2017 M L D 1941
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
SAEED AHMED and another ---Appellants
Versus
Mst. ANWAR SULTANA and 4 others ---Respondents
R.F.A. No.137 of 2010, decided on 30th May, 2017.
Specific Relief Act (I of 1877) ---
----Ss. 42, 39 & 54 ---Suit for declaration, cancellation of mutation entries and permanent
injunction---Plaintiffs claimed their shares being widow and son of deceased who contracted
three marriages ---Properties left by the predecessor were incorp orated in revenue record as
gifted to the defendants by the predecessor ---Proportionate share of each legal heir ---Scope---
Plaintiffs/appellants contended that as per Sharia, they were equally entitled to the legacy of deceased who had never gifted propert y to the defendants rather defendants managed to
transfer revenue record in their favour when the predecessor was paralysed ---
Respondents/defendants contended that the predecessor willingly gifted the properties in their favour in his lifetime ---Validity ---Parties did not dispute the immovable property left behind
their late predecessor, but however being the legal heirs the appellants/plaintiffs claimed their proportionate shares from the property in question while the respondents/defendants denied their c laim with the assertion that the said property was gifted to them by their predecessor
during his lifetime ---Appellants/plaintiffs, to substantiate their case, produced six witnesses
and also recorded statements of their attorneys but none of the witnesses produced and
exhibited any relevant document with regard to the property except a witness who exhibited a fatwa bearing the share of distribution of each legal heir and another witness who produced and exhibited copy of domicile of late predecessor contai ning the names of the parties and yet
another witness produced and exhibited copy of FIR which was lodged by predecessor against his son/plaintiff ---Perusal of all such evidence did not disclose any relevancy with the
property in question even none of the witnesses mentioned a single word with regard to the description and title of disputed property, meaning that evidence produced by the plaintiffs was hearsay ---Respondents/defendants produced three witnesses in rebuttal and also recorded
the statements of their attorneys ---One witness stated to have witnessed the exhibited
document which was inteqal executed by the predecessor in the presence of said witness and he also witnessed the entries and signatures made by the predecessor in the name of legal heirs/ defendants ---Other inteqal in favour of defendants was produced by representative of
Tehsildar concerned as defendant witness, and the said document also had the signature and thumb impression of the predecessor in presence of witness who identified the donees ---
Property in view of said documents though was transferred in the name of respondents, but during the cross -examination the witnesses of defendants showed their ignorance regarding
the rest of legal heirs of the predecessor and also admitted in cross -examination every legal
heir having its legal share in the legacy of the predecessor ---Relationship between the parties
and existence of property left behind by the predecessor of the parties as legacy was not disputed and it was admitted fact of law that each legal heir would be entitled for
proportionate share from the legacy of his/her predecessor, irrespective of the fact that the
same was gifted without the consent of other legal heirs, whereas appellants/plaintiffs disputed the gift executed in the n ame of respondents in a doubtful manner, even no separate
gift deed was executed and registered to prove the genuineness of gift effected by the donor --
-Appellants, on the other hand contended that their predecessor suffered from chronic disease
of diabete s since long and became paralyzed in the year 2006 and was unable to exercise
writing, signing and putting thumb impression on any document or capable for movement to visit revenue office; which strengthened the version of appellants that except one defendant witness no other independent witness of identification of the parties to the revenue record was produced---Even otherwise, on comparison of both documents (Inteqal), the thumb impression of the donor significantly differed, while one Inteqal bearing si gnature and thumb
impression of the predecessor without his CNIC number whereas, other Inteqal bearing only thumb impression and CNIC number of the predecessor, but there was no signature on the same--- Attorney of the respondents had stated that when the predecessor died none of his
legal heirs gathered to participate in his funeral ---Prima facie, it appeared that the respondents
had illegally and unlawfully transferred the property in their names with connivance of revenue authorities, as such the legacy l eft behind the predecessor as stated in the plaint was
yet to be partitioned amongst his legal heirs as per their proportionate shares in accordance with Sharia ---Impugned judgment and decree passed by the Trial Court suffered from
material illegalities an d irregularities, which was not sustainable and was set aside ---
Appellants were entitled to receive their shares and possession of the property in accordance with Sharia ---Revenue authorities were directed by the High Court to enter the names of the
appell ants in the revenue record as per their shares ---Appeal was accepted accordingly.
Muhammad Akram Shah for Appellant.
Mian Badar Munir for Respondents.
Date of hearing: 25th April, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of R.F.A. N o.137 of 2010
filed by the appellants, against the judgment and decree dated 30th June 2010 (hereinafter referred as "the impugned judgment and decree") passed by learned Senior Civil Judge -III
Quetta (hereinafter referred as, "the trial Court"), whereby t he suit filed by the appellants was
dismissed.
