WIQAR AHMAD, J. This order is directed to dispose of the instant civil revision as well as connected C.R No. 665-M/2012, as both the petitions arise out of one and same judgment dated 10.05.2012 passed by the learned Additional District Judge-II, Buner.
2. Plaintiffs before the learned civil Court would be referred as such while defendants would also be referred as such in this judgment, so as to avoid confusion. Plaintiffs filed a suit against defendants for declaration to the effect that the suit property (described fully in heading of the plaint) had been the legacy of Hafiz Muhammad and that they had been entitled to their respective shari shares but defendant No. 1 namely Imdadullah with collusion of revenue authorities had entered the entire legacy in his name in the revenue record, therefore they, had been deprived of their shari shares, which had been ineffective upon their rights and liable to correction. They had also prayed for permanent injunction to the effect that defendants be restrained from interference in the property in dispute till decision of the suit and a prayer for possession of the property in dispute had also been made in the plaint.
3. Defendants were summoned by the learned civil Court, out of whom defendants Nos.1/1 to 1/9, 3 to 6, 8 to 11, 13 to 17, 18, 20, 22 to 24, 25, 27 to 29, 31, 33, 35, 39 to 43, 45 to 48, 60 to 69, 73, 74, 76 and 108 to 111 appeared and contested the suit by filing their separate written statements. Contentious points of the parties were reduced into issues, parties recorded their respective evidences and on conclusion of proceedings, the learned civil Court partially decreed suit of the plaintiffs vide its judgment dated 30.09.2010. Both the parties filed their separate appeals there-against, before the learned appellate Court which were dismissed vide impugned judgment dated 10.05.2012 of the learned Additional District Judge-II, Buner. Feeling aggrieved there-from, the instant civil revision and connected civil revision have been filed by the parties i.e. plaintiffs as well as legal heirs of defendant No. 1 before this Court.
4. I have heard arguments of learned counsel for the parties and perused the record.
5. Perusal of record reveals that Hafiz Muhammad was original owner of the property in dispute. He had been survived by one son namely Imdadullah and eight (08) daughters. The pedigree-table available on page 11 of connected C.R No. 665-M/2012 would be helpful. Same is therefore reproduced hereunder for ready reference; Date of death of Hafiz Muhammad could not be brought on record exactly but it is apparent that settlement in District Buner had started in the year 1973 and finally notified in the year 1978, and he had died before the time when land record settlement in District Buner was being conducted.
Imdadullah has however died in the year 2008. It is case of legal heirs of defendant No. 1 (petitioners in the revision petition No. 551-M/2012 before this Court) that Imdadullah had no doubt inherited his property from Hafiz Muhammad but had disposed of all of his property during his lifetime and therefore he had not been owning any property at the time of his death from which shares of the plaintiffs could be paid. They have therefore been aggrieved of judgment dated 30.09.2010 of the learned Civil Court, whereby the property in the name of Mst. Hamaishai (defendant No. 1/1 and widow of Imdadullah) had been included in the pool for distribution among the legal heirs, besides burdening them to compensate the plaintiffs for the entire property that deceased Imdadullah had disposed of during his lifetime. Plaintiffs are aggrieved of judgments and decrees to the extent that the benefit of Section 41 of Transfer of Property Act, 1882 has wrongly been extended to all the vendees, who had acquired title from Imdadullah.
