ARBAB ALI HAKRO, J: The applicants have filed the aforementioned Revision Applications under Section 115 of the Civil Procedure Code, 1908 (hereinafter referred to as the "C.P.C"). These applications challenge the same judgment. Therefore, for convenience and efficiency, all these Revision Applications are proposed to be adjudicated collectively through a single comprehensive judgment.
2. In Revision Application No. 30 of 2015, the applicants have challenged the judgment dated 07.02.2015 and the decree dated 10.02.2015, which were passed by the learned III-Additional District Judge of Khairpur (hereinafter referred to as "the appellate court"). The applicants' Civil Appeal No.85/2010 was dismissed by the appellate Court, thereby upholding, with certain modifications, the judgment dated 25.03.2010 and 27.03.2010 passed in F.C Suit No. 48 of 2006 by the Senior Civil Judge of Mirwah (hereinafter referred to as "the trial court").
3. In Revision Applications No. 32 and 33 of 2015, the applicants have challenged the judgment dated 07.02.2015 and the decree dated 10.02.2015, passed by the appellate Court, pertaining to the share of Dadan alias Dado and his legal heirs, which was partially set aside by the appellate Court.
Furthermore, the appeal concerning the entitlement of Dadan alias Dado and his heirs to inherit the suit property of the deceased Mubarak was partially dismissed.
4. In summary, the plaintiff, Mukhtiar Ahmed, son of Muhammad Ali (the applicant in Revision Application No. 32 of 2015), filed a suit for Declaration, Possession, Mesne Profits, and Permanent Injunction against the defendants (the applicants in Revision Application No. 30 of 2015). The applicants in Revision Application No. 33/2015 were added as defendants in the suit by an order of this Court in a Revision Application. The plaintiff claimed that a plot bearing Survey No. 408 (3-13 Acres) situated in Deh Saindad Machhi Taluka Mirwah was originally owned by Mubarak Lund. Upon Mubarak Lund's death, his four sons, Raham Ali, Bhagio, Hassan Ali, and Mohbat, inherited the plot.
Subsequently, the legal heirs of Mubarak Lund sold 01-33 acres ("the suit property") of the aforementioned property to Muhammad Ismail, Noor Muhammad, Habibullah, and Mst.Fatima Bibi through a registered Sale Deed dated 24.02.1947. The new owners converted 00-33 Ghuntas of the suit property from agricultural to Sikni. The plaintiff further averred that his relatives, namely Bilal Ahmed, Ahmed Bux, and Mian Ahmed, purchased 00-10 Ghunta from Muhammad Ismail from the suit property through a registered Sale Deed dated 03.02.1959. The plaintiff also claimed to have purchased 00-08 1/4 Ghunta from Muhammad Ismail through a registered Sale Deed dated 12.8.1971 and additional shares from Habibullah through a registered Sale Deed dated 30.8.1971, as well as from Mehboob, Mst.Fatima Bibi, Bilal, Ahmed Bux and Jam Ahmed through mutation entry No. 41. As a result, the plaintiff became the owner of the suit property measuring 01-33 Acres from Survey No. 408, located on the western side. The plaintiff further pleaded that a road was sanctioned from Setharja-Hingorja, dividing the suit property. The suit property is on the eastern side of the road, measuring 24000 Sq. Feet remained with the plaintiff, while on the western side, he owned shops, a petrol pump, an Ara machine, and a vacant plot. The plaintiff claimed that approximately six months before filing the suit, the defendants began illegal construction of shops on the eastern portion of the road. Despite the plaintiff's protests and appeals to the local nekmards, the defendants did not cease their activities, prompting the plaintiff to file the suit.
5. Upon receipt of the summons, defendants No. 3 to 9 (the applicants in Revision Application No. 30 of 2015) submitted their written statement. In their statement, they acknowledged that the original owner of the suit property was Mubarak. They claimed that a portion of the suit property, measuring 01-20 Acres, was sold to Hidayat Ali, the ancestor of defendants No. 3 to 8. Since that transaction, they have been in peaceful possession of this portion of the property and constructed houses and shops. The remaining portion of the suit property, measuring 1-33 acres, is reportedly in the possession of defendants No. 10 to 15. They further contended that the registered Sale Deeds held by the plaintiff are false, fraudulent, and manipulated.
