2010 C L C 631
[Quetta]
Before Muhammad Noor Meskanzai, J
ABDUL QADIR and another ----Petitioners
Versus
NADEEM JAVED and 4 others ----Respondents
Civil Revision No.54 of 2005, decided on 17th Nov ember, 2009.
(a) Islamic law ---
----Inheritance ---Scope ---On the death of owner, legal heirs became entitled for their due
share under personal law without intervention of the court or authority.
PLD 1990 SC 1 ref.
(b) Specific Relief Act (I of 1 877) ---
----S. 42---Qanun -e-Shahadat (10 of 1984), Ars.117 & 120 ---1'nlieritance ---Specific plea ---
Proof of-Onus to prove ---Defendants denies partition of suit property to plaintiffs on the
ground that they had already paid shares to plaintiffs --Both the courts below concurrently
decreed the suit in favour of plaintiffs ---Validity ---Defendants did not dispute the fact that
property in question was ancestral but resisted the suit on the excuse and pretext that they had
given shares to plaintiffs by making payment to them ---It had become inevitable and essential
upon defendants to have proved factum of settlement and payment of amount in lieu of shares
to other legal heirs of predecessor -in-interest of parties with their free will and consent ---
Judgments ren dered by both the courts below were in accordance with law, as subject -matter
among the parties was distribution of ancestral property, which was inherited by them ---Trial
Court remaining well within four corners of law rightly held that property in disput e be
partitioned among legal heirs of predecessor -in-interest of parties ---There was no
impropriety, irregularity, perversity and illegality in judgments and decrees passed by lower
courts ---High Court declined to interfere with concurrent findings of fact s based on proper
appreciation of evidence by lower forums ---Revision was dismissed in circumstances.
2007 SCMR 635 ref.
Miss Sarwat Hina for Petitioners.
Farrukh Malik for Respondents.
Date of hearing: 28th October, 2009.
JUDGMENT
MUHAMM AD NOOR MESKANZAI, J. --- This revision petition is directed against the
order/decree dated 25th November, 2004 passed by Additional District Judge -V, Quetta,
whereby; appeal filed by petitioners against the judgment/decree dated 2nd December, 2003
passed b y Civil Judge -V, Quetta was disposed of by giving findings in favour of respondents
and Issue No.V1 in respect of relief clause was modified.
2. The facts, in brief of the case are that respondents Nos.1 and 2 filed a suit for declaration,
partition, pos session, permanent injunction and recovery in respect of property bearing
Khasra Nos.378 to 385, Khatoni No.82/86, Khewat No.68, Measuring 5093 sq. fts. situated at
Mohal and Mouza Ward No.34, Tappa Urban Tehsil and District, Quetta, situated at Jamait
Ray Road, Quetta. According to plaint, the property in question is ancestral, which was left
by predecessor in interest of the parties namely Samandar Khan. It was case of the plaintiffs
that Samandar Khan had contracted two marriages, out of first marriage four daughters i.e.
(i) Fatima Bibi (ii) Zainab Bibi (iii) Jan Bibi and (iv) plaintiff No.2 i.e. Marryum Bibi were
conceived, except plaintiff No.2 all the three daughters have died and out of second marriage
two sons and one daughter i.e. defendants Nos.1, 2 and 3 have born. The predecessor in
interest of parties i.e. Samandar Khan died in the year 1962 -63 and after his demise, Wirasat -
e-Inteqal was effected perhaps in the year, 1994. It was further mentioned in the plaint that
plaintiff No.2 out of her sha re gave 565 sq. fts to plaintiff No.1, who is the real son of
plaintiff No.2. According to plaint, the property in question was consisting upon five houses
and two separate rooms and the construction whereof was carried out by late Samandar Khan.
