Petitioner filed a suit for declaration and specific performance against the respondents claiming that Mst. Muhammad Bibi alias Mandoo Bibi through an agreement dated 09.08.1965 had agreed to sell the suit land measuring 105 Kanals 10 Marlas situated in Chak No, 88-South, Tehsil and District Sargodha, for a consideration of Rs,67344/-, which was paid to her at the time of the agreement.
2. It is also the petitioner's claim that Qaim Din/Respondent No, 2 is not the legal heir of Mst.
Mandoo Bibi, and resultantly, had no authority to sell the suit land to Muhammad Aslam/Respondent No, 1, which sale was also challenged in the same suit. The respondents contested the matter, denied the execution of the agreement to sell by Mst. Mandoo in favour of the petitioners and asserted the said instrument being the result of fraud and forgery. The following Issue No, 2 is the pivotal on account of which the controversy between the parties revolves: "2. Whether the plaintiffs are owners in possession of the disputed-property by way of agreement to sell Dt:09.08.65 and the Defendants No, 1 and 2 have no concern with the disputed property? OPP"
Both the parties led evidence and the suit was dismissed by the learned Trial Court while mainly giving findings on this issue, through the judgment and decree dated 28.06.2004. Aggrieved of the above, petitioners unsuccessfully assailed the matter in appeal, which has been dismissed on 7.1.2005.
3. There is concurrent finding of facts recorded by the two Courts below that Mst. Mandoo had died in the year 1964 i,e, before the date of the agreement to sell, as the mutation of inheritance regarding her estate was sanctioned on 22.12.1964 Exh.D7 upon the statement of her brother Siraj Din. This document has been primarily relied upon by the two Courts in holding that the lady had demised before the date of the agreement, therefore, the question of her entering into the deal and executing the agreement does not arise.
4. Learned counsel for the petitioners submits that Mst. Mandoo Bibi in fact was a Mangla Dam affectee; the allotment of the suit land in her favour was made on that account on 25.05.1965, which at that time was in possession of the petitioners; this means that she was alive till the date of her allotment The view, therefore, formed by the two Courts is against the admitted fact on the record. The petitioners counsel also submits that an application for the additional evidence has been moved to adduce the affidavit of Ch. Muhammad Ashraf, who has deposed that he is grandson of Mst. Mandoo, and that Qaim Din was not her legal heir. Besides, the affidavit of Qaim Din son of Nathu filed by the said deponent with the Municipal Committee, Mirpur, in which it is stated that Mst. Mandoo died on 10.10.1984; moreover, the copy of the death register of the Corporation Mirpur showing that the date of death is 1984, are the relevant documents which are necessary for the just decision of the case and were not earlier in possession and power of the petitioners, so as to be produced in evidence.
5. I have heard the learned counsel for the parties. The most important document in this case is Ex.D7, Admittedly, Siraj Din son of Sooba is the real brother of Mst. Mandoo. The mutation, mentioned above has been entered and sanctioned on his statement on 22.12.1964, in which the pedigree of the family is also given, whereas no substantial evidence in rebuttal has been adduced by the petitioners at the trial or appeal stage. Whereas, the documents now sought to be produced as additional evidence are quite unreliable e.g in the death certificate her father's name though written as Sooba, but it does not correspond to the register from which the entry has been carried, where the name is Shafi. The entry was also incorporated 03.12.1997. Moreover, in the affidavit of Qaim Din on the basis of which the petitioners claim that death entry was incorporated, there is a clear overwriting and the figure "6" has been attempted to be made as "8"; likewise same interpolation appears to have been made in the death register too, therefore, I am not inclined to allow these documents in additional evidence. Resultantly, the application for additional evidence which is not even numbered till yet, is dismissed.
6. Coming back to the main case, the learned counsel for the petitioners has not been able to satisfy this Court, if the findings of the two decisions are based upon any misreading or non- reading of the evidence. As regards the argument that because the allotment had been made in favour of Mst. Mandoo on 25.05.1965, therefore, it should be presumed that she was alive till that date, suffice it to say that even this does not help the case of the petitioners, because the process of the allotment had initiated in favour of Mst. Mandoo may be much prior to that date and during this period if she had died and his legal heirs without seeking their incorporation got the allotment in her name, it cannot positively be held, that the lady was alive at the relevant time. Resultantly, I do not find any merit in this petition which is hereby dismissed.