' This judgment will dispose of Civil Revisions Nos. 358/D of 1992, 819/D of 1992 and 943/D of 1992 as all these petitions are directed against the judgment and decree, dated 3-2-1992 of the learned Additional District Judge, Bhakkar and arise out of the suit filed by Malik Allah Diwaya petitioner in Civil Revision No. 358/D of 1992.
2. On 4-4-1983, Malik Allah Diwaya filed a suit for declaration claiming that as a legal heir of one Malanga he was entitled to the disputed land measuring 215 Kanals, 7 Marlas and Mutations of Inheritance Nos.5., 6 and 7 attested on 6-6-1995 were fictitious collusive, illegal and were in operative qua the rights of the plaintiff. Not only cancellation of the aforesaid mutations were sought but possession of the disputed land was also claimed in the alternative according to the prayer paragraph of the plaint.
3. To appreciate the controversy a pedigree-table drawn on the basis of the evidence produced on the record is given below..
Malanga ___________________________|__________________________NusratSarangNaurangHaibiatKhan (died issueless)(dies issueless)BakhshaBahadar __________________________ SohanraBhaktawarGhulama___________________MuhammadHajiGaman________| Aflah Wasai |Sher Mohd. Alias Sheran___________|KhanaJana(D. Issueless)
4. The case. Set up in the plaint was that during the settlement of 1878 Bakhsha and Bahadar were shown as dead and untraceable {{URDU TEXT}} The estate of Malanga was mutated in favour of Ghulama, Bakhtawar and Sohanra the three sons of Nusrat. These entries were repeated in the second settlement. However, vide Mutation No.5 estates held by Ghulama, vide Mutation No.6 the estate of Sohanra and vide Mutation No.7 the estate of ,Bakhtawar, the three sons of Nusrat, were transferred in favour of Gaman: Haji and Muhammad the three sons of Bahadar. It was averred that plaintiff was the only legal heir of Malanga, none-else except the plaintiff was alive and, therefore, he was entitled to the entire estate of Malanga. It was further averred that Gaman, Haji and Muhammad were not the sons of Bahadar, they were the sons of one Nauran alias Khan, the defendants in the suit i.e. The successors-in-interest of Sheran have been paying share of produce to the plaintiff and about two years back he came to know of the impugned fictitious and collusive mutations. It was further averred that he moved the Revenue Authorities for correction of these mutations which were declined.
5. Malka, the petitioner in Civil Revision No.358/D of 1992, had through Mutation No.822 attested on 29-5-1946 (Exh.D.21) purchased land from Sheran son of Haji and yid( Mutation No.821 attested on 28-5-1946 (Exh.D.22) had purchased land from Jana son of Gaman. He was not party to the suit. On his application, he was impleaded as a codefendant. Defendants Nos.1 to 10 in the suit, the successors-in-interest of Sheran and Malka filed separate written statements. A number of preliminary objections were taken and the mutations were defended. Plaintiff's relationship with Sohanra was also denied. In the written statement filed by Malka, apart from a number of preliminary objections it was averred that the predecessor of * the plaintiff had earlier filed a suit which was dismissed. It was also asserted that out of the property purchased by him from Jana and Sheran he had made alienations in favour of the Messrs Muhammad Shafi, Muhammad Sadiq, Hakam and Abdur Rahim who had not been impleaded to the suit.
