IBAD-UR-REHMAN LODHI, J.--- Through this single judgment, I would like to decide Civil Revisions No. 491, 492, 499 and 505-D of 2001, together , as in all the petitions, properties of one Molvi Muhammad Hafeez-ur-Rehman have been the subject matter:
2. When one Molvi Muhammad Hafeez-ur-Rehman, died on 03.11.1959, issueless, leaving behind a big chunk of properties, it attracted a number of persons to raise their claims in different capaci ties to inherit such properties or to raise proprietary claims over such properties.
3. According to one set of such claimants, said Molvi Hafeez-ur-Rehman was survived through his mother , Mst.
Maryam Bibi and his wife Mst. Aamina Bibi. The plaintif fs of two suits and defend ants No. 11 to 14, in the suits, claiming themselves to be the legal heirs of said two ladies, put their respective claims in the said properties according to their respective shakes as were to be inherited by Mst. Maryam Bibi and Mst. Aamina Bibi. Whereas one Saith Muhammad Ubaid-ur-Rehman came forward with a plea that some properties were alienated in his favour by Molvi Muhammad Hafeez-ur-Rehman in his life-time, whereas the remaining were alienated in his favour by Syed Hamid Ali Shah, the stated attorney of, the said two ladies and, therefore, he became the full owner of the said properties on the strength of two mutations of Tamleek, bearing No. 381 stated to be attested on 20.02.1965, relating to village Karna and the other one i.e. mutation No. 245, stated to be attested on 05.03.1964 in respect of village Bahawalpur .
4. Before proceeding further , the detail of properties, subject-matter of litigation is given herein below:--- "I. Agricultural land situated in Monza Bahawalpur measuring 41 kanals 1 mark Khata No. 9/9 Khatuni No. 12, Register Haqdaran for the year 1981-82 and 61 kanals 15 marlas in Khata No. 10/10 Khatuni No. 13 to 20 in the same Register Haqdaran for the year 1981-82.
"II. Land acquired by Jamia Islamia University , Bahawalpur situated in Mounza Karna measuring 69 kanals 6 marlas in Khaki, No. 82/78 Khatuni No. 221 and measuring 4 kanals 12 marl as of Khata No. 88/79 Khatuni No: 222 of Register Haqdaran for the year 1983-84.
III. Building consisting Azizul Mutabia alongwith an upper storey over it and four shops annexed with it situated in Machli Bazar , Bahawalpur . North-Shop of Raja Muhammad Huss ain, South Lane West-Machli Bazar , East-House of Abdul Aziz son of W ahid Bakhsh.
IV. House adjacent to Azizul Mutaba situated in Machli Bazar , Bahawalpur .
V. Residential House of Maulvi Muhamm ad Hafeez-ur-Rehman situated in. Mahallah Bagh Mahi, East-House of Dr . Jamil-ur-Rehman, W est-House of Seth Muhammad Noor-ur-Rehman, South-Inner Lane.
VI. Dera situated in Mahallah Bagh Maki, Bahawalpur North-House of Dr. Jamil-ur-Rehman, South-Lane.
East-House of Maulvi Muhammad Hafeez-ur- Rehman, W est-Inner Lane.
VII. House situated in Mahallah Bagh Mahi, North-House of Dr. Jamil-ur-Rehman, South-Lane, East-House of Dr . Jamil-ur-Rehman, W est-Baithak of Maulvi Muhammad Haftez-ur-Rehman.
VIII. Land measuring 6 kanals 5 marlas situated in-between Mu/tan Road and, Karbla Road, Bahawalpur Water-W orks constructed over it, and IX. Share in garden situated in Mouza Sama Satta measuring 46 kanals 1 marla of Khata No. 2/2 Khatuni No. 2, of Register Haqdaran for the year 1981-82.
(Hereinafter to be referred as Property No. I to IX)
5. Property .mentioned at serial No. VIII, is. subject- matter of a civil suit pending in Civil Court as a consequence of order .dated 15.08.2001, passed by this Court in R.S.A. No. 50/1986, therefore, the said property is out of consideration of the findings to be given in the present Revision petitions, through the present judgment.
