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Petitioner: Zakia Begum and another VS Respondent: Nasir-Ul-Islam Khan and others
Court Name: Balochistan High Court Judge(s): Muhammad Hashim Khan Kakar, Abdullah Baloch Title: Zakia Begum and another vs Nasir-Ul-Islam Khan and others Case No.: R.F. A. No .41 of 2014 and Contempt Application No.62 of 2018 Date of Judgment:2021-06-30 Reported As: 2022 YLR 2015 Result: Appeal allowed
JUDGMENT
JUDGMENT ABDULLAH BALOCH, J. This judgment disposes of R.F.A. No.41 of 2014 filed by the appellants against the judgment and decree dated 21st March 2014 ("the impugned judgment") passed by the learned Senior Civil Judge-II, Quetta ("the trial Court"), whereby fourth amended suit filed by the appellants against the respondents was dismissed. . While Contempt Application No.62 of 2018 filed by the applicants against the respondents. 2. Brief facts of the case are that the appellants filed suit for Declaration, Possession, Partition, Rendition of Accounts and Permanent Injunction against the respondents, which was amended from time to time and finally fourth amended plaint was filed by the appellants with the averments that the appellants-plaintiffs and defendants Nos.1 and 2 are the legal heirs of late Abdul Salam Khan, who was died on 2nd June 1977 and left behind the legal heirs namely Jamila Begum widow of Late Abdul Salam Khan, Mehmooda Begum, Saif-ul-Islam Khan, Shams-ul-Islam Khan, Razia Begum, Zakia Begum and Samina Saeed. The predecessor of the parties left behind a number of properties as well as business as their legacy, but some of them remained un-partitioned. However, the private defendants being brothers were looking after the suit properties as well as business on behalf of appellants-plaintiffs. The predecessor of the parties left behind the following properties (subject matter of the suit):-- i. Agricultural land situated Mahal Khushkaba, Karaizat Sariab Tappa Kaiche Baig Tehsil Quetta having Khatoni No.199/240, Khasra Nos.331 to 334 measuring 93 rod 8 pol, Khatoni No.64/57, Khasra No.344 measuring 4 rod 38 pol, with reference to Mutation No.842 Khatoni No.76/67, Khasra Nos.335 to 336 measuring 1 rod 7 pol.
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ii. Mahal Karaiz Wazir Muhammad Tappa Sadar Kansi Tehsil Quetta having Khatoni No.50/51 Khasra No.386 measuring 1 rod 37 pol. iii. Mahal Karaiz Kar Mouza Meyan Khan Tappa Kaiche Baig Tehsil Quetta Khatoni No.49/60 Khasra Nos.672 to 676 measuring 20 rod 30 pol. iv. Al-Shams Hotel, Jinnah Road Quetta, Khasra No.2275 (New 43) measuring 992 sq. feet Khatoni No.25/32 (New 49/88) having mutation No.496 and Khasra No.2274 (measuring 1061 sq. feet and 2273 (measuring 948 sq. feet), (New Khasra No.44, measuring 2011 sq. feet), Khatoni No.98/116 (New 33/49) having Mutation No.497, Ward No.6 (New 19), Mouza City. Tappa Urban, District Quetta. v. Two shops, Shara Jamal-ud-Din Afghani, Khasra No. 15663/ 11619/ 2096 (New 176), measuring, 169 sq. feet and Khasra No.15664/11619/2096 (New 175), measuring 170 sq. feet, Khatoni No.147/167, Ward No.5 (New 18) Mouza City, Tappa Circle No.1 (New Urban) District Quetta, have mutation No.592. vi. Land measuring 6 acres 1 rod 20 pol, Khasra No.490 Khatoni No.18/21 situated at Killi Gul Muhammad, Air Port Road, Quetta. vii. A "Business" under the title of Salam Paper and Stationary Mail situated at Shara Iqbal Quetta. viii. A printing press under the title of Bolan Muslim Press situated at Chuhermal Road, Quetta. ix. Khasra No. 800/345 Khatoni/ Khaiwat No.244/271, measuring 7 rod 31 pol, Mahal was Mouza Khushkaba Karaizat Sariab, Tappa Kaiche Baig, District Quetta, having Mutation No.1069. x. Khasra Nos. 14438/11355/2288 (New 80) measuring 128 sq. feet, Khasra No.15568/ 14440/ 11355/2288 (New 78) measuring 134 sq. feet and Khasra Nos.15570 / 14440 / 11355/2288 (New 76) measuring 150 sq.feet, Ward No.6 (New 19, Khatoni No.121/140 (New 49/88), Mouza City, Tappa Urban, District Quetta, having Mutation No.498. xi. Khasra No. 15589/ 14606/14374/ 13954/12740/ 11671/2101 (New 128) measuring 125 sq. feet, Khatoni No.85/97 (New 72/85) and Khasra No.15590/14606/ 13474/13954/12740 /11671/2101 (New 125) measuring 126 sq. feet, Khatoni No.85/97 (New 108/130), Ward No.5 (New 18), Mouza City, Tappa Circle No.1 (New Urban),, District Quetta, having Mutation No.591. xii. Khasra No.84 measuring 2757 sq. feet and Khasra No.85 measuring 2050 sq. feet, Khatoni No.5/6, Mouza Ward No.6 (New 19), Tappa Urban, District Quetta, having Mutation No.70. xiii. Khasra Nos.818/329 and 330, Khatoni No.236/259, measuring 33 rod 16 pol. Mahal Khushliaba Karaizat, Mouza Sariab, Tappa Kaiche Baig, District Quetta, having Mutation No.1908. xiv. Khasra Nos.335 and 336, Khatoni No.67/72, measuring 6 rod 17 pol, Khasra No.340, Khatoni No.289/315, measuring 1 rod 0 pol and Khasra Nos.337, 338 and 339, Khatoni No.289/315 Min, measuring 5 rod 7 pol. Khushkaba Karaizat, Mouza Sariab, Tappa Kaiche Baig, District Quetta Mutation No .2622. 