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Petitioner: Malilc GHULAM AKBAR KHAN through L.Rs, and others VS Respondent: Al-Haaj ABDUL JUDGMENT
Court Name: Balochistan High Court Judge(s): Ghulam Mustafa Mengal, Muhammad Noor Meskanzai Title:Malilc GHULAM AKBAR KHAN through L.Rs, and others vs Al-Haaj ABDUL
JUDGMENT
Reported As: 2011 CLC 1734 Result: Order accordingly Judgment JUDGMENT ' GHULAM MUSTAFA MENGAL, J.--- Through this common judgment we intend to dispose of R.F.As. Nos.5 and 6 of 2001 as both the appeals are arising out of same judgment dated 11.12.2000, passed by iearned Senior Civil Judge-I, Quetta in Suit No,199 of 1999 whereby the suit has been partly decreed in favour of plaintiffs. 2. Facts relevant for disposal of instant appeals are that the plaintiffs/appellants instituted a suit for declaration, cancellation of mutations, partition, possession, injunction, mesne profits and consequential relief against respondents in the Court of learned District Judge, Quetta which was later on transferred to the file of learned Senior Civil Judge-I, Quetta. It was averred in the plaint that appellants Nos.1 to 3 are son and daughters of late Bibi Dilbara legal heir of late Haji Abdullah Jan, whereas the appellants Nos.4 to 7 and respondents Nos.1 to 5 are sons and daughters of. Late Haji Abdullah Jan. Respondents Nos.6 to 19 are grandsons and granddaughter of late Haji Abdullah Jan, who died in the month of January, 1988 leaving behind following properties:--- (i) Property situated in Mahal Sirki Khurd, Mauza Sirki Tappa Saddar Kasi, having Mutation No,1352 measuring 12 rod and 35 poles, bearing Khasra No,461. (ii) Property bearing Khasra Nos. 1880/482, 1882/482, Mutation No,505, situated in Mahal Chak Sirki, Mouza Kasi, Tappa Saddar Kasi, measuring 7 rod and 25 poles. (iii) Property bearing Khasra Nos.605/129, 606/129, 130/131/732, 707/132, 157/158, Mutation No,1333, measuring 92 rod and 4 poles (7 kittas) situated in Mahal Chashma Tirkha Mouza Tirkha, Kasi, Tappa Saddar Kasi, Tehsil and District Quetta.
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(iv) Property bearing Khasra Nos.1835/9.8.5, 1792/16, 2060, 1849/16, Mutation -No,1184, measuring 4 rod and 12 poles, situated in Mahal Khushkaba Kasi, Mouza Shaldara, Tappa Saddar, Tehsil and District, Quetta. (v) Property bearing 26 kittas, having Khasra Nos. 305/308/309/310/313, Mutation No,203, measuring 20,434 square feet, situated in Mahal and Mauza Ward No,48, Tappa Urban, Tehsil and District Quetta (Shops and stores) (vi) Property bearing Khasra Nos. 258/259/270/314, Mutation No,205, situated in Ward No,47, Tappa Urban, Tehsil and District Quetta, measuring 60,774 square feet (5 kittas). (vii) Property bearing Khasra Nos. 244/247/248/246/243/245 Mutation No,237, situated Mauza Ward No,15, Tappa Urban, Tehsil and District Quetta, measuring 1283 square feet (6 kittas), having old Khasra No,1451 Ward No,1 . (viii) Property bearing Khasra Nos. 360/1, 360/2, 360/3, 360/4, 360/5, 360/6, 360/7, 360/8, 360/9, 360/10, 360/11, 360/12, 360/13, 360/14, 360/15, 360/16, 360/17, 360/18, ' 360/19, 