ASIM HAFEEZ, J. The judgments, subject matter of instant Civil Revision, are at variance - wherein learned trial court decreed the claim of petitioner vide judgment and decree dated 14.01.2010, which was turned down by the first appellate court vide judgment and decree of 20.06.2014.
2. Facts, necessary for determination of the lis at hand, are that petitioner and respondent No.1 - represented through legal heirs - were related as sister and brother and have had other siblings.
Petitioner claimed her share in the property, claimed to have had owned and possessed by her father - Ali Muhammad - at the time of his death on 04.11.1997. Petitioner claimed to have sought adding her name in the record of the Excise and Taxation department, along other heirs of Ali Muhammad, which record was accordingly updated on 17.02.2000. Petitioner, alleged that subsequently it transpired that respondent No.1 fraudulently interpolated his name in the sale deed, evidently transferred and executed in the name of Ali Muhammad. This led to the filing of suit for declaration that petitioners father Ali Muhammad was the sole owner of the property, which was the estate of deceased and be divided amongst legal heirs, and permanent injunction was also claimed. It was pleaded in plaint that property was owned by her father in whose name utilities were registered and bills issued by virtue of sale deed dated 12.02.1963, registered on 13.02.1963.
3. Respondent No.1 contested the suit, pleading defence that property in question was originally purchased by him, wherein inadvertently name of his father was mentioned, in the first place, which mistake was corrected by way of incorporation of his name as buyer; Learned trial court, upon conducting trial, proceeded to decree petitioners' suit on 14.01.2010, which decree was reversed/set-aside on appeal filed by the respondents, and consequently suit of the petitioner was dismissed. Hence, this Civil Revision.
4. Learned counsel appearing for petitioner contends that name of respondent No. 1, in the sale deed, was fraudulently interpolated, merely to deprive petitioner of her share. Adds that petitioner's name was recorded as owner, along other legal heirs of deceased Ali Muhammad, in the record of Excise and Taxation department. Further submits that it is established from record that petitioner's father remained beneficial owner of the property including shops constructed by her father and in respect whereof, at one point in time, her father filed ejectment petition to seek eviction of the tenants and decrees passed in favour of deceased Ali Muhammad were neither challenged nor factum of ownership disputed, by so-called claimant, i.e., her brother. Lastly submits that learned appellate court misconstrued the record and erroneously reversed the judgment passed by the learned trial court, when respondent No.1, who claimed to be an exclusive beneficiary of sale deed, failed to prove factum of alleged addition of his name therein and purported transaction of sale of property and payment of consideration.
5. Conversely, learned counsel for respondent No.1 submits that sale deed was executed and registered in the year 1963, which was allegedly challenged in the year 2000, hence, suit was barred by limitation and this fact was rightly appreciated by learned appellate court. Further submits that father of the petitioner - deceased Ali Muhammad - was aware of the purchase of the property by respondent , No.1 in his life, who had not questioned the factual of sale deed and ownership of respondent No.1, which document otherwise attracts presumption of validness, being 30 years old.
Further submits that sale deed in question was accordingly mutated vide mutation No.509 dated 14.05.1963. Learned counsel, in support of submissions, referred to the decisions in the cases of Muhammad Din and others v. Mst. Naimat Bibi and others (2006 SCMR 586), Atta Muhammad v.
Maula Bakhsh and others (2007 SCMR 1446), Akbar Ali and 4 others v. Ehsan Ellahi (PLD 1980 Lahore 145), Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs (PLD 2011 Supreme Court 657), Noor Din and another v. Additional District Judge, Lahore and others (2014 SCMR 513), Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others (2016 SCMR 910), Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR 398) and Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1).
6. Arguments heard. Record perused.
7. Notable fact is that respondents Nos.2 to 4 were also the legal heirs of deceased Ali Muhammad, who have not contested claim of the petitioner rather filed conceding written statement. No representation is present on their behalf today, whose interests are not adverse to the interest of petitioner in view of the declaration sought qua ownership of property of deceased Ali Muhammad.