6. Necessary issues were framed and suit was tried. The learned trial Court found that the suit was within time, the plaintiff was the descendant of Sohanra and entitled to inherit. Accordingly, the suit filed by the plaintiff was decreed vide judgment, dated 10-6-1989. The learned trial Court noted the evidence produced in the case but did not examine it. Against the said judgment and decree, two appeals were tiled. One by Malka, the petitioner in Civil Revision No. 358-D of 1992 and other by Allah Wasai etc. The petitioners in C.R. No.943-D of 1992. The findings of the learned trial Court on Issues Nos.7 and 8 were modified by the learned first Appellate Court and it was held that Allah Diwaya, the plaintiff, was entitled to the entire share of Sohanra, subject-matter of Mutation No.6, and, he along with Gama, Haji and Muhammad sons of Bahadar was entitled to the estates of Ghulama and Bakhtawar. Accordingly, the three appeals were partly accepted vide judgment and decree, dated 3-2-1992. The view formed by the learned first Appellate Court was based on Exh. P1, Exh.P3, Exh.P9, Exh.P.12 and the proceedings of the Revenue Officer (Exh.P.13 to Exh. P.24) out of these Exh.P.13 to Exh.P.15, Exh.P.17, Exh.P.20, Exh.P.22 and Exh.P.24 are the first page of the application for review of Mutation No.5. These three revision petitions are directed against the aforesaid judgment and decree.
7. The learned counsel for the petitioners in Civil Revision No. 358/D of 1992 contends that the learned two Courts have misread the evidence as to the. Relationship of Allah Diwaya plaintiff with Sohanra. It is contended that for no reason Allah Diwaya appeared in the witness box and instead his attorney was examined, the oral evidence as to relationship was of no worth at all because the witnesses did not have special means of knowledge. According to him a number of documents which will be referred to in due course, in the judgment were wrongly relied upon.
He particularly referred to the pedigree-table D.8 prepared at the time of the settlement of the year, 1923 in which Sohanra was shown as issueless. He next contends that Exh.P.1, Exh.P.9 and Exh.P.12 did not establish that Allah Diwaya was the great grand son of Sohanra because the entries therein as to the identity of the plaintiff were not corroborated by any reliable evidence. It was also vehemently contended that the suit was based on a false averment that the defendants in the suit have been paying share of produce to the plaintiff. A number of documents were referred to including the application made by Allah Diwaya for review of the aforesaid mutations. It was also vehemently contended that the suit was barred by time.
8. The learned counsel for the petitioner in C.R. No. 358/D of 1992 maintains that he had purchased this property on 29-5-1946 out of which he had sold it to a number of persons whose names were mentioned in the written statement. A further grievance was that while disposing of his appeal nothing was said by the learned Additional District Judge as to the rights of Malka in the property.
9. Mr. Sher Nawaz Shah, Advocate learned counsel for petitioner in Civil Revision No. 943/D of 1992 contends that although in the plaint a plea of fraud was raised but it was not proved. He also pressed the ground of limitation.
According to him, the limitation to challenge the mutation was six years under Article 120 and undisputedly the suit was barred by time. He particularly referred to Exh.P.2, Exh. P.5 to Exh.P.7, produced by the plaintiff in evidence copies of which were obtained on 15-9-1960 and 29-12-1960. He also contended that the plaintiff had failed to ertablish that he was the great grandson of Sohanra.
10. Mr. Muhammad Farooq Qureshi Chishti, Advocate appeared for the plaintiff Allah Diwaya petitioner in C.R.
No.819/D of 1992. He contended that the question of relationship is a question of fact which stands concurrently concluded and, therefore, no interference is called for. According to him, it was established by documentary evidence that the plaintiff was a direct descendant of Sohanra. He particularly relied on Exh.P.8, Exh.P.9, Exh.P.10, Exh.P.11 and Ex.P.12. He attacked the sanction of the three mutations on one single day by wrongly showing Sohanra as issueless and thereby mutating the property of Ghulama, Bakhtawar and Sohanra in favour of the three sons of Bahadar. He further submits that since the parties were co-sharers in the property of Ghulama and Bakhtawar while the plaintiff was the exclusive owner of the estate of Sohanra, the bar of limitation does not apply. He also relied on the reasoning of the learned two Courts that fraud vitiates the most solemn proceedings.