360/20, 360/22, 893/361, 894/361, 895/361, 896/361, 897/361, 898/361, 900/361, 901/361, 902/361,-904/361, 905/361, Intiqal No,52, measuring 1, 05,569 square feet (shops and open plot) situated in Ward No,28, Tappa urban, Tehsil and District Quetta (old Ward No,13). (ix) Property bearing Khasra Nos. 814/88, 815/88, 818/88, 817/88, Mutation No, 91, measuring 38,716, situated in Mahal and Mauza Ward No,49, Tappa Urban, Tehsil and District Quetta (Old Khasra No,6335, old Ward No,19). (x) Property bearing Khasra No,20, Khawat No,239 Khatooni No,263, measuring 2 rod and 38 poles, situated in Mahal and Mauza Khushkaba Karezat, Tappa Kechi Baig, Ward No,48, Tehsil and District Quetta. (Note:- This is Shamlat property). (xi) Property bearing Khasra Nos.58/126/150, 156/ 158/ 540/165, 166/167, 172/190/209/200 /213/217/ 218/ 219/ 225/489/490/493/499/501/504/505/538/506, 537/506, 507/510, 511/3, 143, 145/149/151/695/443, 191/699/544/191, 717/702, 545/191, 714/719/191, 745/192, 747/191, 751/191, 753/191, 764/191, 769/191, 770/191, 774/191, 779/191, 782/191, 786/191, 788/191 Mutation Nos.1145, 323, 328, 341, 327, 324, 338, 336, 366, 490, 510, 406, 502, 370, 371, 372, 368, 367, 373, 492, 493, 367, 376, 519, 504, 379, 498, 500, 503, 495, 524, 614, 494, 374, 375, 520, 378, 489, 499, 501, 377, 505, 584, measuring 96 rods and 36 poles (50 kittas), situated in Chasma Hudda, Mouza Hudda, Tappa Saddar Kasi, Tehsil and District Quetta. (xii) Property bearing Khasra Nos. 17/ 59/ 279/ 329/ 334/ 347/ 391/ 399/ 113/ 150/ 158/ 160/ 178/ 235/ 236/ 239/ 264/266/ 455/11/ 26/312/ 520/16, 330/379/ 387/392/ 393/395/ 111/121/ 139/60/ 359/535/ 378/396/ 98/ 144/159/233/237/240/461/482/242/368/ 370/ 385/ 251/ 252/ 253/ 337/ 354/ 366/ 390/ 151/ 228/ 245/ 247/ 249/ 255/ 258/ 257/ 347, Mutation No,163, measuring 844 rods and 32 poles (69 kittas), situated in Mohal Chashma Baleli, Mouza Baleli, Tappa Baleli, Tehsil and District Quetta. 3. After the death of late Haji Abdullah Jan the respondents instead of partitioning the legacy left by their predecessor amongst heirs, in accordance with injunction of Islam, illegally and in a concealing manner transferred property mentioned at S.No,1 to 9 in favour of Abdul Khaliq, Abdul Raziq, Malik Abdul Sadiq, Abdul Malik and Abdul Ghafoor by means of Intiqal-e-Warasat Nos.1352, 505, 1333, 1184, 203 and 205 attested on 7th July, 1994, 26th June, 1995 and 2nd July, 1997 respectively while property mentioned at S.No,10 is still subsisting in the name of late Haji Abdullah Jan and the remaining properties have been transferred in favour of respondents or their predecessor by way of gift etc. In a suspicious manner during the ' Marazul Mot' {{URDU TEXT}} of predecessor-in-interest of parties. It was further averred in the plaint that despite hectic efforts appellants failed to know that how properties mentioned at S.Nos.11 and 12 have been transferred in favour of respondents or their predecessoRs, Despite above, the respondents (sons of late Haji Abdullah Jan) also disposed of certain properties depriving daughters of late Haji Abdullah Jan from their shares.
