Ali Akbar Qureshi, J:- This civil revision is directed against the judgment and decree dated 16.04.2001, whereby the learned appellate Court through a consolidated judgment set aside the judgment and decree dated 27.10.2000 and decreed the three suits filed by the respondent/plaintiff.
2. Shortly the facts arising out of the pleadings of the parties are that, respondent/plaintiff Mst.
Shahnaz Parveen claiming herself sister of the petitioners and daughter of deceased Hussain Ahmad filed following three suits:-
(1) Mst. Shahnaz Parveen v. Sarwar Ali etc.
(2) Shahnaz Parveen v. Province of Punjab etc.
(3) Mst. Shahanaz Parveen v. Public at large etc. In the aforesaid civil suits Mst. Shehnaz Parveen respondent/plaintiff claimed that she is real daughter of Hussain Ahmad and sister of the petitioners/defendants therefore, is entitled to get the property left by deceased Hussain Ahmad to the extent of her share. Further the petitioner/defendant No.1 after the demise of Hussain Ahmad took charge of the property left by the deceased being only male member of the family. The respondent/plaintiff was only six years old when her father Hussain Ahmad died. Therefore, she could not get her share and the petitioners/ defendants mutated whole of the legacy left by Hussain Ahmad in their favour. Lastly prayed, that the mutation entered in the name of the petitioners/defendants excluding the respondent from the list of legal heirs be declared illegal, unlawful and without lawful authority.
All the above suits were contested by the petitioners/defendants through written statement wherein the petitioners refuted the contention of the respondent/plaintiff on the ground, that respondent namely Shehnaz Parveen is not daughter of Hussain Ahmad and has no relation whatsoever with the family of the petitioners/defendants. In fact about more than 30 years ago the respondent/plaintiff was left in the front of police chowki by some lady being offshoot of illicit relationship in neighborhood of Hussain Ahmad, the predecessor, and she was handed over to Nawab Hussain Ahmad who brought up her, therefore, the status of the respondent/plaintiff at the most is a lay-palak daughter, who is not entitled to inherit anything from the legacy of the father of Hussain Ahmad.
The learned trial Court consolidated all three suits and out of the controversial pleadings of the parties framed the following issues:-
1. Whether all the three suits of Mst. Shahnaz Parveen are barred under Order 2 Rule 2 CPC? OPD
2. Whether all the three suits of Mst. Shahnaz are not maintainable in its present form? OPD
3. Whether all the three suits are barred u/s 11 CPC? OPD
4. Whether suit of Mst. Shahnaz Parveen are barred under Order 23 Rule 1 CPC? OPD
5. Whether all the three suits of Mst. Shanaz Parveen are time barred? OPD
6. Whether Mst. Shahnaz Parveen is estopped by words and conduct to file the suit? OPD
7. Whether the plaintiffs in all three suits are liable to be rejected under order 7 Rule 11 CPC? OPD
8. Whether the suits of plaintiff are false, vexatious, liable to be dismissed and contesting defendants are entitled to recover special costs u/s 35-A CPC? OPD
9. Whether Shahnaz Parveen is real daughter of Hussain Ahmad Khan and Mst. Khurshid Jehan (husband and wife) and is entitled to inherit their landed property and debts situated in various Chaks as alleged in the plaint? OPP
10. Whether impugned mutations of inheritance No.8902 attested on 5.12.91 in respect of revenue estate of Khurshid Jehan is against facts, law, void and in effective upon the rights of plaintiff for the grounds mentioned in plaint? OPP
11. Whether impugned mutation No.145, dated 23.2.71 in respect of revenue estate of Hussain Ahmad Khan is against facts, law, void, without authority liable to be set aside and in effective upon the rights of plaintiff, for grounds mentioned in the plaint? OPP
12. Whether impugned order of A.C. and Addl: Commissioner Revenue dated 16.2.92 and 31.10.92 pertaining to revenue estate of Mst. Khurshid Jehan are against facts, law, void, without authority, liable to be set aside and in effective upon the rights of plaintiff Mst. Shahnaz Parveen? OPP
13. Whether impugned orders passed by Civil Judge Ist Class, Khanewal, for grant of succession certificate in favour of the defendant is against facts, law and in effective upon the rights of the plaintiff? OPP
14. Relief.
Both the parties adduced their oral as well as documentary evidence. The learned trial Court after hearing the arguments of the parties finally dismissed all the three suits through a consolidated judgment. Being dissatisfied of the dismissal of all the three suits, the respondent/plaintiff filed three separate appeals against the three judgment and decrees passed by the learned Courts below.
3. The learned appellate Court after hearing the arguments of the parties, accepted the three appeals, set aside the judgments and decrees passed by the learned trial Court and decreed the three suits filed by respondent/plaintiff. Hence, this civil revision.
4. Learned counsel for the petitioners mainly argued the following points:- i. The respondent/plaintiff could not prove the contentions taken by her at the time of filing the case, through any reliable evidence. ii. Only one witness appeared on behalf of the respondent/plaintiff, who could not corroborate the contentions of the petitioners. iii. The documentary evidence produced by the respondent/plaintiff is not reliable.
