SYED ARSHAD ALI, J. My this order/judgment shall dispose of the instant Civil Revision as well as the connected revision petitions fully described in the appendix to this judgment as all these connected petitions are arising out of one and the same judgment and decree of the learned appellate Court dated 30.10.2014.
2. Brief but essential facts of the case are that on 25.07.2002, the plaintiff Mst. Tamam Saliha had filed a suit hearing No. 168/1 of 2002 for declaration to the effect that the suit property, the detail regarding which was given in the appendix with the plaint was initially owned by Shahi Laal (her father) and as such on his demise, she is entitled to her share in the said legacy. Therefore, entries in the revenue record regarding certain properties in the names of father of the defendants Bakht Munir and the defendants who are grandsons of Shahi Laal are illegal and without lawful authority. She has also challenged the mutations hearing Nos. 205 & 43 both dated 26.06.1989 and 59 & 244 both dated 07.11.1989, whereby on demise of Bakht Munir, the suit property had devolved upon the defendants (his legal heirs).
3. Similarly, Mst. khan Ara who was the daughter of Bakht Munir had filed a suit No. 200/1 of 2010 against her brothers Samiullah & others regarding the suit property mentioned therein, wherein she had claimed her Shari share in the legacy of her father Bakht Munir. She had also challenged mutations bearing Nos. 244, 59 both dated 07.11.1989, & 43 dated 26.06.1989, whereby the suit property was shown to have been gifted by the plaintiffs in favour of the defendants.
4. Likewise Mst. Asmat Ara another daughter of Bakht Munir had tiled a suit bearing No. 180/01 of 2005 with the same relief.
5. On being noticed, the present petitioners appeared and contested the suit on various legal as well as factual grounds. Resultantly, all the suits were consolidated, consolidated issues were framed and the parties were directed to produce their respective evidence. On closure of the evidence, the learned Trial Court had partially decreed all the three suits through consolidated judgment and decree dated 21.12.2012.
6. The said judgment and decree was assailed through four appeals by all the parties. The learned appellate Court vide impugned judgment and decree dated 30.10.2014 had partially allowed the appeals. Annoyed of the said judgment and decree, the present parties have approached this Court through the instant revision petition as well as the connected revision petitions.
7. Arguments heard and record of the case was perused with the able assistance of learned counsel for the parties.
8. Shahi Laal is the common predecessor of the parties who according to the record had died on 09.01.1973 leaving behind the following legal heirs:- i. Bakht Munir (Son). ii. Mst. Noor khan (Daughter). iii. Mst. Tamara Saliha (Daughter). iv. Mst. Sucha Bibi (Daughter). v. Mst. Bakht Sardara (Daughter).
The said Bakht Munir son of Shahi Laal has also died prior to institution of the suit on 25.09.1985 leaving behind the following legal heirs:- i. Amanullah (Son). ii. Samiullah (Son). iii. Rafiullah (Son). iv. Mst. Badray Jehan (Daughter). v. Mst. Altaf Begun (Daughter). vi. Mst. Riaz Begum (Daughter). vii. Mst. Jehan Ara (Daughter). viii. Mst. Asmat Ara (Daughter).
9. The first suit was brought by Mst. Tamara Saliha who was the sister of Bakht Munir and aunt of the male defendants Samiullah & others, wherein she had claimed legacy in the property of Shahi Laal, whereas in the other two suits filed by Mst. Jehan Ara and Mst. Asmat Ara, she was claiming her legal rights in the legacy of Bakht Munir deceased.
10. According to the revenue record, the property in question appearing at Sr. 1, 14 & 15 is reflected in the revenue record prepared in the first settlement in the area which was completed in the year 1985-86, whereas the other property do not have any revenue record as the same appears to be situated within the Lal Lakir/village site. According to the revenue record produced by PW-2, the names of the daughters of Shahi Laal are not reflected and the entire property was initially incorporated in the name of the deceased Bakht Munir and on his death, it was transferred in the names of his legal heirs. However, through mutations bearing Nos. 244, 59 both dated 07.11.1989, & 43 dated 26.06.1989, the sisters had transferred their shares as a gift in the names of their brothers Rafiullah, Saimullah & others.