8. Learned counsel for respondent No.1 was confronted with the text of cross-examination on respondent No.1 who appeared as D.W-1 wherein he stated that 'his name was not mentioned in the sale deed, which fact was identified by his father, who upon reading it said that 'since sale deed was in favour of the respondent No 1, therefore, his name be mentioned, and asked to show whether such assertion, was pleaded in the written statement; who was unable to show such narration therein.
9. Presumption of validness of document being 30 years old being rebuttable and not otherwise claimable. There is another notable feature of the case, where sale deed was not challenged but to the extent of claim of ownership of the respondent No.1, who claimed that subsequent addition of his name was valid and justifiable. Petitioner appeared and disputed factum of sale deed - to the extent of addition of name of the respondent No.1 on it. Respondent No.1 was required to prove that he purchased property, paid consideration and that addition of his name thereat was validly done.
Respondent No.1 failed in its bid to prove his ownership. No official witness was produced to show that substitution was valid and addition made was true manifestation of real intentions, which being the responsibility of the respondent No.1, claiming to be the beneficiary of the sale deed, but he failed. In these circumstances, protection of Article 100 of Qanun-e-Shahadat Order, 1984 is neither available, nor claimable in wake of respondent's failure to prove proprietary right in the property. One of the attesting witnesses of the sale deed - PW-1 endorsed factum of execution of sale deed in the name of Ali Muhammad and denied any right of the respondent No. 1. therein. Said witness was not confronted With the fact that Ali Muhammad allegedly pointed discrepancy in the sale deed and asked for substituting name of the respondent No.1. No evidence is available that name of petitioner was added, before or after the registration of sale deed no effort was made by the respondent No. 1 to call for official record from Registrar's office for production of official copy of sale deed. Attested to be true copy of mutation was placed on record, on the statement of the counsel no official record was summoned or procedure for producing secondary evidence was adopted. Alleged copy of mutation was not certified, as required under the Qanun-e-Shahadat Order, 1984. Petitioner being one of the legal heirs, as the daughter of deceased, sufficiently discharged onus regarding dubiousness of the document, to the extent that alleged substitution of the name of the respondent No.1 was fraudulent and illegal. And conversely, beneficiary, i.e., respondent No.1, failed to bring sufficient evidence on record to prove fact of addition, alleged ownership, payment of consideration of Rs.2,000/- in the year 1963, when petitioner just finished his studies and was on job-hunt source of income of the respondent No. 1 remained unproved and nothing was placed to show possession of worth Rs.2000/- in the year 1963.
10. Respondent No.1 admitted that sale deed remained in possession of his father, during his life, which fact alone repels objection against the limitation. No evidence was brought on record that petitioner had knowledge of alleged claim of ownership of respondent No.1 or acquaintance with alleged sale deed - to the extent that respondent's name was substituted. Father of petitioner died in the year 1997 and suit was filed in the year 2000, after gaining knowledge of interpolation in the sale deed. There is no evidence in rebuttal to controvert documents presented and exhibited comprising of challan of payment of property tax, identifying the name of Ali Muhammad as owner.
Judgment passed by the learned appellate court, when viewed in the context of aforesaid facts, manifests serious errors of law, misreading and overlooking of material evidence by the appellate court, in these circumstances. No legitimacy can be extended to the decision of appellate court.
Declaration claimed in the property falls within the period of limitation provided under Article 120 of Limitation Act, 1908, triggering right to sue upon death of petitioner's father. The judgments referred by counsel for the respondents are distinguishable on facts, ratio/dicta settled therein are not attracted for the purposes of instant case.
11. In view of the above, this Civil Revision is allowed, judgment and decree of learned appellate court dated 20.06.2014 is set aside and the judgment and decree of learned trial court dated 14.01.2010 is affirmed. And consequently, suit of the petitioner stands decreed as prayed for. No order as to the costs.