6. The learned civil Court while giving its findings on Issues Nos.6, 10, 11 and 12 had given findings to the effect that the property acquired by Mst. Hamaishai (defendant No. 1/1) during the lifetime of Imdadullah (in respect of which a decree of the Court dated 26.02.1991 Ex DW 4/2, had also been granted on the basis of compromise), had not been part of legacy of Imdadullah. Similarly, the two houses in respect of which another decree of Court dated 04.07.1985 has been existing, was also held to be her property and not part of the subject matter of the suit but even then the learned civil Court proceeded further and held that the property in Khasra No. 1194 to the extent of 4 Kanal 7 Marlas, in Khasra No. 1329 to the extent of 3 Kanal 1 Marla and in Khasra No. 1163 to the extent of 1/4 share while in Khasra No. 1146 to the extent of 1/2 share in the property measuring 1 Kanal 4 Marlas shown recorded in the name of Mst. Hamaishai (wife of Imdadullah), had been those properties which had not been covered by the earlier decrees which the learned civil Court had otherwise been intending to exclude. Findings of the learned civil Court regarding the fact that these properties had not been included in the earlier litigation in respect of which the decrees had been existing in favour of Mst. Hamaishai was not correct according to record of the case. The property in respect of which suit of pre-emption had been brought by Muhammad Kamran (defendant No. 25) is available at page 13 of C.M No. 117-M/2016 filed in C.R No. 665-M/2012, which included Khasra Nos. 395, 400, 854, 867, 920, 981, 992, 1173/1, 1194, 1329, 1339, 1341, 1347, 1411, 1449/1, 1776, 1369, 1057, 1772/1, 1777, 1163, 1146, 1136 and 1296. Similarly, the decree granted in favour of Mst. Hamaishai dated 26.02.1991 (Ex DW 4/2) and another decree dated 04.07.1985 (Ex DW 6/2) had also been brought on record. Through this decree dated 04.07.1985, the two minors were shown to have acquired property measuring 4 Kanal 9 Marks in Khasra Nos. 873 and 874. This property has wrongly been held by the learned civil Court not to be covered by the decree earlier granted in favour of petitioner No. 1 namely Inam Ullah and Inayat Ullah (deceased). In-fact, this has not been case of the plaintiffs before the learned civil Court. Attorney for plaintiffs had testified in the case as PW-3, who has not stated anything specifically about the property entered in the name of Mst. Hamaishai nor had he mentioned any of the four Khasra numbers or claimed the same to be owned by Imdadullah at the time of his death. It is also relevant that this attorney for plaintiffs namely Bakht Ghafoor Shah was a Patwari by profession as disclosed in first line of his cross-examination. In his cross-examination, he has stated that most of the property in dispute had been purchased by rest of the defendants from Imdadullah and added that they had also acquired certain property through decrees of the Court. At page 02 of his cross-examination he has also stated that it was correct that Imdadullah (deceased) had gifted certain property in favour of his wife namely Mst.
Hamaishai and then self stated that she had also acquired certain property from Imdadullah through a Court decree. He also stated that he could not say that the purchasers had acquired the property by paying valid consideration. He also admitted it correct that the plaintiffs had not challenged mutations effected in favour of the vendees. He admitted it correct that they had not challenged the gift mutation made from Imdadullah in favour of his wife. It was stated that they had never challenged the earlier decrees relied upon by the defendants Nos. 1 to 9 by filing any application under section 12(2), C.P.C. nor had they challenged the mutations effected in pursuance to or during proceedings of such suits. Earlier Patwari Halqa of Moza Pacha Kalay had been examined as PW-1, who had brought the revenue record. He had produced copy of revenue record of the first settlement effected in the year 1977-78 as well as and Jamabandi for the year 2004-05 in respect of Khasra Nos. 873, 874 and placed same on record as Ex PW 1/1 to 1/3. He stated in his cross-examination that both Khasra Nos. 873 and 874 had been shown in the revenue record as constructed land. He showed his ignorance regarding the fact as to whether Ex PW 1/1 had been bearing any entry of any inheritance mutation of deceased Imdadullah or not. He then conceded that Ex PW 1/1 had not been bearing entries of legal heirs of Imdadullah deceased. In 'his cross- examination, he further stated that the change of ownership mentioned in Ex PW 1/3 had been effected through Mutation No. 202 attested on 22.07.1985 as well as Mutation No. 317 attested on 25.10.1987 in the relevant Moza, which two mutations had been effected on the basis of decree of the Court. In the Jamabandi for the year 1977-78 (Ex PW 1/2), Imdadullah (son of Hafiz Muhammad) had been shown as owner & in possession and the property in Khasra No. 873 shown as Barrai/Baghecha while Khasra No. 874 comprising of 1 Kanal 17 Marlas as constructed property. In the Jamabandi for the year 2004-05, two sons of Imdadullah namely Inayat Ullah and Inam Ullah had been shown as owners in Khasra No. 874 (being constructed in nature). Similarly, same persons in addition to Mst. Akbari (wife of Abdul Qayum), Mst. Mussarat and Mst. Naveda (daughters of Abdul Qayum) had also been shown to be owners and in possession of the property in Khasra No. 873, whose nature has also been shown to be partly constructed. Ex PW-1/D-1 was copy of record of rights of said Khasra numbers for the year 2000-01 which had also been bearing entries of the two mutations, whereby the change of ownership had been effected in the revenue record. None of these mutations had specifically been challenged by the plaintiffs. PW-2 is statement of Patwari Halqa of Moza Nanser. He had also produced the revenue record in respect of property earlier recorded in the name of Imdadullah as well as his pedigree-table and exhibited these documents in his statement as Ex PW 2/1 to Ex PW 2/3. In his cross-examination, further record was also asked from him, which had accordingly been produced. Regarding the inheritance mutation of Imdadullah, his statement is important, which is reproduced hereunder for ready reference;
7. It is apparent that no mutation of inheritance had been effected in respect of any legacy of Imdadullah for the express reason that he had not been shown owner of any property at the time of his death. It is also evident from statement of Patwari Halqa reproduced above as well as the D other Patwari Halqa of Moza Pacha Kalay (attorney for plaintiffs). Other evidence of plaintiffs is also silent about any inheritance mutation of Imdadullah. No other evidence could be brought on record establishing that Imdadullah had been owner of any property. PW-4 is statement of Sher Alam, who has stated that at the time of settlement, Imdadullah had shown himself to be the only legal heir of Hafiz Muhammad deceased, got all the property in his name and deprived the plaintiffs as well as defendants Nos. 100 to 103 from their respective shari shares. Same was the case of another witness of plaintiffs namely Shah Rasan Khan, whose statement was recorded as PW-5 but it is silent regarding the fact whether he had been owning any property at the time of his death or not.
8. Defendants Nos. 1/1 to 1/9 had examined DW-1 namely Kifayat Ullah ADK, who had produced Mutation No. 424 (Ex DW 1/1) attested on 06.11.1989, through which Mst. Hamaishai had acquired the property Mentioned therein. Patwari Halqa of Moza Pacha Kalay namely Fazal Ghafoor was examined as DW-2, who had brought the revenue record. He had produced copy of revenue record of the first settlement effected in the year 1977-78 as well as Fard Jamabandi for the year 2000-01 in respect of Khasra Nos. 873, 874 and placed same on record as Ex DW 2/1, & Ex DW 2/2. He has stated in his cross-examination that in Fard Jamabandi (Ex DW 2/2) only names of the decree- holders (in whose favour the decrees existed) had been mentioned but names of the parties to the suit had not been mentioned. He has then self stated that it had been mentioned in decree of the Court. Similarly, attorney of defendant No. 25 was examined as DW-4. He has stated that defendant No. 25 had got the property in dispute through a Court decree in a suit for pre-emption. Copy of the decree was exhibited in his statement as DW 4/2. In his cross-examination, he has stated that there had been no legacy of Imdadullah as he had disposed of all his property during his lifetime. DW-5 is the statement of Shakeel Ahmad (who was attorney of defendant No. 18). He has stated in his cross-examination that it was correct that Imdadullah used to live a luxurious life and used to sell his property for having luxury tours. He has also stated that plaintiffs and Imdadullah had been living together before their respective marriages and that all the expenses of marriages had also been borne by Imdadullah. It has also been admitted correct that Imdadullah had not been doing any job and had got no other means of income than selling of the properties and that Imdadullah had been on good terms with his sisters i.e. the plaintiffs and that plaintiffs also used to advise him for selling the inherited property. He also conceded that Mst. Akbari and sons of Imdadullah namely Inayatullah and others had also conducted litigation against each other. Mst. Hamaishai has testified in the Court as DW-6. She had been appearing on her own behalf as well as on behalf of defendants Nos. 1/3 to 1/9. She has given description of her life spent with Imdadullah and the way he has been living his life. She has also stated that he had also sold her dower in lieu of which she had been given the house and adjacent property in which respect, he had also got statement