6. Defendants No.10 to 15 have submitted their written statements in which they refute the plaintiff's claims as presented in the plaint. They specifically deny that the legal heirs of Hidayat Ali sold any portion of the suit property to the plaintiff or any other party. They further assert that the deceased Mubarak is survived by four sons and a daughter named Mst.Soni. However, they note an inconsistency: Mst.Soni's name is conspicuously absent from the registered Sale Deed in favour of the plaintiff.
7. Defendants Nos. 16 to 26(e), who are also the applicants in R.A No.33 of 2015, assert their status as the legal heirs of the late Mubarak Ali Lund in their written statement. They state that upon Mubarak Lund's death, his estate, including the suit property, was inherited by his five sons (one known as Dadan @ Dado) and a daughter named Mst.Soni. They claim to possess the disputed property and enjoy its benefits as co-owners.
8. From the divergent pleadings of the parties, the trial court framed as many as 12(twelve) issues and one additional issue on which both parties led their respective evidence. Upon the conclusion of the trial, the learned trial Court decreed the suit vide Judgment dated 25.3.2010 and Decree dated 27.3.2010, to the extent of shares of Raham Ali, Bhagio, Mohbat Ali, Hassan Ali and legal heirs of Mst.Soni and Dadan, alias Dado, are legal heirs of the deceased Mubarak Ali and cannot claim entire shares of Mst.Soni and Dadan @ Dado from the plaintiff, but they can claim the whole share of Mst.Soni and Dadan @ Dado from the plaintiff and the defendants, who claimed to have purchased a remaining area of S. No.408 owned by deceased Mubarak. The plaintiff was declared as entitled for possession as prayed without mesne profit.
9. Both the defendant, Fazul Hussain, and the plaintiff, Mukhtiar Ahmed, challenged the judgment and decree of the trial court via separate civil appeals, numbered 85 of 2010 and 101 of 2010, respectively. The appellate Court dismissed Civil Appeal No.85 of 2010. However, it partially upheld Civil Appeal No.101 of 2010, as stated above.
10. At the outset, Mr. Syed Jaffer Ali Shah, the learned counsel representing the applicants in R.A No. 30 of 2015 (who are defendants No. 3 to 9 in the suit), argued that the plaintiff admitted the ownership of defendants No. 3 to 9 in respect of an area measuring 1-20 acres of the suit property.
He contended that both the lower courts have given conflicting decisions. They observed that the plaintiff is the owner of the suit property measuring 01-33 Acres. Simultaneously, it has been held that Mst.Soni and Dadan @ Dado were also the legal heirs of the deceased Mubarak. They had not sold their share to the plaintiff, and the sale deed to the extent of the share of Mst.Soni has been declared bogus. However, the share of the areas has not been calculated separately. Furthermore, the area that came under the construction of the road has not been deducted from the plaintiff's property. He further contended that an official partition of the joint property for separate possession is required, but this has not been done. Therefore, such a claim could not be granted.
He also contends that defendants No. 3 to 9 possess their own area from the eastern side of the road, and they do not possess the excess area. Lastly, he concluded that the impugned judgments are arbitrary and illegal and have not been passed judiciously. The appellate Court also arrived at an incorrect conclusion. Therefore, these judgments are liable to be set aside.
11. Mr. Sarfaraz A. Akhund, the learned counsel representing the applicant in R.A No. 32 of 2015 (who is the plaintiff in the suit), argued that an application filed by the legal heirs of Mst.Soni was dismissed and was not challenged in any forum. He contended that the appellate Court did not consider this aspect of the case. He further argued that the trial court impleaded the legal heirs of Mst.Soni did not discuss the same in an additional issue. There is no word about the newly added legal heirs of Mst. Soni in the judgment. He further contended that the lower courts have committed an illegality by ignoring an important legal aspect of the case. The suit property was sold out in 1947 through a registered Sale Deed. Therefore, there was no reason for both the lower courts to interfere with a document that was 30 years old. Thus, Mst.Soni cannot claim her share after more than 30 years without challenging the validity and legality of the Sale Deed, which creates a right in favour of the plaintiff. He also argued that the legal heirs of Dadan @ Dado and Mst. Soni cannot be granted relief in the plaintiff's suit, which is against the law. He added that Section 4 of the Muslim Family Laws Ordinance, 1961, has no retrospective effect as Dadan @ Dado expired before the promulgation of the Muslim Family Law Ordinance, 1961. He relied upon case law reported as 2016 SCM R 1403 and PLD 2012 S.C 217 to support his contentions.
