' The instant revision has been filed against the concurrent findings of both the Courts below dated 16-5-1975 passed by Mr. Saghir Muhammad Khan, Civil Judge First Class, Lahore and that of Ch.Fazal Karim, District Judge, Lahore dated 8-7-1984.
2. The brief facts of the case are that Muhammad Ali peitioner/plaintiff filed a suit for declaration against Fide Hussain, Mst. Munawar Sultana, Ijaz Hussain, Amir Begum, Ahmed Ali, Mst. Sardar Begum, Muhammad Aslam and B. Milagh Haider (8 persons) challenging the registered sale transaction dated 12-5-1969 on the basis that the petitioner/plaintiff was a co-owner of the house in dispute and praying that the sale transaction was ineffective against his rights qua the rights of other co-owners. The disputed property is house No, NE.II. 23-S-29 situated in Wassanpura, Purani Masjid Road No,23, Lahore. This house originally belonged to one Mst. Sardar Begum who was the sister of Bahadar Ali father of the present petitioner Muhammad Ali and Ahmed Ali defendant No,5.
Mst. Sardar Begum had three sisters and three brothers, namely, Bahadar Ali, Meraj Din and Fida Hussain and Mst. Amir Begum, Mst. Wahida Begum and Mst. Ghulam Jannat. Mst. Munawar Sultana one of the defendants is the daughter of Mst. Ghulam Jannat and was married with one of the respondents, namely, M. Bilagh Haider. According to the claim of the petitioner in the suit, Bahadar All father of the petitioner died on 3-10-1951 (Exh. P/11) leaving behind Mst. Sardar Begum defendant No,6, Muhammad Ali petitioner-plaintiff and Ahmed Ali defendant No,5. According to him Mst.
Sardar Begum the real owner of the house died in April 1951 and Bahadar Ali husband of Mst. Sardar Begum died on 3-10-1951 and hence the house in dispute has fallen to the share of the legal heirs of Bahadar Ali, father of the petitioner, since he died after the death of Mst. Sardar Begum. The house was managed and administered by M. Bilagh Haider respondent/defendant No,8 who used to collect rent from the tenants and distribute the same among the co-owners according to their shares. Suddenly in August 1979 he stopped payment of rent to the plaintiff and others and thereupon it transpired that the house in question has been sold in consideration of Rs,19,000 vide a registered sale-deed dated 9-5-1969 in favour of one Muhammad Aslam and the instant suit for declaration was filed on 7-10-1970.
3. The respondents in their separate written statements controverted the claim of the petitioner by stating that the house in dispute was in the exclusive ownership and possession of Mst. Sardar Begum deceased who died in the year 1952 and that the respondents/defendants being the nearer in degree to Mst. Sardar Begum have been rightly occupying the house and collecting rent/from the tenants even during the life-time of Mst. Sardar Begum, after her death. The management remained in the hands of one M. Bilagh Haider on behalf of the heirs of Mst. Sardar Begum and later on the house was sold by Fida Hussain and Mst. Munawar Sultana defendants in the suit to one Muhammad Aslam defendant No,7 vide Exh.P/7. Muhammad Aslam purchaser of the house is the son of Muhammad Ali. Ahmed All and Mst. Sardar Begum defendants gave a consenting written statement in favour of the present petitioner, they did not contest the suit, however, it was contested by Fida Hussnin, Mst. Munawar Sultana, Ijaz Hussain, Mst. Amir Begum, Muhammad Alsam and M. Bilagh Haider Their stand was that the house in question was the exclusive ownership of Mst. Sardar Begum, she had constructed this house and it was further constructed by Fida Hussain and Mst. Jannat at their own expenses and Mst. Sardar Begum died in the year 1952 and Fida Hussain and Mst. Munawar Sultana were even otherwise in adverse possession of the house in question and that the suit was barred by limitation. The learned Civil Judge, Lahore vide Judgment dated 16-5-1975 dismissed the suit of the plaintiff while recording issues Nos.1, 5, 6 and 8-A against the petitioner/plaintiff and also issues Nos. 2, 3 and 4 against the plaintiff/petitioner and gave finding that the petitioner/plaintiff is not proved as a co-owner in the house in dispute as he has failed by not producing the best evidence to prove that Mst. Sardar Begum pre-deceased Bahadar All and in this way he recorded issues Nos.3 and 7 against the petitioner. While deciding issues Nos.2, 3 and 4 the learned Civil Judge has given a finding that no relief was claimed against M.