11. Moving on to the nature of the claim and the evidence produced by the parties in support of their claim.
It is the claim of the plaintiff Mst. Tamara Saliha that the entire suit property initially belonged to her father Shahi Laal who had died in the year 1973 and thus the entries in the revenue record in the names of the defendants Bakht Munir and his legal heirs are ineffective upon her rights.
12. Against that the claim of the defendants in their written statement was that:- i. A similar suit was filed by Mst. Noor khan against Rafiullah & others which was ultimately decided in the year 1997 by the learned appellate Court on oath in favour of defendants No. 1 to 3. ii. The suit was time barred. Except property through deed dated 31.07.1968, all the other properties were not the ownership of Shahi Laal, whereas the other property was purchased by Bakht Munir. The said Bakht Munir during his lifetime had disturbed the entire property on 31.10.1973 among his sons and thus the question of legacy/ inheritance of Shahi Laal in the present case does not arise. They have also relied upon the deed dated 31.07.1968, whereby Shahi Laal had transferred certain properties in the name of his wife and daughter Mst. Sucha Bibi and in the said deed, lie had admitted/ confirmed that he did not own any other property. ii. At the time of death of Shahi Laal, Riwaj was in vogue in Swat and under the Riwaj, the female legal heirs were not given inheritance in presence of male legal heirs.
13. In support of her claim, Mst. Tamam Saliha had produced the revenue officer, Patwari Halqa Mingora, Patwari Halqa Norway Kalay and ADK who had produced the revenue record comprised of Jamabandi for the year 2009-10 exhibited as Ex PW 1/1 & Ex PW EA. They had also produced the pedigree table of Bakht Munir and Shahi Laal, the inheritance mutation of Bakht Munir bearing No. 205 dated 26.06.1989, the gift mutations Nos. 244, 59 both dated 07.11.1989, & 43 dated 26.06.1989, whereby the daughters of Bakht Munir had transferred the suit property in the names of sons of Bakht Munir.
The said gift mutations were attested through appointing a local commission.
14. Haji Sultan Yousaf appeared as PW-10 who is special attorney on behalf of the plaintiff in support of the contents of the plaint. In examination- in-chief, he has given the details regarding the acquisition of the property by Shahi Laal deceased and in this regard he had produced the relevant documents exhibited as Ex PW 10/1 to Ex PW 10/62. In support of the registration of the said deeds at the time of erstwhile Ex-Ruler in the official record, PW-6 Senior Clerk/Record keeper appeared and had produced the official record in respect of five deeds exhibited as Ex PW 6/1 to Ex PW 6/5 and corresponding entries of the deeds which were exhibited in original as Ex PW 10/30, Ex PW 10/33, Ex PW 10/37, Ex PW 10/38, Ex PW 10/39, Ex PW 10/40, Ex PW 10/42 & Ex PW 10/44, however despite hectic efforts, the other record could not be produced.
15. Bostan Khan appeared as PW-8 who has confirmed the sale of the property through deed exhibited as Ex PW 10/14 in the year 1940 by his father in favour of Shahi Lal. Similarly, Gul Badshah appeared as PW-9 who has also confirmed the sale of the property by his father Muhammad in favour of Shah Hilal through deed dated 04.02.1944 exhibited as Ex PW 10/4 consisting of 18 shops and a vacant site.
16. The other plaintiffs Mst. Jehan Ara and Mst. Asmat Ara had recorded their statements through their attorney Bahr-ul-Aman as DW-l. The said attorney had admitted the claim of the plaintiff Mst.
Tamam Saliha regarding the original ownership of the property by Shahi Lal. However, he had denied the execution of the gift deed in favour of the brothers of Mst. Jehan Ara and Mst. Asmat Ara.
The present petitioners who had contested the claims of all the ladies in support of their claim, they had produced ADK, Halqa Patwari and officials of the registration office who have produced the revenue record and registration of general power of attorney.
17. The petitioners appeared through DW-6 as their attorney in support of their claim who has produced the deed dated 31.07.1968, whereby the late Shahi Laal while transferring certain property in the name of his wife Arsh Bibi and daughter Mst. Sucha Bibi had confirmed that he had no other property. Thus, he had stressed that the entire property belonged to Bakht Munir. The said witness has stated that the original deeds regarding the title of the suit property were lost and in this regard, he has issued an advertisement in the newspaper exhibited as Ex DW 6/9 and thus has placed on file the photocopies of the said title deeds. He has also produced the attested copies of the official record, wherein the aforesaid title deeds, the photocopies whereof were produced by him and has alleged that the original were lost, however the effect of the said deed is duly reflected in the said official record containing 17 pages exhibited as Ex DW 6/13.