12. Mr. Asif Hyder Phulpoto, the learned counsel representing the applicants in R.A No. 33 of 2015 and respondents in R.A No. 30/2015 (who are defendants No. 16 to 25 in the suit), contended that the plaintiff neither amended the plaint nor led further evidence against the defendant No. 16 to 25, as per the remand Order dated 08.05.2006, passed by this Court in R.A No. 26 of 2005. He argued that respondents No. 4 to 14 also failed to amend their written statements or lead further evidence to challenge the claim of defendants No. 16 to 25. He contends that the applicants are the legal heirs of Dadan @ Dado, who was the son of the deceased Mubarak and left five sons, including Dadan @ Dado, at the time of his death. He also argued that the legal heirs of Mst.Soni have not filed any revision of appeal, but the learned appellate Court decreed the suit and allowed the appeal against the defendant No. 16 to 25 illegally, and the same is liable to be set aside. He further contended that the learned appellate Court, without considering the material available on record, excluded the applicants/defendants No. 16 to 25 from the inheritance share and did not appreciate that the application of Section 4 of the Muslim Family Law Ordinance is not applicable. He added that the legal representatives of Dadan @ Dado and Mst.Soni had jointly filed F.C Suit No. 91/2006.
However, the plaint was rejected on 13.10.2013, and an appeal was preferred against it, which is pending as a sine-die due to the pendency of present revision applications.
13. Conversely, Mr. Zameer Ahmed, the learned counsel representing the respondent Zamir Hussain, contended that the suit property is not entered in the record of rights. He argued that the legal heirs, besides those of Dadan @ Dado and Mst.Soni did not file a separate suit for the cancellation of the registered Sale Deed.
14. Mr. Ahmed Ali Shahani, the learned Assistant Advocate General (A.A.G), while arguing, supported the impugned judgment and decree of the appellate Court. However, he took exception to the findings about the share of the deceased Dadan @ Dado. He submitted that these findings violate Section 4 of the Muslim Family Law Ordinance.
15. The above contentions of the learned counsel for the parties have been fastidiously scrutinised, and the accessible record has been carefully assessed. To ascertain whether an adequate and comprehensive dispensation of justice was achieved, it is imperative to analyse the findings documented by the Courts below.
16. Firstly, I will address the matter at hand, which pertains to Revision Application No.30 of 2015.
Upon a thorough review of the records, it is evident that the plaintiff, Mukhtiar Ahmed, claimed that defendants No.3 to 9 have unlawfully encroached upon and taken possession of an area measuring 24000 sq. Feet on the eastern side by constructing shops. The plaintiff's claim is substantiated by registered Sale Deeds dated 12.8.1971 and 23.5.1973. Conversely, the defendants (No.3 to 9) assert that land measuring 1-20 Acres was sold to their predecessor, Hidayat Ali, and they have since been in peaceful possession and enjoyment of the property. They further contend that the registered Sale Deeds in favour of the plaintiff are false, fraudulent, and contrived.
17. The Court records reveal that revenue officials measured the suit property in the presence of both parties, as directed by the trial Court. The officials submitted a report, and the official witnesses who were examined corroborated the plaintiff's position. The plaintiff's attorney also examined and produced the aforementioned registered Sale Deeds (Exh-33 & 35), which are registered documents that still hold validity. The plaintiff has successfully discharged his burden of proof concerning the Sale Deeds by presenting comprehensive evidence demonstrating that he purchased the disputed property through the aforementioned registered Sale Deeds. The defendants (No.3 to 9) claim that the plaintiff's Sale Deeds are illegal and fraudulent. However, it is a well-established legal principle that a registered document carries inherent sanctity, and substantial evidence is required to cast doubt on its authenticity, as per the law laid down by the Supreme Court of Pakistan in the case of Mirza Muhammad Sharif and 2 others vs. Mst. Nawab Bibi and 4 others (1993 SCMR 462).
