MUMAMMAD MUZAMMAL KHAN, J. --- Instant civil revision assailed appellate judgment/decree dated. 12.3.1997, whereby appeal filed by Mst. Kubra Bibi C.L.R. deceased was accepted and by reversing judgment of the Trial Court her suit for declaration was decreed.
2. Succinctly, relevant facts are that Mst. Kubra Bibi deceased filed a suit for declaration to the effect that she was real daughter of Syed Karamat All son of Syed Hussain Shah and thus was entitled to inherit the estate left by him. She challenged Mutation No. 133 sanctioned on 17.5.1984 pleading that her father Syed Karamat Ali was governed by Shia law of inheritance, whereunder she was entitled on 7/32 share, measuring 7-kanals, 5-marlas. According to her petitioners in order to deprive her of hereditary rights, got mutation of inheritance of her father, sanctioned stealthily, thus the same may be declared as void, collusive and ineffective qua her proprietary rights.
3. Petitioners being defendants in the contested the same by filing their written statement and besides refuting averments in the plaint, denied that Mst. Kubra Bibi was real daughter of Syed Karamat Ali. They also averred that the deceased plaintiff/respondent was not from the womb of Fatima Bibi daughter of Imam Ali Shah, hence she had no cause of action to file the suit.
Controversial pleedings of the parties necessitated framing of issues and recording of evidence.
The, learned Civil Judge, seized of the matter, after doing the needful, out of his appraisal of evidence, dismissed the suit vide his judgment/decree dated 26.4.1992.
4. Mst. Kubra Bibi feeling herself aggrieved of judgment/decree of the Trial Court, .Filed an appeal before the learned Additional District Judge, where she succeeded as the same was accepted and her suit was decreed, as prayed vide judgment/decree dated 12.3.1997. Petitioners thereafter, filed instant revision petition, which was admitted to regular hearing and after completion of record has now been placed for final determination. Respondents were represented through Mr. Muhammad Sharif Khokhar, Advocate, who lastly appeared in this case on 24.3.2005 and thereafter opted to remain absent inspite of the fact that his name appeared in daily cause list of this Court. Case was repeatedly called but no body appeared. On behalf of the respondent, hence they were proceeded against ex parte.
5. I have heard the learned counsel for the petitioner and have examined the record, appended herewith. The most crucial point for determination was reflected in issue No. 1 framed by the Trial Court, which was to the effect that Mst. Kubra Bibi was daughter of Syed Karamat Ali and Mst.
Fatima Bibi and thus was entitled to inherit the property left by. Syed Karamat Ali. Onus of proof of issue No. 1 was placed on the shoulders of Mst. Kubra Bibi, who in order to discharge the same examined four witnesses including her on statement as PW.4. She categorically deposed that her father was Syed Karamat Ali and name of her mother was Mst. Fatima Bibi, whereas name of her maternal grandfather was Muhammad Hussain Shah. She detailed in her statement her entire relationship and traced life of her father during which he entered into two ties of marriage. She assertively deposed that her father was a follower of Shia sect and maternal grandfather, as well as, paternal grandfather were also the followers of the same sect. According to her deposition her father Syed Karamat All died 6/7 years ago. She was subjected to extensive/lengthy .Cross- examination by the petitioners but veracity of her statement could not be shattered. Learned counsel for the petitioners attempted to pick minor discrepancies to contend that statement of Mst. Kubra Bibi was not of worth reliance and did not furnish a solid basis for grant of decree prayed. Mst. Kubra Bibi deceased was not much educated and was undeniably a household lady who made statement out of her memory after lapse of a longtime, thus the discrepancies/contradictions attempted to be picked were of no value as those were not enough to deprive her from inheritance, if otherwise proved.
6. Mst. Kubra Bibi deceased besides her on statement examined Qalb-e-Hussain Shah PW.2, who was related to both the parties. He deposed that Syed Karamat All Shah solemnized two marriages and his- first were was Mst. Fatima Bibi, who was his real sister. According to this witness, Mst.
Fatima Bibi were of Syed Karamat Ali was daughter of Muhammad Hussain Shah and was real mother of the respondent. This witness was also cross-examined at length by the petitioners but nothing material could be extracted from him. Another witness Syed Tasadduq Hussain Shah was produced as PW.3, who was also related to the parties. This witness deposed that Syed Karamat Ali deceased was his paternal uncle. According to this witness Mst. Fatima Bibi daughter of Muhammad Hussain Shah was married to Syed Karamat Ali Shah so of Hussain Shah and was mother of the respondent. This witness also traced pedigree of the parties and inspite of remaining under cross-examination for quite some time did not leave the stance taken in his examination-in- chief. Petitioners attempted to displace proof brought on the file by the deceased Mst. Kubra Bibi, which revealed their admissions to the effect that Syed Karamat,Ali had two wives out of whom one was Mst. Fatima Bibi and as per their case, she was daughter of Imam Shah and not that of Muhammad Hussain Shah as claimed by the respondent. All the DWs though had deposed that they knew Syed Karamat Ali deceased father of Mst. Kubra Bibi, but none of them was so closely related to the parties, as the witnesses produced by the respondent. Under Article 64 of the Qanun- e-Shahadat Order, 1984 statements of the witnesses as to relationship of one person to another, being member of the family or otherwise, having special means of knowledge, are relevant.
