' Mst. Bakht Malshah and other respondents Nos.1 to 5/plaintiffs filed suit against the petitioners/defendants for declaration, perpetual injunction and possession of the property mentioned in the heading of the plaint in the Court of learned Senior Civil Judge/Aala Illaqa Qazi, Alpuri District Shangla. The said suit was resisted by the petitioners/defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit in favour of respondents Nos.1 to 5/plaintiffs to the tune of their Shari shares vide judgment and decree, dated 12-4-2000. Being not satisfied with the said judgment and decree, the petitioners filed appeal in the Court of learned Additional District Judge, Shangla, the said appeal was dismissed vide judgment and decree, dated 27-7-2002. Being not contented with the judgments and decrees 9f the Courts below the petitioners have filed the revision petition in hand.
2. Mr. Mian Iqbal Hussain, Advocate the learned counsel representing the petitioners argued that the property in dispute belonged to one Samandar who died leaving behind three sons and one daughter, namely Bakht Marin, Minhajuddin, Tajuddin and Mst. Bakhsha. A private partition between the L.Rs, of Samandar took place, whereby Bakht Marin was given land measuring 130 Kanals, 11 Marlas in Khasra Nos.4902 to 4904, 4906 to 4912, 4915 and 4862. Bakht Marin in his life time sold his entire share to Ramdad vide registered sale-deed No,94, dated.1-8-1944 Exh.D.W.2/2.
The names of L.Rs, of Ramdad we also incorporated into the Revenue Record as is evident from Fard Jarnabandi for the year 1992-93.
3. It was also argued that Bakht Marin died in the year 1973. His L.Rs, respondents Nos.1 to 5 filed suit for partition of the property in the Court of Assistant Commissioner Alpuri, which suit was referred to Tehsildar Alpuri, for decision. After contest the said Tehsildar reached to the conclusion that the suit property had been privately partitioned in the year 1944 and Bakht Marin had sold his entire share vide registered sale-deed No,94, dated 1-8-1944, therefore, the parties were directed to get their title clear from the Civil Court vide judgment/order, dated .7-8-1976. The respondents Nos.1 to 5 filed appeal in the Court of Civil Judge, Alpuri, which was sent to the Assistant Commissioner, Alpuri.
However, the same was dismissed for non-prosecution vide order, dated 12-9-1977 Exh.D.W.2/6. The L.Rs, of Bakht Marin did not challenge the findings of the Tehsildar, Alpuri, therefore, his findings became final. Moreover, when the judgment of Tehsildar, dated 7-8-1976, the time limitation period for filing suit had started under section 9 of the Specific Relief Act.
4. It was also argued that the suit instituted by respondents Nos.1 to 5/plaintiffs on 3-7-1997 was, therefore, barred by time. Reliance was placed on 1992 SCMR 312, 2001 CLC 1119, 1997 CLC 1691 and AIR 1920 Oudh 122.
5. L. Was also argued that the registered sale-deed No,94, dated 1-8-1944 Exh.D.W.2/2 was a public document and even if the same had not been signed by the executant, it was still admissible in evidence. Reliance in this regard was placed on the above mentioned judgments.
6. It was also argued that although there is no direct evidence available on record about the private partition between the parties, but in the facts and circumstances of the case it can be safely presumed that the said partition was valid. Reliance in this regard was placed on AIR 1926 Oudh 511.
7. It was also argued that under section 172(2) clause (18) it was only the jurisdiction of the Revenue Court to pass an order about (sic) of Civil Court's jurisdiction was barred.
8. It was also argued that plea of co-sharer was not available to respondents Nos.1 to 5/plaintiffs and limitation under section 9 of the Specific Relief Act once started could not stop. Reliance was placed on PLD 2001 SC 142 and 2001 CLC 1119.
9. On the other hand Mr. Ruhul Amin, Advocate the learned counsel representing respondents Nos.1 to 5/plaintiffs argued that the stand of the defendants/petitioners was that the property left by Samandar had been privately partitioned but Tajuddin when examined admitted that he was born on 12-12-1943, therefore, partition of the property could be effected when even Tajuddin defendant was not born.
' There is no evidence whatsoever with regard to private partition available on record.