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4. The suit 'was contested by respondents Nos.1 to 3, 6 to 10 and 13 to 19 by way of filing joint written statement wherein besides raising certain legal objections regarding suit being barred by time, not maintainable, non-joinder of necessary parties etc. The same was contested on merits as well. It was averred in the written statement that properties at S. Nos.1 to 6 and 10 were in the name of their predecessorin-interest at the time of his death, however properties mentioned at S.Nos.3, 7, 8, 9, 11 and 12 were either transferred in their names in early 60s and 70s as 'Hiba' which was accepted by donees and possession was also delivered to them or the same was purchased by Dr. Abdul Malik (respondent No,2) or late Abdul Sadiq in the name of his father as "Benamidar' as such; it could not be said that the above referred properties were legacy left by late Haji Abdullah Jan nor anybody has right over the same. Property mentioned at S.No,10 is "Shamlat land" and is in possession of Jattak Tribe. So far properties at S. Nos.1, 2 and 4 to 6 are concerned, though the same were in the name of late Haji Abdullah Jan at the time of his death but the father during his life-time gave all these properties to his sons by means of family arrangement. The daughters were either, paid proportionate to the value of properties then existed or in the shape of jewelleries. The said family settlement was not only accepted by all the legal heirs including daughters but the same was also acted upon. The daughters were also beneficiaries of family settlement. The properties were usurped by different persons/tribe and the sons recovered possession of same after litigation/negotiations and spending lot of time and money. After recovery of possession the properties were improved by spending millions of rupees. 5. After filing written statement by respondents, appellants submitted replication to the written statement wherein it was averred that no limitation run against co-sharers (appellants) because appellants came to know about facts of distribution of properties amongst respondents in the month of. January, 1999. No family settlement has ever been made. The property can easily be partitioned between the co-shareRs, Respondents have themselves admitted that property mentioned at S.Nos.1 to 6 and 10 in the plaint were in the name of late Abdullah Jan. According to them property at S.Nos.7, 8, 9, 11 and 12 was gifted to them by predecessor in his life time. Properties at S.Nos.11 and 12 have fraudulently been transferred. This fact can be detected from signatures of late Haji Abdullah Jan put upon different other documents and one available on transferred document. The witness of said document namely Ch. Abdul Ghani was a close friend of respondent No,2 and was a Revenue official. Possession was never passed on to any of respondent pursuant to gift. According to appellants, had late Haji Abdullah Jan given properties to his sons by way of family arrangement; he would have transferred the same in their names. Payment of proportionate shares to the daughters in shape of cash amount or jewellery and fact of family settlement were also denied. With regard to raising construction over certain properties, it was submitted that on small portion of land construction has been raised which too from the pocket of late Haji Abdullah Jan in his life-time. In agreement (Khangi-Taqseem Nama) dated 8th April, 1989 no reference to any previous settlement has been made which means that nothing was done before the said agreement. As per replication, had there been any settlement in the year, 1971 with consent of all the parties, there would have been no necessity to enter into agreement (Khangi-Taqseem Nama) dated 8th April, 1989 which too without referring to earlier settlement. So far Intiqal-e-Warasat is concerned, the same was effected without producing any 'Sharia Fatwa' and disclosing name of other legal heiRs, The Intiqal-e-Warasat itself contravenes the stand of respondents because, had there been any settlement between the heirs of late Haji Abdullah Jan the same would have been acted upon. 6. The learned trial Court initially framed following issues for determination:--- 1. Whether suit is time barred and liable to be dismissed? 2. Whether suit is not maintainable in view of legal objections (B), (C) and ( E) of W/S?