3. The mother of private parties (Mst. Jameela Begum widow of late Abdul Salam), who was died on 24th August 1982, left behind the following two properties:-- Bungalow No.446/3/3 measuring 22,000 Sq: ft: approximately situated at Musa 'Road, Quetta Cantt, Agricultural Land situated at Mahal Khushkaba, Karaizat Sariab Road Tappa Kaiche Baig, Tehsil Quetta having Khatoni No.236/196, Khasra No.818/329 and 330 measuring 11 rod 6 pol." 4. The suit was contested by the respondents-defendants by means of filing written statements, whereby categorically admitted the above properties initially belonged to late Abdul Salam Khan and late Jameela Begum, but through Will distributed amongst the legal heirs in their life time which was accepted by the parties. 5. Out of the pleadings of the parties the learned trial Court framed the following issues:-- 1. Whether suit is not maintainable in view of legal objection "A & B"? 2. Whether plaintiffs are entitled to share in the properties left by deceased Abdul Salam Khan and Mst. Jamila Begum? 3. Whether plaintiffs are entitled to relief claimed for?" ADDITIONAL ISSUE:
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1) Whether defendants Nos.9 to 15 are bona fide purchaser of the suit property at Khasra Nos.43 and 44 Mutation Nos.137 and 138, Ward No.19, Tappa Urban Tehsil and Distt Quetta and they are legal and lawful recorded owners in possession of the same ?" ADDITIONAL ISSUES: 1. Whether suit of the plaintiff is barred by statutory and general participle of "estoppel" in view of section 41 of the Transfer of Property Act (Act No. IV 1882 and Article 114 of the Qanun-e-Shahadat Order, 1984.? 2. Whether plaintiff's have no right and title to file the instant suit under section 42 of the Specific Relief Act. " 6. After framing of issues and recording evidence the suit of the appellants/plaintiffs was dismissed, vide impugned judgment and decree as mentioned above in para No. 1. 7. Being aggrieved from the impugned judgment and decree the appellants filed appeal before this Court and this Court, while accepting the appeal, remanded the matter to the learned trial Court and the appellants were permitted to file an amended plaint before the learned trial Court, vide judgment dated 17th August 2020. 8. The appellants being aggrieved assailed the judgment dated 17th August 2020 of this Court by filing Civil Petition No.202-Q/2020 before the Hon'ble Supreme Court of Pakistan. The Hon'ble Supreme Court, after hearing the parties, vide order dated 6th January 2021 remanded the case to this Court with the following directions: "3. Since all the parties are in agreement that the said appeal should have been decided by the learned Judges of the High Court themselves, therefore, by consent the impugned judgment dated 17 August 2020 is set aside and the said appeal will be deemed pending before the High Court and it shall be decided by the learned Judges themselves in accordance with law at an early date since the appeal is of the year 2014 and suit was filed in the year 2005. We are confident that the learned Judges will not unnecessarily adjourn the case and proceed with it expeditiously. This petition is converted into an appeal and allowed in the aforesaid terms." 9. It is pertinent to mention here that the case was heard and reserved for pronouncement of judgment on 1st April 2021, however, during the course the respondent No.1 (Saif-ul-Islam Khan) was died on 14th April 2021, thus the matter was re-fixed for hearing with direction for filing of amended title by impleading the legal heirs of former respondent No.1 amended title was filed by the appellant and legal heirs, of respondent No.1 are arrayed as respondents Nos.1-A to 1-H accordingly they were represented by M/S Khushnood Ahmed, Habib Ullah Nasar, Nadir Ali Chalgari, Advocates. However, newly respondent No.1-F Hira Zahid was out of country, she was informed by Shuja-ul-Islam son of Respondent No.2, but she could not make her representation. 10. Mr. Azhar Ahmed Khan, Attorney of the appellants mainly contended that the appellants and the respondents Nos.1 and 2 are the legal heirs of the late Abdul Salam Khan and Mst. Jamila Begum, who having various movable and immoveable properties in their lifetime and after their sad demise the properties in question were automatically devolved upon the legal heirs and being brothers the defendants Nos.1 and 2 looking after the properties and business and the appellants being pardanasheen ladies followed faith and trust on their brothers, but unfortunately behind the back of appellants the defendants Nos.1 and 2 by means of a fraudulent "Will" transferred the revenue record of the moveable properties in their names; even otherwise, executed a false agreement on behalf of all legal heirs and through forged power of attorney transferred certain landed properties in their names by depriving the appellants and other legal heirs as well as by means of fraud transferred the business of their predecessor in interest, sold out certain properties to respondents Nos.9 to 15 without the consent and knowledge of the appellants, thus in such view deprived the appellants from legacy of their predecessors in interest. He further contended that the
