JAWWAD S. KHAWAJA, J.--- This judgment shall decide the present revision petition and C.R. Nos.
1270/2001, 1271/2001 and 1272/2001, These petitions arise from the same common consolidated judgments and decrees whereby the learned Courts below have decided four separate suits.
2. The predecessor of the petitioners was one Jaffar Hussain Shah who was brother of Qalandar Shah. The respondents are the L.Rs. Of Mst. Barkat Bibi widown of the said Qalandar Shah.
3. After the death of Qalandar Shah the agricultural land measuring above was mutated vide mutation' No. 2239 (Ex.P-2) dated 28.12.1990 to the extent of 3/4th in favour of Jaffar Hussain Shah (predecessor of the petitioner) and 1/4th in favour of Mst. Barkat Bibi (widow of Qalandar Shah).
4. Previously proprietary rights to the agricultural land were conferred on Qalandar Shah vide mutation No. 2085 (Ex.P-20) and the residential house was also mutated in his name vide mutation No. 2086 (Ex.P-26).
5. Before proceeding with the discussion of this case it is necessary to set out brief particulars of the four suits out of which the present petitions arise. C.R. No. 1269/2001 arises out of a suit filed by the petitioners for partition and separate possession of the suit property. C.R. No. 1270/2001 arises from a declaratory suit filed by Mst. Barkat Bibi claiming that she is the full and absolute owner of the suit property. C.R. No. 1271/2001 arises from a suit filed by the petitioners seeking permanent injunction to restrain Mst. Barkat Bibi from demolishing the disputed house and from creating encumbrances thereon. C.R. No. 1272/2001 arises out of a declaratory suit filed by the petitioners claiming title to 3/4th share in the disputed property. As noted above, the four suits were consolidated and decided by the learned Trial Court against the plaintiffs/petitioners vide judgment and decree dated 22.11.2000. Appeals filed by the petition,ers were dismissed by means of a consolidated judgment dated 24.4.2001. Hence, these revision petitions.
6. The entire case set up by Mst. Barkat Bibi, in her declaratory suit, was that she was previously married to Muhammad Shah who had died. From her marriage with Muhammad Shah, she had sons and daughters (the respondents in the present petition). She averred that a ration-card was made out in her name as head of the family. However, in paragraph 2 of the plaint she stated that she subsequently married Qalandar Shah who, as head of the family, moved an application for temporary allotment of the land in question. It is important to note that in her suit, Mst. Barkat Bibi did not impugn the conferment of proprietary rights in favour of Qalandar Shah, and nor did she implead the Government functionaries of the concerned Ministry of Jammu & Kashmir as defendants.
7. On the other hand, the case set up by the petitioners was that right from the beginning it was Qalandar Shah who had applied for grant of temporary allotment. The record shows that originally land in Muaza Behlolpur was allotted to Qalandar Shah some time prior to 12.11.1951. On the said date Qalandar Shah filed an application (Ex.P-12) praying that the allotment in his favour in Mauza Behlolpur be cancelled because the land was not readily. Cultivable and alternate allotment be made to him in Mauza Kuri. This application was allowed as per Ex.P-13 and the agricultural land was allotted to Qalandar Shah on 8.3.1952 vide
14. Title in the residential house came to vest in Qalandar Shah under Scheme-VII of the Settlement Rehabilitation Department.
8. Subsequently, Qalandar Shah applied for grant of proprietary rights vide Ex.P-11. This application was allowed and proprietary rights were conferred on Qalandar Shah on 29.8.1977. Qalandar Shah died issueless on 22.12.1990 and thereafter the inheritance mutations in dispute were sanctioned whereby 3/4th of the disputed property was mutated in the name of Jaffar Shah (predecessor-in- interest of the petitioners) as the sole surviving brother of Qalandar Shah and the remaining 1/4th was mutated in the name of Mst. Barkat Bibi as his widow.
9. The petitioners produced extensive documentary evidence comprising certified copies of the relevant record to prove that Qalandar Shah, in his own right, was the original allottee and subsequent transferee of the agricultural land and it was Qalandar Shah who had become owner of the residential house under Scheme-VII referred to ,above. Unfortunately this entire documentary evidence has been brushed aside by the learned Courts below. This has been done without adverting to the plaint filed by Mst. Barkat Bibi in her declaratory suit and by relying upon the testimony of Muhammad Saadat (DW-1) who was the Additional Naib-Tehsildar for Rehabilitation of Jammu & Kashmir refugees. Since the impugned judgments and decrees, in their entirety, are based on the testimony of this witness and the record produced by him, I have examined the statement of this witness with the assistance of both learned counsel.
