' GHULAM MUSTAFA MENGAL, J.--- Through this common judgment we intend to dispose of R.F.As.
Nos.5 and 6 of 2001 as both the appeals are arising out of same judgment dated 11.12.2000, passed by iearned Senior Civil Judge-I, Quetta in Suit No,199 of 1999 whereby the suit has been partly decreed in favour of plaintiffs.
2. Facts relevant for disposal of instant appeals are that the plaintiffs/appellants instituted a suit for declaration, cancellation of mutations, partition, possession, injunction, mesne profits and consequential relief against respondents in the Court of learned District Judge, Quetta which was later on transferred to the file of learned Senior Civil Judge-I, Quetta. It was averred in the plaint that appellants Nos.1 to 3 are son and daughters of late Bibi Dilbara legal heir of late Haji Abdullah Jan, whereas the appellants Nos.4 to 7 and respondents Nos.1 to 5 are sons and daughters of. Late Haji Abdullah Jan. Respondents Nos.6 to 19 are grandsons and granddaughter of late Haji Abdullah Jan, who died in the month of January, 1988 leaving behind following properties:---
(i) Property situated in Mahal Sirki Khurd, Mauza Sirki Tappa Saddar Kasi, having Mutation No,1352 measuring 12 rod and 35 poles, bearing Khasra No,461.
(ii) Property bearing Khasra Nos. 1880/482, 1882/482, Mutation No,505, situated in Mahal Chak Sirki, Mouza Kasi, Tappa Saddar Kasi, measuring 7 rod and 25 poles.
(iii) Property bearing Khasra Nos.605/129, 606/129, 130/131/732, 707/132, 157/158, Mutation No,1333, measuring 92 rod and 4 poles (7 kittas) situated in Mahal Chashma Tirkha Mouza Tirkha, Kasi, Tappa Saddar Kasi, Tehsil and District Quetta.
(iv) Property bearing Khasra Nos.1835/9.8.5, 1792/16, 2060, 1849/16, Mutation -No,1184, measuring 4 rod and 12 poles, situated in Mahal Khushkaba Kasi, Mouza Shaldara, Tappa Saddar, Tehsil and District, Quetta.
(v) Property bearing 26 kittas, having Khasra Nos. 305/308/309/310/313, Mutation No,203, measuring 20,434 square feet, situated in Mahal and Mauza Ward No,48, Tappa Urban, Tehsil and District Quetta (Shops and stores)
(vi) Property bearing Khasra Nos. 258/259/270/314, Mutation No,205, situated in Ward No,47, Tappa Urban, Tehsil and District Quetta, measuring 60,774 square feet (5 kittas).
(vii) Property bearing Khasra Nos. 244/247/248/246/243/245 Mutation No,237, situated Mauza Ward No,15, Tappa Urban, Tehsil and District Quetta, measuring 1283 square feet (6 kittas), having old Khasra No,1451 Ward No,1 .
(viii) Property bearing Khasra Nos. 360/1, 360/2, 360/3, 360/4, 360/5, 360/6, 360/7, 360/8, 360/9, 360/10, 360/11, 360/12, 360/13, 360/14, 360/15, 360/16, 360/17, 360/18, ' 360/19, 360/20, 360/22, 893/361, 894/361, 895/361, 896/361, 897/361, 898/361, 900/361, 901/361, 902/361,-904/361, 905/361, Intiqal No,52, measuring 1, 05,569 square feet (shops and open plot) situated in Ward No,28, Tappa urban, Tehsil and District Quetta (old Ward No,13).
(ix) Property bearing Khasra Nos. 814/88, 815/88, 818/88, 817/88, Mutation No, 91, measuring 38,716, situated in Mahal and Mauza Ward No,49, Tappa Urban, Tehsil and District Quetta (Old Khasra No,6335, old Ward No,19).
(x) Property bearing Khasra No,20, Khawat No,239 Khatooni No,263, measuring 2 rod and 38 poles, situated in Mahal and Mauza Khushkaba Karezat, Tappa Kechi Baig, Ward No,48, Tehsil and District Quetta. (Note:- This is Shamlat property).
(xi) Property bearing Khasra Nos.58/126/150, 156/ 158/ 540/165, 166/167, 172/190/209/200 /213/217/ 218/ 219/ 225/489/490/493/499/501/504/505/538/506, 537/506, 507/510, 511/3, 143, 145/149/151/695/443, 191/699/544/191, 717/702, 545/191, 714/719/191, 745/192, 747/191, 751/191, 753/191, 764/191, 769/191, 770/191, 774/191, 779/191, 782/191, 786/191, 788/191 Mutation Nos.1145, 323, 328, 341, 327, 324, 338, 336, 366, 490, 510, 406, 502, 370, 371, 372, 368, 367, 373, 492, 493, 367, 376, 519, 504, 379, 498, 500, 503, 495, 524, 614, 494, 374, 375, 520, 378, 489, 499, 501, 377, 505, 584, measuring 96 rods and 36 poles (50 kittas), situated in Chasma Hudda, Mouza Hudda, Tappa Saddar Kasi, Tehsil and District Quetta.
(xii) Property bearing Khasra Nos. 17/ 59/ 279/ 329/ 334/ 347/ 391/ 399/ 113/ 150/ 158/ 160/ 178/ 235/ 236/ 239/ 264/266/ 455/11/ 26/312/ 520/16, 330/379/ 387/392/ 393/395/ 111/121/ 139/60/ 359/535/ 378/396/ 98/ 144/159/233/237/240/461/482/242/368/ 370/ 385/ 251/ 252/ 253/ 337/ 354/ 366/ 390/ 151/ 228/ 245/ 247/ 249/ 255/ 258/ 257/ 347, Mutation No,163, measuring 844 rods and 32 poles (69 kittas), situated in Mohal Chashma Baleli, Mouza Baleli, Tappa Baleli, Tehsil and District Quetta.