6. The plaintif fs in two suits, when got aware of the claim of Saith Muhammad. Ubaid-ur-Rehman, over the property left by Molvi Muhammad Hafeez-ur-Rehman, called in question the claim of Saith . Muhammad Ubaid-ur-Rehman and the power of attorney , purportedly executed by Mst. Maryam Bibi and Mst. Aamna Bibi in favour of Hamid Ali Shah, subsequently proved to be persona l servant of Saith Muhammad Ubaid-ur- Rehman and also the mutations noted hereinabove, on the basis of fraud and forgery .
7. The suits were contested by the defendants except defendants No. 1 1 to 14.
8. The main thrust of the contest by defendant No. 1 was to the effect that properties mentioned at serial Nos. III and IV were gifted in his favour by Molvi Muhammad Hafeez-ur-Rehman in the year 1956, whereas the properties mentioned at serial Nos. I and II were gifted away by Mst. Maryam Bibi and Aamna Bibi in his favour , through validly appointed general attorney namely Hamid Ali Shah. With regard to property mentioned at serial No. V it was contended that the same was gifted away by Molvi Muhammad Hafeez-ur-Rehman, in favour of his mother Mst.
Maryam Bibi, who subsequently alienated the same in favour of Mehmood-ur-Re hman/defendant No. 15. It was further asserted by defendant No. 1 that a portion of property mentioned at serial No. IX was dedicated by Molvi Muhammad Hafeez-ur-Rehman in favou r of Jamia Masjid Azizia/Madrassa Taleem-ul-Quran, which portion of property was in possession of Auqaf Department, whereas remaining portion of the said property was described in possession of defendants No. 3 to 10.
9. Defendants No. 3 to 10, resisted the suit on the ground that the property mentio ned at serial No. IX was owned by Molvi Muhammad Hafeez-ur-Rehman at the time of his death. With regard to property mentioned at serial No. VII, they claimed that it was exclusively owned by their` father . They , however , supported the plaintif fs as to their claim against defendant No. 1.
10. Defendant No. 15 resisted the suit on the ground that he had been in possession of properties mentioned at .serial Nos. V and VI, for the last twelve years on the basis of registered deeds.
11. Defendants No. 1 1 to 14, however , conceded the suit.
12. Defendants No. 12 to 14 filed their separate suit titled as Muhammad Mehboob-ur-Rehman, etc. Vs. Saith Muhammad Ubaid-ur-Rehman, etc.', claiming themselves to be nephews of Mist. Maryam Bibi. They also attacked the fraudulent act of Saith Muhammad. Ubaid-ur-Rehman, in getting the general power of attorney in favour of his personal servant Syed Hamid Ali Shah and thereafter in getting the mutations No. 381 and 245 attested, in order to deprive the actual entitled persons from their due shares.
13. Their such suit was resisted by defendants No. 1 to 10, whereas defendants No. 11 to 16 (plaintif fs of suit No. 180 of 1993), conceded the said suit.
14. On 08.04.1990, the suit titled Muhammad Mehboob ur-Rehman, etc. Vs. Saith Muhammad Ubaid-ur- Rehman' was consolidated with the suit titled 'Imtiaz Ahmad, etc. Vs. Saith Muhamm ad Ubaid-ur-Rehman, etc.', and the following issues were framed:--- ISSUES
1. Whether the suits are not maintainable in its present form? OPD
2. Whether the suit properties are described properly? If not, what is its ef fect? OPD
3. Whether suit is within time? OPD
4. Whether the suits are bad due to non-joinder of the necessary parties? OPD
5. Whether the defendants have mutur ed their title upon the properties in dispute or the basis of adverse possession? OPD
6. Whether the plaintif fs are estopped to file the suits by their words, act and conduct? OPD
7. Whether the suits are properly valued for the purpose of Court-fee? If not, what is the correct valuation and its ef fect? OPD
8. Whether the gift mutation No. 245 of Mouza Bahawalpur and Mutation No. 381 of Mouza Karan are fake, collusive, illegal, based on fraud and the result of mis-representation? If so, its ef fect?
