2011 C L C 200
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
KHALIQ DAD ---Petitioner
Versus
Bibi SAHIRA and 10 others ---Respondents
Civil Revision Petition No. 51 of 200 6, decided on 9th September, 2010.
Specific Relief Act (I of 1877) ---
----S. 42 --Suit for declaration ---Trial Court dismissed the suit ---Appellate Court set aside the
order of Trial Court and decreed the suit ---Defendant contended that the Appellat e Court
failed to take into account that he was owner in possession since 1941 whereas plaintiffs were
not legal heirs of his deceased brother who died issueless ---Validity ---Oral/hearsay evidence
as to identity of the plaintiffs was not sufficient to esta blish that they were daughters of the
deceased brother of defendant ---No documentary evidence was available on record in
original to establish the identity of sisters of plaintiffs living in India and arrayed as
defendants; photocopy of any such document c ould not serve the purpose ---Nothing was
available on record to prove that the deceased brother of defendant ever got married ---Trial
Court rightly assessed the material while Appellate Court erroneously relied on oral evidence
without evaluating the same ---Property in question was in possession of the defendant till
date---Identity of plaintiffs who were represented by attorney remained doubtful while their
attorney could not produce the power of attorney ---Appellate Court had arrived at a
conclusion which was not supported by material on record ---Impugned judgment of
Appellate Court was set aside while decision of Trial Court was upheld.
Khawaja Tariq Mehmood for Petitioner.
Respondents Nos. 3 to 11 proceeded ex parte.
Date of hearing: 21st M ay, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Instant revision petition has been filed by the
petitioner assailing therein the judgment dated 30 -11-2005 made by District Judge, Pishin,
whereby the judgment dated 30 -6-2004 made by Senior Civi l Judge, Pishin was set aside,
while the suit filed by respondents Nos. 1 and 2 plaintiff was decreed. It is his contention that
the findings of trial court to the extent of issue No.2 is result of misreading and non -reading
of evidence. The appellate cour t without perusing the record arrived to a decision, which is
erroneous. Further, respondents Nos.7, 8 and 9 never appeared before the trial or appellate
court, nor the witnesses appearing from side of .respondents Nos.1 and 2 and even their
attorneys had seen the respondents Nos.7, 8 and 9. Further, the facts that the names of
respondents Nos. 1 and 2 are not included in Iqrar Nama Exh.P/1, presence of his
(petitioner's), signature on the agreement Exh.P/1 despite the fact that he being illiterate only
affixed his thumb -impression, the property in question being not inherited property and he
being recorded owner of the property with possession since 1941 -45, the suit was also time -
barred, were not considered by the appellate court. He has prayed for setting aside of
impugned judgment, while upholding the judgment of trial court with further prayer that
criminal case ordered to be registered against respondents Nos.1 and 2 and their attorney
Shamsullah for commission of fraud and concealment of real facts fro m the court in order to
usurp his property.
Record is perused, while counsel for the parties are heard. As per record a suit was filed by
respondents Nos.1 and 2 through attorney with contention that various properties were owned
by three brothers name ly Qahir, Zahir and Khaliq Dad (present petitioner), as such defendant
No.10/present petitioner has no right to dispose of the joint property without consent of all
share holders. It is further contended that in order to resolve the dispute, the notables o f the
area decided the dispute between the parties, while the property was partitioned and certain
lands were given to respondents Nos.7, 8 and 9. It is their contention that as the entire
property situated in Abadi Deh as well as agricultural property bel ongs to all legal heirs, thus
required to be partitioned. It has been prayed that they (plaintiffs/respondents Nos.1 and 2) be
declared as lawful owners of property bearing khasra No.414 seven pieces situated at Mohal
and Mouza Surkhab, Tappa Band Khushdil Khan, Tehsil and District. Pishin to the extent of
their share, while defendant No.10/petitioner has no authority to sell or alienate the joint
property, the decision made by notables is binding on the parties. Further, prayed for partition
of property an d handing over of the possession by way of appointing Local Commissioner.