3. After the death of late Haji Abdullah Jan the respondents instead of partitioning the legacy left by their predecessor amongst heirs, in accordance with injunction of Islam, illegally and in a concealing manner transferred property mentioned at S.No,1 to 9 in favour of Abdul Khaliq, Abdul Raziq, Malik Abdul Sadiq, Abdul Malik and Abdul Ghafoor by means of Intiqal-e-Warasat Nos.1352, 505, 1333, 1184, 203 and 205 attested on 7th July, 1994, 26th June, 1995 and 2nd July, 1997 respectively while property mentioned at S.No,10 is still subsisting in the name of late Haji Abdullah Jan and the remaining properties have been transferred in favour of respondents or their predecessor by way of gift etc. In a suspicious manner during the ' Marazul Mot' {{URDU TEXT}} of predecessor-in-interest of parties. It was further averred in the plaint that despite hectic efforts appellants failed to know that how properties mentioned at S.Nos.11 and 12 have been transferred in favour of respondents or their predecessoRs, Despite above, the respondents (sons of late Haji Abdullah Jan) also disposed of certain properties depriving daughters of late Haji Abdullah Jan from their shares.
4. The suit 'was contested by respondents Nos.1 to 3, 6 to 10 and 13 to 19 by way of filing joint written statement wherein besides raising certain legal objections regarding suit being barred by time, not maintainable, non-joinder of necessary parties etc. The same was contested on merits as well. It was averred in the written statement that properties at S. Nos.1 to 6 and 10 were in the name of their predecessorin-interest at the time of his death, however properties mentioned at S.Nos.3, 7, 8, 9, 11 and 12 were either transferred in their names in early 60s and 70s as 'Hiba' which was accepted by donees and possession was also delivered to them or the same was purchased by Dr. Abdul Malik (respondent No,2) or late Abdul Sadiq in the name of his father as "Benamidar' as such; it could not be said that the above referred properties were legacy left by late Haji Abdullah Jan nor anybody has right over the same. Property mentioned at S.No,10 is "Shamlat land" and is in possession of Jattak Tribe. So far properties at S. Nos.1, 2 and 4 to 6 are concerned, though the same were in the name of late Haji Abdullah Jan at the time of his death but the father during his life-time gave all these properties to his sons by means of family arrangement. The daughters were either, paid proportionate to the value of properties then existed or in the shape of jewelleries. The said family settlement was not only accepted by all the legal heirs including daughters but the same was also acted upon. The daughters were also beneficiaries of family settlement. The properties were usurped by different persons/tribe and the sons recovered possession of same after litigation/negotiations and spending lot of time and money. After recovery of possession the properties were improved by spending millions of rupees.
5. After filing written statement by respondents, appellants submitted replication to the written statement wherein it was averred that no limitation run against co-sharers (appellants) because appellants came to know about facts of distribution of properties amongst respondents in the month of. January, 1999. No family settlement has ever been made. The property can easily be partitioned between the co-shareRs, Respondents have themselves admitted that property mentioned at S.Nos.1 to 6 and 10 in the plaint were in the name of late Abdullah Jan. According to them property at S.Nos.7, 8, 9, 11 and 12 was gifted to them by predecessor in his life time. Properties at S.Nos.11 and 12 have fraudulently been transferred. This fact can be detected from signatures of late Haji Abdullah Jan put upon different other documents and one available on transferred document. The witness of said document namely Ch. Abdul Ghani was a close friend of respondent No,2 and was a Revenue official. Possession was never passed on to any of respondent pursuant to gift. According to appellants, had late Haji Abdullah Jan given properties to his sons by way of family arrangement; he would have transferred the same in their names. Payment of proportionate shares to the daughters in shape of cash amount or jewellery and fact of family settlement were also denied. With regard to raising construction over certain properties, it was submitted that on small portion of land construction has been raised which too from the pocket of late Haji Abdullah Jan in his life-time. In agreement (Khangi-Taqseem Nama) dated 8th April, 1989 no reference to any previous settlement has been made which means that nothing was done before the said agreement. As per replication, had there been any settlement in the year, 1971 with consent of all the parties, there would have been no necessity to enter into agreement (Khangi-Taqseem Nama) dated 8th April, 1989 which too without referring to earlier settlement. So far Intiqal-e-Warasat is concerned, the same was effected without producing any 'Sharia Fatwa' and disclosing name of other legal heiRs, The Intiqal-e-Warasat itself contravenes the stand of respondents because, had there been any settlement between the heirs of late Haji Abdullah Jan the same would have been acted upon.
6. The learned trial Court initially framed following issues for determination:---
1. Whether suit is time barred and liable to be dismissed?
2. Whether suit is not maintainable in view of legal objections (B), (C) and ( E) of W/S?
3.. Whether properties at Serial Nos.1, 2, 4, 6 and 10 of plaint have been given to defendants as result of family settlement in 1971?
4. Whether properties at S. Nos. 1 to 6 are not partitioned?
5. Whether properties at S. Nos.3, 7, 8, 9, 11, 12 have been given to defendants in Hiba by late Abdullah Jan in 60s and 70s?
6. Whether plaintiffs are entitled for relief claimed?
7. Relief?
7. After framing of above issues on 17th April, 2000 appellants filed an application under Order XIV Rule 5 read with section 151, C.P.C. For framing additional proposed issues. The application was contested by respondents, however the learned trial Court vide order dated 15th May, 2000 allowed the application by framing following two additional issues:---
1. Whether the properties left by late Haji Abdullah Jan have fraudulently and fictitiously being transferred in favour of the defendants, if so, to what effect?
2. Whether the defendants Nos.13 to 19 are falling within the category of legal heirs of late Haji Abdullah Jan, as their father died in the life time of their grandfather?
