'ABDUL AZIZ KUNDI, J.--The sole question to be answered in this revision petition is as to whether Mst.Khair-un-Nisa, predecessor-in-interest of respondents Nos.S and 6 (defendants Nos.6 and 7 in the amended plaint) had pre-deceased her father Mehar Dil and thus respondent No,S (daughter of Mst. Khair-un-Nisa) and respondent No,6 (husband of Mst.Khair-un-Nisa) not entitled to any share in the legacy of Mehar Dil, deceased.
2. Umar Khitab plaintiff/petitioner sued the defendants/respondents on 1-1989 for declaration, injunction and possession in respect of land fully detailed in the plaint, situate in Mauza Joor, Tehsil Daggar District Buner. The suit was initially decreed ex parte on 25-2-1989, which was later on set aside on 9-2000.
2. On 29-10-2002, Aziz-ur-Rehman (defendant/respondent No,l) and Mst. Sufia, defendant No,6/respondent No,S filed their cognovits admitting claim of the plaintiff/petitioner, while defendants Nos.2 to S and 7 as per amended plaint (respondents Nos.2 to 4 and 6 in this petition) contested the suit.
29- On conclusion of trial, Civil Judge, Daggar vide judgment and decree dated 4-2003 decreed suit of the plaintiff/ petitioner against defendants Nos.l and 6 (respondents Nos.l and S in this petition) keeping in view the cognovits filed by them, however dismissed the suit against others, holding that Mst. Khair-un-Nisa had not pre-deceased her father Mehar Dil.
3. Civil Appeal No, 116/13 of 2003 by Umar Khitab plaintiff/petitioner was decided on 7-6-2005 and the only operative para of the judgment passed by Additional District Judge/Izafi Zilla Qazi, Buner reads as under:
4. {{URDU TEXT}} 'Pertinent to mention that before the appellate Court suit in respect of Khasra No,2487 was withdrawn having been incorrectly included in the plaint.
5. Such a disposal of the appeal can by no stretch of imagination be termed to be a judicial disposal fulfilling requirements of Order XL1, Rule 31, C.P.C. But for the reason that parties are litigating since 1989, therefore instead of remanding the case to the appellate Court for decision of the appeal afresh, I proceed to dispose of the matter on merits.
6. Learned counsel for the parties heard and perused record with their assistance.
7. It is the case of plaintiff/petitioner that Mst.Khair-un-Nisa pre-deceased her father Mehar Dil and thus entries in her name and later on in the name of her only daughter Mst.Sufia and Mohammad Rasool, her husband in the first ever settlement carried out in the area and concluded in 1977-78 are wrong, against the facts and law, thus ineffective upon his rights of ownership over the said land fallen in his share as a result of private partition between him, Aziz-ur-Rehman, defendant/ respondent No,l and Mst.Zulaikah, their mother, who also died during pendency of suit and was survived by plaintiff/petitioner and defendant/respondent No,l. Further transfer of the said land by Muhammad Rasool, defendant/respondent in favour of his sons (defendants Nos.3 to 5/respondents Nos.2 to 4) from another wife through a duly attested mutation was also challenged in die amended plaint.
8. In support his claim, plaintiff/ petitioner examined P.W.1 Fazal Ghafoor, Patwari Halqa, who produced revenue record in the shape of Misal-I-Haqiat (Exh.P.W. 1/1) for the year 1977-78, Fard Jamabandi for the year 1997-98 (Exh.P.W. 1/2) P.W.2 Muqarab Khan, A.D.K, Buner produced mutation No,2254 attested on 28-2-2000 as Exh.P.W.2/l, while P.W.3 Syed Ali Shah, Assistant Director, Registration Office, Buner produced Registration record in respect of Muhammad Rasool, Mst.Sufia and Mst.Bibi Sahwan as Exhs,P.W.3/1 to P.W.3/3. P.W.4 Muhammad Ghafoor, Head Teacher, Primary School No,l, Joor produced admission record in respect of Mst.Sufia as Exhs.P.W.4/1 and P.W.4/2.
9. Plaintiff/petitioner recorded his statement as P.W.5 and stated that Mehar Dil, his predecessor was alive during settlement proceedings and at the time of his death was survived by him and defendants Nos. 1 and 2 (widow) and that the disputed property fell in his share as a result of family partition and is in his possession as well; that his only sister had died during the life of Mehr Dil in the last month of 1965, whereafter defendant No,7 contacted second marriage and that defendants Nos.3 to 5 are his (defendant No,7) sons from the second wife; that the said defendant in collusion with the settlement staff, who were staying with him in his "Baithak" incorrectly showed his sister as alive and thus entered the land in his own and that of Mst. Sufia name and that later on he transferred his share in the name of his sons defendants Nos.3 to 5/respondents Nos. 2 to 4.
10. In his cross-examination he has confirmed the death of Mst. Khair-un-Nisa in the last month of 1965 but could not name the said month, nor the name of corresponding Islamic Month and rightly so because he is an illiterate person. He could not tell the date of death of his father but stated that he died 10/12 years after the death of Mst.Khair-un-Nisa.
