AMIN-UD-DIN KHAN, J.--Through this single judgment, I intend to dispose of Civil Revision No,116-D of 2005/BWP (Muhammad Ibrahim etc. Vs Mst. Kausar Bibi etc.), Civil Revision No,115-D of 2005/BWP (Muhammad Ibrahim etc. v. Mst. Kausar Bibi etc), Civil Revision No,117-D of 2005/ BWP (Muhammad Ibrahim etc. v. Mst. Kausar Bibi etc.) and Civil Revision No,72-D of 2005/ BWP (Saeed-ur-Rehrnan etc. v. Muhammad Ibrahim etc.). Three declaratory suits were filed by the petitioners Muhammad Ibrahim etc. These revision petitions are outcome of these suits.
2. Civil Revision No,116-D of 2005/BWP is outcome of the suit for declaration, wherein petitioners plaintiffs claimed that Mst. Kausar Bibi is not the daughter and Mst. Sarwar Begum is not widow of Atta Muhammad, therefore, they are not entitled to inherit the property of Atta Muhammad, propositus.
3. Civil Revision No,115-D of -2005/BWP is outcome of a suit, wherein petitioners have challenged the mutation of sale No,535, attested on 3-4-1960, by Atta Muhammad in favour of Mst. Kausar Bibi and Hasina Begum.
4. Civil Revision No,117-D of 2005/BWP' is outcome of a suit which was filed by the petitioners to challenge the mutation of gift No,536, attested on 3-4-1960, by Atta Muhammad in favour of Mst.
Kausar Bibi.
5. Civil Revision No,72-D of 2005/BWP relates to a suit under issue in Civil Revision No,116-D of 2005/BWP. This civil revision has been filed'by the purchasers of the property from Kausar Bibi and Mst. Sarwar Begum.
6. The learned trial Court vide judgment and decree dated 28-6-1995, dismissed two suits, which are subject-matter of Civil Revision No,115-D of 2005/BWP and Civil Revision No,117-D of 2005/BWP and decreed the suit, which is subject-matter of Civil Revision No,116-D of 2005/BWP and Civil Revision No,72-D of 2005/BWP. Four appeals were filed against the said judgments and decrees.
One by Mst. Kausar Bibi and other by Saeed-ur-Rehman etc. Purchasers of the land from Mst.
Sarwar Begum and Mst. Kausar Bibi. Appeal of Mst. Kausar Bibi was allowed whereas appeal filed by Saeedur-Rehman etc in a suit, which is outcome of Civil Revision No,116-D of 2005/BWP, was partially allowed vide judgment and decree dated 4-1-2005 passed by learned Additional District Judge, Rahimyar Khan. Two appeals were filed by Muhammad Ibrahim etc against suits, outcome of which are Civil Revision No,115-D of 2005/BWP and Civil Revision No,117-D of 2005/BWP. Both the appeals were dismissed by the learned Additional District Judge, Rahimyar Khan, vide judgments and decrees dated 4-1-2005. Hence, these civil revisions.
7. The brief facts of the case are that Atta Muhammad, the propositus, died in September, 1973. He was a big landlord having urban as well as agricultural land in various revenue estates. The mutations of inheritance were attested. Admittedly, Atta Muhammad was having no son. His following legal heirs were given shares of inheritance:- "Muhammad Ibrahim as brother, Mst. Allah. Bachai, Mst. Noor Khatoon and Mst. Zohra Khatoon as sisters, Mst. Wasson Mai and Mst. Sarwar Begum as widows, Mst. Kausar Bibi and Mst. Khadija-tul- Kubra Sultana as daughters of the deceased."
8 After attestation of the mutations, plaintiffs filed three suits, above mentioned. The crux of the matter is that plaintiffs do not admit Mst. Kausar Bibi to be the daughter of the deceased and Mst.
Sarwar Begum to be the widow of the deceased. Further in other suits, plaintiffs have challenged the mutation of gift in favour of Mst. Kausar Bibi and in 3rd suit, sale of land through mutation No,535 in favour of Mst. Hasina Begum and Mst. Kausar Bibi by said Atta Muhammad, has been challenged.
9 There is another important fact that during pendency of the suits, Mst. Sarwar Begum allegedly appeared before the learned trial court on 10-4-1988 and made statement that she has no objection if suit is decreed. It is pertinent to note that 10-4-1988 was not the date of hearing in the suit and this statement was recorded behind the back of other defendants.
10 First of all, I would take the Civil Revision No,176-D of 2005/BWP. In this civil revision, matter in issue is that petitioners do not accept Mst. Kausar Bibi to be the daughter of the propositus Atta Muhammad and with regard to Mst. Sarwar Begum, their case is that she was divorced by Atta Muhammad in his life time, therefore, she is not entitled to inherit the property.