9. Whether the plaintif fs are entitled to inherit the properties as described in the heading of the plaint? OPP
10. Whether the properties were owned and left by Molvi Hafeez-ur-Rehman at the time of his death? OPD
11. Whether the plaintif fs are entitled to inherit from Mst. Amina and Mst. Mariyain? If so, what are their shares? OPP
12. Whether the General Power of Attorney dated 20.01.1963 was the result of fraud, illegal and collusive? If so, its ef fect? OPP
13. Whether this Court has got jurisdiction to ef fect the partition between the parties? OPD
14. Whether Mst. Amina Bibi and Mst. Mariyam Bibi after the death of Hafeez-ur-Rehman, executed General Power of Attorney in favour of Syed Hamid All Shah? OPP
15. If so, whether the General Power of Attorney meant for the transfer of the impugned property through Tamleek? OPD
16. Whether Mst. Amina Bibi and Mst. Muriyam Bibi inherited different shares of property on the death of Hafeez-ur-Rehman? OPD
17. Whether the defendant No. 1 got procured through Humid Ali Shah, a fake General Power of Attorney to have been executed by Mst. Amina Bibi and Mst. Mariyam Bibi? OPP
18. Whether the General Power of Attorney was not meant for gifting away the impugned property through Tamleek? OPP
19. Whether the General Power of Attorney holder fulfilled essentials of a gift before party with the property of both Amina Bibi and Mariyam Bibi in favour of defendant No. 1 through T amleek? OPP
20. Whether such a transaction is not by Islam? And its ef fect? OPD
21. What are the relations of defendant No. 1 with Syed Hamid Ali Shah and the relation of Syed Hamid Ali Shah with Amina Bibi and Mariyam Bibi? OPD
22. Whether the entire proceedings of transaction and the procurement of General Power of attorney , the result of fraud, mis-representation and collusion? OPD
23. Whether the property transferred in view of the General Attorney to the defendant No. 1 is void, illegal and inef fective? OPP
24. Whether the suit is barred by time? OPD
25. Whether the defendant No. 1 is owner by virtue of adverse possession? OPD Whether Section 54 of T.P.A. is applicable to the purchases? Whether the plaintif fs are entitled to a relief claimed in the plaint? OPP 26-A. Whether defendant No 25 is a bona fide purchaser of a portion of the property in dispute i.e. 331.3 Sq.Ft. for value? If so, its ef fect? OPD-25 26-B Whether 4-kanals 12-marlas of land falling in Khata No. 82/78, Khatooni No 222 was dedicated by Molvi Muhammad Hafeez-ur-Rehman during his life-time by way of Waqf in favour of respondent No. 16?
OPD-16 26-C Whether Haji Muhammad Hafeez-ur-Rehman dedicated 62-kanals 10-marlas of land in favour of defendant No. 29 by way of W aqf? OPD-29.
27. Relief
15. Parties led their respective evidence and after conclusion of the formal proceedings, the learned trial Court by means of judgment and decree dated 22.02.1997, concluded in the following manner--- "In view of my findings on the above issues, both the suits are partly decreed in favour of the plaintif fs and defendants No 11 to 14 in respect of properties mentioned at Sr. Nos. I & II to the extent of their due shares which have been indicated in my finding on issue No. 9. Both the suits are dismissed concerning properties mentioned at Sr. Nos. III to VII and IX. As regards property mentioned at Sr. No. VIII, the same is the subject-matter of an R.S.A. pending before the Hon'ble Lahore. High Court, Bahawalpur Bench, Bahawalpur , therefore, the rights of the plaintif fs as well as of defendants No. 11 to 14 shall be subject to the final decision of that lis. The impugned mutations i.e. mutation No. 245 of village Bahawalpur attested on 5.3.1964 and mutation No. 381 of village Karna attested on 20.2.1965 are hereby cancelled. The property of Mst. Amna Bibi i.e. 17 kanals 19 marks of land in village Karna alienated through the impugned mutation No. 381 shall go to the plaintif fs and the property of Mst. Maryam Bibi of village Karna measuring 23 kanals 17 marlas alienated in favour of defendant No. 1 through impugned mutation No. 381 is declared to be the property of defendants No. 11 to 14. Similarly the land of Mst. Amna measuring 9 kanals 15 marlas of village Bahawalpur alienated in favour of defendant No. 1 through the impugned mutation No. 245 attested on 5.3.1964 is declared to be the property of the plaintif fs in equal shares and similarly defendants No. 11 w 14 are declared to be the owners of the land measuring 13. kanals 1 marla which had been wrongly alienated on behalf of their predecesso r-in-interest, namely , Maryam Bib; in favour of defendant No. 1. The impugned general power of, 'attorney dated 20,1.1964 is declared as illegal and void. A permanent injunction is also granted in favour of the plaintif fs and defendants No. 11 to 14 restraining the other defendants from transferring or encumbering the property of their shares. It may hereby mentioned that since the property mentioned at Sr. Nos. I and II is admittedly in possession of Islamia University , Rahawalpur and since all the concerned parties are interested only in gettin g compensation of the same, therefore, it is clarified that the plaintif fs and defendants No. 11 to 14 shall be entitled to get their shares of the compensation, apart from any othe r relief which may be awarded in respect of the land. Since both the suits related to a very past dispute, therefore, the parties are left to bear their own costs."
