' This second appeal is directed against the judgment and decree dated 31-10-1995 passed by Additional District Judge, Gujrat whereby the appellant's appeal against the judgment and decree dated 4-3-1987 passed by Senior Civil Judge, Gujrat, decreeing the suit of plaintiff/respondent No,2 for declaration with consequential relief, was dismissed with no order as to costs.
2. The relevant facts are that plaintiff/respondent No,2 Sharif son of Karim Din preferred a suit for declaration with consequential relief alleging that he was refugee from Village Tibbi Arain, Tehsil Chichroly, Kalsia Estate, India. His brother Majeed died a short 'while before the creation of Pakistan, he is the only legal heir of his brother, after partition he settled himself at Panjgarain, District Mianwali, he contacted Central Record Office, Lahore but failed to receive any information in regard to the allotment in lieu of the ownership of his late brother, defendant No,2 Majeed son of Karim Din (the present appellant) is also resident of Tibbi Arain, his father's name Karim-ud-Din, Rehma is his grandfather, he is having four other brothers, by misrepresentation showing himself to be deceased brother of the plaintiff, the defendant No,2 (the present appellant) secured allotment of 32 Kanals, 7 Marlas of land against the land owned by the plaintiff's deceased brother in India, defendant No,2 is not Majeed son of Karim Din son of Moli, he is Majeed son of Karim Din son of Rehma and it was thus prayed that a declaratory decree declaring the plaintiff to be the only legal heir of Majeed son of Karim Din son of Moli be passed in favor of the plaintiff, to entitle him to the land left by his late brother Majeed in India and defendant No,2 (the present appellant) has no concern with the land left by the said Majeed with consequential relief for a decree for possession.
The suit was contested by defendant No,2/appellant. On merit, claim of the plaintiff was denied and various preliminary objections were raised.
3. The learned trial Court framed the following issues;--
(1) Whether the suit is barred by time? OPD
(2) Whether suit in its present form is not competent? OPD
(3) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction, if so, what is the correct valuation? OPP.
(4) Whether the plaintiff is an owner and sole legal heir of deceased Majeed son of Karim-ud-Din, if so, whether he is entitled to inherit the estate of the deceased? OPP
(5) Whether defendant No,2 by collusion with the staff of defendant No,1 by fraud and impersonation has got allotted in his favor the disputed land against the claim of Majeed? OPP
(6) Relief.
4. The learned trial Court decided Issues Nos.!, 4 and 5 against defendant No,2. Issues Nos.2 and 3 were also decided against him and consequently the suit of respondent No,2/plaintiff was decreed.
The appellant's appeal as mentioned above, was dismissed by Additional District Judge, Gujrat, on 31-10-1995. Hence the present appeal.
5. I have heard the learned counsel for the parties and have also seen the record with their assistance.
6. It is submitted by the learned counsel for the appellant that the findings of the Courts below on Issues Nos.4 and 5 are illegal and the statements of D.Ws. Are sufficient to establish that the appellant purchased his agricultural land in Tibbi Arain, District Ambala, India, he migrated to Pakistan, submitted his claim, his claim was verified and he secured allotment of disputed land against his verified claim and therefore, the judgments and decrees passed by the lower Courts are liable to be set aside and the plaintiff's suit has no merit.
7. The learned counsel for respondent No,2/plaintiff while vehemently opposing the appeal has submitted that it has been established through evidence, orally as well as documentary that the appellant impersonated the brother of the plaintiff and thereafter, secured the allotment of the disputed land because the name of parentage of the deceased brother of the plaintiff are same as that of the appellant but the fraud, misrepresentation and impersonation has been discovered and proved because it has been established through evidence that respondent No,2/plaintiff and his deceased brother Majeed who died in India are grandsons of Moli whereas the appellant admittedly is the grandson of one Rehma and the appellant has four brothers whereas respondent No,2 is the only surviving legal heir of his deceased brother. It was further submitted that the appellant and his father who was also alive, never appeared in the Court in spite of the fact that they were available. It has further been argued that interrogatories were transmitted to Central Record Office, Lahore and it was reported that the disputed land in fact belonged to the brother of the plaintiff. The learned counsel has also placed reliance on Messrs Society Oil Dealers, Karachi v. District Judge, Karachi and another (2003 M LD 205) and Zafar Mirza v. Mst. Naushina Amir Ali (PLD 1993 Karachi 775).
8. The learned counsel representing respondent No,1 has supported the impugned judgments and decrees.
9. The plaintiff/respondent No,2, to prove Issues Nos.4 and 5 examined Imam Din, as P.W.1 who submitted that plaintiff is son of Karim Din, the name of his grandfather is Moli, and he is Arain by caste and resident of Tibbi Arain, Tehsil Chichroly, District Ambala, Majeed was his brother who died before the creation of Pakistan, the name of father of defendant No,2 (the present appellant) is Karim Din and this Karim Din is son of Rehma, he is also resident of Tibbi Araian and defendant No,2 has no concern with deceased brother of the plaintiff, P.W.2 Nabi Bakhsh stated that he is resident of Tibbi Araian, District Ambala, plaintiff is son of Karim Din who was son of Moli, plaintiff is Arain by caste, Majeed was his real brother and died in India, plaintiff is the only legal heir of Majeed, defendant No,2 has no concern with brother of plaintiff. Muhammad Sharif plaintiff himself appeared as P.W.3 and supported his case, as mentioned above.