Analysis of this provision of law shows that statements of persons closely related to the persons whose relationship is to be decided, are of much more value as compared to the persons, who are not related to them and simply knew them, without disclosing their source of knowledge. Scan of evidence, revealed that witnesses produced by the respondent were of much more value having relationship with the parties and special means of knowledge, being members of the family and deserved much more credence over the witnesses produced by the petitioners . Appellate Court in correct appraisal of evidence according to the law applicable, rightly concluded that lis, without committing any illegality/irregularity amenable to revisional jurisdiction of this Court, except he granted the respondent decree as prayed for without looking into prayer in the plaint, whereby share in the estate of deceased Syed Karamat Ali to the extent of 7/32 share was claimed by Mst.
Kubra Bibi deceased, but according to Shia Law of Inheritance, which is similar to that of Hanfi Law, when the porosities is succeeded by widow sons and a daughter. Syed Karamat All was succeeded by a widow, who was entitled to 1/8 share and three sons, who were to get 314 share and the residue equivalent to 1/8 share was to be inherited by the deceased Mst Kubra Bibi instead of 7/32, hence except this modification appellate judgment admits no other exception.
7. For the reasons noted above, appellate judgment /decree is maintained with the modification that Mst. Kubra Bibi deceased was entitled to 1/8 share out of estate of her father Syed Karamat Ali.
Petitioners could not make out, commission of any illegality//irregularity in terms of Section 115, C.P.C., hence this petition being devoid of any merit, is dismissed, with no order as to costs.
Civil revision accordingly.
2007 C.L.R. 567 [Lahore] Present: MUHAMMAD SAIR ALI, J. Mian Muhammad Saeed Versus Mian Abdul Ghafoor and 11 others Ameoded Civil Revision No. 2281 of 2002, decided on 12th April, 2006.
Civil Procedure Code (V of 1908)--- ---Ss. 115, 0. VI, R. 17---Specific Relief Act, 1877, S. 42---Declaratory suit---Whether the amendment to and prayer for separate possession in partition was properly allowed by Trial Court---Question of--Appreciation of law and facts--- Civil revision petition in High Court---Validity--- Respondents/plaintiffs filed the suit to: (i) establish their title; (ii) avoid the obstructive deeds; and (i.e) for declaration of their ownership and co- possession---All the said relief's arose from one cause of action---Such cause emanated the amended prayer for the separate possession as well---Trial Court thus exercised its jurisdiction properly to permit amendment in plaint to incorporate the claim of plaintiff to separate possession to the extent of their 1/3rd share in the suit property---Amendment so allowed neither changed the nature of the suit nor the complexion of the 'litigation between parties ---It essentially arose from the unity of the title and the actionable cause---Civil revision .
(Paras 12,15)
Key Terms:- [In declaratory suit, amendment in plaint to incorporate the relief of separate possession on the basis of respective share in the estate of the deceased was allowed].
For the Petitioner: Muhammad Ahmed Qayyum, Advocate.
For the Respondents Nos. 1 to 5: Ch. Shaukat Ali Saqib, Advocate.
For the Respondents Nos. 6 to 9 and 11: Syed Ikhtisar Ahmad, Advocate.
For the Respondent No. 11 Muhammad Ashraf, Advocate. Date of Hearing: 12th April, 2006.
JUDGMENT - MUHAMMAD SAIR ALI, J. --- Through the present civil revision, the petitioner Mian Muhammad Saeed (a co- defendant in suit for declaration) has called in question order dated 20.5.2002 of the learned Civil Judge, Lahore allowing application of respondents No. 1 to 5 (the plaintiffs) under Rule 17 of Order VI, C.P.C. To permit the relief of separate possession in partition in the prayer of the plaint.
2. The learned counsel for the petitioner placing reliance upon the case of Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zenab Bukhar 1993 CLC 31), contended that in the suit for declaration and consequential relief , the prayer for separate possession and partition could riot have been allowed through amendment because to seek partition in a partition suit, an independent cause of action, unity of title and unity of possession were the fundamental elements and the none of these elements existed in the present use.
Contrarily the learned counsel for the contending respondents Nos. 1 to 5 (the plaintiffs) supported the impugned order and stated that on the basis of the impugned order for amendment, the plaint was amended and the parties and already concluded their evidence since long. Further that the suit property was in possession of the petitioner alongwith a few others wherefor it was in the interest of the petitioner to delay the conclusion of the suit. And that the amendment allowed by the learned trial Judge was. In accordance with the principles of law.
