Mudassir Khalid Abbasi, J.: This single judgment will dispose of C.R. No.822-D of 2012, C.R. No.886-D of 2012, involving common questions of law and facts.
2. These revision petitions are directed against judgment and decree dated 28.10.201 1 passed by learned Civil Judge, Jahanian and judgment and decree dated 26.06.2012 passed by learned lower appellate Court/Additional District Judge, Jahanian.
3. Precisely, the facts of the case are that the parties in both the petitions inter se are real brothers and sisters.
Father of the parties, namely Abdul Wahid died in the year 1998. Parties inherited land measuring 62-K 14-M and 5-S from their deceased father. Respondent No.4 in C.R. No.822-D of 2012 (Farhat Jabeen) also arrayed as respondent No.1 in C.R. No.886 of 2012, filed a suit for declaration, permanent and mandatory injunction, to the effect that mutation No.297 dated 27.06.1987 in favour of brothers was result of fraud, misrepresentation without consideration and is void/ineffective upon her rights and is liable to be cancelled. Defendants- brothers denied the claim of their sister by filing a joint written statement. Whereas, petitioners in C.R. No.822 of 2012 (namely Shagufta and Rukhsana) according to the respondents-brothers filed a consenting written statement.
Trial Court out of the divergent pleadings of the parties framed the following issues:- ISSUES
1. Whether the mutation No.297 in favour of defendants No.1 to 3 was validly executed? OPD1 to 32
2. Whether the plaintiff is entitled to get 1 /2 share from the property of her father Abdul Wahid? OPP
3. Whether the plaintiff has no cause of action and locus standi to file suit? OPD 1 to 3.
4. Whether the suit is hit by the principle of res-judicata? OPD 1 to 3
5. Whether the suit is barred by law due to time barred? OPD 1 to 3
6. Whether the suit has been filed to harass the defendants? OPD 1 to 3
7. Whether the defendants are entitled for special cost? OPD 1 to 3
8. Relief.
4. Parties were called upon to lead evide nce, in support of their respective claims. Order sheet reveals that both the petitioners in C.R. No.822 of 2012 were proceeded exparte vide order dated 06.01.201 1. Trial Court vide judgment and decree dated 28.10.201 1, decreed the suit of Farhat Jabeen in the following terms:- "Keeping in view the findings given on above issues, instant suit filed by the plaintiff for declaration is hereby decreed in favour of the plaintiff and against the defendants in the terms that she would be entitled to inherit the share fixed in Sharia for her in the immovable property left by her deceased father . The parties are left to bear their own costs."
5. The afore-cited judgment and decree was challenged by respondents No.1, 2 and 3 and petitioners No.1 and 2 in C.R. No.822-D of 2012 through filing separate appeals before learned Additional District Judge. Both the appeals were dismissed vide impugned judgment and decree dated 26.06.2012. Against the afore-stated judgment dated 26.06.2012, C.R. No.822-D of 2012 and C.R. No.886 D of 2012 have been filed.
6. Learned counsel for the petitioners in C.R. No.822-D of 2012 has argued that petitioners never appeared before the Trial Court and did not submit consenting written statement. Further argued that the petitioners cannot be deprived from their right of inheritance from the property of the deceased' s father and the lower appellate Court has overlooked the legal and factual aspects of the case.
7. On the other hand, learned counsel for respondents has vehemently opposed the contentions raised by learned counsel for the petitioner on the ground that petitioners have filed a consenting written statement. Moreover , petitioner No.2 had filed a suit which was withdrawn after receiving Rs.100,000/- from respondents No.1 to 3.
Furthermore, respondent No.4 has also received her share in shape of pecuniary compensation; therefore, petition is liable to be dismissed. While arguing C.R. No.886-D of 2012, learned counsel for the petitioners have contended that without framing of issues regarding the minority of respondent No.1 Court has passed a decree without any basis. Impugned mutation has been sanctioned after going through all the procedural requirements in a lawful manner and could not be interfered by the trial Court. Impugned judgment passed by courts below is result of misreading and non-reading of evidence which amounts to material irregularity whereas respondents in C.R.
No.886-D of 2012 have seriously opposed the contentions raised by petitioners on the ground that mutation No.297 dated 27.06.1988 is a result of fraud, mis-representation and is void from its inception.
8. I have given my conscious thought to the arguments made by learned counsel for the parties and perused the record.
9. Admittedly , parties have inherited the suit property of their deceased father . At the very outset, it is important to point out that suit filed by respondent No.4 in C.R. No.822-D of 2012 was contest ed by respondents No.1, 2, 3 of the said petition, present petitioners alongwith respondents No.1 to 4 whereas petitioners of C.R. No.822-D of 2012, the remaining female LRs of deceased filed a consenting written statement which was subsequently , denied by them and they had also filed an appeal on the ground that neither power of attorney was executed by them nor they made consenting statement. Consequently , to their extent exparte decree was passed on 28.10.201 1 by the trial Court.
10. At the first instance, I will take up CR. No.886 of 2012 filed by petitioners who have been arrayed as respondents No.1, 2, 3 of C.R. 822-D of 2012.
