HAIDER ALI KHAN, J.- Impugned herein is the judgment & decree dated 22.02.2014 of the learned Additional District Judge/Izafi Zilla Qazi, Matta, District Swat, whereby the appeal preferred by the petitioner against the judgment & decree dated 22.12.2011 of the learned Civil Judge/ Illaqa Qazi-II, Matta, District Swat, was dismissed.
2. The brief facts arising from the instant case are that the respondents No.1 to 7/plaintiffs instituted a civil suit against the petitioner/defendant for declaration, perpetual injunction and possession as a consequential relief regarding the suit property fully described in the heading of the plaint as inherited from Toor Lali their predecessor, wherein, they claimed their Shari shares.
3. The learned Trial Court summoned the petitioner-defendant, who appeared and contested the suit by submitting his written statement, wherein, he refuted the claim of the respondents/plaintiffs and clearly denied the relationship of respondent No.1 Mst. Jehan Zeba and predecessor-in- interest of respondents No.2 to 7 Mst. Bakht Nasiba with his father Toor Lali as they were the real daughters of Jamdar, because, their mother namely Mst. Dolazai had contacted second marriage with Toor Lali, father of the petitioner and as a result whereof the petitioner was born from her second wedlock, hence he is the only legal heir of Toor Lali. Further averred that he has made improvements in the disputed property besides reconstruction of the disputed house at the cost of rupees fifteen lac for about 25 years ago and the same is in his possession.
4. The learned trial Court framed the issues from the pleadings of the parties and the parties were provided opportunity of recording their pro & contra evidence. The respondents/plaintiffs recorded the statements of their attorneys Muhammad Ibrahim Khan PW1, Muhammad Zeb PW2 as well as APW5, Mst.Jehanzeba (respondent No.1/plaintiff) APW2 and produced 06 witnesses Muhammad Amin PW3, Abdul Wahab PW4, Muhammad Ihsan Patwari Halqa PW5, Rafiq Ahmad Registration Clerk NADRA office APW1, Abdul Ghafar APW3 and Shahid APW4.
In rebuttal, the petitioner recorded his statement as DW1 and produced three witnesses Khan Nawab DW2, Mairaj Muhammad DW3 and Muhammad Zubair ADK Swat DW4.
The learned trial Court after hearing arguments of the parties, decreed the suit in favour of the respondents/plaintiffs against the petitioner/ defendant vide judgment & decree dated 22.12.2011, the same was assailed by the petitioner/defendant in appeal before the learned Additional District Judge/ Izafi Zila Qazi, Matta, who vide judgment & decree dated 21.06.2012 maintained the findings of the learned trial Court, however, remanded the case to the trial Court for conducting the D.N.A test of the parties to resolve the controversial question of their blood kinship. Which observations are reproduced herein below for convenience sake: "It is clear that the plaintiffs claimed the property as legal heirs of Tor Lali. The defendant have taken three fold defense i.e. (1) Plaintiffs are not legal heirs of Torl Lali (2) the property has already been given by Tor Lali, in his life time, to Muhammad Khan and (3) improvements of hundreds of thousands of Rupees have been made by defendant No.1. The first and second defense have approbate and reprobate. Taking the evidence in expansive sense it can be concluded that the pivotal issues is whether plaintiffs are legal heirs of Tor Lali, because the other issues i.e. giving the property to Muhammad Khan to the exclusion of his (Tor Lali) other legal heirs and similarly the improvements by the defendant No.1, who was having main source of income from the disputed property, coupled with later on mutations/alienation by the defendant No.1 will get resolved after the settling of the point of legal heirs of Tor Lali. In this respect i.e. the determination of the legal heirs of for Lali the official pedigree table does not support the plaintiffs. Even the NADARA record does not conclusively supports the contention of the plaintiffs because there in the name of the father of plaintiffs is mentioned as Jamadar, though the other witnesses of the plaintiffs terms the same persons with two nomenclature, yet it is to be established. At the cost of repetition the determination issue is whether plaintiffs are legal heirs of Tor lali and as such are entitled to his legacy per their shari/legal shares. The available evidence in this respect is not sufficient, so the order of the learned trial Court is maintained but the case is remanded for conducting DNA test of the parties to determine whether they are siblings, for the sake of convenience the matching of Muhammad Khan with any one or two may be made which will clarify the issue. The case is remanded only for DNA test and then accordingly decision to be made."