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appellants are entitled to receive their due shares in the properties in question in accordance with Sharia law. 11. On the other hand, Mr. Khushnood Ahmed, Advocate learned counsel for respondents Nos.l-A and 2 mainly contended that the properties in question were distributed by the predecessors in interest of the parties in their lifetime through a "Will" dated 24th December, 1970 and duly executed with consent of the legal heirs of the predecessors in interest of the parties on the same date i.e. 24th December 1970, thus no question of partition would arise to the appellants. He further contended that all the transfers in revenue record were made on the basis of "Will" and the appellants were well within the knowledge and did not raise any objection for such a long period, thus suit of appellants is hopelessly time barred and also hit on the principle of estoppel. He prayed for dismissal of the appeal. Mr. Habibullah Nasar, Advocate for respondent Nos.1-B, 1-C, 1-E, 1-G, 1-H and Mr. Nadir Ali Chalgari, Advocate for 1-D relied upon the arguments of Mr. Khushnood Ahmed, Advocate. 12. Mr. Qasim Khan Achakzai, Advocate learned counsel for respondents Nos.9 to 14 and Mr. Gul Hassan Tareen, ' Advocate learned counsel for respondent No.15 unanimously contended that the respondents Nos.9 to 15 are the bona fide purchasers of the properties sell to them by the recorded owners of that time i.e. defendants Nos.1 and 2 and after getting their satisfaction from the revenue authorities the properties were purchased and the sale consideration was paid to the defendants Nos.1 and 2 and no one came forward to raise any objection and since then they are enjoying the peaceful possession of the properties in question and invested a huge amount for construction/modification and business in the properties. They mainly contended that no cause of action accrued to the appellants against the respondents Nos.9 to 15. 13. It is pertinent to mention here that the suit and appeal was not contested by the respondents Nos.5 to 8 and 16 to 18. Accordingly they were proceeded against ex-parte. Likewise the newly respondent No.1-F Mst. Hira despite awareness failed to make her representation, thus she is also proceeded against ex-parte. 14. Heard the Attorney of appellants, learned counsel for the respondents as well as learned A.A.-G. and perused the record with their valuable assistance, which reveals that the appellants filed a suit for Declaration, Possession, Partition, Rendition of Accounts and Permanent Injunction in the trial Court, which was amended from time to time and lastly fourth amended suit was filed by the appellants with the averments that appellants-plaintiffs and private respondents Nos.1-A to 1-H and 2, 5 to 8 and 16 to 18 are the legal heirs of late Abdul Salam Khan, who died on 2nd June 1977 and Mst. Jamila Begum widow of late Abdul Salam Khan, who died on 24th August 1982 left behind various properties and business as mentioned in paras Nos.1 and 2 of the plaint as their legacy and the same was remained un-partitioned. The predecessors in interest of the parties namely late Abdul Salam Khan and late Mst. Jamila Begum left behind two sons and four daughters as legal heirs namely; (i) Saif-ul-Islam, (ii). Shams-ullslam, (iii). Mehmooda Begum, (iv). Razia Begum, (v). Zakia Begum and (vi). Sameena Saeed. The private respondents/defendant Nos.1 and 2 being brothers were looking after the properties as well as business on behalf of the appellants/plaintiffs, even in the lifetime of their predecessors in interest and after the sad demise of their predecessors in interest the whole properties as mentioned in paras Nos.1 and 2 of the plaint remained unpartitioned amongst the legal heirs and the respondents Nos.1 and 2 behind the back of the appellants and other legal heirs by means of fraud transferred all the landed immovable properties and business of their predecessors in interest in their names in the revenue record and prepared a forged "Will", and power of attorney and by means of these forged documents deprived the appellants from their legal rights of inherited properties, while filing the written statement the respondents/ defendants Nos.1 and 2 admitted the contents of the paras Nos.1 and 2 with regard to properties mentioned in the plaint of plaintiffs/appellants initially belonged to late Abdul Salam
