MIRZA VIQAS RAUF, J. The instant petition is directed against the judgment and decree dated 31st of May, 2004, whereby the learned Additional District Judge, Rawalpindi, while allowing the appeal led by the respondents set aside the judgment and decree dated 18th of December, 2000 passed by learned Civil Judge, Rawalpindi.
2. Precisely the facts necessary for adjudication of instant petition are that the respondents instituted a suit seeking separate possession through partition in house No.J/38 Street No.4 Ariya Mohallah Rawalpindi (hereinafter referred as suit property). It is averred in the plaint that the suit property was permanently transferred in the name of respondents as well as their mother Mst. Karam Bibi who was entitled to 1/8 share of the same whereas rest of 7/8 share shares lies with them. It is the stance of the respondents that after death of their mother in the year 1979, her share devolved upon them as sons as well as respondents No.1 to 4 being daughters and respondent No.5 as daughter of Mst. Hanifan and one Mst. Khursheed Begum mother of respondent No.6 and predecessor-in-interest of respondents No.7 to 11 namely Abdul Ghafoor. The suit was contested by the petitioners who led their written statement, controverting the assertions contained in the plaint which resulted into framing of necessary issues. After framing of issues both the parties produced their respective evidence, oral as well as documentary in support and contra to the issues framed. The learned trial court after recording of evidence and hearing both the sides passed the preliminary decree vide judgment dated 18th of December, 2000. The respondents, feeling aggrieved from the said judgment and decree preferred an appeal before the learned Additional District Judge, Rawalpindi which was allowed vide judgment and decree dated 21st of May, 2004, hence this petition.
3. Mr. Muhammad Ilyas Sheikh, Advocate learned counsel for the petitioners submitted that suit was initially rightly decreed by the learned Civil Judge but well-reasoned judgment was set at naught without assigning any lawful reasoning. Learned counsel contended that the petitioners were the legal heirs of Ghulam Muhammad who was the original allottee and thus they were entitled to inherit their legal share from the suit property. Learned counsel maintained that the petitioners were deprived of their legal entitlement without any lawful excuse. It is contended that impugned judgment is the result of gross mis-reading and non-reading of evidence and the learned lower Appellate Court based its ndings on presumptions and suppositions. In support of his contentions, learned counsel relied upon "Mst. GOHAR KHANUM and others versus Mst. JAMILA JAN and others" (2014 SCMR 801) and "WAHID BAKHSH and others versus AMEER BAKHSH and others" (2015 CLC 1387).
4. Conversely, Sheikh Zameer Hussain, Advocate representing respondents No.2 to 7 controverted the contentions of his adversary with vehemence. It is submitted that the petitioners did not agitate their claim before any forum despite having knowledge that the suit property was allotted to the respondents. He added that ample material is available on the record showing that the petitioners by their conduct acquiesced their right, if any in the suit property. Learned counsel contended that judgment of the lower court was rightly interfered with in appeal by the learned Additional District Judge and the impugned judgment is unexceptional. In order to provide emphasis to his contentions, he relied upon "IMAM BUX versus SENIOR CIVIL JUDGE/RENT CONTROLLER, DISTRICT MALIR, KARACHI and others" (2002 CLC 876), "Messers DADABHOY CEMENT INDUSTRIES LIMITED and others versus Messers NATIONAL DEVELOPMENT FINANCE CORPORATION" (2002 CLC 166) and "Messers BADRUDDIN H. MAVANI versus GOVERNMNENT OF PAKISTAN, MINISTRY OF FOOD AND ANOTHER" (1981 CLC 339). his contemporary submitted that whole amount of claim was paid by the respondents and no contribution was made by the petitioners as they have parted with their claim in the suit property.
6. After having heard learned counsels for both the sides, I have perused the record with their assistance in order to appreciate their respective contentions.
7. Before adverting to the merits of the case, it would be quite advantageous to observe that there are certain facts which are not in dispute between the parties. Firstly, the interse relationship is not denied and all the parties are legal heirs of Ghulam Muhammad who was the original claimant of the suit property, which was evacuee in its nature.