Bilagh Haider respondent and he was improperly impleaded as a defendant. Moreover, the defendants Nos.3 and 4 (Ijaz Hussain and Mst. Amir Begum) have not come forward with any claim of share in the disputed house which is not in possession of the petitioner/plaintiff and he was to file a suit for possession. Deciding issue No,8 the learned trial Court has expressed its finding that rent note and ejectment orders cannot be taken as a proof of ownership as there is a difference between the landlord and owner of the property. Moreover, Mst. Sardar Begum was a teachers and she was teaching in a Municipal Corporation School. Her death entry could be easily made available by the petitioner/plaintiff if he wanted to prove that Mst. Sardar Begum died in the year 1951. The present petitioner appealed against this judgment and decree passed by the learned Civil Judge on 16-5-1975 in the Court of Sh. Muzaffar Hussain, Additional District Judge, Lahore. The petitioner also gave an application for permission to adduce additional evidence in respect of the application given by the heirs of Mst. Sardar Begum from the Taxation record in the Lahore Municipal Corporation, Lahore on 22-8-1976 praying therein that their names should be included as heirs of Mst. Sardar Begum deceased. This application was supported by an affidavit that Mst.
Sardar Begum had died in the year 1951. The learned Additional District Judge remanded the case to the learned trial Court with the direction that the plaintiff should be allowed to produce additional evidence. The petitioner/plaintiff gave also an application for amendment of his plaint which he withdrew later on. Fida Hussain defendant preferred an appeal against the order of remand to the High Court and the High Court observed that the learned Additional District Judge should have decided the application on merits himself and directed the case to be remanded to the learned District Judge. The case was transferred to the Court of Mr. Rafiq Shah, Additional District Judge, Lahore for production of additional evidence. The petitioner produced Gulzar Butt, Record Keeper in the Municipal Corporation, Lahore who deposed that an application was preferred by Ijaz Hussain on 22-64956 with the request that the names of Ijaz Hussain, Fida Hussain, Mst. Amir Begum and Mst. Waheeda Begum should be substituted by Mst. Sardar Begum who died in April 1951 and the copy of that application is Exh. P/7 and the affidavit is Exh.P7/2.
4. The respondents in rebuttal examined seven witnesses. Khaqan Babar, Advocate a marginal witness of rent note Exh. D/1 executed by Khudadad in favour of Fida Hussain appeared as R.W.
1. The rent note related to the house owned by Fida Hussain and Mst. Ghulam Jannat. Fida Hussain D.W. 2 appeared and stated that the house owned by him and Mst. Ghulam Jannat remained in their exclusive possession for 15/16 years and that they got tenants ejected Exh.D/2, Exh.D/3 and Exh.D/4 all rent deeds by different tenants and Exh.D/6 which was confirmed by Iqbal D.W. 3 last tenant. This witness stated that Mst. Sardar Begum died in the year 1952 and that the house remained in the exclusive possession of Mst. Ghulam Jannat and Fida Hussain and none of the brothers and sisters had claimed any share in it. Ijaz Hussain (D.W. 3) admitted that Mst. Sardar Begum died in 1952 and the house was constructed in 1940 and 1945. Bilagh Haider D.W.(5) deposed that the house in question remained in possession of Khudadad for 40 to 45 years and he was one who used to collect the rent and that Fida Hussain spent Rs,25,000. On its repairs and that Mst. Sardar Begum died in the year 1952. Muhammad Fayyaz general attorney of Muhammad Aslam also deposed that being purchaser with consideration he did not make any inquiry as the house was their ancestral property. Exh.P/9 is the sale transaction of the house in question by Mst.
Sardar Begum deceased. Exh.P/1 and Exh.P/2 are the building plans.
5. The learned counsel for the respondents made a preliminary objection that the revision petition is not filed within ninety days of the preparation of the application and there is a much lapse which is not explained and no application for condonation of delay has been given by the counsel of the petitioners. He submits that the date of decree is 3-5-1989; the petitioner has applied for its copy on 1-11-1989; the copy was prepared on 8-11-1989 and the same was produced on 13-11-1989.
Learned counsel for the petitioner submits that he has applied for the copy of the decree, when it was supplied to him he has filed the instant petition which is not time-barred. He submits that he applied for the copy of the decree on 29-4-1989 which was supplied to him on 13-11-1989 and he filed the present Civil Revision immediately.