18. The defendants, No.3 to 9, have failed to produce any document or evidence to prove that the Sale Deeds in favour of the plaintiff are forged, fictitious, or manipulated. Merely asserting orally that the Sale Deeds in favour of the plaintiff are illegal and fraudulent and subsequently failing to substantiate such a serious allegation against the plaintiff's title by presenting strong evidence during their examination in Court does not inherently lead to a conclusion that the veracity of the Sale Deeds is doubtful. It is a well-settled law that documentary evidence takes precedence over oral evidence.
19. The said Sale Deeds still hold validity and have not been challenged or set aside by defendants No.3 to 9 in any forum. The presumption of genuineness, correctness, and authenticity of a registered document under Articles 85(5) and 129(e) of the Qanun-e-Shahadat Order, 1984, is not dispelled by mere oral assertion, which is insufficient to rebut a registered document produced by the plaintiff in proof of his title in respect of the suit property. Furthermore, the Sale Deeds over 30 years old carry a presumption of correctness under Article 100 ibid. Substantial evidence is required to cast aspersion on its genuineness, and a presumption of truth is attached to documents registered under the Registration Act 1908. Defendants No.3 to 9 were required to rebut such presumption at the trial, which they have failed to do conclusively.
20. In light of the above discussion, both the lower courts have appropriately and lawfully evaluated the evidence available on record and have correctly decreed the plaintiff's suit to the extent of his entitlement of possession. This conclusion is based on a comprehensive analysis of the evidence.
21. Turning my attention to Revision Applications No.32 and 33 of 2015, these were instituted by the plaintiff and the defendants No. 16 to 25, respectively. The crux of these revision applications was a challenge to the validity and legality of the determinations made by the appellate Court. To meticulously scrutinise these findings of the appellate Court and ascertain their correctness, it would be expedient first to replicate relevant findings as follows: - "It is brought on record that Dadan alias Dado and Mst. Soni are legal heirs of late Mubarak and appellant has not produced any proof that they were not legal heirs of late Mubarak. Zameer Hussain, who is respondent No.4 in civil appeal No.85 of 2010, Re-Fazul Hussain and others vs. Mukhtiar Ahmed and others has stated in his cross-examination that at the time of death, late Mubarak had left behind him four sons namely Raham Ali, Bhagio, Hassan Ali and Mohbat and one daughter Mst.Soni. He has further admitted in his cross-examination that in addition, above sons and daughter of Mubarak named above, one Dadan alias Dadu was son of late Mubarak. He has further stated that Dadan alias Dado was died. In cross-examination, he has stated that "it is incorrect to suggest that Dadan alias Dado died after the death of his father Mubarak". Meaning thereby that Dadan alias Dado had died before death of his father Mubarak, therefore, according to Muhammadan Law legal heirs of Dadan alias Dadu would be excluded from inheritance because Dadan alias Dado was died before the death of his father late Mubarak. Burden of proof lies upon appellant Mukhtiar Ahmed that Mst.Soni was not legal heir of late Mubarak but he has failed to produce any proof in this regard, therefore, I am of the view that legal heirs of Mst.Soni are entitled to inherit her property being legal heir, who was daughter of late Mubarak." ............However, in civil appeal No.101 of 2010 Mukhtiar Ahmed vs. Province of Sindh and others, there appears substance in contention of appellant with regard to that Dadan alias Dado or his legal heir would not inherit property, who was died before death of Mubarak, as such he would be excluded from inheritance, therefore, on this point a judgment and decreed, passed by Court below warrant interference by this Court and I partly allow civil appeal No.101 of 2010, Re-Mukhtiar Ali vs. Province of Sindh and others to the extent that Dadan alias Dado and his legal heirs would not be entitled to inherit property of late Mubarak but legal heirs of Mst.Soni, who was daughter of Mubarak are entitled to inherit suit property of late Mubarak because Mst.Soni was his daughter and 10 ghuntas from Survey No.408 from eastern side of the road have illegally been occupied by defendants/respondents and plaintiff/appellant is entitled for possession and mesne profit as prayed after excluding share of legal heirs of Mst.Soni daughter of Mubarak from Survey No.408 and the plaintiff/appellant is owner of the suit property in his name after excluding area of road and share of Mst.Soni and her legal heirs and with these modifications, suit of plaintiff is partly decreed and civil appeal is partly allowed and Mukhtiarkar (Revenue), Mirwah is directed to make partition of suit property with regard to share of legal heirs of Mst.Soni daughter of late Mubarak, from survey No.408 in the name of late Mubarak whatever the area was in his name, while a judgment and decree passed by learned trial Court with regard to share of Dadan alias Dado his legal heirs is partly set aside and appeal about entitle of Dado alias Dadu and his heirs to inherit property of late Mubarak is partly dismissed, with no order as to costs.