16. Five appeals from the said decree were filed, which were taken up for decision by the learned Additional District Judge, on 30.03.2001 and were disposed of by the learned first appellate Court with some modification in the decree passed by the learned Civil Judge in the following manner:-- "63. While considering appeals titled as Imtiaz Ahmad, etc. Vs. Seth Muhamm ad Ubaid-ur-Rehman etc.' and `Muhammad Naeem-ur-Rehman, etc Vs. Seth Muhammad Ubaid-ur-Rehman etc. admittedly , the plaintif fs and defendants are the heirs of late Molvi Hafeez-ur-Rehnzan S/0 Molvi Muhammad Aziz-ur-Rehman, who died issueless on 03.11.1959, leaving behind the collaterals and property mentioned in the plaint and there is also no dispute at the death of late Molvi Hafeez-ur-Rehman, he left behind Amna Bibi, his wife, who inherited 1/4th of entire property and on her death on 21.4.1966, the property was inherited by the co- sharers, cited in the plaint.
64. I have very carefully examined General Power of Attorney in favour of Syed Hamid Ali Shah S/O Bahawal Shah and registered documents (Ex.D.14) of dated 20.01.1963. The plaintif fs-appellants predecessor-in-interest have rightly agitated the said Power of Attorney (Ex. D.14). The impugned General Power of Attorney (Ex. D.14) was fraudulently obtained. Marriyam Bibi and Amna Bibi had never executed General Power of Attorney in favour of Syed Hamid Ali Shah, particularly not for transferring the property rights, even bare language of said Power of Attorney does not explain the purpose for which, it was utilized.
65. The property transferred on the basis of said Power of Attorney , is a product of fraud and mis- representation against the rights of appellants. The appellants in above-titled appeals are entitled to inherit the properties upto the extent of their shares of their predecessor-in-interes t, excluding the property , for which, the appeal is pending before Hon'ble High Court.
66. Property known as "Aziz-ul-Mutabia Printing Press" gifted away by Molvi Muhammad Hafeez-ur- Rehman in favour of Seth Muhammad Ubaid-ur-Rehman on the basis of certified copy of the letter of Deputy Commissioner , Bahawalpur , is hereby reversed, declaring that the declaration was only given for the running of printing press and not for transferring the property in the name of Seth Muhammad Ubaid- ur-Rehman.
67. With the following observations and modifications in the order of learned trial Court, the appeal filed by "Imtiaz Ahmad, etc. Vs. Seth Muhamm ad Ubaid-ur-Rehnzan, etc." and "Muhammad Naseem-ur-Rehman, etc. Vs. Seth Muhammad Ubaid-ur-Rehman, etc." is hereby partially accepted and I hereby upheld the decree passed by the learned trial Court upto the extent of above-said two appeals.
68. As far as appeal of "Islamia Unive rsity Vs. Imtiaz Ahmad, etc." is concerned, land given under Waqf measuring 4-kanals 12-marlas is not subject to challenge, the same shall be retained by the Islamia University , whereas Islamia University is bound to make the payment of compensation of rest of the land, to the legal heirs of predecessor determined by the trial Court. With this direction, the appeal of "Islamia University Vs. Imtiaz Ahmad, etc." stand dismissed.