11 Learned counsel for the petitioners argued that P.W.1, P.W:2 and P.W:3 have been produced to establish that Mst. Sarwar Begum was divorced by Atta Muhammad in his life time. Further states that there is Exh.P:1 on the file which is an acknowledgment with regard to the divorce to Mst.
Sarwar Begum by Atta Muhammad, which fully proved that Atta Muhammad divorced Mst. Sarwar Begum in his life time. Further submitted that Mst. Sarwar Begum got recorded her statement on 10-4-1988 to the effect that she has no objection if suit is decreed. Learned counsel further contended that they have fully proved that Mst. Kausar Bibi is not the daughter of Atta Muhammad, therefore, she is not entitled to inherit the property of the deceased.
12. On the other hand, learned counsel for the respondents as well as learned counsel for the- revision petitioners of Civil Revision No,72-D of 2005/BWP states that Mst. Sarwar Begum was widow of Atta Muhammad and she was never divorced. Further states that both the Courts below have not decided the issue with regard to the divorce to Mst. Sarwar Begum rather they relied upon the alleged statement of Mst. Sarwar Begum and decided the issue against her.
13. Learned counsel for the respondents representing Mst. Kausar Bibi states that there is voluminous evidence to prove Mst. Kausar Bibi to be the daughter of the propositus. He has referred Exh.D:1, which is an invitation of the marriage of Mst. Kausar Bibi, wherein she has been said to be the younger daughter of Atta Muhammad. This document also bears signatures of Muhammad Ibrahim, one of the plaintiff- petitioner, who also acknowledged his signatures on this invitation card. Further he has relied upon Exh.D:3 & Exh.D:4, the mutations Nos.535 and 536 respectively, attested on 3-4-1960 by Atta Muhammad, wherein Mst. Kausar Bibi has been shown to be his daughter. Further Exh.P:5 is nikahnama of Mst. Kausar Bibi dated 2-7-1967, wherein she has been shown to be the daughter of Atta Muhammad and Atta Muhammad is her "Wakeel" at the time of, performance of nikah, as her father, which also bears his signatures. Exh.D:6 is "Shajra-e- Nasab", Exh.D:9 is lease deed, through which Atta Muhammad leased out his property; in this document, he has acknowledged Mst. Sarwar Begum, his wife and Mst. Kausar Bibi, his daughter.
Further states that Exh.D:10 is certified copy of statement of Muhammad Akbar, previous husband of Mst. Hasina Bibi, who has categorically states that Mst. Kausar Bibi is not his daughter. In this way, learned counsel states that in the existence of so many acknowledgments by Atta Muhammad, claim of the petitioners is absolutely wrong, the same is liable to be rejected. Further that learned trial Court has wrongly remarked that pleadings of the defendants are not specific.
14. The arguments with regard to Civil Revision No,115-D of 2005/BWP and Civil Revision No,117-D of 2005/BWP are concerned, there are concurrent findings of the facts of both the Courts below against the petitioners. Learned counsel for the petitioners states that only attestation of mutations does not create any right in favour of the transferees, the beneficiaries are bound to prove the transaction.
15. On the other hand, learned counsel for the respondents states that concurrent findings of the facts recorded by the Courts below cannot be interfered with by this Court while exercising jurisdiction under section 115 of the C.P.C.. Further states that mutation was attested in the year 1960 and admittedly Atta Muhammad, the transferor, remained alive till the year 1973 and he admitted these mutations in his life time as true, therefore, petitioners have no right to challenge these mutations. He prayed that both these civil revisions be dismissed with costs.
16. Learned counsel for the petitioners in Civil Revision No,72-D of 2005/BWP states that both the Courts below have not touched the evidence available on record but have recorded their findings on the basis of alleged statement of Mst. Sarwar Begum. Further states that Mst. Sarwar Begum has transferred the property in favour of the petitioners, therefore, she was not entitled to make statement before the Court. Further states that it was not the statement of Mst. Sarwar Begum, but was got recorded by some fictitious lady. Further that even if it is presumed that it was statement of Mst. Sarwar Begum, the same has no value against the rights of the revision petitioners of Civil Revision No,72-D of 2005/BWP.