10. It was also argued that the sale-deed Exh.D.W.2/2 relied upon by the petitioners/defendants was not proved in accordance with law. Neither any official witness from the office of Sub-Registrar was examined to prove that it was a registered document nor any of the marginal witnesses or its scribe was examined to prove its contents. Shehryar D. W.5 in cross-examination clearly admitted that the said deed Exh.D.W.2/2 did not contain the signature or thumb-impression of Bakht Marin.
Similarly Tajuddin D.W.2 also admitted that deed Exh.D.W.2/2 did not contain signature/thumb- impression of. Bakht Marin.
11. It was also argued that in order to grab the property of respondents Nos.1 to 5/plaintiffs, the petitioner colluded with the officials of Revenue Department at the time of settlement and Bakht Marin was shown as issueless (Lawalad). Patwari Halqa namely Shakirullah was examined as D.W.1.
He stated that Bakht Marin was died issueless.
12. It was also argued that the L.Rs, of Bakht Marin did not file any suit for partition of the property in the Court of Assistant Commissioner, Alpuri. If any application was filed by Aurangzeb, the said persons did not have any power of attorney from the L.Rs, of Bakht Marin and the said application was not filed with their consent, therefore, they were not bound by the same.
13. It was also argued that the suit filed by the respondents was within time as no limitation shall run against co-sharers. Reliance was placed on PLD 1990 SC 1, 1998 SCMR 996 and PLD 1985 Quetta 105.
14. I have heard the learned counsel for the parties and perused the record.
15. The question that requires determination in this case is whether the property left by Samandar Khan had been privately partitioned between his sons and Bakht Marin and whether predecessor of respondents Nos.1 to 5/plaintiffs had sold more than his share through registered sale-deed No,94, dated 1-8-1944 Exh.D.W.2/2 answer to this question is in negative. It is in evidence that Samandar Khan was owner of sufficient landed property. He died in the year 1945. This fact has been stated by Jehangir Khan P.W.1 and by Rahim Shah P.W.2 in cross-examination and there is no rebuttal on the record to show that Samandar Khan died earlier to 1945. The main stress of the petitioners was that Samandar Khan in his life time has given his property to his two sons and Bakht Marin, who was the eldest son and he had sold land measuring 130 Kanals, 11 Marlas through sale-deed Exh.D.W.2/2, but there is no evidence available on record worth the name to prove that Samandar han in his life time had transferred his entire share in the names of his three sons namely Bakht Marin, Minhajuddin and Tajuddin because neither any deed in writing/instrument whereby Samandar Khan in his life time has transferred his land in the names of 3 sons was placed on record by the petitioners/defendants nor any witness was examined to prove the said fact.
Since Samandar Khan was alive till 1945, therefore, in absence of any evidence to the contrary it would be presumed that he was owner of the entire property till his death.
16. There is also no evidence to show that the property of Samandar Khan was partitioned between his 3 sons privately in the year 1943-44 and the Courts below have rightly held that no private partition of the property left by Samandar Khan was made in the year 1943-44 and this Court is also of the view that the property of Samandar Khan was not partitioned by his 3 sons privately , firstly because Samandar Khan was alive in the year 1943-44. He died in the year 1945 as is evident from the evidence placed on record. Since he was alive in the year 1943-44 and had not transferred the entire land in favour of his 3 sons, therefore, the question of private partition between his 3 sons would not arise at all. Secondly, Tajuddin as per admission made by him in cross-examination was born on 12-12-1943, how could any portion of land be given to a person, who was not even born when the property was partitioned. Thirdly, there is no evidence available on record to prove that the property of Samandar Khan was ever partitioned between his 3 sons privately. The onus to prove the private partition was on petitioners, but they failed to prove the same. In order to prove this plea they examined Shakirullah Patwari Halqa as D.W.1. Tajuddin one of the petitioners/ defendants appeared as D.W.2 as his own witness and as attorney of defendant No,
1. Although in examination-in-chief he stated that the property left by Samandar Khan was partitioned privately, but in cross-examination he admitted that he was born in 12-12-1943. About partition he stated that he had heard about the private partition from his mother which shows that his statement about partition was "hearsay". Sultan Parvez was examined as D.W.3. He also stated in examination-in-chief that property of Samandar Khan was partitioned between his 3 sons but in cross-examination he stated that he was not aware as to when Samandar Khan died and at the time of death of Samandar Khan he (D.W.3) was not even born. This indicates that Sultan Parvez D.W.3 was born after 1945. Similarly Adalat Khan was examined as D.W.4. In cross-examination he stated that Minhajuddein would be 40/45 years old, whereas Tajuddin would be 42 years old. About the private partition he stated that he heard about the said partition from the mother of the petitioners/defendants Nos.1 and 2. He also admitted that Samandar Khan died in the year 1944/45 and at the time of his death he (D.W.4) was not even born. Shehreyar was examined as D.W.5. He was not aware as to when Samandar Khan died. He did not know the age of petitioners/ defendants Nos.1 and 2, but he did not state a single word about the private partition. The above discussed evidence adduced by the petitioners/ defendants clearly shows that the petitioners failed to prove that property left by Samandar Khan was privately partitioned between his 3 sons in the year 1943-44.