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3.. Whether properties at Serial Nos.1, 2, 4, 6 and 10 of plaint have been given to defendants as result of family settlement in 1971? 4. Whether properties at S. Nos. 1 to 6 are not partitioned? 5. Whether properties at S. Nos.3, 7, 8, 9, 11, 12 have been given to defendants in Hiba by late Abdullah Jan in 60s and 70s? 6. Whether plaintiffs are entitled for relief claimed? 7. Relief? 7. After framing of above issues on 17th April, 2000 appellants filed an application under Order XIV Rule 5 read with section 151, C.P.C. For framing additional proposed issues. The application was contested by respondents, however the learned trial Court vide order dated 15th May, 2000 allowed the application by framing following two additional issues:--- 1. Whether the properties left by late Haji Abdullah Jan have fraudulently and fictitiously being transferred in favour of the defendants, if so, to what effect? 2. Whether the defendants Nos.13 to 19 are falling within the category of legal heirs of late Haji Abdullah Jan, as their father died in the life time of their grandfather? 8. After framing additional issues, the parties were directed to adduce evidence in support of their respective claims. Appellants produced following P.Ws. (i) P. W.1 deposed that the parties are known to him. They are brothers and sister and successors- in-interest of Haji Abdullah Jan. Haji Abdullah Jan had properties at Kasi Road, Sirki Road, Jan Muhammad Road, Baleli, Hudda and Sabzal Road. After death of Abdullah Jan defendants distributed the properties amongst themselves. Nothing was given to daughters of Haji Abdullah Jan. ii. P.W.2 deposed that the parties are known to him. They are sons and daughters of Haji Abdullah Jan. Haji Abdullah Jan had properties at Kasi Road, Akhtar Muhammad Road, Jan Muhammad Road, Baleli, Hudda and Killi Shabo. After 1-1/2 years of death of Abdullah Jan he came to know that the daughters of late Haji Abdullah Jan have been deprived from the legacy by the sons of Haji Abdullah Jan and distributed the properties amongst themselves. Nothing was given to daughters of Haji Abdullah Jan. iii. P.W.3 deposed, that the parties are known to him. They are sons and daughters of Haji Abdullah Jan. Haji Abdullah Jan had properties at Sirki Road, Jan Muhammad Road, Baleli, Hudda and Killi Shabo. Haji Abdullah Jan was survived by four sons and eight daughteRs, After death of Abdullah Jan his sons distributed the properties amongst them and deprived their sisters from their sharai right. He came to know about this fact after 1-1/2 years of death of late Haji Abdullah Jan. iv. P.W.4 Revenue official produced revenue record as Exh.P/1 to Exh.P/46. v. Malik Azmat Ullah Attorney for plaintiff deposed that he is son of plaintiff No,1 Malik Ghulam Akbar who is son of Bibi Dilbara. The latter was elder daughter of late Haji Abdullah Jan. She died in the year 1997 whereas Haji Abdullah Jan died in the year 1988. Defendants Nos.1 to 3 are brothers of Bibi Dilbara whereas defendant Nos.4 to 7 are her sisteRs, Defendants Nos.13 to 19 are grandsons of late Haji Abdullah Jan and sons of Abdul Sadiq who died in the year 1972. Defendants Nos.6 to 10 are sons and daughters of Abdul Khaliq Khan elder son of late Haji Abdullah Jan. Defendants Nos.13 to 19 does not fall within the definition of legal heirs of late Haji Abdullah Jan because their father died in the life times of late Haji Abdullah Jan. Properties of Haji Abdullah Jan are situated at Jan Muhammad Road, Kasi Road, Arbab Khudai Dad Khan Road, Malik Mano Jan Road Hudda, Sirki Road, Sadiq Shaheed Park, Chashma Baleli, Chashma Tirkha, Chashma Hudda, Killi Shabo, Sariab Road and at different other places. After death of late Haji Abdullah Jan defendants Nos.1 to 3, 6 to 10 and 13 to 19 with connivance of each other and on the basis of fake 'Fatwa during the period commencing from 1994 to 1997-98 transferred the properties of late Haji Abdullah. Jan on their names. Plaintiffs were not aware of this fact. In the year 1999 they came to know about the secret distribution of property.