5. The petitioner being aggrieved from the aforementioned findings of the appellate Court, had come to this Court by filing revision petition bearing No.652-M/2012, which was allowed with the following observations: "The foremost issue in the present case is to determine the legal heirs of late Toor Lali. Perusal of record would reveal that learned appellate Court has failed to exercise the jurisdiction vested in it by law. The learned appellate Court in its verdict maintained the judgment and decree of learned trial Court and at the same time remanded the case to the trial Court and directed for conducting DNA test of the parties to determine the controversy. In my view, obviously the learned appellate Court itself was empowered to determine the above controversy, therefore, case could not be remanded to the trial Court for the said purpose. By not doing so, miscarriage of justice has occasioned. Moreover, the learned appellate Court has not rendered its issue-wise findings, thus, same are not tenable in the eyes of law. This Court in its limited revisional jurisdiction cannot sit over the matter, rather remand of case to the appellate Court would meet the ends of justice for the reason that aggrieved party may not be deprived from the right of appeal.
In the light of above discussion and observation, this petition is allowed, judgment and decree of learned appellate Court is set-aside and case is remanded to the appellate Court with the direction to render its judgment through issue-wise findings and if the DNA test is required for resolution of the controversy, then it is to be done by the appellate Court itself and thereafter give its detail findings keeping in view the entire evidence on the record whether documentary or oral and to decide the case in accordance with law."
6. After the remand of the case to the appellate Court, the case was heard on merits, whereafter, dismissed the appeal vide impugned judgment & decree dated 22.02.2014 and maintained that of the trial Court dated 22.12.2011, hence the instant civil revision petition.
7. Arguments heard and record perused.
8. It was argued by the learned counsel for the petitioners that the impugned judgment & decree of the learned appellate Court is the result of misreading and non-reading of evidence on record because suit of the respondents is hopelessly time barred under the law as the controversial entries in the name of petitioner were made during the first settlement (1981-86) in the area which has attached strong presumption of truth while the suit was brought by the respondents/plaintiffs in 2006 for about 20 years of unexplained delay. It was further contended that the respondents/plaintiffs have failed to substantiate their case on the strength of their own evidence as the petitioner has denied the claim of the respondents/plaintiffs in clear terms that the petitioner is the sole owner of the disputed property entered in his name during the first ever settlement in the area by father of the petitioner while the respondent No.1 Mst. Jehan Zeba as well as her sister Mst. Bakht Nasiba the predecessor-in-interest of respondents No.2 to 7 were not the real daughters of Toor Lali father of the petitioner, however, they were the daughters of Mst.
Dulanzai from her first husband and after the death of her first husband, she had contracted second marriage with the father of petitioner namely Toor Lali and as a result whereof, the petitioner was born from her second wedlock. Further contended that the father's name of Mst.
Jehanzeba respondent No.1 has been recorded in the NADRA record as "Jamadar/jI%---" which is also mentioned in her C.N.I.C while father's name of the petitioner is Toor Lali in the NADRA as well as revenue record, however, there is no iota of evidence on the record to affirm and substantiate the fact that the name "Jamadar" is the substitute of "Toor Lali". Here learned counsel for the petitioner placed reliance on the following case law:
(1) Case titled "Mazloom Hussain ..Vs.. Abid Hussain and 4 others" (PLD 2008 SC 571),
(2) Case titled "Nawab Khan and others ..Vs.. Said Karim Khan and others" (1997 SCMR 1840),
(3) Case titled "Habibullah Jan and others ..Vs.. M. Hassan Khan and others" (1991 MLD Peshawar 25).
9. On the contrary, learned counsel for the respondents while defending the impugned judgment of the learned Courts below argued that the respondents/plaintiffs have successfully proved their case against the petitioner by producing reliable and trust worthy evidence which has been rightly believed by the learned Courts below. Further contends that the petitioner failed to prove the essential ingredients required for a valid gift regarding the disputed property as to offer, acceptance and delivery of possession. Further contended that limitation is not applicable to the inheritance matter in a strict sense, however, suit of the respondents/plaintiffs is well within time. He placed reliance on cases titled "Gohar Khanum and others Vs Mst. Jamila Jan and others" (2014 SCMR 801), "Malik Muhammad Hussain Vs Saadulah Khan" (2014 CLC Peshawar 311), "Gulam Muhammad and others Vs Mian Abdul Karim through LRs" (2014 YLR 774).