18. The learned Trial Court had only accepted and admitted in evidence those title deeds of the plaintiff Mst. Tamam Saliha, which had corresponding official record containing their entries in the office of the erstwhile Ruler, whereas the other relevant documents exhibited as Ex PW 10/] to Ex PW 10/62 were disbelieved/rejected having no corresponding entries in the official record. Against that all the deeds of the defendants whose photocopies were produced having corresponding entries in the official record were accepted. Whereas, the learned appellate Court through the impugned judgment and decree had reversed the said findings by accepting in evidence all the original deeds of the plaintiff except deeds exhibited as Ex PW 10/50, Ex DW 5/6, Ex DW 5/8 and Ex DW 6/8.
19. Since, both the Courts below are at variance regarding this issue, therefore it would be appropriate to thrash out this controversy.
20. It is the claim of the plaintif f Mst. Tamam Saliha that the suit property was purchased by her father Shahi Lal, whereas the claim of the defendants is that the suit property was purchased by Bakht Munir s/o Shahi Lal and the said Shahi Lal had not left behind any property on his demise. In support of her claim, the plaintiff had produced the deeds through which the suit property was purchased and the original of which were exhibited as Ex PW 10/2, 10/4 to 10/15, 10/17 to 10/21, 10/23, 10/24, 10/26, 10/28, 10/30, 10/33, 10/37, 10/40, 10/42, 10/44 to 10/48, 10/51, 10/53 to 10/55, 10/57 to 10/59, 10/61 & 10/62.
According to the practice during the Ex-Ruler of Swat, documents through which properties were purchased would be registered in the official record. The plaintiff in support of the said documents had produced certain corresponding entries of the official record through official witnesses.
21. Against that the claim of the defendants was that Bakht Munir had purchased the said property through certain documents, the photocopies of which were placed on file. However, in their evidence they had also placed on file corresponding entries in the official record.
22. The documents produced by the plaintiff relates to a period prior to 1970 which are more than 30 years old to which presumption of its due execution is attached under Article 100 of the Qanoon-e- Shahadat Order, 1984 ('The Order'). The plaintiff has produced the original record which is primary documents of its title and it is the mandate of Article 76 of the Order that the documents must be produced by primary evidence except in cases where production of secondary evidence under Article 76 of the Order are permissible. The plaintiff has produced the original title deeds of the property according to which the suit property was purchased by Shahi Lal.
23. As far as the corresponding entries to these documents in the official record are concerned, certain official entries were produced by PW-6 exhibited as Ex PW 6/1 to 6/5, regarding the deeds exhibited as Ex PW 10/30 to Ex PW 10/44. Whereas, regarding the production of the other corresponding official record, PW-6 was produced but he could not trace the said documents.
24. At the appeal stage, the plaintiff had filed an application for production of the said documents which was accepted by the learned appellate Court, however this Court in its revisional jurisdiction had set aside the said order and therefore, the plaintiff could not produce the remaining official record. However, the said evidence produced by the plaintiff has a dominance over the evidence produced by the defendants. Although the defendant has alleged that they had lost the original deeds and had produced the photocopy thereof but in this regard, they had obtained no permission from the Court to produce the secondary evidence in the manner and mode as provided under Article 76 & 77 of the Order. Even the alleged attested copies of the official record were never produced by the official concerned from the official custody. Thus, the said evidence produced by the defendants cannot be given preference over the evidence of the Plaintiff Mst. Tamam Saliha.
25. The learned appellate Court has thoroughly examined this aspect of each and every document and while granting the decree has excluded from consideration the document exhibited as Ex. PW 10/50, according to which the suit property was purchased by Bakht Munir. Learned counsel representing the plaintiff had challenged this document by producing before this Court an attested copy of the official record which shows that indeed this property was purchased by Shahi Laal and there is overwriting in the deed produced before the learned Trial Court exhibited as Ex PW 10/50.
However, the said contention at this revisional stage cannot be considered as the same was never challenged at the time of production of the said document. The learned appellate Court after thoroughly examining the record had excluded the suit property on the basis of deeds exhibited by the defendants as Ex DW 5/6, Ex DW 5/8, Ex DW 6/8 and the land comprised of Khasra bearing No.