recorded in favour of his minor sons in the Court and the decision in this respect was brought in evidence as Ex DW 6/2. She had also narrated story of the litigation started by Mst. Akbari (plaintiff No. 2), when she had brought a suit in respect of a house claimed to have been gifted to her husband namely Abdul Qayum. Decision in said suit was also exhibited in her statement as Ex DW 6/3. The pre-emption suit brought by one Muhammad Kamran (defendant No. 25) in respect of the property sold by Imdadullah and the subsequent transaction, wherein she had also been joined as defendant after acquiring property through Mutation No. 424 attested on 06.11.1989 was also mentioned in her statement and the compromise order passed in said suit was also brought on record as Ex.DW 6/5. She had also stated that the property had been sold by Imdadullah in consultation and with the consent of the sisters who had been plaintiffs in the suit and that they had been well aware of all the developments that had taken place in the meanwhile. In her cross- examination, she had stated that when Imdadullah had first started selling of the properties, he had been living with his mother and sisters. She was suggested that Imdadullah had been a person who used to do everything on his own will and not listening to anyone, to which she replied that he used to do everything in consultation with his mother and sisters. She had also stated that before her marriage with Imdadullah, her father-in-law namely Hafiz Muhammad had died.
9. All this evidence shows that the property had been disposed of by Imdadullah during his lifetime at various intervals. Plaintiffs had no doubt been Parda Nasheen ladies but they had never brought a case for preventing these transactions. There is preponderance of evidence showing that they had been well aware of all these transactions. They had also not tried to restrain him from alienating the property in his lifetime. The transactions effected had not been conducted surreptitiously but had been open transactions, wherein possession had also changed hands. Mst.
Akbari (one of sister of Imdadullah) had also brought a suit. Attorney for plaintiffs had himself been a Patwari Halqa in same District. They had only brought a suit at the end of his life at a stage, where he had disposed of all of his properties.
10. Besides, by holding the plaintiffs entitled in the properties which had already been mutated and title of which had been acquired by Mst. Hamaishai as well as her two sons namely Inayat Ullah and Inam Ullah during lifetime of lmdadulllah (decades before his death), have wrongly been included in the pool of legacy. Mst. Hamaishai and her son have also been burdened with the onerous responsibility of compensating the plaintiffs for the huge property sold by Imdadullah without any proof of the fact that Imdadullah had left any legacy for these defendants, wherefrom such amount would be realized. Such findings have not been based upon any law or evidence and therefore same are not sustainable.
11. This is a classic case of estoppel and waiver. There is no doubt about the phenomena that in cases of inheritance, Courts normally hesitate in employing the principle of estoppel and waiver but this is a case of its own nature. Here the sisters have chosen to bring their case before the Court when the brother had finished and disposed of all the properties. During the process when he had been disposing of the properties, they selected to remain mum and had not created any hurdle rather they have also been beneficiary of the income generated by such sale of the properties. It is an admitted fact that Imdadullah had not been having any other source of income and he used to spend money on marriages and other expenses of the plaintiffs. Obviously such money had been coming from sale of the properties. When plaintiffs were partly beneficiary of such transactions, then the principle of estoppel can be invoked against them without any hesitation. They have never denied their knowledge of all such transactions. One of the plaintiff namely Mst. Akbari had also been locked in litigation with two sons of Imdadullah and had herself effected a compromise on 08.09.1992, which is evident from the application available at page 147 of the instant revision petition. They have not been asking for their shares from his brother rather remained complacent with him while he had been disposing the property and had rather been claiming their rights against the persons who had been bona fide purchasers or the defendants No.1 to 9, who have no doubt been wife, sons and daughters of Imdadullah but they had acquired a very meager portion of the property and that also decades before r death of Imdadullah through Court proceedings and mutations, which have not at all been challenged in the suit in hand. In such circumstances, the two Courts below were right to the extent that they had extended benefit to the vendees under section 41 of Transfer of Property Act, 1882. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Mst. Grana through legal heirs and others v. Sahib Kamala Bibi and others reported as PLD 2014 Supreme Court 167, has held that law of limitation is not to be ignored entirely or brushed aside whenever property is claimed on the basis of inheritance. It was also held that conduct of claimant may become relevant and material when the bar of limitation is pleaded by the adversary, and that a defendant may show that the plaintiff by her or his acts, overt or implicit, had demonstrated acquiescence in the defendant's title to the suit properly, thereby allowing him to deal with it as exclusive owner, for instance regularly and openly disposing of parts of the property or developing it at his own expense over a period of time within the knowledge of the plaintiff. It was further held therein that if in such circumstances, the defendant/legal heirs transfer the property for valuable consideration, the transferee is entitled to believe that the transferor had a valid title for transfer. Relevant findings given in said respect are reproduced hereunder for ready reference; "It emerges from the afore discussed case-law that the law of limitation is not entirely to be ignored- or brushed aside whenever property is claimed on the basis of inheritance. The conduct of such claimant may become relevant and material when the bar of time limitation is pleaded by the adversary. A defendant may show that the plaintiff by her or his acts, overt or implicit, had demonstrated acquiescence in the defendant's title to the suit properly thereby allowing him to deal with it as exclusive owner, for instance regularly and openly disposing of parts of the property or developing it at his own expense over a period of time within the knowledge of the plaintiff. When in such circumstances the defendant/heirs transfers the property for valuable consideration the transferee is entitled to believe that the transferor had a valid title to transfer. It may be reiterated that in Ghulam Ali's case the question of interest protection of transferees from a legal heir in a suit of inheritance was left open as the transferees were not impleaded as defendants. That is not the case here. The very facts of this case would demonstrate that the plaintiff had acquiesced in the various transfers made of the suit property from time to time."
The present case is also distinguishable from the case of Ghulam Ali v. Mst. Resham Jan (PLD 1990 Supreme Court 1) and requires application of ratio of the judgment of Mst. Grana supra.
12. The conclusion that the learned civil Court had arrived at regarding the fact that four Khasra numbers to the extent as mentioned in its judgment had not been covered by the decree in favour of Mst. Hamaishai and that same had been legacy of Imdadullah were the result of non-reading and misreading of evidence. Such had not been a case of plaintiffs before the civil Court. Nowhere in their evidence such assertion could be found. Such a judgment which had been the result of non-reading and misreading of evidence has been upheld by the learned appellate Court but without diving deep into merits of the case or by reappraisal of the evidence at appellate stage.
Judgment of the learned appellate Court itself is very cursory and does not seem to have arisen out of reappraisal of evidence. The learned appellate Court had just toed the lines as laid by the learned civil Court and had not itself bothered to give questions for determination and discuss it by reappraising evidence. Judgments and decrees of the two Courts below are no doubt concurrent but concurrent findings are not always sacrosanct. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of Muhammad Akhtar v. Mst. Manna and 3 others reported as 2001 SCMR 1700, has held that concurrent findings of facts which were the result of non-reading and misreading of evidence could not be treated as sacrosanct for the revisional Court and that a revisional Court may well reverse such findings. Relevant part of observations of the august Court is reproduced hereunder for ready reference; "We are of the considered opinion that if the concurrent findings are perverse, arbitrary or fanciful the same cannot be termed as 'sacrosanct' and can be interfered with."
Similar view has also been reiterated by the Hon'ble Supreme Court of Pakistan in the case of Ghulam Muhammad and 3 others v. Ghulam Ali reported as 2004 SCMR 1001 as well as the judgments reported as 2006 SCMR 50 and 2008 SCMR 428.
13. In light of what has been discussed above, judgment and decree dated 30.09.2010 of the civil Court as well as judgment and decree dated 10.05.2012 of the learned appellate Court are set aside on allowing of the instant C.R. No. 551-M/2012. Resultantly, suit filed by the plaintiffs out of which both the revisions have arisen, shall stand dismissed. C.R. No.665-M/ 2012 is accordingly dismissed.