ABID HUSSAIN CHATTHA, J. This Civil Revision is directed against the Judgment and Decree dated 20-08- 2011 passed by the learned Additional District Judge, Phalia, whereby, the Appellate Court dismissed the suit by setting aside the Judgement and Decree dated 08-01-2011 passed by the Learned Civil Judge, Phalia in favour of the Petitioner.
2. The precise facts of this Civil Revisio n are that the Petitioner instituted a suit for declaration regarding land measuring 21 Kanals and 14 Marlas fully described in the plaint, situated in the revenue estate of village Lasoori Kalan, Tehsil Phalia, District Mandi Bahauddin (the "Property" ). It was contended therein that Muha mmad Salehon son of Ali Muhammad ("Salehon ") was owner-in-possession of the Property who died issueless on 07.08.2006. The Petitioner and Respondent No. 3 (Irshad Bibi) are the real brother and sister of Salehon, respectively and are the only legal heirs of Salehon entitled to inherit the Property . Respondent No. 1 (Irshad Begum) was married to Allah Ditta at village Jago Kalan, Tehsil Phalia, District Mandi Bahauddin and out of the wedlock, Respondent No. 2 (Sidra Batool) was born. However , Respondents No. 1 & 2 (hereinafter collectively referred to as the "Respondents ") in connivance with the revenue officials got sanctioned the mutation No. 1338 dated 12.04.2007 (the "Mutation ") by showing themselves as the legal heirs of Salehon, as such, the Mutation is liable to be cancelled.
3. The Respondents contested the suit by filing separate written statements. It was admitted that Respondent No. 1 was married to Allah Dita. However , it was averred that after Allah Dita divorced her, Respondent No. 1 got married to Salehon and out of their wedlock, Respondent No. 2 was born. As such, the Respondents are also the legal heirs of Salehon and the Mutation was correctly and lawfully sanctioned.
4. Respondent No. 3 (Irshad Bibi) sister of the Petitioner and Salehon did not contest the suit and she was proceeded against ex-parte . The situation remained the same during the Appeal as well as the titled Civil Revision.
5. Out of the divergent pleadings of the parties, the trial Court framed six issues in which issue No. 1 was pivotal as to 'whether the Plaintiff (Petitioner) is entitled to decree for declaration as prayed for?' OPP .
During evidence, the Petitioner appeared as PW-1, whereas, Muhammad Arif appe ared as PW-2 and corroborated the version of the Petitioner . In documentary evidence, the Petitioner produced following documents:-
(i) Copy of C.N.I.C. of Respondent No. 2 Ex.P1
(ii) Copy of Certificate of Union Council Ex.P2
(iii) Copy of the Mutation Ex.P3 On the other hand, the Respondents appeared as DW-1 & DW 2, respectively , and following documentary evidence was got exhibited by their counsel:-
(i) Copy of record of rights for the years 2008-2009 Ex.D1
(ii) Copy of the Mutation Ex.D2
(iii) Copy of School Leaving Certificate of Respondent No. 2 Ex.D3
(iv) Copy of Nikah Nama of Respondent No. 1 with Salehon Ex.D4
(v) Copy of Nikah Nama of Respondent No. 2 Ex.D5
(vi) Copy of Khasra Girdawari for Kharif and Rabeeh Ex.D6
(vii) Copy of Death Register of Union Council Haslanwala relating to death entry of Salehon Ex.D7
(viii) Copy of Birth Certificate of Union Council relating to date of birth and parentage of Respondent No. 2 Ex.D8
(ix) Copies of C.N.I.C. of the Respondents Ex.D9 6. Learned counsel for the Petitioner submitted that PW-1 & PW-2 specifically stated in their examination-in- chief that Salehon died issueless and he was never married to Respondent No. 1. Respondent No. 2 was born out of the wedlock of Respondent No. 1 and Allah Ditta. The PW's were not cross examined to the deposed fact that Salehon died issueless and as such, their depositions were unimpeachable and unexceptionable. The Respondents in their written statements as well as in their evidence have candidly admitted the marriage of Respondent No. 1 with Allah Ditta and only evasively denied other contents of the plaint. The Respondents failed to prove that Respondent No. 1 was ever married to Salehon after having been divorced by Allah Dita and Respondent No. 2 is the daughter of Salehon through any independent evidence. There are major contradictions between oral and documentary evidence produced by the Respondents. In particular, Respondent No. 1 in her examination-in-chief on 22.07.2010 made self- contradictory statements with respect to her age as well as that of her daughter and date and place of their marriages. The contents of the documents are also self-contradictory which established that the documents were prepared with fraudulent intent with the specific purpose to cover up the concocted transaction.