11. Qareeb-ur-Rehman was examined as P.W.6 who is also special attorney of Mst.Sufia, defendant No,6/respondent 5 and confirmed his having filed cognovits oh her behalf and further stated that mother of defendant No,6 had died in the year, 1965, while Mehr Dil died in 1976; that plaintiff/petitioner is in possession of the disputed property. He was sufficiently cross-examined but nothing favouring the defendants/respondents could be extracted from him.
12. P.W.7 Abdul Razaq, brother of deceased Mehar Dil also supported the plaintiff/petitioner by stating that Mst. Khair-un-Nisa died in 1965 while Mehar Dil died in 1976-77.
13. As against that Muhammad Rasool Khan, defendant/respondent recorded his own statement for himself and as attorney of defendants Nos.3 to 5 (respondents Nos.2 to 4). He as D.W.l stated that the property was owned by Mehar Dil, who died on 25-9-1976 and his daughter Mst.Khair-un- Nisa died on 10-5-1977; that legacy of Mehar Dil deceased devolved upon his two sons, one widow and one daughter Mst.Khair-un-Nisa, who was his wife; that on death of Mst.Khair-un-Nisa, her property devolved upon him and Mst. Sufia; that he later on transferred his share to his sons defendants Nos.3 to 5/ respondents Nos.2 to 4. In cross- examination he has disclosed the date of birth of Mst.Sufia as 12-11-1963 and has admitted the private partition between plaintiff/petitioner and defendants/ respondents No,l to have taken place in the year 1978. He has also admitted that he, his sons and daughter have never been in possession of any property out of legacy of deceased Mehar Dil but volunteered to add that he has been paid his share from the sale proceeds of some of the properties sold.
'25-D.W.2 Shah Wali Khan has disclosed the date of death of Mehar Dil as 9-1976 while that of Mst.Khair-un-Nisa as 10-5-1977 and that entries in settlement proceedings have been correctly made in the name of Mst.Khair-un-Nisa. In cross- examination he has admitted to be not on yisiting terms with plaintiff/petitioner. He, however, admitted the plaintiff/ petitioner to be in possession of the suit property.
14. The above resume of the evidence produced by both sides would show that there is consensus amongst them on death of Mehar Dil to be an event of 1976, however, they are not in agreement on the death of Mst. Khair-un-Nisa. Plaintiff/ petitioner claims the death of the said lady in 1965 while contesting defendants claim the same in 1977.
15. Trial Court appears to have been mainly swayed by plaintiff/petitioners failure to disclose the date and day of the death of Mst.Khair-un-Nisa or the corresponding Islamic month of the last month of December, 1965. While doing so it lost sight of the fact that plaintiff/ petitioner a totally illiterate person was deposing after lapse of more than 35 years of the said death and thus no body, except with God gifted extraordinary memory is expected-to remember such minor events.
Similarly minor variations in the statements of P.W.5 to P.W.7 have been made basis for non-suiting the plaintiff/petitioner. Variations of this nature in the statements of witnesses who are deposing after lapse of decades is but natural and have been held not to be fatal to their testimony. 2001 SGMR 798 and 2006 SCM R 1410 refers.
16. In the instant case two other very important factors have been totally ignored by Court below.
One the cognovits filed by Mst. Sufia, who is the daughter of deceased lady and who would never have conceded to the claim of the plaintiff/petitioner, if her mother had died in 1977 as claimed by other defendants because by that time she with her date of birth of 1963 would have been a grown up girl and remembering every thing. Second is the statement of P.W.3 Syed Ali Shah, Assistant Director Registration Office, Buner, who produced the Registration record of Muhammad Rasool Khan, Mst. Sufia and Bibi Sehwan, second wife of Muhammad Rasool Khan as Exhs.P.W,3/l to P.W.3/3. Which documents would show that the same were submitted during the period September to December, 1974 and thus there was no reason for Muhammad Rasool Khan, her husband to avoid submission of Form "A1 if" of Mst.Khair-un-Nisa, if she was really alive in 1974. Further cross- examination of this witness by defendants/ respondents has commenced with a question which has been answered as under:-
20. This leaves no scope to doubt that Mst.Khair-un-Nisa had died prior to 1974 and thus the stand taken by the plaintiff/ petitioner appears to be true and the one taken by defendants/respondents as untrue.
21. Civil disputes are decided on the basis of preponderance of evidence. In the instant case overall analysis of evidence would show that not only that the preponderance is in favour of the plaintiff/ petitioner but also trial Court has misread and non-read evidence as highlighted above, thus resulting into grave illegality. The appellate Court has not at all attended the case in accordance with law, his only operative part of the judgment has been reproduced verbatim in the earlier part of this judgment.
22. Consequently while allowing this revision petition, the impugned judgments and decrees of both the Courts below are modified and suit of the plaintiff/ petitioner is decreed in his favour and against the defendants/ respondents in terms of his prayer in the amended plaint.
23. Parties are left to bear their own costs.