The respondent/plaintiff while appearing in the witness box has categorically stated that it is correct, that she was left by someone in front of the police post and the police officials handed over to her to Hussain Ahmad deceased, therefore, this is sufficient to prove, that the respondent/plaintiff is not the daughter of Hussain Ahmad, thus, is not entitled to inherit anything out of the legacy of Hussain Ahmad being legal heir. Learned counsel, is presently appearing on behalf of the collateral of the petitioners namely Sarwar Ali Khan etc, who are claiming themselves the only collaterals to inherit the legacy of Hussain Ahmad and Sarwar Ali Khan etc. For this purpose the learned counsel submitted a certified copy of a statement recorded by the respondent Mst. Shahnaz Parveen in an application to obtain the succession certificate in the Court of learned Senior Civil Judge, Khanewal, wherein she has admitted, that the present collateral are members of the pedigree of one Nizam Ali Khan and petitioner Sarwar Ali Khan deceased and Hussain Ahmad Khan were also members of the same pedigree, therefore, the present petitioners are lawful collateral of deceased petitioner Sarwar Ali Khan and are entitled to inherit the property left by deceased Hussain Ahmad.
5. On the other hand, learned counsel for the respondent argued the case on the following points:
1. The documentary evidence, CINC, School leaving certificates and FIR lodged by the petitioner deceased Sarwar Ali Khan fully supports the contentions of the respondent/plaintiff.
2. The oral evidence appeared on behalf of the respondent also fully corroborated the claim of the respondent/plaintiff.
3. The evidence, documentary and oral, could not shatter the claim to inherit the property made by the respondent/plaintiff.
6. After hearing the arguments of learned counsel for the parties, the record was perused.
7. The respondent Mst. Shahnaz Parveen herself appeared in the witness box as PW2 and reiterated the contentions/grounds taken in her suit. The respondent/ plaintiff while recording her examination in chief or the cross examination did not produce, tender or got exhibited any document, anyhow, her learned counsel while closing the evidence recorded his statement without oath and tendered documents Exh.P1 to Exh.P10 but these documents have not been proved by adducing the signatory or scribe of the document, therefore, as ruled by the Hon'ble Supreme Court of Pakistan in an esteemed judgment titled "Khan Muhammad Yusuf Khan Khattak v. S.M.
Ayub and 2 others" (PLD 1973 SC 160), cannot be received or read in evidence. The following documents have not been tendered particularly by the respondent/plaintiff in her own statement but in the statement of his learned counsel. The following documents cannot be admissible in evidence unless their scribe or signatory are produced:- Copy of mutation No.8902 as Exh.P-1 Copy of mutation No.145 as Exh.P2 Copy of voters list (under objection) as Exh.P3.
Copy of FIR (under objection) as Exh.P4 Copy of Discharge Report (under objection) as Exh.P7 Copy of character certificate (Under objection) as Exh.P8 Copy of matriculation certificate as Exh.P9 and Copy of school leaving certificate (Under objection) Exh.P.10.
8. Another aspect of the case which is notable, that at the time of tendering the aforesaid documents by the learned counsel for the respondent/plaintiff, the petitioners/ defendants raised objections but those objections have not been decided by the learned Courts below, therefore, real adjudication of the matter is not possible unless the objections raised on the documents are decided by the learned Courts below.
9. Since, the matter relates to the inheritance, which can only be decided by adjudicating the parentage of the respondent/plaintiff Mst. Shehnaz Parveen. The documents tendered by the respondent/plaintiff, as earlier observed, cannot be read in evidence unless the scribe or signatory of those documents are produced as witnesses in the Court. Secondly, it was the mandatory duty of the learned trial court to decide the objections raised by the petitioners/defendants at the time of tendering the afore-referred documents by the learned counsel for the respondent/plaintiff. The objections could be decided firstly at the time of raising the objections and secondly while finally deciding the case.
10. As serious question was involved in this case therefore, the learned trial court was not denuded the powers to summon the necessary witnesses while exercising its inherent jurisdiction as ruled by the Hon'ble Supreme Court of Pakistan in judgment supra i.e. "Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others" (PLD 1973 SC 160).
11. In view of the above and particularly keeping in view the nature of the case, it is appropriate, that the matter should be decided and ended for all time to come, between the parties, therefore, it is just and proper to remand the matter to the learned trial court to decide the lis keeping in view the observation made above.
12. Resultantly, this civil revision is accepted, the judgment and decree passed by the learned appellate court dated 16.04.2001 is set aside and the case is remanded to the learned trial court for its afresh decision after providing fair opportunity to the parties to the case and the suit filed by the respondent/plaintiff shall deem to have been pending before the learned trial court.
13. Parting with the judgment, since it is an old matter, therefore, parties to the case shall appear before learned Senior Civil Judge, Khanewal, on 18.05.2015, who may hear the case himself or e ntrust it to any other competent Court. The learned trial court is directed to conclude the matter preferably within a period of four months.
C.M. No.61-C 0f 2014 Through this application the applicant wishes to implead the legal heirs of deceased petitioners No.1 & 2. Allowed. The amended memo is taken on record.
C.M. No.2749-C of 2014 Through this application applicant/ respondent wishes to place on record certain documents.
The documents annexed with this application have been argued and taken into consideration. C.M. stands disposed of.
C.M. No.2750-C of 2014 Dispensation sought for is allowed subject to all just and legal exceptions. C.M. stands disposed of.