69. Rest of the appeals titled as "Seth Muhammad Ubaid-ur-Rehman Vs. Imtiaz Ahmad, etc." and "Seth Muhammad Ubaid-ur-Rehman Vs. Muhammad Naeem-ur-Rehman, etc." stand dismissed as having no substance in such appeals."
17. Feeling still aggrieved, the present Civil Revisionpetitions were filed by the aggrieved persons.
18. Learned counsel for the revision petitioner-Seth Muhammad Ubaid-ur-Rehrnan, has mainly placed his stress to his claim that the plaintif fs remained failed to establish the fact that they were collaterals or survivers of Mst.
Maryam Bibi and Aamna Bibi and, therefore, his main attack was to the findings of the learned Courts below on issue No. 1 1.
19. In order to establish the status of the plaintif fs as LRs of Mst. Maryam Bibi and Mst. Aamna Bibi the learned counsel for the plaintif fs referred the evidence of Seth Muhammad Ubaid-ur-Rehrnan-DW4, himself, who while being cross-examined has admitted in clear terms that Muhammad Amin, the father of defendants No. 11 to 14 was real brother of Mst. Maryam Bibi. Similarly , he also admitted that Muhammad Hussain was paternal cousin of Mst.
Aamina Bibi and he has not contradicted in clear terms the suggestion put to him suggesting that said Molvi Muhammad Hussain at the time of death of Mst. Aamina Bibi was sole legal heir of the lady. As such, the plaintif fs in suit; subject-matter of Civil Revision No. 491 of 2001, were sons and daughters of late Muhammad Amin and were. rightly considered as legal, representatives of deceased lady, Maryam Bibi and in the same manner , plaintif fs in the suit, subject-matter Of Civil Revision No. 499 of 2001, were the successors of Molvi Muhammad Hussain and in their such capacity were rightly treated, as LR's of deceased Aamina Bibi, The learned Courts below in this regard have rightly concluded that the plaintif fs in the said suits where proved to be the LRs of deceased Mst: Maryam Bibi and Aamina Bibi, and were thus entitled according to their respective shares to inherit from the leftover estate of deceased ladies.
20. As to the properties' mentioned at serial No. IX, the LRs of Dr. Jamil-ur-Rehma n, defendants No. 3 to 10 were refused by the learned trial Court to be treated as entitled to have the share in the said property , to the extent of 46 Kanal I Marla, for the stated reason that a gift, dated 14.06.1954, made by Molvi Muhammad Hafiz-ur-Rehman in favour of Dr, Jarnil-ur-Rehman, through a registered deed, was subsequently revoked by the said donor on 13.07.1957. The learned first appellate Court, however , modified the decree to that extent and held entitled Dr. Jamil-ur-Rehman or his legal heirs to retain the remaining part from property mentioned at serial No. IX, which was total in measurement of 62 Kanal and after devotion to Mosque and. Madrasa and a notification dated 13.07.1962, issued by Secretary Auqaf, the remainin g part i.e. 46 Kanal I Marla, was alienated in favour of Dr. Jamil-ur- Rehman. Dr. Jamil-ur-Rehman was refused to claim entitlement over such proper ty only on the stated revocation deed dated 13.07.1957 but the Court while refusing such title to Dr. Jamil-ur-Rehman has conveniently ignored the decree as was granted by the learned Civil Judge on 07.12.1966, in a suit for possession filed by Dr. Jamil-ur- Rehman, in respect of the same property and appeal filed there against was dismissed on 27.02.1967. There was no 'further challenge to such decree and thus the same attained finality ,. In this regard, the registered gift deed has been made part of the record as Exh. D79, which constitute a valid and complete gift deed and possession of land in question was specifically stated to have been delivered to Dr. Jamil-ur-Rehman, whereas the stated revocation deed Exh. DI is not only self-contradictory document, which contain a condition by Molvi Muhammad Hafeez-ur- Rehman to the effect that possession of the property was not handed over to Dr. Jamil-ur-Rehman but also certain material defects are obvious in the said deed e.g. in the first page of the said document, Mukhtar Hussain and Muhammad Anees-ur-Rehman were shown to be the witnesses of the said document but when said document was shown to be placed before the Registrar , the said witnesses never appeared and at that moment Saith Muhammad Ubaid-ur-Rehman and Sodagar Azam, identified the executant of said deed. The process of identification was noted on 15.07.1957, whereas the Registrar gave a certificate to that effect on 16.07.1957. The said revocation deed was rightly , kept out of consideration on account of such defects in the docum ent. The learned first appellate Court thus was right in accepting the right of Dr. Jamil-ur-Rehman in his claim over property measuring 46 Kanal 1 Marla.