8. After framing additional issues, the parties were directed to adduce evidence in support of their respective claims. Appellants produced following P.Ws.
(i) P. W.1 deposed that the parties are known to him. They are brothers and sister and successors- in-interest of Haji Abdullah Jan. Haji Abdullah Jan had properties at Kasi Road, Sirki Road, Jan Muhammad Road, Baleli, Hudda and Sabzal Road. After death of Abdullah Jan defendants distributed the properties amongst themselves. Nothing was given to daughters of Haji Abdullah Jan. ii. P.W.2 deposed that the parties are known to him. They are sons and daughters of Haji Abdullah Jan. Haji Abdullah Jan had properties at Kasi Road, Akhtar Muhammad Road, Jan Muhammad Road, Baleli, Hudda and Killi Shabo. After 1-1/2 years of death of Abdullah Jan he came to know that the daughters of late Haji Abdullah Jan have been deprived from the legacy by the sons of Haji Abdullah Jan and distributed the properties amongst themselves. Nothing was given to daughters of Haji Abdullah Jan. iii. P.W.3 deposed, that the parties are known to him. They are sons and daughters of Haji Abdullah Jan. Haji Abdullah Jan had properties at Sirki Road, Jan Muhammad Road, Baleli, Hudda and Killi Shabo. Haji Abdullah Jan was survived by four sons and eight daughteRs, After death of Abdullah Jan his sons distributed the properties amongst them and deprived their sisters from their sharai right. He came to know about this fact after 1-1/2 years of death of late Haji Abdullah Jan. iv. P.W.4 Revenue official produced revenue record as Exh.P/1 to Exh.P/46. v. Malik Azmat Ullah Attorney for plaintiff deposed that he is son of plaintiff No,1 Malik Ghulam Akbar who is son of Bibi Dilbara. The latter was elder daughter of late Haji Abdullah Jan. She died in the year 1997 whereas Haji Abdullah Jan died in the year 1988. Defendants Nos.1 to 3 are brothers of Bibi Dilbara whereas defendant Nos.4 to 7 are her sisteRs, Defendants Nos.13 to 19 are grandsons of late Haji Abdullah Jan and sons of Abdul Sadiq who died in the year 1972. Defendants Nos.6 to 10 are sons and daughters of Abdul Khaliq Khan elder son of late Haji Abdullah Jan. Defendants Nos.13 to 19 does not fall within the definition of legal heirs of late Haji Abdullah Jan because their father died in the life times of late Haji Abdullah Jan. Properties of Haji Abdullah Jan are situated at Jan Muhammad Road, Kasi Road, Arbab Khudai Dad Khan Road, Malik Mano Jan Road Hudda, Sirki Road, Sadiq Shaheed Park, Chashma Baleli, Chashma Tirkha, Chashma Hudda, Killi Shabo, Sariab Road and at different other places. After death of late Haji Abdullah Jan defendants Nos.1 to 3, 6 to 10 and 13 to 19 with connivance of each other and on the basis of fake 'Fatwa during the period commencing from 1994 to 1997-98 transferred the properties of late Haji Abdullah. Jan on their names. Plaintiffs were not aware of this fact. In the year 1999 they came to know about the secret distribution of property.
After coming to know about the distribution of properties, plaintiffs obtained Intiqals of property from Tehsil and it came to their knowledge that the defendants have transferred the properties of late Haji Abdullah Jan on their names on the basis of fake 1-fiba' and forged signatures.
' Thereafter in rebuttal respondents examined following defence witnesses:--- ' D.W. 1 Haji Muhammad Akbar deposed that parties are known to him. Haji Abdullah Jan was survived by five sons and nine daughteRs, Haji Abdullah Jan had several properties. Haji Abdullah Jan had transferred some properties in his life time on the names of his sons. Sons of Haji Abdullah Jan are managing the properties which were riot gifted. Fate of said properties had not been determined by Haji Abdullah Jan. He has no knowledge about the decision of Haji Abdullah Jan regarding his sons. In the year 1970-71 Haji Abdullah Jan gifted some land for house to Malik Usman.
' In cross-examination he stated that he has no knowledge about the properties gifted by Haji Abdullah Jan to his sons. He admitted that was not made in his presence.
' D.W.2 Jan Muhammad deposed that the parties are known to him. Haji Abdullah Jan owned properties at Kasi Road, Baleli, Tirkha, Sariab Road, Deba, Arbab Khudai Dad Road, Sooraj Ganj Bazar and Jan Muhammad Road. Haji Abdullah Jan, in his life time gifted his properties to his sons and the daughters were given cash and jewelleries.
' In cross-examination he stated that he does not know which property was gifted by Haji Abdullah Jan to his sons. He is not aware whether the gift, transaction was verbal or written. He admitted that gift was not made in his presence. Iii. D.W.3 Faiz Muhammad representative Sadar Qanoongo produced revenue record Exh.D/1 to Exh.D/6. In cross-examination he stated that the Exh.D/1 is neither signed by donee nor donor. Iv. D.W.4 Muhammad Ashraf son of Muhammad Rafiq was tenant of shop rented out to him. He has not uttered a single word regarding gift. v. D.W.5 Abdul Ghaffar son of Muhammad Hussain is also a tenant of shop rented out to him. He has not uttered a single word regarding gift. Vi. D.W.6 Abdul Zahir is a 'Bazgar' (tenant) in the Agricultural lands of Haji Abdullah Jan. He deposed that prior to him, his father was Bazger in the lands of Haji Abdullah Jan.
For the last 25 years he is Bazger. Initially the lands were not levelled which were levelled by Malik Sadiq. He further deposed that two tube wells were installed by Malik Sadiq and one by Dr. Malik on the land in dispute. Dr. Nasir also constructed a market on the. Land. Land produce was/is being, received by Malik Sadiq, Dr. Malik and Dr. Nasir. 25/30- years ago Malik Sahib brought Patwari on the lands. At that time distribution had taken place. Haji Abdullah Jan was alive and he had brought Patwari.