In their joint reply defendants Nos.1 to 6/respondents Nos. 3 to 8, while admitting claim of
the plaintiffs/respondents Nos.1 and 2 prayed for decree of the suit. As far as defen dants
Nos.7, 8 and 9 are concerned, they were proceeded against ex parte, as failed to appear after
effecting of service through publication in newspaper. Only defendant No.10/present
petitioner contested the suit on merits as well as on legal grounds. It is his contention that his
brother Qahir died issueless in India since long, as such the plaintiffs/ respondents Nos.1 and
2 and defendants Nos.7 to 9/respondents Nos.9 to 11 are not legal heirs of Qahir, who only in
order to usurp the property had been sh own as such. Rather the property devolved upon him
(petitioner) being his (Qahir) sole legal heir after his death in year 1985. The attorney of the
plaintiffs/ respondents Nos.1 and 2 is only pressurizing him to sell the property at throw away
prices on hi s resistance he (the attorney) has introduced fictitious persons to usurp his
property through illegal means. He being sole legal heir of Qahir as such property falls to his
share. He also denied the decision made by the notables. He prayed for dismissal o f the suit.
It is apparent from record, that the suit was initially dismissed through order dated 26 -9-2002
by Senior Civil Judge, Pishin being not maintainable. The .case was remanded for trial, while
accepting the appeal through order dated 18 -4-2003 by District Judge, Pishin. On' remand
issues were framed on 13 -5-2003, .on completion of evidence from both the sides the suit
was dismissed by the trial Court through judgment dated 30 -6-2004. The appellate court
while accepting the appeal and setting as ide or order of trial Court decreed the suit through
order dated 30 -11-2005. Still feeling aggrieved the petitioner preferred instant petition
seeking revision of appellate order and dismissal of the suit. The respondents claimed
themselves to be co -sharer of land in question along with the petitioner being legal heirs of
Qahir and Zahir the brothers. According to the petitioner as Qahir died issueless, while Zahir
already got separated his share from him in the property, as such he has no right left in the
same, as such after death of Qahir the property devolved upon him being his sole legal heir.
The respondents Nos.1 and 2 and respondents Nos.9, 10 and 11 claimed to be real sons and
daughters of said Qahir and on basis of the same they are claiming their right in respect of
property in question. There is complete denial from the side of petitioner/defendant No.10.
According to him the person, who is appointed as attorney on behalf of respondents Nos.1
and 2/plaintiffs is only trying to his property. It is the plaintiffs/respondents Nos.1 and 2 to
establish their right being real daughters of said Qahir and also to establish that respondents
Nos.9 to 11/defendants Nos.7, 8 and 9 are real sons of Qahir, thus share -holders in the
property left by him. It is ap parent from record that during course of trial both' respondents
Nos.1 and 2/plaintiffs were represented by their attorney namely Shamsullah. Though the
witnesses appeared from side of plaintiffs orally deposed about parentage of respondents
Nos.1 and 2 an d respondents Nos.9, 10 and 11 being daughters and sons of late Qahir. But
none of them have ever seen respondents Nos.9, 10 and 11 in person. As far as respondents
Nos.1 and 2 are concerned, the witnesses though deposed their, presence at Pishin being
residing there without any specification. Though all the plaintiffs witnesses deposed about
marriage of respondents Nos.1 and 2/plaintiffs, whereafter, they are residing at Killi Karbala
Pishin, but all the witnesses differ about the place where marriage was solemnized.
According to them marriage was held at India, while Nikah was performed at' Killi Karbala.
How strange. In same respect P.W.4 Bibi Nasira is the most important witness. She being
daughter of Shireen, allegedly father of respondents Nos. 1 and 2 also.
She admitted that her father solemnized marriage of plaintiffs at Killi Karbala 25 years back.