17. The contention of the learned counsel for the petitioners in respect of proving the case with regard to divorce to Mst. Sarwar Begum is concerned, I have noticed that statements of P.W.1, P.W:2 and P.W:3 are contradictory to each other. Moreover, these witnesses have been produced in proof of Exh.P:1, the alleged acknowledgement of divorce by Atta Muhammad. If this document is presumed to be true, it shatter the validity of the statements of P.W:1, P.W.2, P.W:3. Further that why this Exh.P:1 was kept by the said Atta Muhammad after execution of the same and how this document came in the custody of Muhammad Ibrahim. In natural course, it was to be delivered to Mst. Sarwar Begum as it was a divorce paper and if retained by Atta Muhammad, as alleged by the petitioners, it should have been with the widow of Atta Muhammad. How it came into the hands of Muhammad Ibrahim, brother of Atta Muhammad, who produced it before the Court. Further Exh.P: 1 is also self contradictory document because in this document, factum of divorce was to be proved by a direct and reliable evidence. I have noticed that Exh.P:1 shows that the said Atta Muhammad states in this document that he has no nikah with Mst. Sarwar Khatoon and if there is any nikah, that will be presumed as "Batil" because "it is not with my signatures". Further "I had divorced the lady before the witnesses thrice and that she is `haram. On me". This document is dated 30-8-1973 and admittedly Atta Muhammad died in September, 1973. Further that the alleged witnesses before whom Atta Muhammad divorced the lady, never came on the surface and they even do not know that before whom, the divorce was announced. If for the sake of arguments, this document be presumed as a divorce, even then Atta Muhammad died in September, 1973 meaning thereby within a period of one month of the alleged divorce when the 'iddat-period has not yet expired and before expiry of A iddat-period, Atta Muhammad died. If the divorce is, not confirmed, the lady is entitled to inherit the property of her husband because there are chances of reconciliation between the parties. The petitioners plaintiffs have not alleged any proceedings for confirmation of divorce under the Family Laws. I have also noticed that both the Courts below have based their findings with regard to the divorce on the statement of alleged Mst.Sarwar Begum, recorded before the learned trial Court on 10-4-1988 but record reveals that 10-4-1988 was not the date of hearing and actually the date of hearing was 19-4-1988. There was no necessity to record the statement by Mst. Sarwar Mai before the date of hearing and that too behind the back of other defendants, when Mst. Sarwar Begum has already transferred part of her property in favour of Saeed-urRehman etc. Further that learned counsel Mr. Javed Ashraf, Advocate, who appeared on that date with the said lady, was not previously counsel in that suit and on the basis of said statement, learned Judge who recorded the same, had not granted the decree in favour of the plaintiffs on that date. Furthermore, I have noticed that behind the statement of alleged Mst. Sarwar Begum, there are signatures of leatned Judge and his name is typed there-under. Where-after beneath that, under extreme right corner, alleged thumb impression of Mst. Sarwar Begum is available. I have further observed that on the said page of the order sheet of learned trial Court, where statement of the alleged lady was recorded, there is a thumb impression above to this recorded statement and even above the interim order passed on 10-4-1988, which is on the right side of the order dated 16-3-1988, there is no explanation that whose thumb impression it is and for what purpose, it has been affixed. It was not sufficient to decree the suit against the lady because before the said statement, the lady appeared in the trial Court and got recorded her statement as D.W.1, on oath, therefore, when there is an admitted statement of Mst. Sarwar Begum on record, recorded by the learned trial Court, and was duly cross-examined, this alleged statement dated 10-4-1988 has no legal value and even it is doubtful that whether the same lady had appeared before the court or not therefore, on the basis of this alleged statement, findings recorded by both the Courts below ignoring the whole evidence available on record, are not tenable under the law, therefore, findings recorded by both the Courts below on the basis of this statement of alleged Mst. Sarwar Begum are hereby set aside to this extent.
18. Now I come to the controversy that whether Mst. Kausar Bibi is daughter of Atta Muhammad, the propositus, or not, The learned trial, Court recorded findings against Mst. Kausar Bibi whereas the leaned 1st appellate Court reversed the findings and dismissed the suit filed by the, petitioners. The considerable evidence on this point on the basis of which the plaintiffs petitioners are claiming, are statements of P.W.5 & P.W:6 and statement of one of the plaintiff as P.W.7. So far as statement of P.W.5 (Muzaffar Ali) is concerned, who claims to be a Nikah Registrar at the time of nikah of Mst.