21. Similarly as to the property mentioned at serial No. 7, a house measuring 3 1/2 Marla, plaintif fs Mehboob-ur- Rehman, etc. claimed the said house merely on the basis of PT-1 Form, issued by the Property Tax Department on the basis of record maintained by the said department for limited purpose of having property tax. Said document does not create any title in any' person and Dr. Jamil-ur-Rehman, who claims himself to be paternal cousin of Molvi Muhammad Hafeez-ur-Rehman and exclusive title of the suit house in his independent capacity , stated to have been inherited from his father and his long standing possession, and therefore, the learned appellate Court was again right to prefer the considerations put forth by Dr. Jamil-ur-Rehman as compared to the PT-1 Form, relied upon by Mehboob-ur-Rehman, etc. in their suit.
22. Saith Muhammad Ubaid-ur-Rehman had come forward by raising his claim over the suit properties with the assertion that Hamid All Shah, the duly appointed attorney by Mst. Maryam Bibi and Mst. Aamina Bibi, alienated the property in his favour . Both the Courts below have concurrently arrived at the conclusion that it has not been established on record that both the ladies ever appeared before any Authority for the purpose of getting the deed of attorney registered. Even otherwise, on record, said Ubaid-ur-Rehman has failed to establish any link even remotely of Hamid Ali Shah with the said ladies, what to talk about any relationsh ip. In absence of any such link, there seems to be no just reason for the said ladies to appoint a stranger as their attorney by extending all rights to such Attorney to deal with their holdings. As such the learned Courts below have rightly concluded that the deed of power of attorney , shown to have been executed by Mst. Maryam Bibi and Mst. Aamina Bibi in favour of Hamid Ali Shah, was result of fraud and forgery and resultant alienations in favour of Saith Muhammad Ubaid-ur-Rehman, by the said alleged attorney were having no legal sanctity .
23. As to the properties mentioned at serial No. 111 and IV. which are in fact a press under the name and style of Aziz-ul-Mutabey Press' and shops and house attached to the property was being claimed by Saith Muhammad Ubaid-ur-Rehman on the plea that when the authority under the Press and Publication Ordinance, transferred the declaration of some publication in favour of Saith Muhammad Ubaid-ur-Rehman, the landed property over which the machinery of press was installed, stood automatically transferred in his favour . The learned trial Court declared the same properties as belong to Saith Muhammad Ubaid-ur-Rehman, however , the learned Additional District Judge, has rightly reversed such findings and the properties at serial No. III and IV were rightly decreed in favour of the plaintif fs.
24. Properties at serial No. V and VI, were admitted to have been gifted by Mst. Maryam Bibi and Mst. Aamina Bibi in favour of, Mehmood-ur-Rehman, their real nephew/defendant No. 15 and such transaction was accepted by both the Courts below and rightly so.
25. The result is that the learned first appellate Court has rightly concluded and, therefore, the Civil Revision Petitions No. 491-D and 492-D of 2001, titled 'Saith Ubaid-ur-Rehman, etc. Vs. Muhammad Naeem-ur-Rehman, etc.' and 'Saith Muhammad Ubaid-ur-Rehman, etc. Vs. Imtiaz Ahmad etc.', respectively are dismissed. By means of Civil Revision Petition No. 499-D of 2001, the decree granted in favour of Dr. Jamil-ur-Rehman, with regard to the properties at serial No. VII and remaining part of property at seria l No. IX, measuring 46 Kanal 1 Marla, have been challenged by Imtiaz Ahmad etc., which in view of the discussion above, is not justified challenge, therefore, the same is also dismissed. By means of Civil Revision Petition No. 505-D of 2001, the legal heirs of Mehboob-ur-Rehman deceased called in question the properties given to Dr. Jamil-ur-Rehman or his legal heirs, which on the same consideration is not acceptable and, therefore, the same is also dismissed.
26. The net result is that the decree as was passed by the learned first appellate Court is upheld.