' In cross-examination he stated that Haji. Abdullah Jan used to visit the lands. Vii. Dr, Abdul Nasir attorney for defendants deposed that Haji Abdullah Jan had five sons and nine daughteRs, To avoid any complication, in his life time Haji Abdullah Jan made decision regarding his properties.
During 1961-1979 he gifted properties mentioned at S.Nos.7, 8, 9, 11 and 12 to his sons. Daughters of late Haji Abdullah Jan was paid their proportionate share in shape of cash and jewellary. Plaintiffs had knowledge of all the facts.
' In cross-examination he admitted that after death of Haji Abdullah Jan there are no documents which could show that the properties have been distributed. He also admitted that apart from the properties gifted by Haji Abdullah Jan all the properties were in the name of Haji Abdullah Jan even after his death. He admitted that after 1995 in all the Intiqals only defendants were shown as legal heirs of late Haji Abdullah Jan and it was not disclosed that Haji Abdullah Jan was also survived by daughteRs, He admitted that all the Intiqals carried out on the basis of 'Hiba' were not witnessed by anybody
9. After recording evidence pro and contra, appellants filed written arguments, however the respondents orally argued the case. The learned trial Court after evaluating the evidence, written arguments and hearing counsel for respondents vide judgment and decree dated 11th February, 2000 partially decreed the suit by setting aside mutations of inheritance and cancelling the mutation .Of gift (Exh.D/1), however the suit to the extent of remaining claims was dismissed.
10. Feeling aggrieved from the judgment and decree referred to hereinabove, appellant preferred R.F.A. No,5 of 2001 to the extent of findings on Issues Nos.5, 6 and 7 and non-disposing of additional issues whereas the respondents since were also aggrieved of the judgment and decree also preferred R.F.A. No,6 of 2001. This Court after hearing the arguments passed judgment on 31-12- 2001. The judgment passed by this Court was assailed before the Hon'ble Supreme Court of Pakistan and the Hon'ble apex Court vide order dated 5-5-2010 remanded back the cases to this court with directions to decide the same after hearing the parties.
11. Malik Azmat Ullah Kasi, attorney for appellants filed written arguments, whereas respondent's were represented by Mr. Muhammad Aslam Chishti, Advocate.
12. Malik Azmat ullah Kasi attorney for appellants urged in written arguments that counsel for respondents has candidly conceded that respondents failed to substantiate their claim regarding properties which have been transferred through INTIQAL-E-WARASAT except one purchased by appellant No,2. Burden to prove Issue No,5 was upon respondents who in support of said issue produced D.W.i, D.W.2 and recorded statement of their attorney' but perusal of statements of these witnesses would show that the same are silent that when and in which circumstances Hiba' transactions were carried out. The witnesses contradicted each other regarding exact date, place and time of the declaration of gift. On the contrary the witnesses categorically admitted that the lady co-sharers have right in the legacy left by their father. Perusal of documentary evidence contravenes the stand taken by respondents. According to respondents properties in Mohal and Mouza Chashma Baleli, Tappa Baleli were transferred on 20th October, 1979 whereas the alleged donee signed the same on 16th September, 1979 which reveal that before declaration of gift by the donor, same was accepted by the donee. Disparity of signatures of donee is visible on gift mutation and other documents. There are glaring contradictions in the statement of attorney of respondents who during recording his statement tried to blow hot and cold in one breath. An amazing stand has been taken by respondents that family settlement was arrived in the year, 1971 between the parties and the daughters were paid cash and jewellery. The respondents failed to substantiate their claim because, had any family settlement arrived in the year, 1971 there was no need for the late father to gift the other properties in the year, 1979 and onward. On one hand the respondents claim to be owners of the properties on the basis of 'Hiba' and on the other hand the same were transferred in their name by Haji Abdullah Jan by means of lqrar-Nama/Khangi- Taqseem dated 8th April, 1989. Respondents failed to prove the three basic requirements of gift namely (1) declaration (2) acceptance (3) delivery of possession. This Court on one hand has to interpret the Holy Quran "NO SOONER A MUSLIM DIES HIS PROPERTIES DEVOLVES UPON HIS LEGAL HEIRS" and on the other hand this Court has to give verdict on the question whether respondents No,13 to 19 can be termed as legal heirs of late Abdullah Jan as their father has died in the year, 1972.
According to respondents in the year, 1971 owing to family settlement the properties were distributed and they became owners of the same. On the contrary during arguments a plea was raised that as per section 4 of the Muslim Family Law Ordinance, 1961 the said respondents are legal heiRs, According to learned counsel section 4 of Muslim Family Law Ordinance, 1961 only applies where attestation of mutation of inheritance has been carried out. Under Articles 72 and 78 of Qanun-e-Shahadat Order, 1984 respondents are bound to prove that a valid transaction has been made in their favour. To prove the factum of 'Hiba' no witness was produced by the respondents. So much so none of the donee appeared in the witness-box to confirm the fact. So far limitation is concerned, it is constant view, of Hon'ble Supreme Court that no limitation runs against a co-sharer and the Islam recognize that the brothers cannot legally claim adverse possession against sisters and much less ouster. Admittedly properties have been transferred after the death of late Haji Abdullah Jan and the same were not in the knowledge of appellants so it can be presumed that the suit is well within time. He lastly urged that while dealing the question of inheritance with the household, pardanasheen and illiterate ladies the Court has only to see that the question of purported inheritance has been by-passed by the brothers just to oust the lady co- sharers from the legacy left by their predecessor-in-interest.