3. Syed lkhtisar Ahmad and Ch. Muhammad Ashraf, Advocates for the conceding respondents being codefendants in the suit, supported the case of the petitioner a raised in the present civil revision.
4. Heard.
5. The learned counsel for the parties jointly stated that the present civil revision continued to be at preadmision stage since its first date of hearing on 18.10.2002. And that it was on this notice that the respondents had appeared through their learned counsel. The order sheet also shows that on 18.10.2002, pre-admission notice was directed to be issued to the respondents and on 2.7.2003, proceedings before the Trial Court were stayed through an interim order. As all the parties have been heard through their learned counsel, therefore, this case is being decided as an admitted/Pacca case.
6. The short question involved in the present civil revision is as to whether the amendment to and prayer for separate possession in partition was properly allowed by the learned trial Judge through the impugned order dated 205.2002 or not.
7. Respondents Nos. 1 to 5 filed a suit for declaration to challenge the purported "deed of surrender of shares" allegedly registered as document No. 13323, Bahi No. 1, Volume No. 197 on 30.11.1996 and "rectification deed" also registered on 13.12.1987. Respondents Nos. 1 to 5 (the plaintiffs) also sought declaration that they continued to be the joint owners/share holders in possession alongwith the defendants of the properties left by their deceased predecessors-in-interest namely Lal Din and Mst. Hussain Bibi (father and mother and grandfather and grandmother of the litigating parties).
Perpetual injunction against the alienation of the suit properties was also sought in this suit.
8. On contesting written statement, issues were framed and the case was ordered to be fixed for evidence. In the meanwhile numerous amendment were prayed for and allowed by the learned Trial Court. However, respondents Nos.1 to 5 the plaintiffs sough another amendment in the plaint to incorporate the relief of separate possession on the basis of their 1/13th share in the estate of the deceased. This relief was essentially a prayer for the partition of the jointly owned assets.
Contesting reply was filed by the defendants.
9. The amendment was allowed by the learned trial Judge through the impugned order dated 20.5.2002 for the reasons that the proposed amendment would neither C.L.R. change the nature nor the complexion of the suit nor would it set up a new case or the new facts in the plaint. .10. The main contention of the learned counsel for the petitioner is that amendment was wrongly allowed because a cause of action for a partition suit is distinct from the cause of action for a title suit and the suit for partition has to be based. Upon unity of title and possession. Furthermore, the learned counsel for the conceding respondents stated that neither any issue was framed in the present case on the partition nor was the evidence allowed by the Court.
11. I am of the considered opinion that there is no merit in the submissions of the learned counsel for the petitioner or that of the learned counsel for the conceding respondents. The undisputed facts are that the suit property was originally owned by deceased Lal Din and Mst Hussain Bibi. On their death the property devolved under the Muhammadan Law upon the plaintiffs and the defendants; parties to this civil revision or their respective predecessorsin-interest. As such, the rights to the inheritance of the estate and the shared ownership of the assets descended upon the parties because of the paramount title of their deceased propositus. Death extinguished the title of the deceased in their assets and simultaneously created the title of the parties therein. The flow of rights was from the same source though it streamed into multiple units on devolution as per the legal shares. Unity of title and possession in such a case therefore cannot be questioned.
12. Upon devolution of the property through inheritance on the parties, the petitioner and his codefendants claimed that through the surrender deed and the rectification deed, their real sister (the predecessor-ininterest of the respondent/plaintiffs) surrendered her inherited share to them.
Denying these deeds, the plaintiffs i.e. Respondents Nos. 1 to 5 filed their suit to:---
(i) establish their title;
(ii) avoid the obstructive deeds; and (i.e) for declaration of their co-ownership and co-possession.
They also sought consequential reliefs. All these reliefs arose from one cause of action. Such cause emanated the amended prayer for the separate possession as well.
13. This Court thus finds that the learned trial Judge exercised his jurisdiction properly to permit amendment in the plaint to incorporate the claim of the plaintiffs to separate possession to the extent of their 1/13th share in the suit property. The amendment so allowed neither changed the nature of the suit nor the complexion of the litigation between the parties. It essentially arose from the same unity of the title and the actionable cause.
14. The principles settled in the case of Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zenab "Bukhari (supra) were neither departed from nor disregarded by the learned trial Judge. The amendment as allowed was in consonance with the rules recorded in the concluding para of this judgment. It was held that "when in a partition suit paramount title is set up it is desirable to require the plaintiff to amend the plaint so as to challenge the existence, validity or legality of the alienation on the basis of which exclusive title is pleaded and to convert the suit into a suit for declaration of the title or cancellation of the alienation and for partition."
15. In view of long pendency of the litigation between parties, the learned Trial Court shall endeavour to expeditiously decide the suit. .