Thereafter, she again stated that the marriage of plaintiffs/respondents Nos.1 and 2 was held
in India. None of the witnesses attended the ceremony. T his sort of evidence is of less value
to establish their identification. This fact has also come on record that the persons to whom
the respondents: Nos.1 and 2 are married are residing in Killi Karbala, Pishin, while their
attorney disclosed their names a s Subhan Ali and Abdul Latif. But none of these two persons,
the so -called husbands of plaintiffs, ever appeared before the trial Court, nor got recorded
their own statements. They are the best witnesses to confirm the identification of respondents
Nos. 1 and 2, but they are not produced before the court. As far as respondents Nos.9 to 11
are concerned, they never appeared before the court in all these years. It has been noted that
though it has been asserted that all the mentioned three respondents/defenda nts are
permanently residing in India and never visited Pakistan despite the same in title of the plaint
their permanent address is shown as Killi Karbala Tehsil Pishin. At appellate stage same
address was mentioned. Even before this court same address is mentioned in, title of the
petition. The plaintiffs/respondents Nos.1 and 2 tried to deceive the courts. Respondents
Nos.7, 8 and 9 were served through Publication effected in Daily Dawn, Pakistan, whereafter,
they were proceeded ex parte by the trial Cour t, while the notices issued by this court in
instant petition was got received by one Shamsullah as attorney. It is to be noted that said
Shamsullah is the attorney of respondents Nos.1 and 2 and he is conducting the proceedings
from very initial stage. He received the notices issued in names of respondents Nos.9, 10 and
11 posing himself to be their attorney, while no such power of attorney has ever been
produced nor placed on record. They were proceeded against ex parte due to non -appearance
through order dated 4 -8-2006. The conduct of said Shamsullah is highly objectionable and
reflects mala fide. Moreover, no documents are produced by respondents Nos.1 and 2
plaintiffs to, establish that respondents Nos.9 to 11/defendants Nos.7, 8 and 9 existed in
origin al. Placing on record photocopy of extract from passport does not serve the purpose.
There is nothing on record that said Qahir was ever got married and he had five sons and
daughters. The oral evidence that too not specific does, not serve the purpose. Th e mala fide
conduct of the respondents is apparent from the record. The trial Court has rightly assessed
the material and arrived correct decision. As far as appellate court is concerned, the E learned
judge simply relied on oral evidence without evaluatin g the same, thus erred.
As far as agreement (Iqrar Nama) Exh.P/1 is concerned, the same is asserted to be an
agreement arrived between the parties in respect of some dispute existed between the parties.
The respondents Nos.1 and2/plaintiffs tried to es tablish the same as an award given by the
appointed arbitrators. The perusal of Exh.P/1 reveals that it is only to the extent of land
beneath the described house without any measurement. Further, mentioned therein that each
party has given their own share. Contrary to the same it is an admitted position that the
property in question is in possession of the petitioner till present. It is also to be noted that
except, land beneath house no other property was matter in issue between the parties, nor any
settle ment was made in same respect. None of the parties to the suit was party to the
agreement, even respondents Nos. 1 and 2 are not mentioned therein, nor any share was given
to them at relevant time. Name of petitioner also does not, appear in the same. What is the
legal value of this agreement/arbitration award the respondents Nos. 1 and 2/plaintiffs failed
to establish.
In view of above mentioned facts the factual existence of respondents Nos. 1 and 2 and of
respondents Nos. 9 to 11 are highly doubtful. The person namely Shamsullah, who conducted
the proceedings as attorney of respondents Nos.1 and 1 plaintiffs, seems to be behind all this
litigation for his personal gain. The appellate court failed to take note of the above mentioned
situation and facts and arrived to a decision which is not supported by the material present on
record.
In view of above -discussion as the petitioner has established his case, therefore, the revision
petition is hereby accepted with costs throughout i.e. from filing of s uit before trial Court up
to this court. The impugned order dated 30 -11-2005 of District Judge, Pishin is hereby set
aside. The judgment dated 30 -6-2004 of Senior Civil Judge, Pishin is hereby upheld.
Compensatory costs of Rs.25000 is also awarded in favou r of the petitioner against
Shamsullah, attorney of respondents Nos. 1 and 2/plaintiffs.
A.R.K./103/Q Petition accepted.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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