2. Facts of the case are that the appellants -plaintiffs filed a suit for declaration,
cancellation of mutation entries, possession and permanent injunction against the respondents -defendants before the learned trial Court with the averments that the parties in
the suit are the legal heirs of late Dr. Muhammad Abu Amar, who died on 28th August 2008 at Karachi. The late predecessor of the parties had contracted three marriages, the details of wives and children a re given below: --
First Wife Anwar
Sultana 1. Abu Asar (son) 2. Anjuman Ara (daughter) 3. Alla
Bano (daughter) 4. Shazia (daughter)
Second Wife
Sultana Malik 1. Saeed Ahmed (son)
Third Wife 1. Muhammad Abdu Tahir (son) 2. Sabhia Sahar
Hameeda Akhtar
(late) (daughter) 3. Aneeta Anam (daughter)
It is averred in the plaint that the third wife namely Hameeda Akhtar was died on 7th
November 2005 leaving behind above mentioned named heirs, whereas, the plaintiff No.2
being second wife and defendant No.2 being first wife are still alive, residing with their sons and daughters. The late predecessor left behind the following moveable and immoveable properties:
1. House situated at Satellite Town Block No.3 Kalat Road, Quetta bearing No.661- Y
Block No.3 having Khasra No.2313/2288- 2346/2228- 69 Mohal Khushkaba Kasi
mouza Shaldara, Quetta measuring 15 -2/3 poles with reference to mutation No.1683.
2. A house situated at Tareen road Gawalmandi Quetta, 3- qitas measuring 5620 sq. ft.
Khewat/Khatooni No.61/259 Mohal mouza ward No.55 Tappa Urban -4 Tehsil and
District Quetta.
3. Vehicle Toyota Corolla Model, 1986 bearing registration No.AA -6458 white
colour registered in the name of Dr. Muhammad Abu Amar.
4. Pensionary benefi ts detail whereof at present are not known, however, the same can
be ascertained from the concerned office of Health Department.
It is further averred in the plaint that the late predecessor of parties was serving in the
Health Department as DHO and after his death he left behind the pension, gratuity fund and
GP Fund; that being a chronic diabetic patient the late predecessor was paralyzed and remained on bed; that after the death of their predecessor, the defendants had assured the plaintiffs that the as sets left behind would be equally distributed; that the appellants plaintiffs
are residing in Lahore, but the fact remains is that they after the death of predecessor remained in contact with the respondents and recently the appellants reached Quetta and demanded the physical partition of the moveable and immovable properties of the late predecessor from defendants, who initially lingered on the matter on different tactics, but now they refused to do the needful on the grounds that the late predecessor in i nterest of the
parties in his life time gifted the properties to the respondents/defendants by recording the revenue entries in their favour, whereas despite several approaches the defendants have failed to rectify the wrong. Hence, the instant plaint was plaint (sic).
3. The defendants contested the suit on legal as well as on factual grounds by filing their
written statement, whereby certain legal objections were raised on maintainability of the suit, out of pleadings of parties the learned trial Court fr amed the issues and thereafter the
appellants produced six witnesses and also recorded statement of their attorney Muhammad Farooq, while in rebuttal the defendants -respondents produced three witnesses, besides
recorded statement of their attorney. On conc lusion of trial, the learned trial Court dismissed
the suit; vide impugned judgment and decree, as stated above whereafter instant appeal has been filed.
4. Learned counsel inter alia contended that the impugned judgment and decree passed
by the learned tr ial Court is suffering from misreading and non- reading of evidence; that the
learned trial Court has wrongly and without adopting relevant provisions of specific law has
dismissed the suit of appellants without considering the version of appellants. The le arned
trial Court while dismissing the suit totally ignored the material and important aspects of the
suit in hand specifically when the appellant/plaintiff No.1 is the son and plaintiff No.2 is the widow and both are legal heirs of late Dr. Muhammad Abu A mar and they are equally
entitled for their due shares in the legacy left by late Dr. Muhammad Abu Amar; that the late predecessor has never gifted the property referred in the plaint of the appellants and the respondents have managed to transfer revenue r ecord in their name with connivance of the
revenue authorities; that during the course of transfer of revenue record the late predecessor of the appellants was on bed and suffering from chronic diabetic disease and was paralyzed for moment and could not be able to proceed to the revenue office even otherwise he had lost
his senses; that false, frivolous and bogus signature and thumb impression of the late predecessor of appellants was imposed on the revenue record; that as per sharia law the appellants are entitled for their due shares in the left over property of the late Dr. Muhammad Abu Amar; that the learned trial Court has not observed the mandatory requirements of Order XX, Rule 5, C.P.C., neither decided each and every issue independently in the light of
evidence and material available on record, nor by discussing the relevant provisions of law and dismissed the suit of appellants in an arbitrary manner, which resulted grave miscarriage of justice.
5. Conversely, the learned counsel for the respondents vehemently opposed the
arguments so advanced by the learned counsel for the appellants and contended that the appellants have been failed to prove their case through oral as well as documentary evidence; that the property in question was gifted by their l ate predecessor to the respondents in his life
time; that the late predecessor of the respondents by his own in presence of witnesses appeared before the revenue authorities gifted the same and signed the revenue record and
imposed his thumb impression on the record, which further strengthens the case of respondents; that after proper transfer of revenue record the possession of disputed property was handed over to the respondents, as such the property delivered to the donees; that the learned trial Court after proper appreciation of evidence has rightly dismissed the suit of the appellants.