[Emphasis supplied & underlines are mine for understanding]
22. The learned appellate Court, on the strength of the oral testimony of one Zameer Hussain, negated the proposition that "It is incorrect to suggest that Dadan alias Dadu died after the death of his father Mubarak". The Court thereby pronounced that the deceased, Dadan @ Dado, predeceased his father, Mubarak, who was the original owner of the suit property bearing Survey No.408. This pronouncement effectively disqualified him from any entitlement to an inheritance share. The witness, DW-Zameer Hussain (defendant No.10), further testified that Dado departed his life in 1961-1962, and Mst.Soni followed suit approximately three to four years after the death of Dado. In his testimony, DW-Ali Gulab affirmed that Dadan @ Dado expired before the institution of the suit, and his legal successors have been incorporated as defendants. He further elucidated that Dado passed away in 1960-61 and after his demise Mst.Soni also passed away. In a similar vein, DW-Imdad Hussain testified that Dado expired in the year 1961-1962.
23. Upon perusal of the entire body of evidence available on record, it is evident that the only evidence about the death of the deceased, Dadan @ Dado, is oral. There is a conspicuous absence of any documentary evidence on record to ascertain the exact date of demise of the deceased, Dadan @ Dado, which is crucial to invoke the provision of Section 4 of the Muslim Family Law Ordinance, 1961, which came into effect by a Federal Government Notification dated 02nd March 1961. The written statement of the defendants, who are staking a claim to their right of inheritance from the share of the deceased Dadan @ Dado, is also conspicuously silent about the date of death of Dadan @ Dado. Furthermore, it is of significant legal consequence to note that not a single one of the legal heirs of Dadan @ Dado deemed it necessary to present themselves before the Court, to bear witness or provide evidence as to the precise circumstances or date of demise of their predecessor Dadan @ Dado. This conspicuous absence of testimony from the legal heirs, who are the direct beneficiaries of any potential inheritance, severely undermines the credibility and validity of their claim. In this case, the legal heirs of Dadan @ Dado have failed to discharge this burden, thereby leaving their claim unsubstantiated and legally untenable. Consequently, no evidence is available on record to conclusively establish whether Dadan @ Dado predeceased or survived his father, Mubarak. Thus, the matter remains unresolved.
24. In relation to the findings of the appellate Court, it has been determined that the legal heirs of Mst.Soni, who was a daughter of Mubarak, is entitled to inherit the suit property of the deceased Mubarak. The Mukhtiarkar (Revenue), Mirwah, has been directed to partition the suit property with regard to the share of legal heirs of Mst.Soni from Survey No.408 in the name of the deceased Mubarak, irrespective of the area in his name.
25. It is a matter of legal record that the defendants, who assert their rights, derived from the legacy of Mst.Soni and Dadan @ Dado have solely challenged the legality and validity of the Sale Deed dated 24.02.1947 in their written statements and evidentiary presentations. This deed was executed by the four progenies of the late Mubarak in favour of Muhammad Ismail, Noor Muhammad, and Mst.Fatima Bibi. Contrastingly, the plaintiff purchased 0-8 Ghunta from Muhammad Ismail through a registered Sale Deed dated 12.8.1971. In addition, the plaintiff procured a share from Habibullah through a registered Sale Deed dated 30.8.1971. Subsequently, on 23.5.1973, the plaintiff purchased a share from Mehboob, Mst.Fatima Bibi, Bilal, Ahmed Bux, and Jan Muhammad through mutation entry No.41, thereby indicating a sequence of transactions. Despite these assertions, the defendants have failed to present any concrete evidence to substantiate their claim that the Sale Deeds in favour of the plaintiff are fraudulent. Without such proof, their allegations remain unsubstantiated, and the Sale Deeds in favour of the plaintiff retain their legal validity. Thus, the burden of proof remains unmet by the defendants.