10. Perusal of the record would reveal that the main controversy between the parties to be resolved by this Court is that whether the respondent No.1 Mst. Jehan Zeba and his sister Mst.Bakht Nasiab the predecessor-in-interest of the respondents/plaintiffs No.2 to 7 were the real daughters of one Toor Lali from Mst. Dulanzai or they were born from Mst. Dulanzai out of her first wedlock and the petitioner was born out of her second wedlock with Toor Lali.
Admittedly in the evidence produced by the petitioner, the mother of petitioner contracted second marriage with his father and at the time of contracting the same, plaintiff-respondent No.1 Mst.
Jehan Zeba and her sister Mst. Bakht Nasiba were the offspring of her first husband while the petitioner was born out of the second wedlock with the father of petitioner and precisely this was the reasons that the father of petitioner recorded him as his only lawful heir in the revenue record at the time of settlement in the area (1981-86) and the respondents were omitted. It is also a proven fact that the name of father of petitioner according to the revenue record and other documents is stated to be Toor Lali (~~~~~~~ ) which has been exhibited during the trial as against that the name of father of the respondents which was mentioned to be Jamdar ( ~~~~~ ) according to the admission of the respondents as well as the record furnished by the National Data Base and Registration Authority. The NADRA officials were also summoned on 01.12.2015 and they produced record in this regard which was placed on file. They also apprised the Court that the aliases are not registered as real names but according to the rules alias is recorded as part of the name. This also belies the stance of the respondents/ plaintiffs. There is no other reason but to hold that the respondent-plaintiff Mst. Jehanzeba as well as her late sister namely Mst Bakht Nasiba were not the real daughters of Toor Lali. They were born out of first wedlock from the mother of petitioner. It is also astonishing that Mst. Bakht Nasiba died during life time of her stepfather but her LRs are also claiming inheritance which is against the spirit of the Sharia and the law.
Moreover, the revenue entries regarding the disputed property in the name of petitioner were made in the life time of father of the petitioner on his asking and instructions to the settlement staff during the first ever settlement (1981-86) in the area which fact has been fully supported by the official as well as private witnesses of the petitioner and it is settled principle of law that the presumption of truth is attached to the record of rights generally but to the first ever settlement record in particular, which could not be discarded unless clearly proved otherwise by convincing and cogent evidence, henc documentary evidence could not be rebutted by oral evidence. To this effect learned counsel for the petitioner referred to the judgment of august apex Court in case titled "Mazloom Husain Vs Abid Hussain and 4 others" reported in PLD 2008 SC 571 for the guidance of this Court, which provides clear guideline very much relevant to the facts of instant case. Further, it is also admittedly proved on the record that the disputed house was reconstructed by the petitioner for about 20 years ago at the cost of rupees 14/15 lac approximately, while the respondents/plaintiffs instituted the present suit on 26.06.2006 for more than 20 years of unexplained delay, which seems hopelessly time barred under the law. To this effect, learned counsel for the petitioner referred to the judgment of this Court in case titled "Habibullah Jan and others Vs M. Hassan Khan and others" reported in 1991 MLD 25, wherein, the words "record of rights" and "Jamabandis" were differentiated in the light of Article 20 of Limitation Act, 1908. Though during the arguments learned counsel for the respondents referred to the judgment of apex Court in case titled "Gohar Khanum and others Vs Jamila Jan and others" reported in 2014 SCMR 801 but I am afraid that the said judgment has no bearing on the facts of the instant case before this Court.
11. In view of what has been discussed above, the judgments and decrees of both the learned Courts below suffer from non-reading, misreading of evidence and not based on proper application of law. Consequently, I allow the instant revision petition, set aside the impugned judgments and decree of both the learned Courts below and dismiss the suit of the respondents/plaintiffs being not maintainable, unproved and barred by law.