11. I have considered the submissions made by the learned counsel for the parties and have carefully examined the entire oral and documentary evidence produced in the case. On behalf of the plaintiff two witnesses were examined and documents Exh. P.1 to Exh.25 were placed on the record while on behalf of Malka and the legal representatives of Sheran four witnesses were examined and documents Exhs.D.1 to D.29 were placed on the record.
12. The submissions made by the learned counsel for the parties have been considered. The suit was filed about 78 years after the attestation of the three mutations assailed in the suit. Therefore, the evidence produced in the case was required to be carefully examined. The first important question for consideration was whether Allah Diwaya was the great grand son of Malanga whose estate was involved and was entitled to inherit the State of Sohanra and a share in the estates of Ghulama and Bakhtawar the two brothers of Sohanra.
13. On behalf of the plaintiff. Allah Diwaya, plaintiff, Attaullah Khan was examined as P. W.1. He is a resident of village Mudhi, Tehsil Kalachi District D.I. Khan. According to him the plaintiff was residing in the village and was his neighbour. Although he asserted the relationship of Allah Diwaya as claimed in the suit yet in the cross- examination, he stated that he was informed by Hayat that Sohanra was the son of Nusrat and Hayat was the son of Sohanra and Nusrat was the son of Malanga and that:-- {{URDU TEXT}} ' Apart from the fact that he contradicted his testimony in cross-examination, he had no special means of knowledge, Ghulam Hussain, the attorney of the plaintiff, was examined as P.W.2.(in rebuttal). According to him, he has been going to collect the share of produce twice or thrice but in cross-examination he stated that he did not know Jana son of Gama or Sheran son of Haji and that he had no knowledge about the progeny of Bahadar.
The only explanation for non-appearance of the plaintiff, given by this witness, was that he was an old man. This witness too did not have any special means of knowledge. The two D. Ws. Were examined on behalf of the successors-in-interest of Sheran, D.W.1, Gaman, claimed that Sohanra died issuless.
' Both the D.Ws did not have special means of knowledge.
14. As far as documentary evidence is concerned, pedigree-table of the year 196768 of Mouza Mudhi, Tehsil Kalachi, was produced as Exh.P1. It shows one Allah Diwaya as son of Sumandar son of Hayat. There is a note on this pedigree-table that Allah Diwaya had become owner in the estate by way of Mutation of Sale No.2348. Its date was not given. It may also be noted that this pedigree-table does not connect Hayat with Sohanra and in any case mere production of pedigree-table was not sufficient unless the identity of the persons mentioned therein was duly corroborated by satisfactory evidence Exh.P.2 is the pedigree-table of 1878 settlement of Mouza Daggar Rohtas. It shows two sons of Nusrat namely Bakhtawar and Sohanra. It also shows Bahadar, Khana, Haibat, Naurang, Sarang and Ghulama and Jodhi, all sons of Malanga. In the Intikhab produced as Exh.P.3 Ghulama, Bahadar and Sohanra are shown to be in possession in their own right and also on behalf of "Ghair Qabizaan". A _part of the land was shown under mortagage with non-Muslim evacuees. It may be noted that in the Missal-e-Haqiat of second Bandobast (page 93 of the original record), Bahadar, Bakhsha and Bakhtawar, Sohanra and Ghulama are shown in the possession of the land in the village Daggar Olakh. It may be clarified here that Ghulama, Bakhtawar, Bahadar, Sohanra and Bakhsha owned land in two revenue estates i.e. Daggar Olakh and Daggar Rohtas. Exh.P.4 is the Jamanbandi for the year, 1888-1889 of village Daggar Rohtas, Exh.P.5, Exh.P.6 and Exh.P.7 are the three disputed mutations. Exh.P.8 is an extinct from Register of the civil Court showing disposal of the suit titled Chamman Ram v. Hayat son of Haji Sohanra on 3-10-1933. Exh.P.9 is the same document which was produced as Exh.P.1. Exh.P.10 is a Jamanbandi (the year is not given) of village Mudhi, Tehsil Kalachi in which Hayat son of Sohanra has been shown as tenant. Exh.P.11 is the Jamanbandi for the year 1921-1922 of the same revenue estate showing Hayat as tenant. Exh.P.12 is a Mutation of Inheritance No.1687 of Sumandar son of Hayat of village Mudhi Tehsil Kalachi, in favour of Allah Diwaya the date of attestation of this mutation is not forthcoming from the record but it was entered on 27-6-1984 during the pendency of the suit. Exh.P.13 to Exh. P.24 are the first page ( (.; L4) of the application for review of Mutation No.5 and the proceedings taken by the Revenue Officials on the said application. It may also be noted here that in the application moved Allah Diwaya on 18-4- 1981, he had only claimed review of Mutation No.5.
