One Sikandar was allotted the suit --land measuring 62 Kanals, 12 Marlas under the 'Ejected Tenants Scheme at Chak No.479/GB, Tehsil Samundari, District Faisalabad. Mst. Ghulam Fatima and Mst. Suban, both sisters, executed an agreement to sell their shares out of the suit-land in favour of their third sister Mst. Rehmat Bibi vide registered agreement deed dated 11-6-1976 in consideration of Rs.8,000. In the agreement, it was stipulated that the sale-deed shall be executed in favour of Mst. Rehmat Bibi on getting the proprietary rights. Mst. Rehmat Bibi took possession of the suit --land in pursuance of the said agreement to sell. Thereafter Mutation No.401 dated 17-11- 1980 was sanctioned in favour of three daughters of Sikandar, namely Mst. Rehmat Bibi, Mst. Suban and Mst. Ghulam Fatima. Both Mst. Suban and Ghulam Fatima were asked by Mst. Rehmat Bibi to execute the sale-deed but they refused, on which Mst. Rehmat Bibi filed a suit for specific performance of the contract, in the Civil Court, Samundari on 28-1-1981, which was later on decreed.
2. During the pendency of the suit for specific performance by Mst. Rehmat Bibi, Abdul Aziz respondent No.1 herein, filed a civil suit against the legal heirs of Mst. Rehmat Bibi were. Of Nabi Bakhsh, who died, and two other sisters namely Mst. Suban and Mst. Ghulam Fatima, claiming himself to be the son of Sikandar and a declaration was sought that Mutation No.401 dated 17-11- 1980 in favour of three daughters of Sikandar namely Mst. Rehmat Bibi, Mst. Suban and Mst. Fatima as the lawful owners and legal heirs of Sikandar is illegal, and without lawful authority. In the plaint, it was stated that the plaintiff Abdul Aziz at the time of partition of India was missed and lost by his family at Ganda Singh Station while migrating to Pakistan and was abducted by some Pathans who took him to Attock and told him that his parents had died. The above said Pathans kept him for five years and thereafter sold the respondent-plaintiff to Kharkars who changed his name from Abdul Aziz to Muhammad Hussain. About 12 years before the filing of the suit he made good his escape and went to the Province of Sindh and started working as labourer and continued searching for his parents and relatives and eventually got at them. It was further stated that plaintiff's sisters namely Mst. Suban and Ghulam Fatima recognized him. He came to know that his parents had expired and his father had left behind the land in dispute and inheritance mutation had been sanctioned in the name of his sisters excluding him. After the demise of Mst. Rehmat Bibi, her share was mutated to the legal heirs/ petitioners. Mst. Suban and Ghulam Fatima acknowledged his claim and swore in an affidavit in his favour, whereas the legal heirs of Mst.
Rehmat Bibi did not acknowledge him as son of Sikandar and also declined to get Mutation No.401 dated 17-11-1980 cancelled therefore, he brought the suit for declaration.
3. Mst. Suban and Mst. Ghulam Fatima filed a conceding written statement, whereas defendants Nos. 4 to 12 who are legal heirs of Mst. Rehmat Bibi, contested the suit. It was denied that Abdul Aziz, respondent No.1/plaintiff was the son of Sikandar and co-sharer in the suit-land.
4. The controversial pleadings of the parties raised the following issues:-- (1)Whether the suit is not maintainable in its present form? OPD.
(2)Whether the defendants are entitled to recover special costs from the plaintiff under section 35- A, C.P.C.? If so, how much? OPD.
(3)Whether the suit is collusive? OPD.
(4)Whether the plaintiff is a joint owner in the disputed property alongwith defendants Nos.2 to 12 being the legal heirs of Sikandar (deceased) and the mutation dated 12-11-1980 is illegal, against facts, without notices, void and ineffective as against the rights of the plaintiff? OPD.
(5)Whether the suit is incorrectly valued? If so, what is correct valuation? OPD.
(6)Relief.