670. Thus, the aforesaid findings of the learned appellate Court being based on correct appreciation of law and facts are un-exceptionable which do not call for interference.
26. Moving on further to the claim of the petitioners against the findings of both the Courts below regarding the two mutations No. 59 dated 07.11.1989 and 244 dated 06.12.1989, whereby the sisters of the plaintiff had transferred their share in the legacy of Bakht Munir to the defendants. The said two mutations were attested through local commission and the plaintiff had specifically denied the execution of the said mutations, therefore the burden was on the defendants/ brothers to have established the said transaction by producing at least the marginal witness of the said two mutations. however, they did not produce the said witnesses. Hence, they had failed to establish the said gift through the aforesaid mutations. In this regard, reliance is placed on 2000 SCMR 346 titled "Abdul Rahim & another vs Mrs. Jannatav Bibi & 13 others", 2002 SCMR 1938 titled "Barkat Ali through LRs & others vs Muhammad Ismail through LRs & others", 2005 SCMR 1690 titled "Muhammad idrees vs Mst. Zeenat Bibi" and 2016 SCMR 986 titled "Islam-ud-din through LRs & others vs Mst. Noor &than through LRs & others".
27. Moving on further to the claim of the present petitioners that one of the legal heirs Mst. Noor Jehan (the other daughter of Shah Hilal) had earlier filed a suit against the present petitioners which was decided on the basis of compromise i.e. administering oath was dismissed. Therefore, not only the suit of the present plaintiff was hit by under the bar of res-judicata but at least Mst. Noor Jehan cannot be held entitled in the legacy of Shahi Laal. In this regard, the petitioners have placed on file the suit filed by Mst. Noor Jehan against Saimullah & others exhibited as Ex DW 6/10. In the said suit, the present plaintiff Mst. Tamara Saliha was not made as a party, wherein on 25.05.1998, the learned trial Court had granted injunction in favour of the plaintiff Mst. Noor Jehan which was challenged by the present Petitioners before the learned appellate Court through an appeal.
28. During the appeal, the parties had agreed for disposal of the case by administering oath to the present petitioners to the effect that if they take oath on the Holy Quran by stating that the suit property did not belong to Shahi Laal, then the plaintiff Mst. Noor Jehan would withdraw from the suit.
Accordingly the appellants/ petitioners took oath on the Holy Quran that the suit property did not belong to Shahi Laal and was purchased by Bakht Munir, therefore the appellate Court who was only seized of interlocutory matter had ordered for dismissal of the entire suit vide order dated 25.09.1998.
Mst. Noor Jehan had challenged the said judgment and decree before this Court through Civil Revision bearing No. 428/98 but the same was also dismissed by this Court on 22.06.2001.
29. Now the question arises as to whether the said disposal of the suit on oath would deprive Mst. Noor Jehan from her legal Shari share. It is now evident from record that the suit property indeed belonged to Shahi Laal, therefore not only the present petitioners had lied before the Court regarding the legacy of Shahi Laal but the learned appellate Court only seized of interlocutory matter should not have decided the main case.
30. Even otherwise, the matter relates to the inheritance and it is established principle of law that the right of inheritance cannot be defeated on technicalities. In this regard, reliance is placed on PLD 2002 Supreme Court 677 titled "'Khair Din v/s Mst. Salaman and others", 2005 SCMR 1447 titled "Muhammad Iqbal and 5 others vs Allah Bachaya and 18 others" and 2007 SCMR 635 titled "Mst. Suban v/s Allah Ditta and others". It was held by the august Supreme Court of Pakistan in its recent judgment titled "Zohra Bibi & anothers vs Haji Sultan Mehmood and others" reported as 2018 SCMR 762 that:- "It is also settled law of the land that technicalities should not hamper the administration and dispensation of justice. Whenever it is possible to grant relief under the law, then technicalities in the way of administration of justice should be avoided to the possible extent by remaining within the domain of law."
31. Similarly , the findings of the learned appellate Court on limitation are also legally and factually correct because the plaintif fs in both the cases are the direct legal heirs of their predecessor and they had asked for their Shari share in the suit property during their life time, therefore the same cannot be termed as barred by time.