' Whereas on the other hand Mr. Muhammad Aslam Chishti, learned counsel for respondents in R.F.A. No,5 of 2001, vehemently opposed the submissions so advanced and the written arguments filed by appellants' learned counsel. He submitted that the suit is hopelessly barred by time qua gift property --- subject-matter of Issue No,5. The properties were gifted in lifetime of deceased Haji Abdullah Jan during the period commencing from 1960 up to 1979. The gifts were made absolutely in accordance with principle of Islamic Law i.e. Offer by the donor, acceptance by the donees followed by possession which is continuous till today.
' The learned counsel for respondents strenuously urged that the trial Court committed material irregularity in disbelieving the factum of gift qua property at S.No,7 for the simple reason that the signatures of donee are not available on mutation. It may not be irrelevant to mention here that during pendency of the appeal he through Civil Miscellaneous application filed copy of "Parth-e- Sarkar" wherein the signatures of Abdullah Jan are apparently available. This document was brought on record without objection of learned counsel for appellants, subject to all just exception.
He emphatically argued that the plaint is absolutely silent regarding the gifted property nor for that matter the gift has been challenged in stricto sensu. The allegation regarding the gift in the plaint are of general nature which of course do not cover the gifted property to the respondents made in their favour right from 1960 up to 1979. The plaint does not find mention a specific cause of action regarding the gifted property, therefore, a relief if not claimed by a party, cannot be granted by the Court. Similarly any evidence if produced by the appellants qua the gifted property cannot be considered as the same is beyond the pleadings. The learned counsel stressed that the law on the subject stand settled that the evidence beyond the pleading is inadmissible. The learned counsel strenuously urged that the appellants were well aware regarding the transaction of Hiba because they were satisfied, therefore, did not object at the relevant time nor for that matter soon after the death of their father they challenged the transaction of Hiba. Learned counsel went on to say that even the present proceedings also do not call in question the validity, propriety and legality of the gift. Learned counsel contended that the burden to prove the issues was upon appellants which they badly failed to discharge. Under such circumstances the trial Court rightly decided Issue No,5 in favour of respondents. The longstanding Revenue entries coupled with possession of property are sufficient enough to prove the factum of gift in favour of respondents. To substantiate his view reliance was placed on the following judgments::---
(i) 2007. SCMR 1446 (Atta Muhammad v. Maula Bakhsh).
(ii) 2005 SCMR 1278 (Phaphan v. Muhammad Bakhsh).
(iii) 2008 SCMR 456 (Muhammad Faisal v. State Life Insurance Corporation.
(iv) PLD 2006 SC 15 (Nusrat Zohra v. Azhra Bibi);
(v) 2008 CLC 61 (Muhammad Saddique v. Raj Begum).
12. We have considered the contentions advanced by the parties' learned counsel and have gone through the record minutely. The learned trial Court has framed as many as 7 issues. While dealing with Issue No,1 the trial Court has observed that the suit is within time. It is pertinent to mention here that the respondents did not file cross objections in R.F.A. No,5 of 2001. We have gone through the record and found that the trial Court after proper appraisal of material available on record, in the light of law of limitation has rightly concluded that the suit filed by appellants was within time. In so far, Issue No,2 is concerned, the objection raised in the written statement did not find favour to the respondents because the trial Court after proper appreciation of law on the subject and keeping in yiew facts and circumstances of the case has rightly rejected the legal objections. As far Issues Nos.3 and 4 are concerned, since these issues were subject-matter of R.F.A. No,6 of 2001 which has been withdrawn and the defence have conceded to the suit that the properties at S. Nos.1 to 4 except 1 have been held to be the legacy of late Haji Abdullah Jan, as such the findings so rendered are hereby maintained to the extent of 1/4th of property subject-matter of Mutation No,2056 (Exh.P/39).
13. Reverting to the crucial Issue No,5 of course subject-matter of R.F.A. No,5 of 2001, though while framing this issue, the learned trial Court did not determine onus to be discharged by which party, however the learned trial Court has wrongly shifted burden of this issue upon appellants. As the matter pertains to the legacy of late Haji Abdullah Jan and the parties are descendents of latter and the claim of preferential gift in exclusion of other co-heirs is something which should have been proved by respondents and not by the appellants. Analyzing the case from this perspective we may observe that the trial Court while dilating upon the issue fell in error by holding that the burden to prove this issue was upon the appellants. The wordings of the issue leave no room for doubt that the burden of proof was admittedly upon respondents because it does not appeal to reason nor appears to be rational that the appellants who proved that the property has actually been given to respondents by Haji Abdullah Jan as Hiba. In such view of the matter the evidence produced by the respondents is absolutely insufficient to prove the factum of gift. The evidence produced by respondents has been referred to in para No,8. The respondents have produced five D.Ws., besides recording statement of their attorney. D.W.1 in his statement though stated that Abdullah Jan had gifted some property in the name of his sons, however in cross-examination he stated that he does not know that which of his property was gifted by late Haji Abdullah Jan. He also admitted that the gift was not made in his presence. Moreover, he has not stated that the appellants were ever aware of any gift in favour of sons of Haji. Abdullah Jan. D.W.1 stated that the gift was made in his presence in favour of Malik Usman but admittedly no property has been gifted to respondents in presence of D.W.1. Perusal of above statement makes it crystal clear that if the statement of D.W.1 is considered to be true, three ingredients of Hiba do not find mention, therefore, the statement of D.W.1 is of no avail. D.W.2 though stated that Abdullah Jan had gifted certain properties to his sons but in reply to a question he stated that he has no knowledge about the properties of Haji Abdullah Jan which was gifted by him. He has no knowledge that the gift transaction was oral or written. He admitted that the Hiba was not made in , his presence. D.W.3 Faiz Muhammad representative Saddar Qanoongo deposed that Exh.D/1-A to Exh.D/6-A are correct according to their record. In cross-examination he stated that in Exh.D/2 the acceptance was made only by Dr. Abdul Malik on behalf of otheRs, It is pertinent to mention that no power of attorney executed in favour of Dr. Abdul Malik pertaining to that period has been produced nor in the written statement it has been claimed that the gift was accepted by Dr. Abdul Malik on behalf of rest of the donees. D.Ws.4 and 5 are tenants of the shops. The statements of these witnesses are absolutely silent regarding the factum of delivery of possession of disputed land to respondents as donees. So much so not a single word regarding the gift of the property in-question by Haji Abdullah Jan in favour of his son has been uttered by them. D.W.6 is Bazger who categorically stated that Haji Sahib predecessor-in-interest of parties (Haji Abdullah Jan) used to visit the property in question but Haji Abdullah Jan has never expressed before the said witness that he has gifted the property in question. The visits paid by Haji Abdullah Jan of course can be treated a visit as owner of the property. The respondents in the written statement have claimed the property either to have been gifted to them or have been purchased by them or partitioned through family settlement meaning thereby the plaintiffs are not entitled for any share from the property of Abdullah Jan as according to respondents no legacy has been left but on the contrary Abdullah Jan has gifted properties mentioned at S.Nos.3, 7, 8, 9, 11 and 12 in his life time before the witnesses.