5. It is important to mention here that Abdul Aziz moved an application under Order I, Rule 10, C.P.C.
To implead himself as a patty in Civil Suit No. 125 of 1981 titled Mst. Rehmat Bibi and others v. Mst.
Fatima and others for specific performance of the contract on the ground that he is the son of Sikandar. This application was resisted by the petitioners and it was asserted that Abdul Aziz is not the son of Sikandar and in fact he is a stranger. This application filed by Abdul Aziz, respondent, was dismissed by the Civil Judge, Samundari vide order dated 13-12-1987. The evidence in. The suit of Abdul Aziz for declaration was recorded by the trial Court. To prove Issue No.4, regarding relationship of plaintiff Abdul Aziz with his sisters Mst. Rehmat Bibi, predecessor-in-interest of petitioners, Mst. Suban and Mst. Ghulam Fatima, the plaintiff-- respondent examined Muhammad Shafi, Rahim Bakhsh, Qasim Ali as P.Ws.1 to 3. Plaintiff-respondent Abdul Aziz himself appeared as P.W.4. Copy of Mutation No.401 was tendered in evidence as Exh.P.1. Petitioner No. 1/defendant appeared as D.W.1 and also tendered in evidence copy of judgment dated 6-3-1988 in favour of the legal heirs of Rehmat Bibi in a suit for specific performance, copy of decree sheet Exh.D.2, copy of the order through which application of Abdul Aziz for impleading him as a party in the suit for specific performance filed by the legal heirs of Mst. Rehmat Bibi was dismissed, Exh.D.3, copy of the order of Tehsildar including Shajra Nasb as Exh.D.4.
6. The learned Civil Judge recorded a finding on Issue No.4 against the plaintiff Abdul Aziz by observing that:- "P.Ws.1 and 3 have never before seen him but only a couple of years before. The plaintiff did not establish the fact that his parents ever talked to him as their son of their lifetime. D.W.1 who is allegedly his sister Rehmat's son is older than he. D.W.1 is unaware of the fact that the plaintiff was lost at the time Pakistan came into being. All the three plaintiff's witnesses seem not to be related to the plaintiff. Some blood relations or any one else who was acquainted with the plaintiff's parents could have been better and more truthful witnesses than the present ones."
Consequently, the suit of the respondent Abdul Aziz was dismissed by the learned Civil Judge, Faisalabad vide his judgment and decree dated 26-2-1990. Appeal filed there against by the respondent was accepted by the learned Additional District Judge, Samundari vide his judgment and decree dated 5-9-1993 by reversing the finding of the learned Civil Judge on Issue No.4. The learned Additional District Judge observed that:-- "The failure on the part of respondents to cross-examine the P. Ws. Regarding this evidence of relationship of Abdul Aziz with father Sikandar was fatal in their interest as it is tantamount to admission. "
On the question that the plaintiff did not pray for possession, the learned Additional District Judge observed that as respondent Abdul Aziz was the son of Sikandar deceased, as such was co-sharer with other respondents therefore, he did not require to make such a prayer, and finding of the learned trial Court on Issue No.1 was also reversed by the learned Additional District Judge in the impugned order. On the basis of the evidence on record, the learned First Appellate Court held that Abdul Aziz respondent is the son of Sikandar therefore, he was entitled to inherit from his property and Mutation No.401 dated 17-11-1980, through which he was excluded from the inheritance of Sikandar, was illegal. He, therefore, proceeded to decree the suit of the respondent-plaintiff by accepting the appeal.
7. The learned counsel for the petitioners on the strength of Article 64 of the Qanun-e-Shahadat Order, 1984, contends that relationship of the plaintiff Abdul Aziz with his sisters Mst. Rehmat Bibi, Mst. Suban and Mst. Ghulam Fatima being the son of Sikandar could have been proved by producing the blood relations. He further argued that there were contradictions in the statements of P. Ws. 1 to 3 and the conduct of the P.Ws. Was not such that could have led to believe that Abdul Aziz was the son of Sikandar. Reliance has been placed on the cases reported as:-- Khuda Bakhsh v. Habibullah 1999 SCM R 1800.
