The defendant/petitioners feeling themselves aggrieved of the concurrent findings of the two Courts below have filed instant revision petition. The suit of the Plaintiff/Respondent No. 1 was decreed in her favour by Civil Judge/Illaqa Qazi dated 20.10.2009 and appeal there against of the present petitioners was dismissed by Additional District Judge/Izafi Zilla Qazi, Swat vide judgment and decree dated 4.3.2010.
2. The learned counsel for the petitioners contended that findings of the two Courts below are not only against the evidence and record of the case but are also against the law. He next contended that the property of their predecessor namely Abdul Majeed Khan alias Doba Khan was partitioned by him in his lifetime vide partition deed dated 1.8.1953 and this very fact has also been admitted by the plaintiff/respondent, so she, is legally estopped to file present suit and requested for dismissal of the same by setting aside the judgment and decrees of the two Courts below.
3. As against that, the learned counsel for Plaintiff/Respondent No. 1 submitted that propositus of the parties was owner of three shares () of land, two of which were partitioned by him and the 3rd one being his legacy was to be distributed amongst all the L.Rs and the plaintiff as such has claimed her share in the suit property. So, the findings arrived at by the Courts below are in accordance with law and plaintiff was rightly declared to be an owner of her respective share in the legacy of her father. He next contended that the concurrent findings of the two Courts below on facts cannot be interfered with and requested for dismissal of instant revision petition.
4. The learned counsel for the parties were heard and record of the case was perused.
5. Perusal of the record would reveal that the Plaintiff/Respondent No. 1 through instant suit had claimed her Sharai share in the legacy of her father. Initially she impleaded only the defendant/petitioners in her suit and her suit was decreed in her favour by both the Courts below.
However, in Civil Revision No. 1329 of 2004 before this Court, the case was sent back to the trial Court with the directions to the plaintiff to implead all the legal heirs of propositus of the parties vide judgment dated 23.9.2005. Accordingly, an amended plaint was filed by the plaintiff wherein she impleaded her two sisters and daughters of her deceased sister but did not implead the grand-sons of her father Abdul Majeed. Accordingly suit was contested by the parties but the plaintiff/respondent produced only Patwari Halqa as R-PW-1 and relied upon her previous evidence produced by her whereas the defendant/petitioner No. 1 appeared as R-DW-1 and also produced Patwari Halqa as R-DW-2 who brought on record the copies of the revenue record of the entire properties partitioned/transferred by their common predecessor during his lifetime. The trial Court after hearing the parties once again granted a decree in favour of Plaintiff/Respondent No. 1 and similarly the appeal of the present petitioners was dismissed by maintaining the findings of the trial Court.
6. It has been established on the record that the propositus of the parties owned 3 shares {{URDU TEXT}} of land out of which he had given two shares of the land to the sons of his predeceased sons i.e his grandsons whereas the 3rd share was kept by him for himself during his lifetime and it was also decided by him that the said 3rd share of the property after his death would be the ownership of his son namely Nadar Khan i.e. Petitioner No. 1 and other legal heirs of his predeceased sons would have no concern with the same. This alienation/partition of the property .by the owner vide deed dated 1.8.1953 available on the file as Ex.DW-1/2 would reveal yet another fact that he alienated the property in the name of his grand-sons and the Petitioner. No. 1 and deprived all his three daughters and the two widows. The legal heirs of the deceased daughter as well as the Petitioner No. 2 have accepted the said alienation and have not objected the same by not contesting the suit. Now remains the only Plaintiff/Respondent No. 1 who claims her share from the suit property which according to the deed of 1953 ibid to be the share of Defendant/Petitioner No. 1. She has not claimed any share from the property given by the deceased Abdul Majeed alias Doba Khan to his grand-sons only for the reason that the said property was alienated by her father in his lifetime, so that property cannot be termed as the legacy of her father and as such she has not claimed any share from the same. Whereas the suit property was the only property left as legacy of her father, so, she is entitled to her share in the same. The evidence available on the file would reflect that the partition deed dated 1.8.1953 Ex.DW-1/2 was executed by the predecessor during his lifetime through a proper deed under the law prevailing at that time and entries of the same were also incorporated in the Register No. 59 kept for the purpose. Copy of said register produced from the proper custody is also available on the file as Ex.DW-4/1. So, there is no dispute about the authenticity of the said document. The plaintiff and her witness PW-3 both have also admitted partition of the property through this deed by common predecessor of the parties but have disputed the third share kept by the predecessor for himself and after his death to be owned by Petitioner No. 1 which, on the face of it, would suggest that the plaintiff was fully aware of the same and admits its existence. Now the question would be as to whether the above said third share of the property could be termed as legacy of the predecessor or the same would be the exclusive ownership of the defendant/petitioner. The answer to this question can be gathered from record available on the file and the same can be ascertained by the intention of the person who was dealing with his property. That has to be seen and observed from the deed he has executed.