6. The only point for consideration between the parties is the date of death of Mst. Sardar Begum deceased which according to the learned counsel for the petitioner is April 1951 as is disclosed by Exh.P7/1 and Exh.P7/2; the additional evidence produced by the petitioner before the learned District Judge. The counsel for the petitioner submits that any document exhibited without objection of the adverse party becomes a part of the evidence and must be allowed in evidence. He has relied on Abdullah etc v. Abdul Karim etc (PLD 1968 SC 140). He has further stated that Gulazar Butt P.W.
Appeared as a witness to prove Exh.P7/1 and Exh.P7/2 in the additional evidence and the rebuttal right was given to the other side. The said witness was not cross-examined on the point of the death of Mst. Sardar Begum deceased. He further argued that there was no reason why the Court below should not take into consideration the statement of Gulzar Butt P.W. Had the Court taken into consideration the additional evidence the petitioner was proved entitled to the extent of his share as co-owner.
7. Learned counsel for the respondents has vehemently opposed the arguments advanced by the learned counsel for the petitioner. He has submitted that the concurrent findings of both the Courts below cannot be disturbed by this Court unless an error of jurisdiction is found different. From the evidence produced by D.Ws. 1, 2, 3 and 4 the death of Mst. Sardar Begum deceased is admitted to be in the year 1952 and the father of the petitioner died in the year 1951. The Courts below have rightly arrived at a finding of fact that Bahadar Ali father of the petitioner pre-deceased Sardar Begum and in this way the respondent being nearer in degree can exclude the petitioner. This issue is determined through a preponderance of the parties in evidence. In view of the evidence available on record about the death of Mst. Sardar Begum there was no need for additional evidence on the same point when the Courts could easily arrived at a finding of fact of the time of death of Mst. Sardar Begum. He has relied on Allah Din v. Habib (PLD 1982 SC 465). He has drawn the attention of this Court to Exh.P/5 which is copy of the plaint. This suit was filed by the petitioner and others. In para 2 of Exh.P/5 Fida Hussain has said that: {{URDU TEXT}} The elder brother of the petitioner and his mother never appeared in the evidence in respect of any admission of their claim. In the written statement tiled by Ijaz Hussain and Mst. Amir Begum they have stated categorically that they are not heirs of Mst. Sardar Begum. The additional evidence produced by the petitioner is completely belied by the averments of Ijaz Hussain and Mst. Amir Begum in their written statement that they are not the heirs of Mst. Sardar Begum deceased. Why they applied in the corporation to be recorded as heirs as deposed by Gulzar Butt (P.W. 7) in Exh.P.7 and Exh.P7/1. He further submits that in fact when the judgment and decree was passed by the learned trial Court against the petitioner for not, successfully proving his case and the time of death of Mst. Sardar Begum by not producing the best evidence available to him he has unsuccessfully tried to make evidence in collusion with P.W. 7, his colleague, in the same Department and a friend who used to appear with him on every date. He submitted that the additional evidence is manufactured one and the documents Exhs. P7 and P7/1 are concocted documents. Any document which is not a part of the file cannot be looked into.
8. After hearing the learned counsel for the parties at length and going through the evidence minutely the only material point for consideration is A whether Mst. Sardar Begum died earlier to Bahadar Ali. If yes the petitioner and others become co-owners in the house in dispute but, if no then they are out of the picture completely as the present respondents/defendants are nearer in degree to Mst. Sardar Begum deceased and they very well-exclude the petitioner and others in respect of the inheritance. It is surprising why the death entry of Mst. Sardar Begum is not available to the parties. She was an employee of the Municipal Corporation and was serving as a teacheress in the Municipal Corporation, Lahore. After the death of Mst. Sardar Begum being a municipal employee the heirs of Mst. Sardar Begum must have taken other emoluments relating to the service of Mst. Sardar Begum. Then why the date of death of Mst. Sardar Begum could not be obtained and produced in evidence. The additional evidence produced by the petitioner is not sufficient to prove the date of death of Sardar Begum, nor the statement of Gulzar Butt P.W. 7 who has admitted in his statement that he has not witnessed the execution of the document himself.
The direct evidence on record about the death of Mst. Sardar Begum being taken place in the year 1952 was present on re-cord and there was no need of additional evidence. Moreover, the best evidence available to the parties was rather suppressed by the parties. I am of the view that the finding of fact arrived at by the Courts below does not suffer form any misreading of the evidence or from any error of jurisdiction. It is a finding which is arrived at after a careful perusal of the evidence present on record.
9. For the foregoing reasons, I finding no substance in this petition which is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.