26. It is important to underscore that the legal heirs of Dadan @ Dado, in conjunction with Mst.Soni, have not asserted their entitlement or invoked a plea for the partition of the property under litigation. Furthermore, the learned appellate Court has neither delineated any issue for adjudication pertaining to this matter nor has it accorded the disputing parties an opportunity to present their arguments on this specific point, thereby directly bestowing the remedy of partition.
Consequently, the appellate Court has conferred a relief that exceeds its legal authority and contravenes established law.
27. It is of paramount importance to note that the initial Sale Deed executed by the four sons of the late Mubarak, as well as the present Sale Deeds and mutation executed in favour of the plaintiff, were never contested by the said Dado @ Dadan (if he was indeed alive) and Mst.Soni during their lifetimes. Consequently, in accordance with the judgment of the Supreme Court of Pakistan, the successors are legally barred from challenging the validity of the Sale Deeds/ mutation posthumously. This view is substantiated by the precedent set in the case of Abdul Haq and another vs. Mst. Surrya Begum and others (2002 SCMR 1330), by the Supreme Court of Pakistan as follows: - "Atta Mohammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Mohammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation, which had already been given effect to in the record of rights. The petitioners therefore, had no locus standi to challenge the mutation independently, for Atta Mohammad through whom they claimed inheritance himself had 5 not challenged the same during his lifetime."
In a similar vein, the Supreme Court of Pakistan articulated its stance in the case of Muhammad Rustam and another vs. Mst. Makhan Jan and others (2013 SCMR 299) as follows: - "Having herd petitioners' learned counsel at some length, we find that admittedly the impugned mutation of inheritance bearing No.571 dated 09/07/1927 was never challenged by Mst. Karam Jan; that she remained alive till 1975 and no reason whatsoever is reflected either in the plaint or in the evidence led to indicate as to why she did not challenged the said mutation, it has never been the case of petitioners that either they or their predecessor-in interest were unaware of the said mutation. In the afore-referred circumstances, the judgment of the learned High unexceptional."
28. It is duly noted that defendants No. 10 to 15 submitted a joint written statement, wherein defendant No. 12 Hadi Bux, son of Dadan @ Dado, alleged that the Sale Deeds and Mutation in favour of the plaintiff were illegal and fraudulent. However, Hadi Bux, despite being a legal heir of the deceased Dadan @ Dado, did not stake a claim on his share of Dadan @ Dado's estate.
Notwithstanding this, in its findings on issues No. 2 and 7, the learned trial Court validated the registered Sale Deeds and Mutation entry in favour of the plaintiff, specifically about the share of the four sons of the deceased Mubarak. These findings were not contested by Hadi Bux or his legal heirs before the appellate Court, thereby conferring upon them a sense of finality. Furthermore, the defendants, namely Zamir Ahmed and Muhammad Hussain Karam Ali, challenged the impugned judgment and decree of the trial Court through a Civil Appeal. However, this appeal was dismissed by the learned appellate Court as being time-barred, as per the Order dated 07.06.2010. The record indicates that this decision was not further challenged before this Court. Hence, it, too, has attained finality. In light of these circumstances, defendant Hadi Bux and his legal heirs, as well as the defendants Zamir Ahmed, Muhammad Hussain Karam Ali, are legally estopped from further challenging the validity and legality of the registered Sale Deeds and Mutation entry executed in favour of the plaintiff. Consequently, the legal heirs of Dadan @ Dado are bereft of any further right to claim a share in the suit property.
29. In light of the aforementioned reasons, Revision Applications No. 30 and 33 of 2015 are hereby dismissed, while Revision Application No. 32 of 2015 is allowed. The judgments and decrees of the lower courts are upheld insofar as they pertain to the plaintiff's entitlement as the owner of the suit property, as established through registered Sale Deeds and mutation and for its' possession from defendant No.3 to 9. However, the impugned judgments and decrees of both the lower courts are overturned to the extent that they concern the defendants' entitlement to a share of the legacy of the deceased Dadan @ Dado and Mst.Soni. Each party shall bear their litigation costs.