Hasina Bibi, mother of Mst. Kausar Bibi, with said Atta Muhammad, against this oral statement, plaintiffs petitioners have produced nikahnama (Exh.P:12), between Atta Muhammad and mother of Mst.. Kausar Bibi. In column No,14, it is clearly written that the lady has accepted the offer of nikah before the witnesses in open "Majlis" in presence of all the participants because she was a divorced lady. This documentary evidence of the plaintiffs proved that P.W.5 is dishonest and not a truthful witness. Further the plaintiffs petitioners have only the statements of P.W.6 and one of the plaintiff as P.W.7 whereas against this oral evidence, there exists documentary evidence in shape of Exh.D:1 which is invitation letter on the marriage of Mst. Kausar Bibi, issued by Atta Muhammad. This letter bears the signatures of Atta Muhammad who acknowledged his signatures as P.W.7. The name of Mst. Kausar Bibi is not written in this document but it is written that it is an invitation of nikah of younger daughter of Atta Muhammad and Atta Muhammad has another daughter who is one of the plaintiff namely Mst. Khadija-tul-Kubra Sultana, who is elder one, therefore, safely it can be presumed that this invitation is for the marriage of Mst. Kausar Bibi. Further in Exh.D-3 and Exh.D:4 dated 3-4-1960, which, are the mutations, Atta Muhammad himself has written Mst. Kausar Bibi to be his daughter. There is certified copy of 'pert nikah' of Mst. Kausar Bibi with Khair Muhammad Khan dated 2-7-1967. In this nikahnama, said Atta Muhammad is `Wakeer of Mst. Kausar Bibi and his signatures are also available as father and 'wakeel' of Mst. Kausar Bibi. Exh.D:6 is "Shajra-e- Nasab". In lease deed (Exh.D:9), Atta Muhammad has written Mst. Kausar Bibi as his daughter.
Exh.D:10 is certified copy of the statement of Muhammad Akbay, the previous husband of mother of Mst. Kausar Bibi, who has stated that she is not his daughter.
19. There is a slight difference between English Law and Muhammadan Law. In English Law, acknowledgment becomes a part of evidence whereas in Islamic Law, it is substantive and is a conclusive proof if the parties of acknowledgement, acknowledged that fact. Further I have relied upon case law reported in I.L.R. 10 All. 289 (Muhammad Allahdad Khan and another v. Muhammad Ismail Khan and others).
20. When there is voluminous evidence, most of which is documentary, in favour of the respondent Mst. Kausar Bibi, the just denial of her paternity by the plaintiffs is not sufficient to grant a decree to them. The learned 1st appellate Court rightly came to the conclusion that Mst. Kausar Bibi was daughter of Atta Muhammad, the propositus. I am of the considerate view that it is conclusively proved on file that Mst. Kausar Bibi is the daughter of Atta Muhammad, therefore, the findings recorded by learned 1st appellate Court are hereby confirmed.
21. As I have held that Mst. Sarwar Begum was widow of Atta Muhammad and was entitled to inherit the property, therefore, the transaction made by that lady in favour of the purchasers, who are the petitioners in Civil Revision No,72-D of 2005/BWP, is valid one because the suit has been dismissed, even they purchased the property during pendency of the suit and lis pendens is not bar in their way. When suit has been dismissed, therefore, there is no need to comment upon the purchase made by them in good faith.
22. Now there are Civil Revision No,115-D of 2005/BWP and Civil Revision No,117-D of 2005/BWP. There are concurrent findings of the facts recorded by both the Courts below against the plaintiffs- petitioners. The plaintiffs- petitioners failed to produce reliable evidence to set aside the mutations validly sanctioned in the year 1960. The circumstances of the case show that Atta Muhammad during his whole life, admitted these mutations to be correct. The arguments of learned counsel for the petitioners that he was a big landlord and there was no necessity with him to sell out his property to his wife and daughter, I believe that learned counsel has not seen these mutations with due care because reason for sale of the land is mentioned on these mutations i.e, because of land reforms, he is selling this land to his daughter and wife. It is a fact that due to land reforms, many properties of the big landlords were resumed, therefore, it forced the big landlords to transfer their property to their relatives and even there are many instances where the property has been transferred in favour of the servants and other dependents also to save the property from land reforms. This contention of learned counsel for the petitioners is incorrect and is misconceived, therefore, repelled.
23. Further against the valid attestation of mutations, it was upon the plaintiffs petitioners to prove or make any dent in the attestation of relevant mutations. As far as argument of learned counsel for the petitioners that respondents being beneficiaries are bound to prove these mutations with positive evidence is concerned, this rule is not a universal rule and it is not applicable in this case because the person who transferred the land through these mutations, admitted throughout his life these mutations to be true and his legal heirs challenging these mutations are bound to prove that these are not valid mutations. They have failed to do so, therefore, the findings recorded by both the Courts below against the petitioners are in accordance with law.
24. For what has been discussed above, I see 'no merit in Civil Revision No,116-D of 2005/BWP, Civil Revision No,115-D of 2005/BWP and in Civil Revision No,117-D of 2005/BWP, therefore, the same are dismissed whereas Civil Revision No,72-D of 2005/BWP is hereby allowed. The parties are left to bear their own costs.