10. DW-1 first appeared in Court on 11.2.1996. During the course of his examination-in-chief he stated that he had not brought the entire record but produced entry No.2101 (Ex.DW1/1) in a register brought by him which indicates that temporary allotment was made in the name of Mst. Barkat Bibi. Learned counsel for the petitioners raised an objection that the entire record had not been brought to Court by the witness: This objection was upheld by the learned Trial Court which directed DW-1 to produce the entire record relating to the disputed property.
11. The said witness then again appeared in Court on 6.3.1996 and continued his testimony. It is clear from the statement of DW-1 that he had only brought certain registers with him which were comprised of brief extracts from the original record. The original record of allotment etc., was not produced by the witness. In his cross-examination DW-1 expressly acknowledged that extracts in the registers brought by him were based on original proceedings and record which were not available with him. He also admitted that he was ,not aware as to where the original record was and conceded that he had not compared the entries/extracts in the available registers with the original record and, therefore, could not confirm if the entries/extracts in the registers were a true reflection of the original record.
12. It is unfortunate that despite the above testimony of DW-1 wherein he did not produce the original record and conceded that he could not confirm that the entries/extracts in the registers available with him were a true reflection of the original record, the learned Courts below proceeded to hold that the allotment was made in the name of Mst. Barkat Bibi and not in the name of Qalandar Shah. It is also regrettable that certified copies of the original record produced by the petitioners were not even examined or discussed by the learned Courts below.
13. At this point, it is relevant to note that the onus of proving that she alone was the full and absolute owner of the suit property, lay heavily on Mst. Barkat Bibi who had filed a declaratory suit to this effect. She did not produce the record showing that the property had been allotted to her.
She thus clearly failed to discharge the onus of proof placed on her. The easiest thing for Mst.
Barkat Bibi would have been to have the original record summoned for proving her title in the disputed property. This was not done. Instead, as noted above, through DW-1 certain entries/extracts Were produced. These entries, even according to DW-1, could not be confirmed as a true and correct reflection of the original record. In addition, no evidence at all was led by Mst.
Barkat Bibi to show that the certified copies produced by the petitioners were incorrect or had been fabricated by the petitioners themselves. In these circumstances, the documentary evidence produced. By the petitioners including the certified copies showing Qalandar Shah (in his own right) as allottee and transferee of the suit property, was proof of Qalandar Shah's title to the suit property.
14. During the course of arguments, learned counsel for the respondents was repeatedly asked to refer to any documentary evidence which would indicate that 'Mst. Barkat Bibi was the head of the family or that she was temporary allottee of the disputed property or that there was any fard taqseem in which Mst. Barkat Bibi and the present respondents were shown as members of the family claimed to be headed by Mst. Barkat Bibi. Learned counsel for the respondents was unable to do so. He merely referred to Ex.D-22 which is a copy of a ration card issued by the qanoongo (Jammu & Kashmir), Kashmir Colony Rathian, Jehlum. This document does not mention the name of Mst. Barkat Bibi or the respondents. It merely notes the names of Qaisar Shah aged 22 years and Qalandar Shah Aged 17 years. Learned counsel for the respondents admitted that Qaisar Shah was the elder brother of Qalandar Shah. He was unable to show as to how Ex.D-22 advanced the case of the respondents.
15. In view of the above discussion, it is quite clear to me that whereas Mst. Barkat Bibi had failed to produce on record the relevant documents to establish her claim to the disputed property, the petitioners had proved their case -that Qalandar Shah was the owner of the disputed property. The learned Courts below seriously erred in law by not considering the evidence produced by the petitioners and by relying on an assertion made by DW-1 although such assertion was unjustified even on the basis of the testimony of DW-1 himself. In this view of the matter, the impugned decrees are not, legally sustainable and are, therefore, set aside. As a consequence, the declaratory suit filed by Mst. Barkat Bibi (predecessor-in-interest of the respondents) is dismissed while the declaratory suit filed by the petitioners and their suit seeking partition and separate possession of the disputed property, are decreed. The petitioners shall also be entitled to their costs.
Case .