PLJ 2018 Quetta 30 (DB)
Present: MUHAMMAD EJAZ SWATI AND ABDULLAH BALOCH , JJ.
SAEED AHMAD and another --Appellants
versus
Mst. ANWAR SULTANA and others --Respondents
R.F.A. No. 137 of 2010, decided on 30.5.2017.
Specific Relief Act, 1877 (I of 1877) --
----S. 42--Suit for declaration --Legal heirs --Dismissed --Challenge to --Each legal heir would
be entitled for proportionate share from legacy of his/her predecessor, immaterial of fact that
same was gifted without consent of other legal heirs --R.F.A . was accepted.
[P. 35] A
Mr. Muhammad Akram Shah, Advocate for Appellants.
Mian Badar Munir , Advocate for Respondents.
Date of hearing: 25.4.2017. J
UDGMENT
Abdullah Baloch, J. --This judgment disposes of R.F.A. No. 137 of 2010 filed by the
appellants, against the judgment & decree dated 30th June 2010 (hereinafter referred as “the
impugned judgment & decree”) passed by learned Senior Civil Judge -III Quetta (hereinafter
referred as, “the trial Court”), whereby the suit filed by the appellants was dismiss ed.
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 p arties 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 are given below:
First wife
Anwar Sultana 1. Abu Asar(son)
2. Anjuman Ara (daughter)
3. Alia Bano (daughter)
4. Shazia (daughter)
Second wife
Sultana Malik 1. Saeed Ahmed (son)
Third wife
Hameeda Akhtar (Late) 1. Muhammad Abu Tahir (son)
2. Sabhia Sahar (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 Ta ppa 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 benefits detail whereof at present are not known, however, the same c an
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 assets 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 gounds that the late predecessor in interest 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.
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 framed the issues and thereafter the appellants produced six witnesses a nd also recorded statement of their attorney Muhammad
Farooq, while in rebuttal the defendants -respondents produced three witnesses, besides
recorded statement of their attorney. On conclusion of trial, the learned trial Court dismissed the suit; vide impu gned judgment & 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 trial Court is suffering from misreading and non- reading of evidence; tha t 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 learned trial Court while dismissing the suit totally ignored the materia l 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 Amar 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 record 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 was 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 D r. Muhammad
Abu Amar; that the learned trial Court has not observed the mandatory requirements of Order XX Rule 5, CPC, neither decided each and every issue independently in the light of evidence and material available on record, nor by discussing the rele vant 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 late predecessor to the respondents in his life time; that the late prede cessor 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 afte r
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 t he 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 Corol la, 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 appellants/plaintiffs claimed their proportionate shares from the propert y 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 attorn eys. 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 bearing 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 u/S. 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 evide nce 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 of 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 witness 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 inteqal No. 252 was produced by DW.2 Asmatullah representative of Tehsildar City, Quetta, which was trasferred in the name of Anwar Sultana, Abu Asar, Anjum Aara, Am eer 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 afore said 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 predecessor 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 consent of other legal heirs, whereas appellants/plaintiffs disputed the so called gi ft executed in the name of
respondents in a doubtful’ manner, even no separate gift -deed was executed and registered to
ascertain genuineness of gift infact was effected by the donor on the other hand, it is the case of appellants that their predecessor wa s 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 moment 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 even 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 n o 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 authorities 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 appellants is accepted and appellants are entitled to receive their shares and possession 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.
(W.I.B.) R.F.A. AcceptedThis 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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