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Khan and late Mst. Jamila Begum, but on 24th December 1970 they distributed their all properties amongst their children through a registered "Will" dated 24th December 1970, which was also accepted by the plaintiffs and defendants Nos. 1 and 2, vide agreement dated 24th December 1970 duly executed, accepted and signed by the plaintiffs and replying defendants Nos.1 and 2 before the respectable witnesses, thus at the time of death of late Abdul Salam Khan and late Mst. Jamila Begum their all properties distributed amongst their children and they are in possession of their respective shares and the plaintiffs have never challenged the same right from 24th December 1970 because they had already received their due shares during the lifetime of their father and mother. 15. From the bare reading of para No.1 of written statement of respondents Nos.1 and 2 it appears that they did not deny the relationship with the appellants, it also appears that the respondents/ defendants Nos. 1 and 2 have categorically admitted that the properties mentioned in the paras Nos.1 and 2 were initially belonged to late Abdul Salam Khan and Mst. Jamila Begum, but the same was distributed during their lifetime through a Will and the possession of the respective shares were handed over to each legal heirs including the appellants. 16. To resolve the main dispute between the parties, though the learned trial Court framed certain issues, but same are mostly irrelevant out of the pleadings of the parties and also wrongly been resolved, which was observed in our judgment dated 17th August 2020 and the matter was remanded to the learned trial Court for reframing of issues, but the above judgment was assailed by the parties before the Hon'ble Supreme Court of Pakistan and the parties shown their desire before the Hon'ble Supreme that instead of remanding the matter to the learned trial Court the Hon'ble High Court should decide the case in accordance with law and the Hon'ble Supreme Court of Pakistan remanded the matter with consent of the parties with directions to this Court td decide the appeal. Thus in view of the directions passed by the Hon'ble Supreme court of Pakistan we are disposing of the 'instant appeal on the basis of available record with our zeal and zest and care and caution. To resolve the dispute between the parties first of all to dilate upon the issues framed and decided by the learned trial Court. The learned trial court has not only failed to frame proper issues, but also failed to decide the same in accordance with law. The Issue No.1 and additional Issue No.2 are with regard to maintainability of the suit on the point of limitation, which are reproduced as under:-- 1. Whether suit is not maintainable in view of legal objection "A & B"? Additional issue: 2. Whether suit of the plaintiff is barred by statutory and general participle of "estoppel" in view of section 41 of the Transfer of Property Act (Act No. IV 1882 and Article 114 of the Qanun-e-Shahadat Order, 1984.? The suit of appellants/plaintiffs was dismissed only on the points of limitation that the properties in question were distributed amongst the parties on the basis of Wills, which were prepared in the year 1970 according to that Wills and Suit filed by the appellants after considerable long period, but it is settled principle of law that time of limitation, is not applicable to right of inheritance which does not extinguish such right by afflux of time. Reliance in this regard is also placed on the case of, "Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447 relevant portion whereof is reproduced as under:-- Bar of limitation is not applicable to right of inheritance which does not extinguish such right by afflux of time---Right of inheritance of a female, recognized in Shariah, cannot be denied on the basis of oral assertion of surrender of such right by a female in favour of male member of family and in any case, there is no concept of estoppel to deprive a person from his right in the inheritance in Islam---Party, in the present case, had not been successful in showing that the female had surrendered her right in the property in favour of her brothers in a lawful manner or
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the suit involving right of inheritance could be dismissed on the ground of estoppel or limitation-- -Judgment of the High Court was neither in, conflict with Law of Inheritance in Islam nor was the result of misreading or non-reading of evidence brought on record by the parties. Reliance is also placed on the case of "Sahib Jan and others v. Mst. Aysha Bibi through L.Rs. and others", 2013 SCMR 1540 wherein the suit was filed after 58 years:-- 6. About the submission that the suit was barred by time, because it has been filed after fifty eight years or more (note:- after the death of Muhammad Afzal) and from the date of mutation, by virtue whereof, Mst. Ayesha was excluded from the inheritance, suffice it to say that upon the death of a Muslim, his legal heirs automatically shall become the co-sharers in the estate left by him and one co-sharer cannot deprive the other from his such right. It is also not disputed that Mst. Ayesha was one of the legal heirs of Muhammad Afzal under the Shariah, if the rights of the parties were governed by the Personal law (note: not under the custom). Obviously, in the situation, when Mst. Ayesha against the mandate of Act 1935 and the Shariah was ostensibly denuded of her lawful right to the suit property