SHAHID BILAL HASSAN, J. In a few words, the facts of the case bringing the case to this stage, are that the appellants instituted a suit for declaration with permanent injunction against the respondents challenging the vires of mutations Nos.1695 and 1696 sanctioned in favour of respondents Nos.1 and 2 on 14.02.1994 with regards to land measuring 349-kanals 18-marlas out of property measuring 462-kanals 15-marlas as allegedly the defendant No.3 was not competent to transfer the disputed property because he had already gifted out the same to the predecessor in interest appellants namely timer Hayat and all the requisites of Hibba were also fulfilled. The suit was resisted by the respondents/defendants jointly including the defendant No.3/donor and denied the gifting of disputed property by defendant No.3 to the plaintiff Umer Hayat. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties, oral as well as documentary, in pro and contra was recorded. The learned trial Court vide impugned judgment and decree dated 30.09.2009 dismissed suit of the appellants/plaintiffs, who being aggrieved of the same preferred an appeal but it was also dismissed vide impugned judgment and decree dated 24.05.2012 by the learned appellate Court; hence, the instant regular second appeal.
2. Heard.
3. Recitals of plaint and written statement have no value in the eye of law until and unless the same are proved by trustworthy, reliable, cogent and confidence inspiring evidence. Mere admission in the written statement by deceased defendant No.3 Muhammad Bakhsh, that too, in A joint written statement is not sufficient to prove that he gifted out the land through mutations in question to the respondents Nos.1 and 2, especially when admittedly the possession of the same was with the appellants, so the ingredients of the Hibba were not fulfilled. Therefore, after submission of the written statement jointly by the defendants, either the learned trial Court ought to have recorded the statement of the defendant No.3 at its own or the respondents would have filed an application in this regard, because said Muhammad Bakhsh remained alive for a period of five years after institution of the suit and submission of written statement, because mere submission of written statement does not equate the evidence. So neither the learned trial Court nor the respondents tried to get the better statement of the defendant No.3 Muhammad Bakhsh (deceased) in support of his stance, recorded as contemplated under Order X, rules 1, 2 and 3 of the Code of Civil Procedure, 1908, which is reproduced as under:- `1. Ascertainment whether allegations in pleadings are admitted or denied.---At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite- party, and as are not expressly or by necessary implication admitted or denied by the parry against whom they are made. The Court shall record such admissions and denials.
2. Oral examination of the party or companion of party.--At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material question relating to the suit by whom such parry or his pleader is accompanied, shall be examined orally by the Court; and the Court may, if it thinks fit, put in the cburse of such examination questions suggested by either party.
3. Substance of the examination to be written.-- The substance of the examination shall be reduced to writing by the Judge, and shall form part of the record.'
No such procedure has been adopted by the learned trial Court during proceedings and even after death of the defendant No.3/Muhammad Bakhsh, the appellants did not move an application so as to ascertain whether the written statement was signed/thumb marked by said Muhammad Bakhsh through comparison with the admitted one. So the conclusion drawn by the learned Courts below mere on the admission in the written statement, that too a joint one, in order to benefit the defendants Nos.1 and 2, has no value in the eye of law unless the defendant No.3 had recorded his statement by appearing in person but from the date of filing of the written statement till his death he did not appear before the learned trial Court so as to own the stance mentioned in the written statement. Here, the case is not admission of the recitals of plaint but the stance taken up by the respondents Nos.1 and 2, therefore, such like admission is required to be proved and in this case the principle "admitted facts need not be proved" does not apply, because position in this case is with regards to admission of claim of the respondents Nos.1 and 2 and not of averments of plaint. In Hakim-Ud-Din through L.Rs. and others v. Faiz Bakhsh and others (2007 SCMR 870), the Apex Court of the country has unequivocally and invariably held that;- 'it is a settled law that pleadings of the parties are not substitute of evidence and it being not a substitute evidence, the averments made in the pleadings would carry no weight unless proved from the evidence in Court or admitted by the other parry...........It is a settled law that written statement/plaint is not substitute of evidence. The aforesaid principles are supported by the following judgments:--
(i) Mst. Khair-un-Nisa's case PLD 1972 SC 25, (ii) Mst. Zarina's case PLD 1995 Kar. 388, (iii) Noor Muhammad's case PLD 1989 Lah. 31, (iv) Mst. Sakina's case 1986 CLC 288, (v) Falak Sher's case 1992 MLD 1879, (vi)(sic.) Mst. Sakina's case 1986 CLC 288, (vii) Nizam-ud-Din's case 1991 CLC 1937 and (viii) Faqir Muhammad's case PLD 2003 SC 594.'
In this case, the learned trial Court could have resorted to the provisions of Rule 5 of Order VIII, Code of Civil Procedure, 1908, the proviso of which enunciates that, 'Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.', which discretion was not exercised and even as discussed above, the respondents Nos.1 and 2 could not produce the respondent No.3/defendant No.3 so as to get his statement recorded in respect of alleged admission and filing of written statement with his consent as well as verifying the thumb impression on the written statement. When the position remained as such, the respondents Nos.1 and 2 were under burden to prove as to when, where and in whose presence the alleged offer of making Hibba was made, which was accepted by them and Hibba was made; even otherwise, when the possession of the suit property was not delivered to the respondents Nos.1 and 2, being with the appellants, the ingredients of Hibba were not fulfilled, rather fraud has been committed and in such scenario limitation does not run against such transaction especially when question of deprivation of some legal heirs from the inheritance is involved, because fraud vitiates the most solemn transaction; thus the suit was well within limitation after knowledge. All these factors have not been considered and taken into account by the learned Courts below while handing down the impugned judgments and decrees, which are result of non-construing law on the subject in its true perspective.
4. Now, I advert to the claim of the appellants with regards to alleged oral Hibba in favour of their predecessor in interest. It is observed that the neither the appellants nor their predecessor in interest could plead as to when, where and in whose presence such offer of making oral Hibba was made, which was accepted by him and there-after possession was delivered to him, rather it has come on record through Ex.P1 (copy of record of rights) that the possession of Umar Hayat was as tenant and nothing has been brought on record to show that possession was in pursuance of alleged oral Hibba. In such scenario, they have failed to discharge the onus with regards to alleged oral Hibba in favour of their predecessor in interest as claimed by him.
5. The crux of the discussion above is that the impugned judgments and decrees are contrary to law and the learned Courts below have failed to determine pivotal issues as referred above while applying independent judicious mind and construing law on the subject in a right way. Resultantly, the impugned judgments and decrees passed by the learned Courts below cannot be allowed to sustain further; as such, the appeal in hand is allowed, impugned judgments and decrees are set aside, in the terms that the appellants could not prove their case and same remained the situation of the respondents, so the disputed mutations Nos.1695 and 1696 sanctioned in favour of respondents Nos.1 and 2 on 14.02.1994 with regards to land measuring 349-kanals 18-marlas out of property measuring 462-kanals 15-marlas are cancelled. All the property will revert to the deceased propositus/defendant No.3/Muhammad Baldish and will devolve upon the legal heirs as per their respective shares. No order as to the costs.