15. As far as the documentary evidence produced by the defendants in the suit is concerned, Exh.D.1 is the Jamabandi for 1923-24 in respect of Daggar Rohtas while Exh.D.2 is the copy of Jamabandi in respect of Daggar Olakh. In both the Jamabandies Gaman, Muhammad and Sheran are recorded as owners. Exh.D.3 is Mutation No.2 in respect of inheritance of Khana. It attested on 15-9-1980. Exh. D.4. Is a Jamabandi for the year, 1937-1938 in which Gaman, Muhammad and Sheran son of Haji are recorded as owners. Exhs.D.5, D.6, D.7 are the Jamabandies for the year, 19411942 and 1945-46 in which the aforesaid three persons are recorded as owners. Exh.D.8 is the pedigree-table of Daggar Rohtas in which Ghulama, Bukhtawar and ,Sohanra have been shown as three sons of Nusrat. Exh.D.9 is the Jamanbandi for the year, 1985-86 in respect of Chak No.183/T.D.A. And the legal heirs of Sheran have been shown to be in possession of the land in lieu of their right to return. Exh.D.10 to Exh.D.18 are the mutations of inheritance in respect of Ghulama, Bakhtawar and Sohanra in Daggar Rohtas and Daggar Olakh.
Exh.D.19 is Jambandi for the year, 1946-47 of village Daggar Rohtas in which Malka, the petitioner in Civil Revision No.358/D of 1992 is recorded as owner of 1/4th share. Exh.D.20 is Khasra Girdawari, Exh.D.21 and Ex.h.D.22 are the mutations of sale respectively from Sheran and Jana in favour of Malka. Exh.D.23, Exh. D.24, Exh.D.25 are Jamabandies for the year, 1985-1986 and 1977-78 of Chak No.185/TDA wherein Malka has been shown to be in possession on the basis of his right to return. Exh.D.27 and Exh.D.28 are the Khasra Girdawaries while Exh.D. 29 is mutation of inheritance in respect of Khana.
16. The oral evidence of the plaintiff is of no worth at all while as far as documentary evidence is concerned except Exh. P.1 (also produced as Exh.P.9) and Exh.P.12 the name of Allah Diwaya plaintiff does not appear in the Revenue Record in respect of both the Revenue estates i.e. Daggar Olakh and Daggar Rohtas. As far as Exh.P.1. And Exh.P.12 are concerned, these could not be accepted as proof of Allah Diwaya being the great grandson of Sohanra son of Nusrat son of Malanga because the identity of Allah Diwaya was not established by any evidence whatsoever. As far as Exh.P.8 and Exh.P.10 are concerned the same principle will apply. Further, these documents do not relate to the two Revenue estates i.e. Daggar Olakh and Daggar Rohtas. The mutation, Exh.P.12, was even entered after the institution of the suit by Allah Diwaya, plaintiff. Reference may be made to Muhammad Naeem and others v.
Ghulam Muhammad and others (1994 SCM R 559) according to which unless the contents of the pedigree-table were proved by examining the evidence, it by itself, could not be accepted as proof of relationship. The rule laid down by the Hon'ble Supreme Court in Muhammad Hussain and others v. Muhammad Khan (1989 SCM R 1026) was affirmed and the same rule was reiterated in Rehman v. Noora Deceased through his LRs. (1996 SCM R 300).