Respondent No. 1 being sister-in-law of the Petitioner has exploited her relationship and residence at the joint house of the Petitioner and Salehon in connivance with her daughter and revenue officials. As such, the Respondents succeeded to get the Property mutated in their names as legal heirs of Salehon, although, the Respondents were not entitled to inherit from the estate of Salehon.
7. Conversely, learned counsel for the Respondents submitted that this Revision Petition was time barred and is liable to be dismissed on this score in terms of law laid down in case titled, "Asad Ali and 9 others v. the Bank of Punjab and others" (PLD 2020 Supreme Court 736). He further submitted that in Paragraph No. 5 of the plaint, the Petitioner alleged that the Mutation was result of fraud and collusion with revenue staff but the revenue officials were not made party to the suit. Hence, the suit was liable to be dismissed in view of cases titled, "Abdul Razaq v. Abdul Ghaffar and others" (2020 SCMR 202) and "Muhammad Faisal Sultan and another v. Muhammad Ajmal through his Legal Heirs" (2018 CLC 1782). Moreover, no particulars of fraud with specific date, time and place were mentioned in the plaint as required by Order VI, Rule 4 of the Code of Civil Procedure, 1908 (the "CPC") and interpreted in case titled, "Taj Muhammad Khan (deceased) through L.Rs. and another v. Mst. Munawar Jan and others" (PLJ 2009 SC 375). Finally, it was contended that where judgments are at variance, findings of the Appellate Court are to be preferred as per dictum laid down in case titled, "Muhammad Hafeez and another v. District Judge, Karachi East and another" (2008 SCMR 398).
8. Arguments heard and record perused.
9. The issue for determination in the case is as to whether Respondent No. 1 was the second wife of Salehon and if so, whether Respondent No. 2 was born out of their wedlock. PW-1 candidly deposed that he and Salehon were two brothers and Respondent No. 3 was their only sister. Salehon died issueless on 07.08.2006 and was a confirmed bachelor. Respondent No. 1 is his sister-in-law (real sister of his wife) who was married with Allah Ditta and out of their wedlock, Respondent No. 2 was born. Allah Ditta had divorced Respondent No. 1 and thereafter, being his sister-in-law, she was residing with them. Respondent No. 1 came to village Lasoori Kalan about 15 to 20 years ago. He denied the suggestion that Respondent No. 1 was married to Salehon about 30 years ago. He also deposed that Respondent No. 2 is married in village Bhukk and is the daughter-in-law of Akbar who is present in Court. Respondent No. 2 was not ceremoniously married but she left the house on her own for this purpose. The date of birth of Respondent No. 2 is recorded in the Union Council, Haslanwala. The Respondents in connivance with the Halqa Patwari managed the Mutation which is liable to be cancelled.
10. PW-2 also confirmed and reiterated the deposition of PW-1. He categorically stated that Salehon never got married and died issueless. He was never cross-examined regarding this statement. Accordingly , this statement is deemed admitted in view of case titled, "Hafiz Tassaduq Hussain Versus Lal Khatoon and others " (PLD 2011 SC 296), wherein, it was held that if a material fact is deposed in examination-in-chief and the same is not subjected to cross-examination, it shall be deemed to be admitted. PW-2 in his cross examination stated that the Petitioner and Salehon used to cultivate the land separately to the extent of their respective shares since 6 to 7 years. Their residences were separate but the courtyard was one and Respondent No. 1 was residing in the room which came in the share of Salehon. The deposition of the PW's was consistent with the plaint and corroborated with each other . The evidence tendered was straight forward, confidence inspiring and withstood the test of cross- examination. PW-2 was an independent witness as a distant cousin who had no personal interest in the Property and knew the relationship of the inter se members of the family and the parties to the suit. He possessed special means of knowledge of the family affairs and fulfilled the test of Article 64 of the Qanun-i-Sahadat Order , 1984. The deposition to the effect that Salehon died issueless was established, hence, the initial onus of proof was duly discharged by the Petitioner which shifted upon the Respondents.