Secondly, Ghulam Muhammad, the predecessor-in-interest of the parties died on 07th of July, 1956 before issuance of permanent transfer order (P.T.O.) and permanent transfer deed (P.T.D.). Record reveals that suit was initially decreed vide judgment dated 26th of January, 1988 which was assailed by the petitioners in an appeal before the learned Additional District Judge, Rawalpindi. The appeal was accepted vide judgment and decree dated 27th of January, 1991 and the case was remanded to the learned trial court with the following observations :- "14. Keeping in view the above discussion, I accept this appeal, set aside the impugned judgment and decree and remand the case to the learned trial court with a direction that after providing the opportunity to the parties to adduce their evidence afresh on all the issues and then to decide the case on merits afresh. Parties are directed to appear before the learned trial court on 10.2.1991. The record of the learned trial court be sent back immediately. The parties are left to bear their own costs. The le of appeal be consigned to the record room after its completion."
It is noteworthy that before remanding the case to the lower court, the learned Additional District Judge also framed additional issues to the following eect :- (3). Whether the suit property was transferred against the claim of Ghulam Muhammad deceased, and its eect?
OPD (4). Whether the P.T.D. and P.T.O. issued in the names of the plaintis and their mother, is the result of fraud and misrepresentation? If so, its eect? OPD (5). Issues No.3 and 4 are proved in armative, what are the respective shares of the parties? OP Parties (6). Relief.
8. In post-remand proceedings, documents in the shape of Exhibit-D1 to Exhibit-D4 were tendered in evidence by the petitioners whereafter preliminary decree was passed vide judgment dated 18th of December, 2000 determining the shares of the parties in the following manner :- Widow (Karam Bibi) = 8/64 Son (Muhammad Afzal, deceased) = 14/64 Son (Allah Ditta) = 14/64 Daughter (Nawab Bibi) = 7/64 Daughter (Mst. Sharifan) = 7/64 Daughter (Mst. Hanifan deceased) = 7/64 Daughter (Khurshid Begum) = 7/64 The above said preliminary decree was set aside by way of impugned judgment dated 31st of May, 2004 directing the learned trial court to pass the nal decree in accordance with the shares determined by the said court holding that the respondents are entitled to 7/8 shares whereas Mst. Razia Arshad and Mst. Sadiqa Bibi daughters of Mst. Nawab Bibi are entitled to 1/8 shares.
9. In order to evaluate the validity of the judgments rendered by the courts below, it is necessary to have a glance on the evidence necessary for determination of the matter in issue. As already observed that there is no denial that Ghulam Muhammad, the predecessor-in-interest of the parties was the original claimant which is even evident from the order for allotment of house (Exhibit-D3). On his claim, the then Claims Ocer, Rawalpindi passed an order dated 11th of December, 1957 whereby he accepted the same and allotted the suit property. This order is also available on the record as Exhibit-D4. It is quite obvious from the order passed by the Claims Ocer that Ghulam Muhammad died during the pendency of the proceedings. This was the reason that Form-CH was submitted by the respondents for transfer of suit house wherein it was though mentioned that Ghulam Muhammad is not alive but strangely enough names of the petitioners were excluded as his legal heirs. As a sequel of this, permanent transfer order (P.T.O.) (Exhibit- P1) was issued in favour of the respondents, excluding the petitioners. One of the respondents namely Muhammad Afzal when appeared as PW1, he conceded all the above noted material aspects, however it was his stance that the petitioners with their free will and consent relinquished their entitlement and share in the suit property. He, however, at the last legs of his statement showed his willingness to give the petitioners their due shares in the following words :-
10. Though learned counsel representing respondents have emphatically argued that the petitioners have acquiesced their claims and they are estopped by their conduct to claim any share in the suit property but all this vanishes when we advert to the plaint. This was though a very material fact upon which the respondents built the whole edice of their claim but no such fact was pleaded in the plaint. Law is well settled qua this preposition that when a material fact is not part of the pleadings it cannot be deposed in evidence. Neither any such piece of evidence is admissible as departure from pleadings is not permissible. Reliance in this respect can be placed on "HYDER ALI BHIMJI versus VITH ADDITIONAL DISTRICT JUDGE, KARACHI (SOUTH) and another" (2012 SCMR 254), "AURANGZEB through L.Rs. and others versus MUHAMMAD JAFFAR and another" (2007 SCMR 236) and "SHAFI MUHAMMAD and others versus KHANZADA GUL and others" (2007 SCMR 368). The judgment of the learned Additional District Judge when seen on above perspective, it appears that it is nothing but result of gross mis-reading of evidence on the record.
11. So far judgments referred by learned counsel for the respondents are concerned, those are clearly founded on entirely dierent facts and circumstances. The principles laid down in the cited judgments are of no help to the respondents. The Superior Courts always guarded the rights of the weaker gender as there is a common trend in the society to deprive them from their legal share in the estate left by their predecessor-in-interest on account of alleged relinquishment of their rights. As no such document or deed of relinquishment was brought on record to establish this un-pleaded fact, so the petitioners cannot be deprived of their legal right which is even guaranteed by the "Sharia".
