' The petitioners filed a suit for declaration to the effect that they were the rightful owners of the suit property which belonged to their predecessor-in-interest namely Nauroze who died on 17-6-1957.
Upon his death the said Nauroze was survived by Mst. Zardan Begum. Mst. Fazal Begum (daughters) and two widows namely Mst. Anwar Jan and Mst. Fatima Begum. It was contended that the alleged claim of respondent No,1 in respect of 1/3rd of the estate of Nauroze on the basis of an alleged Will was false and frivolous and that any such document was a forgery and fabrication.
2. The suit was contested by respondents Nos.1 and 2 who filed a joint written statement. It was specifically pleaded that Nauroze deceased had made the Will in favour of respondent No,1 in respect of the permissible 1/3rd share in his estate and that this was also given effect to in the mutation of inheritance. Respondent No,3 Mst. Anwar Jan conceded the claim of the petitioners/plaintiffs.
3. From the pleadings of the parties, the learned trial Court framed the following issues:-- Issues
(1) Whether the plaintiffs have no cause of action?
(2) Whether the plaintiffs have not come in the Court with clean hands?
(3) Whether the plaintiffs are estopped by their words and conduct to bring the present suit?
(4) Whether the suit is not maintainable in its present form?
(5) Whether the suit is time-barred?
(6) Whether the suit is hit under Order 2, rule 2, C.P.C.?
(7) Whether the defendants are entitled to get special costs under section 35-A, C.P.C. If so to what extent?
(8) Whether the disputed deed in favour of defendant No,1 is null and void?
(9) Whether the plaintiffs are entitled for decree of declaration and permanent injunction as prayed for?
(10) Relief.
4. In support of their claim, the petitioners/plaintiffs produced Mst. Zardan Begum as P.W.1 as her own witness and also produced Manzoor Hussain as P.W.2. Copy of Mutation No,1 dated 5-9-1957 was produced as Exh.P.1.
5. In rebuttal, Abdul Majid defendant/respondent appeared as his own witness as D.W.1 and further produced Muhammad Hanif son of Imam Ali as D.W.2. The special power of attorney Exh.D.1 and copy of registered sale-deed Exh.D.2 were produced in documentary evidence.
6. The learned trial Court after appraising the evidence on the record sought to decide issue No,8 as the main issue and it was held thereunder that the plaintiffs/petitioners had failed to prove that the Will was forged or fabricated and the plaintiffs had failed to discharge the onus of this issue. It was consequently, held that under issue No,9, the plaintiffs were not entitled to the relief as claimed. Finding issues Nos.3 and 5 also in favour of the contesting defendants, the suit was dismissed vide judgment and decree, dated 15-1-1996.
7. The petitioners preferred an appeal. The learned Appellate Court reappraised the evidence and upheld the decision of the learned trial Court upon all material issues. As a result vide judgment and decree dated 19-2-2000, the appeal was dismissed and the petitioners were further burdened with a cost of Rs,5,000.
8. The learned counsel for the petitioners has assailed the aforesaid concurrent findings of fact mainly on the ground that the petitioners and respondent No,3 were undisputedly the legal representatives of Nauroze deceased. They were entitled to their Muslim Law Share in the property in question. It is contended that any person who claims a title on the basis of transfer of ownership from the original owner is to prove the same through positive evidence. It is submitted that the learned trial Court had framed issue No,8 against the pleadings of the parties and erred in placing the onus upon the petitioners to prove that the alleged Will was null and void. The learned counsel for the petitioners urged that such a title against the interest of the legal heirs of the deceased must be proved by positive evidence which the contesting respondent failed to adduce. According to him, the wrong framing of the issue led to an erroneous presumption and thus, caused miscarriage of justice. It is further submitted that no question of limitation arose in the present case as admittedly the petitioners were the legal heirs of Naruoze and were also co-sharers in the suit property along with the alleged claimants under the Will He submits that the findings of the learned lower Courts that the suit was time-barred is erroneous.