6. Heard the learned counsel for the parties with their able assistance and perused the
record, the record reveals that the predecessor of parties late Dr. Muhammad Abu Amar, left behind two immovable properties and one vehicle Toyota Corolla, model 1986, description whereof already given above. The parties did not dispute the immovable property left behind their late predecessor, but however, being the legal heirs the ap pellants/plaintiffs claimed
their proportionate shares from the property in question while the respondents denied their claim with the assertion that the said property was gifted to them by their predecessor at his life time. To substantiate their case the appellants produced 6 PWs and also recorded
statements of their attorneys. It is important to mention here that none of the PWs. produced and exhibited any relevant document with regard to the property except PW. 2 Mufti Gul Hassan exhibited a fatwa beari ng the share of distribution of each legal heir and PW. 4 who
produced and exhibited Exh.P/5- A that is copy of domicile of late Dr. Muhammad Abu Amar
containing the names of parties and PW.6 Muhammad Rafiq produced and exhibited copy of FIR dated 24.8.2000, which was lodged by late Dr. Muhammad Abu Amar against his son i.e. appellant No.1 under section 337 ADF. Perusal of all such evidence did not disclose any relevancy with the property in question even none of the PWs. mentioned a single word with regard to the description and title of disputed property. The overall crux of the evidence
produced by the appellants are hearsay.
7. In rebuttal, the respondents produced 3 DWs. and also recorded the statements of their
attorney. DW.1 Muhammad Ashraf Suleri, he also witnessed the Exh.D/1 that is inteqal No.
2578, which was executed on 19.4.2007, as per the DW, the late Dr. Muhammad Abu Amar taken him to the revenue office and got mutated the revenue entries in presence of revenue authorities and he was also witne ss of the entries and signatures made by the late Dr.
Muhammad Abu Amar in the name of his legal heirs namely Muhammad Abu Tahir, Sabia Sahar and Aneetha Anam, while the inteqa1 No. 252 was produced by DW.2 Asmatullah representative of Tehsildar City, Quet ta, which was transferred in the name of Anwar
Sultana, Abu Asar, Anjum Aara, Ameer Bano and Shazia, legal heirs of late Dr. Muhammad Abu Amar on 17.8.2008 and the said document also bearing the signature and thumb impression of late Dr. Muhammad Abu Amar in presence of Farooq Babar who identified the donees.
8. Though, as per aforesaid documents the property was transferred in the name of
respondents, but during the cross -examination the DWs. Shown their ignorance regarding the
rest of legal heirs of the late Dr.Muhammad Abu Amar and also admitted in cross -
examination that every legal heir (Child) having its legal share in the legacy of his father. Be that as it may, since the relationship between the parties and existence of property left behind
the p redecessor of the parties as legacy was also not disputed and it is admitted fact of law
that each legal heir would be entitled for proportionate share from the legacy of his/her
predecessor, immaterial of the fact that the same was gifted without the cons ent of other legal
heirs, whereas appellants/plaintiffs disputed the so called gift executed in the name of respondents in a doubtful manner, even no separate gift deed was executed and registered to ascertain genuineness of gift in fact was effected by th e donor on the other hand, it is the case
of appellants that their predecessor was suffering from chronic disease of diabetes since long
and became paralyzed in the year 2006 and was unable to exercise writing, signing and putting thumb impression on any document or capable for movement to visit revenue office; it further strengthens the version of appellants that excepts DW.1 no other independent witness of identification of the parties to the revenue record was produced otherwise, on comparison of both documents (Inteqal) the thumb impression of the donor significantly on both documents differ each other while Inteqal No. 2578 bearing signature and thumb impression of late Dr. Muhammad Abu Amar without his CNIC Number whereas, Inteqal No. 252 bearing only thumb impression and CNIC Number of late Dr. Muhammad Abu Amar, but there is no signature on it. It is further worth to mention here that, as per attorney of the respondents Dr. Muhammad Abu Amar was died on 28.8.2008, but it is very surprising and un- natural that none of his legal heirs gathered to participate in his funeral.
9. In view of above discussion, prima facie it appears that the respondents have illegally
and unlawfully transferred the property in their names with connivance of revenue authoritie s
as such the legacy left behind the late Dr. Muhammad Abu Amar as stated in the plaint is yet to be partitioned among his legal heirs as per their proportionate shares in accordance with sharia law.
In our opinion, the impugned judgment and decree passed by learned trial court
suffers from material illegalities and irregularities, which is not sustainable is hereby set aside. In the circumstances, the appeal filed by the appeals is accepted and appellants are entitled to receive their shares and possessio n of the property in accordance with sharia law.
The revenue authorities are directed to enter the names of the appellants in the revenue record as per their shares. Parties are directed to bear their own cost. Decree sheet be drawn.
MQ/84/Bal App eal 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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