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After coming to know about the distribution of properties, plaintiffs obtained Intiqals of property from Tehsil and it came to their knowledge that the defendants have transferred the properties of late Haji Abdullah Jan on their names on the basis of fake 1-fiba' and forged signatures. ' Thereafter in rebuttal respondents examined following defence witnesses:--- ' D.W. 1 Haji Muhammad Akbar deposed that parties are known to him. Haji Abdullah Jan was survived by five sons and nine daughteRs, Haji Abdullah Jan had several properties. Haji Abdullah Jan had transferred some properties in his life time on the names of his sons. Sons of Haji Abdullah Jan are managing the properties which were riot gifted. Fate of said properties had not been determined by Haji Abdullah Jan. He has no knowledge about the decision of Haji Abdullah Jan regarding his sons. In the year 1970-71 Haji Abdullah Jan gifted some land for house to Malik Usman. ' In cross-examination he stated that he has no knowledge about the properties gifted by Haji Abdullah Jan to his sons. He admitted that was not made in his presence. ' D.W.2 Jan Muhammad deposed that the parties are known to him. Haji Abdullah Jan owned properties at Kasi Road, Baleli, Tirkha, Sariab Road, Deba, Arbab Khudai Dad Road, Sooraj Ganj Bazar and Jan Muhammad Road. Haji Abdullah Jan, in his life time gifted his properties to his sons and the daughters were given cash and jewelleries. ' In cross-examination he stated that he does not know which property was gifted by Haji Abdullah Jan to his sons. He is not aware whether the gift, transaction was verbal or written. He admitted that gift was not made in his presence. Iii. D.W.3 Faiz Muhammad representative Sadar Qanoongo produced revenue record Exh.D/1 to Exh.D/6. In cross-examination he stated that the Exh.D/1 is neither signed by donee nor donor. Iv. D.W.4 Muhammad Ashraf son of Muhammad Rafiq was tenant of shop rented out to him. He has not uttered a single word regarding gift. v. D.W.5 Abdul Ghaffar son of Muhammad Hussain is also a tenant of shop rented out to him. He has not uttered a single word regarding gift. Vi. D.W.6 Abdul Zahir is a 'Bazgar' (tenant) in the Agricultural lands of Haji Abdullah Jan. He deposed that prior to him, his father was Bazger in the lands of Haji Abdullah Jan. For the last 25 years he is Bazger. Initially the lands were not levelled which were levelled by Malik Sadiq. He further deposed that two tube wells were installed by Malik Sadiq and one by Dr. Malik on the land in dispute. Dr. Nasir also constructed a market on the. Land. Land produce was/is being, received by Malik Sadiq, Dr. Malik and Dr. Nasir. 25/30- years ago Malik Sahib brought Patwari on the lands. At that time distribution had taken place. Haji Abdullah Jan was alive and he had brought Patwari. ' In cross-examination he stated that Haji. Abdullah Jan used to visit the lands. Vii. Dr, Abdul Nasir attorney for defendants deposed that Haji Abdullah Jan had five sons and nine daughteRs, To avoid any complication, in his life time Haji Abdullah Jan made decision regarding his properties. During 1961-1979 he gifted properties mentioned at S.Nos.7, 8, 9, 11 and 12 to his sons. Daughters of late Haji Abdullah Jan was paid their proportionate share in shape of cash and jewellary. Plaintiffs had knowledge of all the facts. ' In cross-examination he admitted that after death of Haji Abdullah Jan there are no documents which could show that the properties have been distributed. He also admitted that apart from the properties gifted by Haji Abdullah Jan all the properties were in the name of Haji Abdullah Jan even after his death. He admitted that after 1995 in all the Intiqals only defendants were shown as legal heirs of late Haji Abdullah Jan and it was not disclosed that Haji Abdullah Jan was also survived by daughteRs, He admitted that all the Intiqals carried out on the basis of 'Hiba' were not witnessed by anybody 9. After recording evidence pro and contra, appellants filed written arguments, however the respondents orally argued the case. The learned trial Court after evaluating the evidence, written arguments and hearing counsel for respondents vide judgment and decree dated 11th February,
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2000 partially decreed the suit by setting aside mutations of inheritance and cancelling the mutation .Of gift (Exh.D/1), however the suit to the extent of remaining claims was dismissed. 10. Feeling aggrieved from the judgment and decree referred to hereinabove, appellant preferred R.F.A. No,5 of 2001 to the extent of findings on Issues Nos.5, 6 and 7 and non-disposing of additional issues whereas the respondents since were also aggrieved of the judgment and decree also preferred R.F.A. No,6 of 2001. This Court after hearing the arguments passed judgment on 31-12- 2001. The judgment passed by this Court was assailed before the Hon'ble Supreme Court of Pakistan and the Hon'ble apex Court vide order dated 5-5-2010 remanded back the cases to this court with directions to decide the same after hearing the parties. 11. Malik Azmat Ullah Kasi, attorney for appellants filed written arguments, whereas respondent's were represented by Mr. Muhammad Aslam Chishti, Advocate. 