11. Primarily , respondent No.1 in C.R. No.886-D of 2012 namely Farhat Parveen sister of the petitioners had challenged the legality of mutation No.29 7 dated 27.06.1988 executed in favour of petitioners whereby the suit property was transferred in the names of the petitioners. Stance taken by the plaintif f/respondent No.1 was that she was minor at the time of death of her father and the alleged sale transaction.
12. It is well settled principle of law that the beneficiary of a document is bound to prove the same, which includes the execution of documents and its contents. Petitioners were under legal obligation to prove mutation No.297-D dated 27.06.1988 which according to them was executed in their favour by producing cogent and confidence inspiring evidence Reliance is placed on "Mst. Rasheeda Bibi and others v Mukhtar Ahmad and others" (2008 SCMR 1384 ) and "Maqsood Ahmad and others v . Salman Ali" (PLD 2003 SC 31 ).
13. Concerned Revenue Officer/T ehsilda r before whom the mutation was executed/endorsed and the attesting witnesses of the impugned sale mutation were the best possible witnesses to be produced before the trial Court.
This was not done by the petitioners/defendants, therefore, an inference is to be drawn against the said defendants/petitioners on account of non-examination of material witnesses. Reliance is placed on "Sughran Bibi v.
Mst. Aziz Begum and 4 others" (1996 SCMR 137 ). Relevant portion of which is reproduced herein below:- "Non-production/withholding of evidence of vital important---Inference---Trial Court and First Appellate Court had rightly drawn inference against respondents on account of non-examination of witness (one of the respondents) who being co-sharer had allegedly executed the disputed document on behalf of other co-sharers, and he could deny execution of such document by stepping in witness box---In absence of such evidence on record, onus of execution of document in question, by one of the co- sharers, was duly discharged and allegation of appellant that she paid specified amount of money on execution of document in question remained unrebutted."
14. Moreover , mere execution of mutation does not confer any legal right when its authenticity and genuineness is called in question, unless it is proved according to the requirements of Articles 17 and 79 of the Qanun-e-Shahadat Order 1984.
15. So far as the minority of plaintif f/respondent is concerned, perusal of the evidence reveals that birth certificate Ex-P-1, tendered by the plaintif f shows that the date of birth is mentioned as 17.11.1971, therefore, she was minor at the time of execution of the impugned mutation.
16. Interestingly , the stance taken by the petitioners/defendants in their written statement is that in fact respondents/three sisters had executed the mutation after receiving Rs.20,000/- on 27.06.1988 only after 22 days of the death of their father . This transaction could not be established by the petitioner through any cogent evidence.
17. C.R. No.822-D of 2012 is directed against the judgment and decree dated 28.10.201 1 whereby appeal filed by the petitioners (Rukhsana Parveen and Shagufta Parveen) daughters of respondent was dismissed. In fact these two sisters were arrayed as defendant in the suit filed by Farhat Parveen and according to present respondents (brothers) these two sisters had filed a written statement and subsequently , on 28.10.201 1 they were proceeded exparte by the trial Court. Whereas they had filed an appeal on the ground that they never appeared nor they have appointed as attorney nor filed any consenting written statement, however , they were non-suited on two grounds firstly , one of the appellants Shagufta Parveen had withdrawn her suit after receiving Rs.100,000/ from his brothers and secondly that they have filed a conse nting written statement and thirdly that they were proceeded exparte as they did not appeared before the trial Court to claim their right.
18. View taken by the appellate Court in the impugned judgment with regard to the present petitioners (Rukhsana Parveen and Shagufta Parveen) is not sustainable for the reasons that both the courts below , after going through the evidence produced by the parties had come to a conclusion that infact the impugned mutation was an outcome of fraud and if plaintif f respondent No.4 Farhat Parveen was entitled for her legal share in the inherited property on the basis of the afore-cited findings then, how the present petitioners sisters Rukhsana Parveen and Shagufta Parveen could be deprived from their legal entitlement. Interestingly, trial Court had itself observed in the paragraph Nos.20 and 21 of judgment dated 28.10.2011 that suit filed by Shagufta Parveen Ex-D 1/1 was dismissed as withdrawn on 06.12.2003 in view of the statement of DW-1 she had entered into a compromise after receiving Rs.100,000/, such deposition according to the trial Court made the entire story doubtful on the ground that if the impugned transaction was transparent and genuine then there was no need to pay the amount to the said Shagufta Parveen sister of the defendants. Moreover, while passing the impugned judgments and decrees courts were under legal obligation to protect and safeguard the legitimate rights of the parties notwithstanding the fact that they were proceeded exparte even in such eventuality courts below were required to apply their independent mind, so that no one could be deprived from their legal right of inheritance.
19. Rights of female have exhaustively been dealt with by the Hon'ble Supreme Court in judgment cited as "Ghulam Ali and 2 others v. Ghulam Sarw ar Naqvi" PLD 1990 SC 1 wherein it has been explicitly laid down that so far as the rights of inheritance of female in the property of her deceased father are concerned, they are so wide and their thrust is so strong that it is the duty of the courts to protect and enforce these rights.
20. After going through the record and the available evidence, I have no doubt in my mind that the female legal heirs were deprived by the petitioners of CR No.886-D of 2012 from their legitimate right in property .
In view of what has been discussed above, C.R. No.822-D of 2012 is allowed , CR. No.886-D of 2012 is dismissed . No order as to cost.