17. So far as sale-deed No,94 Exh.D.W.2/2 is concerned, the same was also not proved by the petitioners. The claim of the petitioners/defendants was that Bakht Marin sold land measuring 130 Kanals, 11 Marlas to Ramdad through registered sale-deed No,94, dated 1-8-1944 Exh.D.W.2/2. The onus to prove said deed was on the petitioners/defendants, but they failed to discharge their onus in accordance with law. Neither any official witness was examined to prove that the said sale-deed was registered nor the scribe or any of its marginal witnesses were examined to prove the contents of the said deed and if the scribe and the marginal witnesses of the said were dead, no efforts were ever made to prove the said deed through secondary evidence. The deed Exh.D.W.2/2 even did not contain the signature or thumb-impression of executant namely Bakht Marin. This fact was admitted by one of the witnesses examined by the petitioners/defendants. Shehreyar D.W.5 in cross-examination admitted:- {{URDU TEXT}}
18. The argument of the learned counsel for the petitioners that sale-deed Exh.D.W.2/2 was public document, therefore, the same was admissible and was sufficient proof of the same has no force firstly because the said document was placed on record subject to objection by the other side.
' Secondly the original document was not produced.
' Thirdly, it did not contain the thumb-impression/signature of the executant. In Nimatullah Shah v.
Farmanullah and another 1980 SCMR 953 neither the original receipt was filed nor secondary evidence was led to prove the same. It was held that the copies of the receipt were inadmissible in evidence and claim based on such receipt was rightly dismissed.
' Similarly in Muhammad Yaqoob and others v. Naseer Hussain and others PLD 1995 Lah. 395 it was held that the document creating liability has to be attested by two witnesses and in order to prove such document attesting witnesses have to be called and if the document is not proved in accordance with law it has to be excluded from consideration.
Moreover, when the original document is not produced and permission for leading secondary evidence was not obtained, a copy of the said document was not admissible.
19. Keeping in view the above mentioned dicta it can safely be held that the petitioners failed to prove Exh.D.W.2/2. The judgments cited by the learned counsel for the petitioners are not applicable to the case in hand.
20. The argument of the learned counsel for the petitioner that the suit filed by the respondents Nos.1 to 5/plaintiffs was barred by time also has no substance. The respondents Nos.1 to 5/plaintiffs were demanding their Shari share. They are admittedly the legal heirs of Bakht Marin deceased.
This fact stands admitted by the petitioners/defendants also. With the death of Bakht Marin the respondents Nos.1 to 5/plaintiffs have become co-sharers in the suit-land alongwith petitioners/defendants. The question of limitation running against the respondents Nos.1 to 5/plaintiffs would not arise. Wisdom in this regard has been gained from Muhammad Rafiq and others v. Muhammad Ali and others 2004 SCMR 704, Ghulam Ali and 2 others v. Mst. Ghulam Sarwai Naqvi PLD 1990 SC 1 and Mst. Namdara and 3 others Mst. Sahibzada and 2 others 1998 SCMR 1996.
21. The Courts below have rightly appreciated the evidence available on record and law applicable to the case in hand.
22. I have not been able to find out any misreading/non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of the Courts of competent jurisdiction. Resultantly, the revision petition is dismissed with no order as to costs.
Revision .