Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

R. A. No. S – 108 of 2012

Before :

Mr. Justice Muhammad Shafi Siddiqui

Applicants : Taki Muhammad and others,

through Mr. Abdul Qadir Bhatti Advocate.

Respondents : Mst. Saeed Akhtar and others,

through Syed Jaffar Ali Shah Advocate.

Intervenors : Mst. Fateh Khatoon and others,

through Mr. Tariq G. Hanif Mangi Advocate.

Date of hearing : 08.10.2018.

J U D G M E N T

MUHAMMAD SHAFI SIDDIQUI, J. : This Revision Application has a long history. This case was earlier remanded on two occasions both on account of moving an application under Order I Rule 10 CPC. Last time it was remanded by II^nd Additional District Judge, Khairpur in Civil Appeal No.48/2011 vide order dated 16.09.2011. The previous history as far as remand orders are concerned, are not relevant for the purpose of deciding controversy in hand. The last order after remand was passed on 15.03.2012 by Senior Civil Judge, Khairpur whereas the appellate Court in Civil Appeal No.67/2012 has maintained the order. Thus, this Revision Application is against the concurrent findings of facts and law. Taki Muhammad, applicant No.1 died issueless. Applicant No.2 Ghulam Hussain withdrew this Revision Application on 22.05.2015. The only controversy now left to be attended is an alleged claim of Muhammad Murad. The trial Court framed as many as 9 + 1 additional issue as 3(a). The trial Court held Mst. Saeed Akhtar wife of late Shah Muhammad to be a lawfully wedded wife whereas Mst. Tasleem Akhtar was also held to be a daughter of late Shah Muhammad.

2. The property was inherited by two brothers Taki Muhammad and Shah Muhammad through Ghulam Ali. As stated above, Taki Muhammad died issueless, Shah Muhammad claimed to have married Mst. Saeed Akhtar as well as Mst. Nabi Khatoon. There was no evidence as to whether Shah Muhammad had any children with Mst. Nabi Khatoon whereas Shah Muhammad was blessed with a daughter with his marriage with Mst. Saeed Akhtar. This marriage was challenged before the trial Court as well as appellate Court. Issues No.3 and 3(a) relate to respondent No.1 and respondent No.2 being wife and daughter of late Shah Muhammad. Trial Court while deciding issues No.3 and 3(a) relied upon documents such as Exh.83-B to Exh.83-F which came from the possession of plaintiff No.2 / respondent No.2. Exh.83-B is the Nikahnama of plaintiff No.2 i.e. daughter of Shah Muhammad which disclosed her father’s name as Shah Muhammad. Exh.83-C and Exh.83-D are the concession forms of Pakistan Railways in the name of plaintiff No.2 in which father’s name was disclosed as Shah Muhammad. Exh.83-I is the computerized NIC of plaintiff No.1 / respondent No.1 Mst. Saeed Akhtar wherein husband’s name is disclosed as Shah Muhammad. The evidence of plaintiff No.2 is, thus, supported by the documents referred above. Plaintiffs / respondents Mst. Saeed Akhtar and Mst. Tasleem Akhtar had filed subject suit for their entitlement in accordance with law. Apart from this documentary evidence, the trial Court also relied upon the evidence of Abdul Samad, Muhammad Yaqoob, Arshad Mahmood, Abdul Sattar and Muhammad Akram. Though plaintiff No.2 / respondent No.2 was cross-examined but no expersions / doubts were raised upon these documents which were produced by plaintiff No.2, hence there was no challenge to these Exhibits as produced by plaintiff No.2 / respondent No.2. In addition to this document even the oral testimony of the supporting witnesses has not been challenged. On this set of evidence which is relied upon by the trial Court as well as by the appellate Court concurrent findings of facts and law have reached which cannot be disturbed at this revisional stage which has a limited scope; i.e. (i) whether the jurisdiction was not exercised as vested? (ii) whether the jurisdiction was exercised which is not vested? (iii) whether there is material illegality and irregularity?

3. Perusal of these pieces of evidence thus support the contention of the respondent No.1 and 2 that they are not only legal heirs of late Shah Muhammad but are also entitled to the extent of their share under Muhammadan Law since there was no male descendant of Shah Muhammad. The controversy as to their entitlement, thus, is settled by the trial Court as well as by the appellate Court, however, it is only to the extent of their entitlement and share.

4. Considering the case of applicant No.3 Muhammad Murad, he claimed to have purchased 5-30 acres from Shah Muhammad and has produced certain entries in the Revenue record. The prime witness in support of that entry which otherwise was maintained for the purpose of fiscal record, is Aijaz Ali who is the Tapedar and whose signatures were shown in the entry when it was made on 22.05.1987. He has categorically stated in examination-in-chief that such entries do not bear his signatures and that the entries thus were not under his signature which is nothing but forged and fabricated. This examination-in-chief was not seriously challenged in the cross-examination. Relevant part is as under:

“I am posted at Tapo Mandan since last one year. (torn) of taking over charge I was handed over the record in same condition as (torn) today. During my posting no any entry produced by me today has been challenged before revenue, SDM, DC and Commissioner Sukkur. No Re.”

The entry may not have been challenged by the respondents No.1 and 2 but at the time of granting relief, the over all effect of the evidence has to be seen and the relief as claimed can be altered and molded according to the circumstances of the case. Not only the issue with regard to the entitlement of applicant No.3 Muhammad Murad was framed such as issue No.4 but the evidence is also available which negates the claim of applicant No.3. Issue is as under:

“Whether late Shah Muhammad sold out 5-30 acres of land in Deh Mandan to defendant No.3 in 1987 during his life time, if so its effect?”

The evidence of Tapedar is sufficient to dislodge applicant No.3 Muhammad Murad from his claim of purchasing 5-30 acres land out of deh Mandan from Shah Muhammad. Apart from solitary evidence of Muhammad Murad, he has not cared to produce or summon any material or witness. The only witness from the Revenue record is Aijaz Ali Tapedar who has deposed against him and hence the entry was not only doubtful but it was a managed as deposed by Tapedar.

5. In view of the above facts and circumstances of the case, I do not find any error apparent on the face of it nor the two courts below exercised their jurisdiction not vested in them. The trial Court and the appellate Court judgments are well supported by evidence and the claim of applicant No.2 was also considered in the shape of evidence available and issue framed. The Revision Application as such is dismissed.

6. Insofar as the applications under Order I Rule 10 CPC are concerned, the applicants are perhaps claiming their interest in the property from one Taki Muhammad who died issueless. Nabiat alias Nabi herself claimed to be former wife of late Shah Muhammad, hence nothing could be passed on. The other applicants such as, Mst. Fateh, Liaquat and Abdul Majeed have exhausted remedies and have lost up to appellate Court and the ligation was not pursued thereafter. Moreover, the Suit has already been disposed of as well as the Appeal. The applicants in miscellaneous application also exhausted their remedy in term of Section 12(2) CPC. The applications as such are dismissed as they are neither necessary nor proper parties at this forum.

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J U D G E

N.M.