11. Respondent No. 1 as DW-1 deposed that she married Salehon about 35 years ago and after 12 years of her marriage, Respondent No. 2 was born. She in her cross examination confirmed that she contracted two marriages.
Marriage with Allah Ditta took place 19 years ago and no issue was born during the said wedlock due to which Allah Ditta divorced her. Talaq was given in writing. Nikah Nama with Salehon was registered. Respondent No. 1 further confirmed that her sister was married to the Petitioner who arranged her marriage with Salehon. She again confirmed in cross-examination that Respondent No. 2 was born 12 years after marriage. She confirmed that Respondent No. 2 contracted a love marriage. Accordingly , no 'barat' was brought at village Lasoori Kalan.
Respondent No. 2 was 18 years old when she got married. She deposed that her old C.N.I.C. had been made before the death of Salehon. She importantly testified that the Petitioner was not with her when Mutation was attested. Now the Property is in possession of owners as per their respective shares. Respondent No. 1 further stated that she was married with Salehon and Respondent No. 2 was born out of the said wedlock. Her daughter , Respondent No. 2 was married in the same Union Council where she is residing now .
12. Respondent No. 2 endorsed the deposition of Respondent No. 1 but in her cross examination she admitted that she was married three years ago at Lasoori Kalan to her cousin. She initially stated that her barat came to village Lasoori Kalan but later admitted that Nikah was not solemnized in Lasoori Kalan and no barat had come due to the death of her father. Further, marriage was solemnized at Mauza Bhukk. She deposed that her date of birth is recorded in the Union Council. Date of birth in the School Leaving Certificate is in accordance with the date of birth recorded in the Union Council. She got made her C.N.I.C. according to the date of birth mentioned in the Union Council. She also, importantly, stated that the first husband of her mother, Allah Ditta had participated in her marriage and had also given dowry articles according to his financial condition. She also stated that at the time of sanctioning of the Mutation, the Petitioner and her in-laws were present.
13. The oral evidence of the Respondents tendered on 22-10-2010 was full of material contradictions which are highlighted as under:
(i) Respondent No. 1 in her examination-in-Chief on 22-10-2010 stated that she was about 70 years, was married to Salehon 35 years ago and Respondent No. 2 was born 12 years after her marriage; Her marriage with Allah Ditta was solemnized 19 years ago. This means that Salehon was the first husband and Allah Dita was the second husband which completely destroyed the case of the Respondents;
(ii) Respondent No. 1 deposed that Allah Dita had divorced her in writing but no Talak Nama was brought on record. Even the year of Talak was not mentioned in the entire evidence;
(iii) Respondent No. 1 deposed that her old C.N.I.C. was made before the death of Salehon but the same was not brought on record;
(iv) Respondent No. 1 deposed that the Petitioner was not present when the impugned Mutation was sanctioned but Respondent No. 2 deposed that the Petitioner and her in-laws were present when the impugned Mutation was sanctioned;
(v) Respondent No. 2 deposed that her in-laws brought barat at village Lasoori Kalan but at the same time she also stated that no barat was brought and her marriage was solemnized at village Bhukk;
(vi) Respondent No. 2 stated that Allah Ditta, first husband of her mother / Respo ndent No. 1 participated in her marriage and gave dowry articles to her according to his financial status. It was, however , not explained that if Respondent No. 2 was daughter of Salehon why would Allah Dita, the previous husband of Respondent No. 1 would give dowry articles to Respondent No. 2;
(vii) Respondent No. 2 admitted that she got issued her C.N.I.C. according to her date of birth recorded in the Union Council but her date of birth in the Union Council and School Leaving Certificate was recorded as 10-08-1994 in contrast to her C.N.I.C. wherein, it was recorded as 01-01-1985; and
(viii) Importantly , no independent witness was brought to testify the alleged relationship of the Respondents with Salehon as required under Article 64 of the Qanun-i-Shahadat Order , 1984.
14. The examination and analysis of the documents tendered in evidence by the Respondents reveal that the contents of the documents are mutually-destructive with respect to the age and marriage of the Respondents and Salehon which cast serious doubts regarding the veracity of the evidence of the Respondents.