It was al so mentioned that the property in question was given on rents to different persons,
but nonetheless eviction applications were filed with consent of plaintiffs. Plaintiffs were
apprehending that defendants with connivance of official respondents got mutate d the
property illegally and unlawfully. Ultimately they sought following relief: -
a) declare that plaintiff No.2 is the legal heir of late Samandar Khan;
b) declare that plaintiff No.2 is the co -owner of the property in question;
c) declare that the plaintiff No.2 has rightly transferred 565 sq. fts to plaintiff No.1;
d) declare that plaintiff No.1 is the owner of property measuring 565 sq. fts out of 5093
sq. ft;
e) declare that plaintiffs are entitled to receive share of rent amount from the de fendants;
f) declare that the defendants have no lawful authority to mutate the entire property in
their names;
g) restrain permanently the defendants from mutating the property in their names or in
any other's name;
h) restrain permanently the defen dants Nos.1, 2 and 3 from
i) changing the nature of the property in question in any way demolishing,
constructing or its delivery to any other person;
j) restrain permanently the official defendants for its mutation;
k) direct the official defendants to conduct a survey and partition the same as per
shares according to the revenue record;
l) direct the defendants to partition the property in question as per law to deliver
the possession to the plaintiffs;
m) any other relief which this court deems fit and proper in the circumstance of the
case may also be awarded;
n) cost of the proceedings may also be awarded in the interest of justice;
3. While filing written statement, defendants raised various objections regarding
maintainability of the sui t, limitation, valuation and competency of forum as well. It was
stated by defendants that Inteqal No.259 is based on forgery and fraud and is illegal. On
merits it was stated that after the death of Samandar Khan, the entire shares of plaintiff
No.2 and o ther legal heirs of sister of plaintiff No.2 were given to them and after
receiving their shares in the shape of money for the property in question, they have no
concern or connection or any right over the property in question. It was further
mentioned tha t since plaintiffs and other shareholders have been given their share by
making payment to them in cash that is why they have remained silent, however,
Inteqal -e-Wirasat was claimed to be a forged document. Out of pleadings of the parties,
following issues were framed: -
1. Whether suit is time barred and is liable to be dismissed?
2. Whether suit is not maintainable in its present form?
3. Whether suit is liable to be rejected in view of L/O "C"?
4. Whether suit is liable to be dismissed in view of L/O's D, E. G. H and J of W/S?
5. Whether plaintiffs are entitled for relief claimed?
6. Relief?
4. After framing of issues, respondents produced P.W. Mushtaq Ahmed, P.W.2 Abdul
Khaliq, P.W.3 Muhammad Qahir Khan, P.W.4 Hameeda alias Abdul Karim, P.W. 5
Ahmed Khan, who produced the revenue record Ex.P/1 -A and Ex.P/3 -A, P.W.6 Faiz
Muhammad, who produced register No.SQ regarding partition, P.W.7 Abdul Karim,
who is official witness and produced Ex.P/4 -A and thereafter plaintiffs got recorded
their stateme nts through attorney. Respondents examined D.W.1 Riaz Ahmed, D.W.2
Shaukat Ali. D.W.1, who was tenant of the disputed property, whereas; D.W.2 is
representative of Sui Southern Gas Company, who produced Ex. D/ 1 -A, D. W.3 Taj
Muhammad, who stated that he h as come to know that partition has been effected
among the heirs of late Samandar Khan and sisters have been given money against their
share in the year, 1991, D.W.4 Muhammad Ali, who is representative of WAPDA.
According to him, person in possession of pr operty can apply for connection, D.W.5
Muhammad Ramzan, who stated that the property -in-question belong to late Samandar
Khan and after his death there was a settlement among the heirs and the sisters were
given Rs.80,000 each against their shares and this settlement was done in the year,
1982 -83. He further stated that the price is probably. Rs.1000/1500 per sq. ft.
5. Record reveals that a local commissioner was also appointed regarding confirmation
of the fact as to whether some of the properties have been let out to some one as tenant.