as a co-sharer and was precluded from the exercise of such rights and she had made out a case within the purview of section 18 of the Limitation Act, 1908 and nothing was brought on the record by the appellant that she had a direct or indirect knowledge of the mutation, the limitation in such peculiar circumstances shall hardly come in the way of the respondent. This is particularly so, as shall find mention in the latter part of this judgment that it is the case of the appellant that on account of some family settlement the respondent has been compensating from the legacy of her deceased brother. The plea therefore has no merits and is hereby discarded. Likewise, in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC. 1, it was held as under:-- This controversy now stands finally settled by a recent judgment of this Court. It was held in 'Haji v. Khuda Yar' (PLD 1987 Supreme Court 453) that a similar adverse entry and non-participation in the profits of the property would not amount to an ouster. While taking note of the earlier case of Anwar Muhammad and others v. Sharif Din and others' (1983 SCMR 626) in extenso it was observed that "wrong mutation conferred no right in property as revenue record is maintained only for purposes of ensuring realization of land revenue". The suit in the said case was treated as having been "based on title and not for correction of revenue record". Accordingly it was not held to be a case of adverse possession and the suit was found to be within limitation. In the case of Anwar Muhammad the defendants in an inheritance case of similar nature, having failed in the High Court their plea of adverse possession and limitation was repelled by this Court with the following statement of facts, observations and findings: - The inheritance of Lakhwera was in dispute between the parties who are descendants from the same common ancestor. The plaintiff-respondents claimed that as heirs they were, entitled to a particular share in this estate of Lakhwera and the mutations attested in 1907 and 1908 with regard to the devolution of his estate were not in accordance with the law. The petitioners resisted the claim not on the ground that the plaintiffs were not heirs of Lakhwera according to Shariat or that their shares were different from those claimed by them but on the ground that a suit, for declaration was not competent as they were in possession of the suit land, and that it was hopelessly barred by time. A number of issues were framed and the two Courts dismissed the claim of the plaintiffs-respondents but in second appeal it was held that the plaintiffs- respondents admittedly held the land jointly with the petitioners and that their possession over the land was through their co-sharers and the declaration of the property could be obtained by them and the Revenue Record had to be consequently corrected to reflect it.
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The learned counsel for the petitioners has reiterated the points taken up earlier. His insistence is that in the Bahawalpur State before the enforcement of the Land Revenue Act, as the Settlement record shows, the settlement with regard to the payment of land revenue was made with those persons who were in cultivating possession over the land excluding altogether others who were out of such possession. It is contended that when Lakhwera died the petitioners were in possession of the land and were so recorded excluding the plaintiff's respondents. This the learned counsel for the petitioners wants to transform into principle of inheritance. Such a claim is based neither on custom nor on Shariat. What law prevails in the matter of preparation of Revenue record or what practice is followed by the officers cannot be determinative of the devolution of the estate of a deceased person. It appears that the plaintiffs-respondents were the heirs of Lakhwera and entitled to inherit in the same manner as the petitioners. The land being joint there was no question of their remaining out of possession or the suit being time barred. The possession of the one co-sharer is for the benefit of all the other co-sharers and a co-sharer is deemed to be in possession through his other co-sharers. Simply because the mutations were attested in 1907 or 1908 does not bless the transaction with sanctity. These mutations conferred no right in the property and are at best arrangements made on the fiscal side for ensuring realization of land revenue and ensuring the correctness of the Revenue record for that purpose." (Underlining is ours). In the same judgment it has been further held by the Hon'ble Supreme Court of Pakistan with regard to depriving of women folks. It has already been held that the devolution of property through Islamic inheritance takes place immediately without any other intervention; therefore, in this case the respondents-petitioners' sister, became the owner of the suit property immediately on the death of her father. She is said to have…
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