The term "res ipsa loquitur" the thing speak for itself, is very much applicable to the facts and circumstances of the present case as neither the witnesses nor the executant of the deed is alive.
The same would also have presumption of correctness and truth attached to it being more than five decades old and produced from the proper custody. The circumstances in which he was parting with his property were that his two sons had died during his lifetime and were survived by four sons whose names appear in the deed Ex.DW-1/2 and the plaint. He transferred two shares of property in favour of his grand-sons (the issues of his two predeceased sons) and on the same day executed separate deeds in their favour as reflected in Ex.DW-1/2. The petitioner at that time was minor. Then he left his third share of property for himself till his lifetime and declared that after his death would be owned by the petitioner alone. The aspect of exclusive ownership of -petitioner can be gathered again from the contents of the deed when he states that his grand-sons then would have no rights in this property. Though the word 'gift' has not been mentioned in the deed but such alienation is a perfect gift in all its intents and purposes. He had his two wives and three daughters alive at that time but has not referred to them and alienated/parted with whole of his property by excluding them.
7. The evidence produced by the plaintiff/respondent is deficient enough to suggest that her father had left any property as his legacy whereas admittedly he had a huge property i.e. residential as well as landed referred to in the deed. So, the plaintiff/respondent in the circumstances is estopped to claim this property to be the legacy of her father as on the one hand, she admits the alienation of the property in favour of the grand-sons of the propositus and on the other hand, she denies the transfer in favour of Petitioner No. 1. She admits part of the deed to be correct and denies from other part. So, she cannot be allowed to blow hot and cold in one breath. Yet another aspect of the case could also not be ignored that the said very deed has also not been challenged by her in the suit. Her second witness i.e. PW-2 categorically says that he is unaware of the partition of property by common predecessor of the parties. So his statement in the circumstances would not be helpful to her. Her other witness PW-3 has admitted the rights of defendant/petitioner in the property in unequivocal terms. So, the claim of the plaintiff/respondent is baseless and without any merit.
8. The legal aspect of the case, though not argued by the counsel for the petitioner, would be that the West Pakistan Muslim Personal Law (Shariat Application), Act V of 1962 was made applicable to the Provincially Administered Tribal Areas through Regulation No. 1 of 1976. Section 7(2)(a) of the Regulation ibid had also saved the previous operation of any such law, instrument, custom or usage. Before further discussion, it seems appropriate to reproduce the provisions of clause 7(2)(a) of the Regulation I of 1976 which reads as under:-- "7. Certain laws to cease to operate.--(1) If, immediately before the commencement of this Regulation, there was in force in the said Areas any law, instrument, custom or usage having the force of law corresponding to the provisions of any of the laws applied to those Areas by this Regulation, such law, instrument, custom or usage shall, upon such commencement, cease to'have effect in those Areas.
(2) Nothing in sub-section (1) shall affect--- (a)The previous operation of any such law, instrument, - custom or usage; or (b)...................................
(c)...................................
(d)...................................
A look at the above provisions of law would make it clear that previous operation of any such law, instrument, custom or usage would not be affected by coming into force of Act, V of 1962. While reverting back to the facts and circumstances of the case in hand, the above provision of law would be yet another impediment in the way of plaintiff/respondent. She could not claim share under the Muslim Personal Law in the-estate of her father as succession in the area was governed by the customs at the relevant time specially when her father died much before coming into force of the Act, V of 1962 and as per customs he done away with his property by transferring in the name of his grand-sons (the sons of his two predeceased sons) and the petitioner by excluding defendant and depriving his female descendants. Reliance in this regard can also be placed on Mst. Farida and others vs. Rehmatullah and another (PLD 1984 Peshawar 117).
9. So, what has been discussed above, the plaintiff/respondent has bitterly failed to proves that there was any legacy left open at the time of death of her propositus or at the time of promulgation of Act, V of 1962 which was made applicable in the area in 1976 vide Regulation No. 1 of 1976. So, in this view of the matter, the findings arrived at by the Courts below are not only based on misreading and non-reading of the evidence available on the record but the same have been based against the provisions of law, referred to above. Hence, the revision petition is allowed, the judgment and decrees of the two Courts below are hereby set aside and suit of the Plaintiff/Respondent No. 1 is dismissed as such.