12. Malik Azmat ullah Kasi attorney for appellants urged in written arguments that counsel for respondents has candidly conceded that respondents failed to substantiate their claim regarding properties which have been transferred through INTIQAL-E-WARASAT except one purchased by appellant No,2. Burden to prove Issue No,5 was upon respondents who in support of said issue produced D.W.i, D.W.2 and recorded statement of their attorney' but perusal of statements of these witnesses would show that the same are silent that when and in which circumstances Hiba' transactions were carried out. The witnesses contradicted each other regarding exact date, place and time of the declaration of gift. On the contrary the witnesses categorically admitted that the lady co-sharers have right in the legacy left by their father. Perusal of documentary evidence contravenes the stand taken by respondents. According to respondents properties in Mohal and Mouza Chashma Baleli, Tappa Baleli were transferred on 20th October, 1979 whereas the alleged donee signed the same on 16th September, 1979 which reveal that before declaration of gift by the donor, same was accepted by the donee. Disparity of signatures of donee is visible on gift mutation and other documents. There are glaring contradictions in the statement of attorney of respondents who during recording his statement tried to blow hot and cold in one breath. An amazing stand has been taken by respondents that family settlement was arrived in the year, 1971 between the parties and the daughters were paid cash and jewellery. The respondents failed to substantiate their claim because, had any family settlement arrived in the year, 1971 there was no need for the late father to gift the other properties in the year, 1979 and onward. On one hand the respondents claim to be owners of the properties on the basis of 'Hiba' and on the other hand the same were transferred in their name by Haji Abdullah Jan by means of lqrar-Nama/Khangi- Taqseem dated 8th April, 1989. Respondents failed to prove the three basic requirements of gift namely (1) declaration (2) acceptance (3) delivery of possession. This Court on one hand has to interpret the Holy Quran "NO SOONER A MUSLIM DIES HIS PROPERTIES DEVOLVES UPON HIS LEGAL HEIRS" and on the other hand this Court has to give verdict on the question whether respondents No,13 to 19 can be termed as legal heirs of late Abdullah Jan as their father has died in the year, 1972. According to respondents in the year, 1971 owing to family settlement the properties were distributed and they became owners of the same. On the contrary during arguments a plea was raised that as per section 4 of the Muslim Family Law Ordinance, 1961 the said respondents are legal heiRs, According to learned counsel section 4 of Muslim Family Law Ordinance, 1961 only applies where attestation of mutation of inheritance has been carried out. Under Articles 72 and 78 of Qanun-e-Shahadat Order, 1984 respondents are bound to prove that a valid transaction has been made in their favour. To prove the factum of 'Hiba' no witness was produced by the respondents. So much so none of the donee appeared in the witness-box to confirm the fact. So far limitation is concerned, it is constant view, of Hon'ble Supreme Court that no limitation runs against a co-sharer and the Islam recognize that the brothers cannot legally claim adverse possession against sisters and much less ouster. Admittedly properties have been transferred after the death
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of late Haji Abdullah Jan and the same were not in the knowledge of appellants so it can be presumed that the suit is well within time. He lastly urged that while dealing the question of inheritance with the household, pardanasheen and illiterate ladies the Court has only to see that the question of purported inheritance has been by-passed by the brothers just to oust the lady co- sharers from the legacy left by their predecessor-in-interest. ' Whereas on the other hand Mr. Muhammad Aslam Chishti, learned counsel for respondents in R.F.A. No,5 of 2001, vehemently opposed the submissions so advanced and the written arguments filed by appellants' learned counsel. He submitted that the suit is hopelessly barred by time qua gift property --- subject-matter of Issue No,5. The properties were gifted in lifetime of deceased Haji Abdullah Jan during the period commencing from 1960 up to 1979. The gifts were made absolutely in accordance with principle of Islamic Law i.e. Offer by the donor, acceptance by the donees followed by possession which is continuous till today. ' The learned counsel for respondents strenuously urged that the trial Court committed material irregularity in disbelieving the factum of gift qua property at S.No,7 for the simple reason that the signatures of donee are not available on mutation. It may not be irrelevant to mention here that during pendency of the appeal he through Civil Miscellaneous application filed copy of "Parth-e- Sarkar" wherein the signatures of Abdullah Jan are apparently available. This document was brought on record without objection of learned counsel for appellants, subject to all just exception. He emphatically argued that the…
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