Abdul Majid v. Syed Muhammad Ali Shamim and others 2000 SCM R 1391.
Further contends that the suit of respondent Abdul Aziz was collusive with Mst. Suban and Ghulam Fatima who entered into an agreement to sell dated 11-6-1976 regarding their share and during the pendency of the suit for specific performance filed by Mst. Rehmat Bibi against other sisters, the application under Order I, Rule 10, C.P.C. For impleading Abdul Aziz on the ground that he is the son of Sikandar and brother of Mst. Rehmat Bibi, Mst. Suban and Ghulam Fatima, was moved and disallowed by the learned Civil Judge vide his order dated 13-12-1987, which order has become final and this matter could have not been agitated by the respondent-plaintiff Abdul Aziz by filing the civil suit for declaration as no appeal against the order dated 13-12-1987 was filed.
8. Conversely, the learned counsel for the respondent contends that Muhammad Shafi, Rahim Bakhsh and Qasim Ali, P.Ws.1 to 3, were truthful witnesses to depose regarding the relationship of Abdul Aziz with Mgt. Rehmat Bibi, Mgt. Suban and Mgt. Ghulam Fatima, his sisters, being the son of Sikandar and the learned Additional District Judge has rightly relied on their statements coupled with the conceding written statement filed by Mgt. Suban and Mgt. Ghulam Fatima in the trial Court.
9. I have considered the arguments of the learned counsel for the parties and perused the record.
Admittedly the land in dispute measuring 62 Kanals and 12 Marlas was allotted to Sikandar under the 'Ejected Tenants Scheme'. The proprietary rights were granted by the Department in favour of three sisters who were daughters of Sikandar, excluding Abdul Aziz, plaintiff-respondent. When the proprietary rights were conferred upon the parties vide Mutation No.401 dated 17-11-1980, it was alleged that Mgt. Suban and Mst. Ghulam Fatima who allegedly had entered into agreement to sell with Mst. Rehmat Bibi for consideration of Rs.8,000, were not completing the sale, on which Mst.
Rehmat Bibi filed the suit for specific performance of the contract against her real sisters on 28-1- 1981. During the pendency of this suit, Abdul Aziz, respondent, moved an application to be impleaded as a party on the ground that Mutation No. 401 dated 17-11-1980 giving proprietary rights to three sisters, namely Mst. Rehmat Bibi, Mgt. Suban and Mst. Ghulam Fatima excluding Abdul Aziz, is illegal because he is the son of Sikandar. This fact was denied by the three sisters. The application was disallowed by the learned Civil Judge vide his order dated 13-12-1987. Contrary to this, Mst. Suban and Mst. Ghulam Fatima, who lost the case against the legal heirs of Mst. Rehmat Bibi, filed a conceding statement, in which they have admitted that Abdul Aziz plaintiff-respondent was the real son of Sikandar. Mst. Rehmat Bibi died during the proceedings, therefore, her sons and daughters/legal heirs, i.e. The petitioners did not admit the claim of Abdul Aziz, plaintiff-respondent.
In this background it was obligatory upon Abdul Aziz, plaintiff, to prove his relationship with the petitioners and two sisters namely Mst. Suban and Mst. Ghulam Fatima. To my mind, conceding statement of Mst. Suban and Mst. Ghulam Fatima cannot take the place of evidence. They did not appear in the witness-- box to depose about the fact that Abdul Aziz was the son of Sikandar.