(i) Exhibit D-7 is the death certificate of Salehon. According to which, he died at the age of 60 years on 07-08-2006 reported on 21-10-2006;
(ii) As stated above, Respondent No. 1 in her examination-in-chief on 22-10-201 0 stated that she was about 70 years, was married to Salehon 35 years ago and Respondent No. 2 was born 12 years after her marriage.
Accordingly , the date of birth of Respondent No. 1 falls in the year 1940, the date of her marriage with Salehon in 1975 and the date of birth of Respondent No. 2 in 1987. Placing the statement of Respondent No. 1 in juxtaposition to the death certificate of Salehon reveals that Salehon was married to Respondent No. 1 in 1981 at the age of 29 years, Respondent No. 2 was born in 1993 and latter was 17 years old in 2010;
(iii) Exhibit P-1 or D-9 is the C.N.I.C. of Respondent No. 2 issued on 01-10-2007 after the date of sanctioning of impugned Mutation and after the date of institution of the suit. As per its contents, Respondent No. 2 was born on 01-01-1985. Accordingly , on the date of deposition i.e. 22-10 2010, Respondent No. 2 was 26 years of age;
(iv) Exhibit D-9 is also the C.N.I.C. of Respondent No. 1 issued on 16-05-2008 after the date of sanctioning of impugned Mutation and after the date of institution of the suit. As per its contents, Respondent No. 1 was born on 01-01-1969. Accordingly , on the date of deposition i.e. 22-10 2010, Respondent No. 1 was about 40 years of age.
Comparison of C.N.I.C.' s of Respondent No. 1 with that of Respondent No. 2 depicts that Respondent No. 1 was 16 years of age when Respondent No. 2 was born to her. This is in sharp contrast to her statement in examination- in-chief, the result of which shows that Respondent No. 1 was born in 1940, married with Salehon in 1975 and Respondent No. 2 was born in 1987 when Respondent No. 1 was 47 years of age;
(v) Exhibit D-8 is Birth Certificate of Respondent No. 2 which was got issued by Respondent No. 1 and not by Salehon. The date of issue is not fully readable but appears to be 10-2008. Date of birth is written as 10-08-1994.
Accordingly , Respondent No. 2 in 2010 was 16 years old, whereas, as per her C.N.I.C. she was 26 years of age;
(vi) Exhibit D-3 is School Leaving Certificate of Respondent No. 2. The date of issue is blank. Date of birth is written as 10-08-1994. She was in Class 7 and studied till 31-03-2007. Accordingly , Respondent No. 2 in 2010 was 16 years old, whereas, as per her C.N.I.C. she was 26 years of age;
(vii) Exhibit D-4 is the Nikah Nama of Salehon with Respondent No. 1. The date of marriage is stated to be on 25- 09-1981, age of Salehon is written as 18 years and age of Respondent No. 1 is recorded as 20 years. As per death certificate which is an admitted and unrebutted document, Salehon was about 60 years on 07-08-2006.
Accordingly , he was 35 years in 1981, whereas, the Exhibit D-4 records his age of 18 years. Similarly , age of Respondent No. 1 as per her C.NI.C. is 01-01 1969. Hence, she should be 12 years old in 1981 and not 20 years as recorded herein. Further , her oral statements that her first marriage was solemnized 19 years ago and her second marriage was solemnized 35 years ago completely belie date of Nikah recorded as 25.09.1981 therein when her age was stated to be 20 years at the time of marriage; and
(viii) Exhibit D-5 is the Nikah Nama of Respondent No. 2. The date of marriage is stated to be 20-09-2006 and her age is stated to be 19 years. Respondent No. 2 was born on 01-01-1985 as per her C.N.I.C. She was 21 years old in 2006 and not 19 years as recorded therein. Further , as per Birth Certificate and School Leaving Certificate of Respondent No. 2, her age in 2006 with reference to her recorded date of birth therein, i.e. 10-08-1994 is calculated as 12 years and not 19 years.
15. From the above analysis of oral and documentary evidence tendered by the Respondents, it is crystal clear that the Respondents could not consistently depose regarding basic facts relating to their age and place of marriages.
The contents of basic identity document, that is, the CNIC did not match with Nikah Nama, Birth Certificate and School Leaving Certificate.
