintiffs---Trial Court passed a decree to the extent of 1/3 share in favour of one plaintiff, whereas the claim of other plaintiff was refused by the Trial Court---Defendants having not filed any appeal against the judgment and decree passed by the Trial Court, same had attained finality against them---On filing appeal by one plaintiff, against judgment and decree passed by the Trial Court, Appellate Court accepted the appeal and passed decree to the extent of 1/3 share of said plaintiff---Effect---Entire suit of the plaintiff to the extent of both the plaintiffs stood decreed against the defendants, in circumstances--- Defendants who claimed ownership of suit property to the extent of 1/2 share, had failed to produce or refer any document reflecting their ownership of entire property or any part thereof-- Document referred to by the counsel for the defendants which was not the part and parcel of the original suit and being a private document, could not be relied upon at revisional stage--- Defendants had failed to rebut the claim of the plaintiffs and had also failed to prove their version---Judgments and decrees passed by the two courts below, were maintained in

circumstances.

Haji Muhammad Zahir Shah for Petitioners.

Mazullah Khan Barkandi for Respondents.

Date of hearing: 16th March, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---Through the instant revision petition, the petitioners herein have challenged the judgment: and decree dated 18-3-2006 and prayed for the restoration of judgment and decree dated 9-12-2004 of the learned trial Court in a suit for partition of a house wherein the plaintiffs/respondents have asked for partition of their 2/3 share in the suit house.

2.The learned counsel for the petitioners submitted that the present petitioners were the owners of the suit house to the extent of 1/2 share on the basis of Kabinnama dated 26-7-1942 executed in favour of Mst. Mah Rukh, petitioner No.1, and submitted that the judgment and decree of the appellate Court is against law and material available on the record.

3.On the other, the learned counsel for the respondents submitted that respondents No. 1 along with respondents No.2 being plaintiffs in the case were owners of 2/3 share in the suit house on the basis of Kabinnama/Nikahnamas dated 6-4-1961 and 12-4-1961 and submitted that the findings of the two Courts below are in accordance with law and material available on the record. He further submitted that the document referred to by the learned counsel for the petitioners was neither referred to in the written statement nor was produced in evidence and is not part of the record of the case and being a private document cannot be considered at revisional stage.

4.I have heard the learned counsel for the parties and have perused the record of the case which reveals that the plaintiffs/respondents have filed a suit for declaration and possession to the extent 2/3 share on the basis of their respective Kabinnama/Nikahnamas dated 6-4-1961 and 12- 4-1961. After recording of evidence, the learned trial Court passed a decree to the extent of 1/3 share in favour of plaintiff/respondent No.2 Mst. Sardar Begum whereas the claim of plaintiff/respondent No.1 was refused by the trial Court. The present petitioners did not file any appeal against the judgment and decree passed in favour of plaintiff/respondent No.2 which in other words has attained finality against them. The plaintiff/respondent No.1 feeling herself aggrieved against dismissal of her claim, filed an appeal in the Court of District Judge, Kohat which was then entrusted to Additional District Judge-II, Kohat for its disposal. After hearing the parties, the appellate Court accepted the appeal and also passed decree to the extent of 1/3 share in favour of plaintiff/respondent No.1 and thereby held that the entire suit of the plaintiffs to the extent of their claim stands decreed against the defendant/petitioners.

5.The evidence and material available on the record clearly proves the factum of ownership of the suit house to the extent 2/3 share in the name of plaintiffs/respondents which were given at the time of their marriage as per their respective deeds of Kabinnama. The petitioners herein, while filing written statement have totally denied the claim of plaintiff/respondent but they failed to produce or to refer to any document reflecting their ownership of the entire house or any part thereof. If the evidence produced by the defendants/petitioners : is seen, there is a solitary statement of one Shahid Mahmood who is attorney of petitioners who also failed to refer or produce any document reflecting the ownership of petitioners.

6.The reference and reliance on a document and that too not a public document at revisional stage, reference of which has never been made by the petitioners either in their written statement or in their evidence, instead they denied the claim of plaintiff/respondent and claimed the ownership of the entire house but without any documentary support. Such a private document not claiming from proper custody and not forming part of public record cannot be considered at revisional stage and that too when no such request for placing on record or consideration of the same or seeking permission of additional evidence or secondary evidence was made.

7.So, in the circumstances, a document referred to by the learned counsel for the petitioner which is not the part and parcel of the original suit and being a private document cannot be relied upon a revisional stage. The petitioners herein have bitterly failed to rebut the claim of the respondents and at the same time have also failed to prove their version. Thus, having no force in the present revisional petition, the same is hereby dismissed and the judgment and decrees passed by the two Courts are hereby maintained.

H.B.T./84/P Petition dismissed.