So it can easily be derived that, had Haji Abdullah Jan gifted the properties or settled the same among the male descendents, naturally the transaction may have been witnessed by some independent person. It will not be out of place to mention here that the defendants Nos.4 and 5 have not filed the suit but they did not appear in witness box confirming that the daughters were paid cash or they were compensated through jewellery, and did not support the written statement as a witness.
' The ocular evidence produced by the respondents is not confidence-inspiring nor for that matter satisfy/fulfil the standard of proof as required under the Islamic Law qua the gift. Moreover, the statement of the attorney for the appellants lacks the fulfilment regarding prerequisites of gift. It will not be out of place to mention here that the attorney himself was neither a witness of gift i.e. Verbal or written nor for that matter in his statement he stated that the offer by the donor was made and the same was accepted by the donee pursuant to which properties were gifted nor possession was delivered. Lack of such version in the statement further enfeebles instance of respondents. It will not be irrelevant to point out that none of the donees appeared before the court to verify and confirm their claim regarding the gift. Under such circumstances, we have left with no option but to discard and disbelieve the whole ocular evidence produced by the respondents regarding the factum of gift. By holding this view we are fortified by the dictum laid down in the judgment reported in 2010 SCMR 342. Relevant observations are reproduced hereinbelow:--- "In the instant case, the parties are brother and sisters inter se. Exh.P.1 (gift deed) recites that the donor (father) made a gift of the property in question in favour of respondent No,1 (one of his daughters). The onus to prove the gift deed Exh.P.1 in all its three facets, namely the declaration of gift by the donor, acceptance of the gift by the donee and delivery of possession of the corpus of gift lay on the plaintiff-respondent. An appraisal of evidence adduced by her does not prove the fulfilment of the requirements regarding acceptance of gift by the donee and delivery of possession to her. While appearing as P.W.1, she did not state that she had accepted the gift or possession of the property was given to her. On the other hand, she merely stated that the possession of the property was with her. Similarly P. W. 3 Muhammad Zaman and P. W. 4 Muhammad Nawaz stated that the possession of the property was with the plaintiff. The gift deed was executed on 15-2-2002 while the donor died on 23-5-2002. During this period, the respondent-plaintiff did not get the property mutated in her favour. The failure to clearly establish the twin requirement of acceptance of gift and delivery of possession was fatal to the claim of the respondent-plaintiff However, none of the Courts below adverted to this aspect of the matter.
Consequently, it could not be said that a valid gift was made by the father of the respondent plaintiff in her favour."
14. Adverting to revenue entries, it may be observed that Exh.D/1 produced by D.W.3 also does not satisfy the standard of evidence qua the proof of gift for a variety of reasons (i) the revenue entries effected as per section 42 of West Pakistan Land Revenue Act are a report i.e. Factum of acquisition of any right in an estate to Patwari is a mere ministerial act which would not confer or extinguish any right in the property. According to section 42 of Land Revenue Act, 1967 no witness or respectable are required either to accompany the person to report acquisition of such an interest to Patwari nor the presence of two witnesses are necessary while entering of a mutation in said connection. Even if the donor himself does not go to the Patwari for said purpose the same would be of no consequence. However; in this respect the most relevant and crucial act which requires much attention is the factum of attestation of mutation within the purview of provisions of subsection (7) of section 42 of Land Revenue Act, 1967.
"Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection
(6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the Union Committee, Town Committee or Union council concerned, whose signatures or thumb- impressions shall be obtained by the Revenue Officer, on the register of mutations."
' Perusal of above reproduced subsection (7) of section 42 of Land Revenue Act, emphasizes and requires the presence of the person whose right has been acquired and the identification of such person at least by two respectable persons i.e. Lumbardar or Member of Union Council etc. Is inevitable. Viewing the case of defence from this point of view there is absolutely lack of compliance of subsection (7) of section 42 of Land Revenue Act, 1967. Thus it can easily be concluded that the revenue entries so effected are offended to the provision of subsection (7) of section 42 of the Land Revenue Act, 1967 and thus by observing so we are fortified by the dictum laid down in the judgment of apex Court reported in 2005 SCMR 911. Relevant observations therefrom are reproduced hereinbelow:--- "In confirming the two judgments of the learned subordinate Courts as would appear from para, 4 of its judgment, was influenced by the fact that it had been admitted by Kabool Ahmed Councillor that he and Siddique donor had not gone to the Patwari for the purpose of seeking entry of mutation of gift and this admission accordingly the honourable High Court had taken away the "very bottom" of Khalil defendant's assertion that a valid gift had been made in his favour and that the mutation in question had been lawfully entered and attested. We say with respect that entering a mutation or reporting the factum of acquisition of any right in an estate to the Patwari was a mere ministerial act, which did not confer or extinguish any right in any property and thus nothing really hinged on the same. As would be evident from section 42 of Land Revenue Act no witnesses or respectables were required either to accompany the person reporting acquisition of such an interest to the Patwari nor to witness the entering of a mutation in the said connection.