16. Learned Appellate Court based its findings on the documents produced by the Respondents on the principle that documentary evidence must be given more weight than oral evidence. Although this is a settled general principle yet if the contents of the documents produced are self-contradictory to each other and also in negation to their own oral evidence with respect to their claim, the same could not be relied upon in order to reach a just and fair decision of the case. The Petitioner immediately filed the suit on 23.07.2007 after attestation of the impugned Mutation on 12.04.2007. Importantly , the date of filing of suit was 23-07-2007 and the C.N.I.C.' s of Respondents No. 1 and 2 were issued on 16.05.2008 and 01.10.2007, respectively , after institution of the suit. This fact clearly establishes that the said C.N.I.C.' s were prepared with the sole objective to establish the alleged relationship with Salehon and could not be relied upon especially when no old C.N.I.C. or any other document prepared during the life time of Salehon was on record to demonstrate the relationship in question. No concerned officer regarding preparation of the C.N.I.C.' s was examined to prove the same. The Nikah Nama' s of the Respondents were not proved through Nikah Khawan or witnesses of the same although, this was the material document to prove the marriage and parentage of Respondents No. 1 and 2, respectively . The concerned officer regarding the preparation of Birth Certificate allegedly issued by the Union Council was not produced and examined to prove the same.
Same is the status of other documentary evidence. Therefore, the documents were not proved in accordance with the requirements of the Qanun-e-Shahadat Order , 1984. Even otherwise, the material contradictions in the contents of the documents did not advance the case of the Respondents. Hence, sole reliance thereon in oblivion to their contents was unwarranted. No independent witness was produced by Respondents No. 1 and 2 to establish their relationship of wife and daughter with Salehon, respectively , as required under Article 64 of the Qanun-e-Shahadat Order , 1984.
17. The Appellate Court fell in error to observe that since PW-2 in his cross examination had admitted that the Property was in possession of the Respondents, therefore, it was proved that the Respondents had nexus with Salehon. PW-2 specified that the Respondents took possession of their share of the Property after the impugned Mutation. This was also confirmed by the Respondents and is evident from the documentary evidence on record.
The perusal of Khasra Girdawari (Ex.D6) shows that possession over the Property belonged to Salehon in his life time and not the Respondents. Accordin gly, the inference or conclusion arrived at by the Appellate Court is not justified. The reasoning of the Appellate Court that Respondent No. 1 was living for a long time in the house of Salehon and this fact proved her connection to Salehon is also far-fetched. The fact of divorce with Allah Dita and relationship of sister-in-law with the Petitioner provided a cause to Respondent No. 1 to live there since no independent evidence is on record regarding her independent source of living or owning a separate house.
Thus, such remote inferences were not required to be drawn in the presence of other relevant evidence on record. Similarly, the reliance of the Appellate Court on the documents produced by the Respondents by completely ignoring the oral evidence on record and without making any attempt to read, interpret and compare the documents with each other regarding their contents in order to reach a just and fair decision was also not in consonance with law.