Although the said cases arose out of a pre-emption matter yet the principle enunciated applies to the facts of the present case because the plaintiff was asserting his right to inherit after long delay which was not duly explained.
17. I have also taken notice of the fact that if the plaintiff Allah Diwaya was the great grandson of Sohanra whose estate was involved who was survived by his son Hayat and Hayat had a son namely Samundar, neither the grandfather of the plaintiff nor his father even asserted any right in the estate of Sohanra. The dates of death of Sumander and Hayat are not on the record but the Jamabandi, Exh.P.11 for 1921-22 shows Hayat as tenant in village Mudhi and was, thus, alive. The suit filed by Chamman Ram was decided on 3-10-1'933 (Exh.P.8) which shows that Hayat was alive even on the said date. The mutations which were attested in the year 1905 were successively incorporated in the Jambandis and no reason is forthcoming on the record as to why Sumandar and Hayat did not assert any right in the estate of the three deceased persons. Their silence/inaction on the one hand operates as relinquishment of their right, if any, at all the pedigree being claimed by the plaintiff was correct, while on the other it casts serious doubts about the veracity of the claim of the plaintiff Allah Diwaya. This doubt is further strengthened by the absence of the plaintiff to appear as his own witness although he was alive and the only justification projected by his son-in-law and the attorney (P.W.2) was that he was an old man. And, even P.W.2 was examined in rebuttal. In the matter of inheritance, none-else except the plaintiff could depose as to the claim relationship. Filing of the suit after 78 years by the plaintiff made it all the more necessary for him to appear in the witness box. Thus, in the circumstances, I am inclined to draw an adverse presumption from the nonappearance of the plaintiff in the witness box as his own witness. In this view I am fortified the following observations of the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh and another (AIR 1927 PC 230):-- "Their Lordships disapprove of such reasoning. The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross- examination."
18. The averment in the plaint that the plaintiff has been receiving share of produce is not acceptable because except the word of the attorney and even be claimed that he went to collect the share of produce twice or thrice, there was no other evidence at all on the record. It was in fact a plain misrepresentation. The plaintiff also misrepresented that the plaintiff came to know of the collusive mutations two years preceding the institution of the suit because the certified copies of mutations Exh.P.5, P.6 and P.7 show that these were supplied on 29-12- 1960. I am, therefore, of the view that the suit filed by Allah Diwaya plaintiff was hopelessly barred by time.
23. For what has been stated above, Civil Revision No.819/D of 1992 is dismissed while Civil Revision Nos. 358/D of 1992 and 943/D of 1992 are allowed with costs throughout.
19. The relief of declaration is discretionary and a plaintiff who misrepresents the facts and then abstains to appear in the witness boxes and when a suit is filed with extraordinary delay and laches, is not otherwise entitled to the grant of discretionary relief. Although, I have already found that the plaintiff had not been able to establish that he was the great grand son of Sohanra son of Malanga, whose estate was mutated in favour of the. Three sons of Bahadar in the year, 1905.
20. As far as the proceedings of the Revenue Officer are concerned, neither any presumption of truth was attached to these nor these could be accepted as substantive evidence for the purpose of the suit filed by the plaintiff.
21. The three mutations were assailed as fictitious and collusive. Thus, fraud was alleged but this was no evidence to substantiate the pleas. The learned two Courts wrongly held that it was a case of fraud which vitiates most solemn proceedings.
22. As far as Malka, petitioner is concerned, he purchased part of the land in dispute in 1946 and has been in possession of the land since its purchase. The alienation in favour of Malka was neither challenged although on the. Basis of the two mutations of sale in his favour entries were repeatedly recorded in the Jamabandies. He could not have therefore, been dislocated after 37 years of the transactions of sale in his favour.