Therefore, even if it be presumed that the witnesses in question or even the donor himself had not gone to the Patwari for the said purpose, even then the same is of no consequence vis-a-vis the validity of a consequently attested mutation. What is relevant is the factum of attestation of mutation, which exercise had to be done by the Revenue Officer under subsection (7) of the said section 42 of the Land Revenue Act, 1967 in the presence of the person, whose right had been acquired after such person had been identified by at least two respectable persons preferably from amongst the Lamberdar or member of the Union Council etc."
15. It appears that except exhibition of the revenue record none of the- witnesses of the alleged gift were produced by the defence. In our considered view, to prove the factum of gift which makes the gift doubtful? It is not the case of respondents that the persons before whom the attestation as contemplated by subsection (7) of section 42 of the Land Revenue Act, 1967 has died or was not available. Under such circumstances the alleged gift becomes highly doubtful. Reliance is placed on 2000 SCMR 346 (Relevant 354).
"The contention that the suit of Mst. Janatay Bibi was beyond time is also misconceived in that the findings about the procurement of the gift rightly held to be doubtful by the learned Additional District Judge and the learned Judge in ChambeRs, The story of gift having been held to be doubtful, the same is in itself sufficient to take the instant case out of the purview of the period of limitation prescribed in Article 120 of the Limitation Act.
' Before parting with this order, it may be observed that petitioners predecessor-in-interest i.e., defendant Abdul Aziz did not enter the witness-box and thereby failed to discharge the burden of proof on him to establish a valid gift. Further, the absence of the Revenue Officer, who allegedly attested the mutation, is also conspicuous and tells a lot about the nature of the alleged transaction of gift being what it has been held to be by the Appellate Forum with which the High Court has concurred. The learned Judge in Chambers considered the peculiar circumstances of this case and rightly relied upon the case of Ghulam Ali (PLD 1990 SC 1) for coming to the conclusion that the tendency in this part of the country that male members of the family try to deprive the females of their legitimate inheritance is dying out by inches and that the very spirit of this tendency is kept alive by perpetrating fraud with the connivance of the Revenue Officials.
16. Even otherwise the admitted facts as per the case are that all the. Appellants/plaintiffs are illiterate and "Parda Nasheen" ladies and in the garb of mere revenue entries unless respondents prove that not only the mere entries the revenue record but much more i.e. Ingredients of gift are satisfied by procuring independent, confidence-inspiring and cogent evidence the appellants cannot be deprived of their ancestral rights. We are conscious of the fact and mindful of legal proposition a preferential gift despite reservations are not void under the Islamic law but in case of preferential gift the ingredients of the gift are required to be proved through strict, cogent and confidence-inspiring evidence. The revenue entries itself are not sufficient. The status of revenue entries itself do not confer any right or title to a person in whose favour the same has been rendered. Reliance is placed on 2004 SCMR page 1502.
"The learned Civil Judge rightly came to the conclusion that the documentary and ocular evidence produced by Yara coupled with admission of the D. Ws. Made it clear that the plaintiff Yara was all along in possession of the suit-land consequently suit would be covered by Article 120 of the Limitation Act and the person in possession of the land would not be obliged to rush to the Court only on the basis of adverse entry in the Revenue Record and in such a case plaintiff would get recurring cause of action, by each adverse entry in the Revenue Record and the plaintiff would be sole Judge of serious threat to his interest and be that as it may, the registered sale- deed dated 16-8-1966 if considered to be serious attempt on the part of the defendant upon the rights of the plaintiff the suit having been filed on 15-5-1967 would be within time. The said finding of the learned Civil Judge was reversed by learned District Judge who also failed to consider the ocular and documentary evidence discussed and reasoned out by the learned Civil Judge in his judgment. There is no cavil about the legal proposition that the entry in the Revenue Record is neither a document of title nor a presumptive evidence of title and person may not feel aggrieved of such entry and cause of action in such a case would not accrue when ,the mutation order-in- original or appellate or revisional was made. The cause of action would accrue when a person concerned would feel himself aggrieved of the situation when he would feel it necessary to approach Court of law for relief which he considered fit and proper in accordance with law. In the circumstances the contention raised said above has no merit and substance."
17. In view of given facts, circumstances and the evidence produced by the respondents we are satisfied that Issue No,5 has not been proved, as such; we reverse the findings of the trial Court and hold that Issue No,5 has not been proved by the respondents, as such; the same is resolved in negative against respondents and in favour of appellants.
18. Now coming to the arguments of learned counsel for the respondents that the suit is barred by time. Since Issue No,1 has been resolved in affirmative and no cross-objection has been filed by the respondents. Moreover; keeping in view the facts and circumstances of the case and the doubtful nature of gift we do not subscribe to the contention. In our considered opinion, the suit was filed within time. By holding the view we are fortified by the judgments reported in 2007 SCMR page 635 and PLD 1990 SC 1. Relevant observation therefrom read as under:--- "To the similar effect is the decision in Najabat and others v. Saban Bibi and others' (PLD 1982 Supreme Court 187). It was held in the circumstances of that case that the co-sharers/coowners were not at all obliged to file a suit to seek a declaration to the effect that a mutation had wrongly been sanctioned. It was also held that a suit filed, due to denial of rights of the plaintiff/co-sharer, for declaration would be within time and the Revenue authorities on success of such suit would be required by law to correct the wrong mutation entries".