18. Learned counsel for the Respondents defended the Judgment and Decree passed by the Appellate Court but could not rebut the specific assertions raised by learned counsel for the Petitioner regarding misreading and non- reading of evidence on record. It was contended by learned counsel for the Respon dents that Respondent No. 3 as legal heir of Salehon did not enter the witness box and as such, the best evidence was withheld in terms of Article 129 of the Qanoon-e-Shahadat Order , 1984. The contention is without force. Both the Petitioner and Respondent No. 3 had an independent share and right in the estate of Salehon. When the Petitioner himself appeared as a witness, the issue of withholding best evidence was not relevant. Respondent No. 3 took an independent decision of not contesting the suit and the Petitio ner could not have been burdened to produce Respondent No. 3. The cases of Abdul Razaq and Muhammad Faisal Sultan (supra) relied upon by the learned counsel for the Respondents are distinguishable as the same are with reference to registered documents, whereas, the facts and circumstances of the instant case are different where the primary issue is regarding the determination of legal heirs. Similarly , the case of Taj Muhammad Khan (deceased) through L.Rs. (supra) is also distinguishable since the nature of alleged fraud therein was with reference to gift mutations, whereas, in the instant case, the matter relates to determination of legal heirs based on the relationships in question. Importantly , in case titled, "Ghulam Muhammad versus Zohran Bibi and others " (2021 SCMR 19) the Honourable Supreme Court of Pakistan has held that impleading of Revenue officials in every case is not a rule of thumb and it depends upon the facts and circumstances of each case. If the Court considers them as necessary parties, an opportunity can be provided to a party to implead them or they can be summoned as witnesses by any side or even as court witnesses. The present case is regarding the true determination of legal heirs in which the fraud or connivance or fairness of Revenue officials is immaterial rather evidence as to who were the legal heirs of Salehon was the relevant consideration. It was also argued by the learned counsel of the Respondents that the view taken by the Appellate Court is required to be preferred. The dictum laid down by the Honourable Supreme Court of Pakistan regarding preferring the findings of the Appellate Court in the case of Muhammad Hafeez (supra) is not attracted where findings of the Appellate Court are not supported by evidence and suffer from misreading or non-reading of evidence. Finally , the learned counsel vehemently submitted that this Revision was time barred. As per office report, the Judgment and Decree in appeal was passed on 20.08.201 1. Certified copy was applied on 29.07.201 1 and it was prepared on the same date. This Revision Petition was filed on 06.10.201 1. As such, initially the Revision Petition was filed within time but certain minor objections at Serial Nos. 9, 18 and 21 of the Objection Sheet were raised requiring the Petitioner to remove the same in 3 days which were removed on 15.12.201 1. Accordingly , this Revision Petition became barred by time.
Hence, the learned counsel for the Respondents submitted that this Revision Petition was liable to be dismissed in terms of law laid down in Asad Ali case (supra), wherein, it has been held that if objections raised by the office were not removed during the period allowed by the office and meanwhile the limitation period expired, the appeal / Petition would become barred by time. It is noted that referred judgment of the Honourable Supreme Court of Pakistan is distinguishable as the same was rendered with respect to limitation in appeal, whereas, the present proceedings are under Section 115 of the CPC with respect to Revision. Moreover , the Asad Ali case (supra) was rendered in a particular context when the Labour Appellate Court upon transfer of cases from the High Court on account of change in law had without jurisdiction condoned limitation resulting from failure to remove objections raised by the office of this Court and later in appeal, this Court had determined the issue of limitation on the judicial side. Interestingly , the Asad Ali case (supra) rendered by three Member Bench of the Honourable Apex Court does not overrule the case titled, "Mst. Sabiran Bi v. Ahmad Khan " (2000 SCMR 847) and case titled, "Farman Ali v.
Muhammad Ishaq and others " (PLD 2013 SC 392), wherein, it has been held that it is settled law that once a Petition is filed in the Court in time, it never becomes time barred unless decla red by the Presiding Officer by providing opportunity to remove the objection. The above cases were harmonized with the reasoning adopted in the Asad Ali case (supra) by recognizing that the High Court in its judicial side has the ultimate power to determine as to whether the case is barred by time or not. In Asad Ali case (supra), this Court exercised this power on the judicial side, whereas, in Mst. Sabiran Bi and Farman Ali cases (supra), the High Court had not decided the issue of limitation on the judicial side. This Court is also conferred with suo moto powers under Section 115 of the CPC in its revisional jurisdiction with respect to cases where facts and circumstances of the case so warrant to advance the cause of justice or to prevent miscarriage of justice. Reliance is placed on case titled, "Province of Punjab through Collector , Toba Tek Singh and others v. Muhammad Farooq and others " (2012 SCMR 1942 ), wherein, it has been held that when merits of the case demanded that challenged order be set aside, High Court should not avoid hearing the same under Section 115 of the CPC for which no limitation was provided, merely because the application was filed by somebody who was bound by limitation. The instant Revision Petition was never placed before this Court for final determination on the issue of limitation, therefore, the Mst. Sabiran Bi and Farman Ali cases (supra) were squarely applicable and accordingly , this Petition had not become time barred.
19. In view of the above discussion, this Civil Revision is allowed and the impugned Judgment and Decree dated 20.08.201 1 passed by the Appellate Court is set aside. Consequently , the Judgment and Decree dated 08.01.201 1 passed by the trial Court is upheld and maintained with no order as to costs.