Pleadings cannot take the place of evidence. The learned Additional District Judge was influenced with the fact that the conceding statement has been given by Mst. Suban and Mst. Ghulam Fatima in favour of Abdul Aziz. There was a reason for Mst. Suban and Ghulam Fatima to make a conceding statement against the petitioners who were able to get a decree for specific performance against them when the application for impleading under Order 1, Rule 10, C.P.C. Filed by Abdul Aziz in the suit for specific performance filed by Mst. Rehmat Bibi, against her real sisters Mst. Ghulam Fatima and Mst. Suban was dismissed vide order dated 13-12-1987. This matter could have not been opened by the learned Additional District Judge, because that order had become final as no appeal was filed by Abdul Aziz. Moreover, Mst. Suban cannot approbate and reprobate, because in the civil suit for specific performance they have denied that plaintiff Abdul Aziz was their brother.
10. The case can be decided on the touchstone of Article 64 of the Qanun-e---Shahadat Order, 1984, which reads as under:--- "64. Opinion on relationship when relevant.--When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person, who as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act, 1869 (IV of 1869), or in prosecution under section 494 or 495 of the Pakistan Penal Code (Act XLV of 1860). "
11. P. W .1 Muhammad Shafi appeared in Court and stated that there was no son of Sikandar.
Thereafter he changed his statement and said that Abdul Aziz was the son of Sikandar.
Muhammad Shafi also stated that Sikandar used to live in Bootaywala in India with his sister, but he did not disclose the name of the sister. Abdul A'ziz plaintiff-- respondent, contradicted Muhammad Shafi P.W., when he stated that he used to live in Mauza Kaloo Arayan, Tehsil and District Ferozpur in India. P.W.1 Muhamamd Shafi did not utter a single word about his relationship with Abdul Aziz or his father Sikandar-Rahim Bakhsh, P.W, stated that the name of the husband of Mst. Rehmatay is Nabi Bakhsh. He is his (witness) real uncle. Much stress has been made by the learned counsel for the respondent-plaintiff that this witness Rahim Bakhsh is related to the parties, therefore, the suit has been rightly decreed by the learned Additional District Judge by accepting the appeal. This argument has no force because Rahim Bakhsh is related to Nabi Bakhsh, the husband of Mst.
Rehmatay, daughter of Sikandar, but he has nowhere stated that he is related to Sikandar or Abdul Aziz. Qasim Ali, P.W., is also not related to the family or having any blood-relation with the parties. In this view of the matter, the testimony of Muhammad Shafi, Rahim Bakhsh and Qasim Ali cannot be accepted qua the relationship with plaintiff-- respondent or his father Sikandar. While interpreting Article 64 of the Qanun-e---Shahadat Order, 1984, the Honourable Supreme Court has ruled in case reported as Khuda Bakhsh v. Habib Ullah (1999 SCM R 1800) as under:-- "The requirement of Article 64 of the Qanun-e-Shahadat Order of 1984, corresponding to section 50 of the Repealed Evidence Act, is that when the Court has to form an opinion as to relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship of any person, who as a member of the family or otherwise, has special means, of knowledge on the subject, is a relevant fact. In fact it is the opinion expressed by conduct, of any person who has special means of knowledge about the relationship, which is relevant. ".
12. The learned Additional District Judge has not considered the impact of documents Exh.D.1 to Exh.D.4, i.e. The decree in favour of the legal heirs of Mst. Rehmat Bibi for specific performance and the fact that application for impleading Abdul Aziz as necessary party in the suit for specific performance was dismissed and the title document has been executed in favour of the petitioners, which has not been challenged by the respondent-plaintiff.
13. The plaintiff-respondent Abdul Aziz was out of possession. His suit for declaration under section 42 of the Specific Relief Act without seeking possession was not maintainable. The learned Additional District Judge completely misread the evidence and. Misinterpreted the provisions of section 42 of the Specific Relief Act, and thus wrongly accepted the appeal of Abdul Aziz, respondent-plaintiff, which order is liable to beset aside.
14. Resultantly, this revision petition is allowed, the judgment and decree dated 5-9-1993 passed by the Additional District Judge, Samundri, Faisalabad is set aside and the judgment and decree passed by the Civil Judge, Faisalabad dated 26-2-1990 dismissing the suit of Abdul Aziz is restored with costs.