9. On the other hand, the learned counsel for the respondents has submitted that the petitioners have miserably failed to challenge the validity of the Will and that the attestation of the mutation was sufficient evidence along with the statements of D.W.1 and D.W.2 to establish the Will in favour of contesting respondents. It is further submitted that thee, issues were framed correctly and that no objection to the form or substance of any issue was raised by the petitioners before the learned trial Court. It is submitted that the suit was barred by time as longstanding revenue entries could not be disturbed by filing such a belated suit. It is finally urged that the concurrent finding of fact are sacrosanct in the absence of any plausible challenge to the same.
10. Arguments have been heard and record perused.
11. It is admitted on the record that the land originally belonged to Nauroze. It is also not denied that upon his ,death, the petitioners and respondent No,3 succeeded Nauroze as his legal heirs in accordance with their Muslim Law share. Any challenge, wholly or in part to such devolution of interest through inheritance which is made by a third party on the basis of an alleged document on the title must be specifically proved. There is force in the submission of the learned counsel for the petitioners that issue No,8 as framed was not proper and that it has resulted in miscarriage of justice. Obviously, whenever a party claims A title as against the inherited share of the L.Rs, of a propositus, he should substantiate the claim through positive evidence. No party can be obliged to prove the negative.
12. It is pertinent to mention that the petitioners moved an application during the pendency of the appeal seeking permission of the Court to serve notice upon Tehsildar Gujjarkhan to produced the Will Deed in the Court. This application was rejected on the ground that as the said Will was not proved to be in the possession of Tehsildar, an order cannot be issued to the Tehsildar to produce the same. The petitioners preferred a Civil Revision No,561 of 1998 against the said refusal. This civil revision was also dismissed by this Court on 18-12-1998.
12-A. The question that has arisen is as to what prejudice shall be caused to the case of the petitioners by the rejection of this application. It is observed that the endeavor of the petitioners was to have the disputed Will produced in the Court. That the said document was not allowed to be produced shall not visit the petitioners with any adverse presumption. The primary responsibility was that of the contesting respondents to have proved the execution of the Will through positive evidence. The failure of the contesting respondents to have produced the Will in Court cannot advance the case of the contesting respondents.
13. The mere fact that the mutation was attested would not ipso facto prove the execution of the Will. It is nobody's case that the Will was pronounced orally by Nauroze in the presence of any witnesses or before the Tehsildar. The Will was allegedly presented before the Tehsildar after the death of said Nauroze. In these circumstances, the ton-production of the Will is fatal to the case of respondents Nos.1 and 2.
14. The evidence on the record has been examined. Both Mst. Zardan and Manzoor Hussain (P.W.1 and P.W.2) have categorically denied that Naruoze has made any Will in respect of the suit property. In support of the Will, Abdul Majid appeared as his own witness as D.W.1 but did not support the said document through any other witness. D.W.2 Muhammad Hanif deposed that Nauroze had executed a Will on an ordinary piece of paper in favour of respondent No,1 and that it was after his death that the mutation was attested according to the said Will. These statements without any other corroborative evidence are not sufficient to prove the execution of the Will. The Tehsildar or any other Revenue official was not produced in evidence.
15.
15. The upshot of the above discussion is that undoubtedly miscarriage of justice had occurred on account of wrong framing of the issues but having said that, we are alive to the fact that both the parties were conscious of the controversy in the suit and had led their respective evidence in support of their contentions. No useful purpose shall be served to remand the case as both the parties had full opportunity of producing their complete evidence regarding the controversy. While the claim of the petitioners as legal heirs of Nauroze has been admitted, respondent No,1 has failed to establish the execution of the Will in his favour. Respondent No,1 also does not deny the status of the petitioners at least as co-sharers in the suit-land, thus, the bar of limitation shall not apply to the petitioners.
16. Resultantly, this civil revision is allowed, the impugned judgments and decrees of both the learned lower Courts are set aside. As the status of the petitioners as legal heirs of Nauroze is undisputed and the Will in favour of respondent No,1 is not established, there is no impediment to the claim of the petitioners and other L.Rs, of the deceased Nauroze. The suit of the petitioners is thus, decreed in their favour. The parties to bear their own costs.
Revision alldwed.