Guidance in this respect can be sought from "Mst. GOHAR KHANUM and others versus Mst. JAMILA JAN and others"
(2014 SCMR 801) wherein Hon'ble Supreme Court of Pakistan while dealing with the similar preposition held as under:- "4. We have heard learned counsel for the parties at great length and have also gone through the impugned judgment and the record with their assistance. The relationship between the parties is undisputed. It is, therefore, clear that on the death of Hashim, in accordance with Islamic Sharia which was applicable to the question of inheritance in this case, the petitioners through their predecessor-in-interest Dost Muhammad became owners of 2/3rd of the property while the respondents through their predecessor Mst. Zarina Jan became owners through inheritance of the remaining 1/3rd of the land.
3(sic.) The main emphasis of the learned counsel for the appellants was that the suit was time barred having been led 50 years after the mutation dated 31-8-1940. This contention is, however, easily dispensed with as Mst. Zarina Jan admittedly came to own a 1/3rd share of the land by operation of law and not by any mutation. The mutation was meant to record the legal entitlement of Dost Muhammad and Mst. Zarina Jan. If the mutation was erroneously made in favour of Dost Muhammad, such mutation would not create title in favour of Dost Muhammad in accordance with Sharia Law of inheritance. Learned counsel for the appellants repeatedly emphasized that Mst. Zarina was fully aware of the decision and assertion of title by her brother Dost Muhammad and Dost Muhammad had also constructed a house on the disputed land. This, however, does not attract the provisions of the Limitation Act in the circumstances of the present case. Mst. Zarina Jan being the sister was co-owner and the possession/occupation of the land by her brother as the other co-owner could only be construed as possession on behalf of all co-owners including Mst. Zarina. In order to relinquish or transfer her interest in the property, there had to be a positive and armative act. We have not been shown any document or deed of relinquishment, sale, transfer or gift which would establish that Zarina Jan had either relinquished her interest in the disputed property or had actually conveyed or transferred the same in favour of Dost Muhammad. In the absence of any such armative act on the part of Mst. Zarina Jan, it cannot be said that the property came to vest entirely in Dost Muhammad.
4. It was next contended that Mst. Zarina Jan did not appear in the witness box herself and instead her daughter in law namely Mst. Karam Jan appeared as P.W.1. The fact is that Mst. Zarina Jan was close to 100 years old and it was this exigency which required her to act through her daughter in law. Since it is not disputed that the brother and sisters were owners of the disputed land by way of inheritance, the onus squarely fell on the appellants to establish that the 1/3rd interest of Zarina had been transferred in favour of Dost Muhammad or that Zarina had relinquished her rights in the suit property. But this onus was not discharged."
12. As regard contention of learned counsel for the respondents that the petitioners despite having knowledge remained mum for a considerable period, it is observed that this by itself is not sucient to deprive the petitioners from their legal right for which they are otherwise entitled. Even otherwise the question of limitation in the matter of inheritance cannot be pleaded. Reliance in this respect can be placed on "MAHMOOD SHAH versus Syed KHALID HUSSAIN SHAH and others" (2015 SCMR 869). Even this Court in the case of "WAHID BAKHSH and others versus AMEER BAKHSH and others" (2015 CLC 1387) has also adopted the same principles.
13. There is no cavil to the proposition that whenever there is dierence of opinion in the judgments of the courts below, ordinarily preference is to be given to the judgment of the learned lower Appellate Court but it is neither an inexible rule nor it can be pressed into service in an "omnibus fashion". This Court while exercising its revisional jurisdiction is supposed to examine the propriety and validity of the judgments in question. The judgment of the learned lower Appellate Court can never be treated as a sacrosanct. The learned Additional District Judge, while allowing the appeal of the respondents has committed material irregularity, while ignoring the material pieces of evidence and also the principles of law as discussed above. The ndings of the learned Civil Judge were in consonance with the material available on the record. The exercise of appellate jurisdiction by the learned Additional District Judge was unwarranted under the circumstances.
14. As a sequel of above discussion, while accepting the instant petition the judgment and decree dated 31st of May, 2004 passed by the learned Additional District Judge, Rawalpindi is set aside. Resultantly the judgment and decree dated 18th of December, 2000 passed by the learned Civil Judge, Rawalpindi is restored with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.