'It is a proposition too well-established by now that as soon as someone who owns some property, dies, the succession to his property opens and the property gets automatically and immediately vested in the heirs and the said vesting was not dependent upon any intervention or any act on the part of the Revenue Authorities or any other State agencies. It is also an established proposition that a mutation did not confer on anyone any right in any property as the Revenue Record was maintained only for realization of land revenue and did not, by itself confer any title on anyone. It may also be added that afflux of time did not extinguish any rights of inheritance because on the death of an owner of property, all the co-inheritors immediately and automatically, became co-sharers in the property and as has been mentioned above, limitation against them would start running not from the time of the death of their predecessor-ininterest nor even from the date of mutation, if there be any, but from the date when the right of any such co-sharers/co-inheritors in such land was denied by someone."
19. Since the matter pertains to inheritance and otherwise plaintiffs and defendants are co-owners and co-sharers in the legacy of Haji Abdullah Jan, therefore, no limitation would run in such cases.
The judgment reported in 2007 SCMR 1446 referred to by Messrs Muhammad Aslam Chishti and S.A.M. Quadri, Advocates is not applicable as in that case the plaintiff had failed to establish that they were descendents of the owners of the suit, therefore, the case-law so referred does not help the respondents.
20. As far as the judgment 'reported in 2008 CLC 61 the facts are distinguishable, as such the same is not applicable and helpless to respondents. As far as the second limb of arguments that no cause of action has been accrued to plaintiffs as they have not challenge the gift specifically. The perusal of plaint reveals that the list of the entire property subject-matter of gift according to appellants subject-matter of the gift has been given. It was the case of defendants that the property has been gifted to them otherwise on the death of Abdullah Jan all the heirs are entitled for their legal sharai share. Under such circumstances the plaintiffs cannot be non-suited merely because gifts have not been challenged. To ascertain the plaint not only the form but the frame and substance of the plaint is to be taken into consideration and adhered to. Looking the case of respondents from this perspective we do not find any force in the submission made by learned counsel for appellant regarding non-accrual of cause of action or non-challenging of gifted property.
' As discussed hereinabove, since the respondents have not proved the factum of gift, therefore, the arguments has lost significance. We are conscious of the fact that legally court is quite competent to mould and grant any relief to the party if it is found entitled in accordance with his/their rights. By holding this view we are fortified by the judgment reported in 2006 SCMR 688.
Relevant observation therefrom are reproduced hereinbelow:--- "As far as the objection of the learned counsel regarding the competency of the suit after completion of construction is concerned suffice it to observe that the Courts are not precluded from moulding the relief in view of the changed facts and circumstances of a case to shorten the litigation between the parties as it has been held in Amina Begum v. Ghulam Dastgir PLD 1978 SC 220".
22. As far as the contention that there is no bar in Islamic Law for making a preferential gift, the argument so raised has got sufficient force and there is no cavil with the proposition so advanced.
However; a preferential gift which culminates in deprivation of the rights of other legal heirs requires to be proved in strito sensu. As discussed above while dilating on Issue No,5 since the respondents have failed to prove Issue No,5, therefore, the gift which has not been proved cannot be claimed to be a valid gift.
23. As far as the contention that the heirs of appellants Muhammad Sadiq are not entitled, we have not been able to persuade ourselves to subscribe the view point so expressed by counsel for appellants. Law on the subject stands settled, therefore, the descendents of Muhammad Sadiq are entitled for the share of Muhammad Sadiq as per section 4 of provisions of West Pakistan Family Law Ordinance, 1961.
' In the light of above discussion, we are inclined to accept the R.F.A. No,5 of 2001 and reverse the findings rendered by trial Court on Issue No,5. Resultantly the property subject-matter of Issue No,5 shall also be distributed among the heirs of late Haji Abdullah Jan (plaintiffs and defendants) in accordance with their sharai share. - ' Along with R.F.A. No,5 of 2001 there is another appeal R.F.A. No,6 of 2001 since facts of both the cases are same, therefore, we do not want once again to marshell the facts.
' After arguing R.F.A. No,6 of 2001 for a considerable time, Mr. Muhammad Aslam Chishti (Counsel for appellants in R.F.A. No,6 of 2001) submitted that he has prevailed upon his clients that since appellants/defendants have not been able to prove that the properties forming subject of Issue No,3 have been given to the defendants as a result of family settlement. The properties at S. Nos.1, 2, 4, 6 and 10 acquired by them pursuant to the family settlement arrived at in the year 1971 now shall be the legacy of Abdullah Jan and parties shall be entitled to their legal/sharie share, however; the properties at S.No,6 subject-matter of Issue No,3, Mutation No,205 situated in Ward No,47, Tappa Urban, Tehsil and District Quetta measuring 60,774 Sq.Ft (5 kittats) produced as Exh.P/39, only 3/4th of this property belonged to Haji Abdullah Jan. Whereas rest 1/4th of this property which belonged to Hakeem Shah who was the recorded owner to such extent, has been purchased by Dr. Abdul Malik. According to learned counsel the measurement of the purchased property is 12845 Sq.Ft.
According to learned counsel the subject-matter of R.F.A. No,6 of 2001 except property at Serial No,6 Mutation No,205 Exh.P/39 to the extent of 1/4th of property referred to herein above (12845) are legacy and all the parties are entitled to have their share in accordance with law.
' Though in the written statement no specific plea of purchase has been raised, however; since the learned counsel has frankly conceded to the factual position of the case, therefore, while dismissing R.F.A. No,6 of 2001 we leave it open to the Executing Court to exclude 12845 Sq.Ft subject- matter of Intiqal No,205 provided Dr. Abdul Malik produces any cogent evidence which include revenue entries in the name of Hakeem Shah and transferred in favour of Dr. Abdul Malik or a sale- deed in his favour. Resultantly, R.F.A. No,5 of 2001 is accepted and. R.F.A. No,6 of 2001 is dismissed with the above observations. Decree sheet be drawn.