After hearing the parties, the learned trial Court vide its judgment and decree dated 31st
October, 2002 decreed the suit by holding that plaintiff No.2 and other sisters are legal
heirs, are entitled to have their share and the property was directed to be
distributed/partitioned in accordance with their legal/sharee shares. Feeling dissatisfied
with the judgment, Appeal being No.7 of 2003 was filed in the Court of District Judge,
which was allowed vide order dated 10th J une, 2003 and the case was remanded to the
trial Court with the following terms: ---
"In the above discussed circumstances, the appeal is accordingly allowed and the
case is remanded to the trial Court with the direction to pass a preliminary decree
in it if considers proper, appoint a commission for the proper partition of the
property and after reaching to a conclusion on the point, decide the case on its
own merits. Under such circumstances, the appeal in hand is disposed of."
6. The trial Court after hearing the arguments vide judgment dated 2nd December, 2003
decreed the suit by holding that the plaintiff No.2 and her sisters or their legal heirs
have due shares in the property in question as their sharhai right and the Revenue
authorities were direc ted to partition the disputed property among the legal heirs of late
Samandar Khan in accordance with Inteqal -e-Wirasat. Being dissatisfied with the
judgment and decree appeal No.30 of 2004 was preferred. The Additional District
Judge -V, Quetta, vide its o rder/decree dated 25th November, 2004 held in such
proceedings at first occasion a preliminary decree is required to be passed, therefore;
she while maintaining judgment, modified the decree, hence this petition.
7. I have heard learned counsel for the p arties. Miss Sarwat Hina, Advocate appearing for
petitioner submitted that the objections raised by petitioners were not adhered to; although
property -subject matter of present proceedings is ancestral, but yet shareholders have been
given their due share by making payment to them. She submitted that the evidence on record
has been misappreciated and misconstructed, therefore; she was of the view, that the
judgments and decrees impugned herein are not sustainable.
8. On the other hand, Mr. harrukh M. Mali k, Advocate appearing for respondents
controverted the arguments vehemently submitted that the plaintiffs/respondents have proved
their case through reliable and confidence inspiring evidence that the property in question is
ancestral one and respondents h ave proved their right, to which they are entitled under the
personal law, therefore; revision is not maintainable.
9. I have considered the arguments so forwarded by both the learned counsel for the parties.
There is no cavil with the fact that the prop erty in question is an ancestral property, therefore;
under the Islamic law on the death of owner, legal heirs became entitled for their due share
under the personal law without intervention of any Court or authority. By holding so, I am
supported by the j udgment of honourable apex court reported in PLD 1990 SC page 1.
10. Petitioners did not dispute the fact that the property in question is ancestral but on the
lame excuse and pretext that they have given the shares of sisters by making payment to
them; in such circumstances this was but inevitable and essential upon defendants/petitioners
to have proved the factum of settlement and payment of amount in lieu of shares to the other
legal heirs of late Samandar Khan with their free will and consent. The per usal of record
shows that petitioners have produced 5 D.Ws., but only two D.Ws. i.e. D.Ws.3 and 5, state
that sisters have been given money against their shares. Statements of both these D.Ws. have
been properly taken into consideration and both the Courts below after due consideration,
keeping in view the principles of Qanun -e-Shahadat, have considered these statements and
have rightly concluded that respondents have failed to prove that the property in question has
been distributed and the respective shar eholders i.e. plaintiffs or the other legal heirs of
deceased, daughters of late Samandar Khan have received their shares and in lieu thereof
money has been paid to them. There is no misreading or non -reading of evidence; hence there
is no occasion for int erference with the concurrent findings of facts rendered by Courts
below. The judgments rendered by both the Courts below are in accordance with law, as
subject -matter among the parties is the c distribution of ancestral property, which is inherited
by the m, so the trial Court remaining well within four corners of law has held that the
property in dispute be partitioned among the legal heirs of late Samandar Khan. By upholding
the impugned judgments and decrees, I am supported by the judgment of honourable apex
Court reported in SCMR 2,007 page 635.
11. In the light of above discussion, there is no impropriety, irregularity, perversity and
illegality in the judgments and decrees passed by lower courts, therefore; I am not inclined to
interfere with concurrent findings of facts based on proper appreciation of evidence by the
lower forums, therefore; finding no merits in the pet ition, same is dismissed with costs
throughout.
M.H./15/Q Revision dismissed.
Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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