10. The plaintiff also produced copies of pedegree-table Exh.P. 1 and Exh. P.2, written information supplied by Central Record Office as Exh.P.3, copy of the allotment order in favor of the appellant as Exh.P.4, copy of Register Haqdaran Zamin pertaining to Mauza Barnali, Tehsil Kharian, District Gujrat for the year 1969 as Exh.P.5 and the written answers by the Central Record Office, Lahore to the questions posed as Exh.P.6. It may be mentioned that interrogatories were transmitted to Central Record Office through District Judge, Lahore and the reply of these interrogatories was also received by the Court.
11. The appellant/defendant No,2, on the other hand examined one Niazu as D.W.1 who submitted that he is refugee from India, he is resident of Tibbi Arain, District Ambala, defendant No,2 is also resident of Tibbi Arain, the plaintiff's brother Majeed died 12 years prior to the creation of Pakistan, widow of Majeed contracted Nikah with Sharif and the property of said Majeed was transferred -in favor of Sharif and the plaintiff has no concern with the property in dispute. D.W.2 Muhammad Sharif stated that he is refugee from India and he is originally from Kalsia Estate, deceased Majeed was known to him who was resident of Tibbi Arain, he died 12 years prior to the creation of Pakistan, his widow contracted Nikah with Sharif and the plaintiff has no concern with the land in dispute.
D.W.3 Jahangir stated that he is the real brother as well as attorney of defendant No,2, the land in dispute was allotted to defendant No,2 at RL-2 in the year 1953, it was allotted against his verified claim and no impersonation was made. He also produced copies of special power of attorney as Exh.D.1 to Exh.D.3.
12. On the basis of the evidence produced by the parties both the Courts below have recorded concurrent finding of facts, that respondent No,2/plaintiff is real brother of Majeed son of Karim Din son of Moli and that appellant/defendant No,2 is not Majeed son of Karim Din son of Moli and he has secured allotment of land in lieu of land of Majeed son of Karim Din son of Moli whereas he is Majeed son of Karim Din son of Rehma.
13. I have gone through the evidence produced by the parties. The learned counsel for the appellant has failed to point out any illegality in the conclusions drawn by the Courts below on the facts found, which stand established from evidence produced before the learned trial Court. It may be mentioned here that P.W.1 Imam Din, was 70 years of age when his statement was recorded and he categorically explained that the appellant is grandson of Rehma whereas the deceased right holder who died in India and the plaintiff are grandsons of Moli. Similarly, D.W.1 Niazu admitted that appellant is grandson of Rehma and the plaintiff is grandson of Moli. He further admitted that father of the appellant was alive and claim of father of the appellant was received from India and his father obtained allotment in Barnali and was residing in Barnali. This statement in this regard is very important. It proves that at the time when the evidence was recorded, the father of the appellant was alive. He could have come forward and explained the title/claim of the appellant, if any. Thus, very important evidence was deliberately withheld by the appellant. The statement of D.W.1 further shows that father of the appellant got allotted his claim, in lieu, of the property left by him in India in village Barnali and was residing in Barnali. The appellant, therefore, failed to explain that how he had a claim, independent of his father. Similarly D.W.3, the real brother and attorney of the appellant admitted that he and the appellant were grandsons of Rehma whereas the plaintiff was grandson of Moli. This witness admitted that he did not know that whether his brother/appellant had purchased any land in India against which the allotment was secured in Barnali. It may further be mentioned here that during the course of proceedings interrogatories under Order XXVI, rule 1, C.P.C. Were transmitted to Central Record Office, Lahore through District Judge, Lahore which were replied by Noor Ahmed Patwari of Central Record Office, Lahore (Exh.P.6) and the second question was about the entitlement of Majeed son of Karim Din son of Moli and in reply to this it has been mentioned that the said Majeed was owner of 14 Bigas and 14 Marlas of land, question No,3 was as to whether Claim No,968 (filed by the appellant) relates to Majeed son of Karim Din son of Moli and whether against his claim allotment has been secured and it has been replied that against Claim No,968 allotment has been secured by Majeed son of Karim Din and as per pedegree-table it was the Majeed who is brother of Sharif/plaintiff and in reply to question 4, it has been stated that appellant/defendant No,2 never abandoned any land in India but his father alongwith his brother Karim-ud-Din and others abandoned land in India. In answer to question No,5 it was stated that the deceased Majeed was having one brother whose name is Sharif. Exh.P.6, therefore, clearly established that Majeed died in India and the plaintiff never secured any other allotment as against the land left behind by his brother in India and that the land in dispute was allotted in lieu of land of plaintiff's brother Majeed. This document has further clarified that the appellant did not own any land in India. It also stands established that plaintiff is the only surviving legal heir of his brother Majeed who died in India and is, therefore, entitled to the land in dispute which stands allotted in lieu of the land left behind by his aforesaid deceased brother.
14. I may mention here that the evidence produced by the parties has been thoroughly discussed in detail by the learned Appellate Court and the learned counsel for the appellant has failed to point out any 'illegality in the judgments and decrees passed by the Courts below to warrant interference by this Court in the second appeal. No misreading or non-reading of evidence or any irregularity has been pointed out and therefore, even if the appeal is treated as a revision petition, result would be the same.
15. In view of the above mentioned, I see no merit in this appeal, which is accordingly dismissed with costs.