2024 CLS 24
Other citations: 2024 CLC 195
[Balochistan High Court]
Before Shaukat Ali Rakhshani, J
Muhammad Alam—Petitioner
versus
Abdul Kareem and others—Respondents
Civil Revision Petition No. 350 of 2020, decided on 18th August, 2022.
HEADNOTES
(a) Specific Relief Act (I of 1877) —
— S. 42 — Balochistan Land Revenue Act (XVII of 1967), S. 172 — Suit for declaration — Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers — Scope — Section 172 relates to exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of revenue officer — S. 172(2)(vi) applies when there is no dispute with regard to the title and character of a property, but where there is factual controversy with regard to the title then the suit is competent and S. 172(2)(vi) would not bar the suit. [Para. No. 10]
(b) Contract Act (IX of 1872) —
— S. 11 — Who are competent to contract — Scope — A minor cannot enter into compromise — A person who has attained majority is competent and qualified to enter into a contract. [Para. No. 13]
(c) Qanun-e-Shahadat (10 of 1984) ––
— Art. 79 — Proof of execution of document required by law to be attested — Scope — The requirement of Article 79 comes into play and such condition is attached only with a registered sale deed, but not to a document or instrument of understanding-acknowledgement. [Para. No. 19]
Behlol Khan Kasi, Advocate for petitioner.
Zahid Muqeem Ansari, Advocate for respondents no.1 to 11-D & 14.
Muhammad Ayub Tareen, Assistant Advocate General (AAG) for official respondents.
Date of hearing: 5th August, 2022.
JUDGMENT
Shaukat Ali Rakhshani, J:—Petitioners-plaintiffs have preferred the captioned revision petition against the judgment & decree dated 28th September 2020 (“impugned judgment”) authored by Additional District Judge, Ziarat (“Appellate Court”), whereby the judgment & decree dated 20th February 2020 rendered by learned Civil Judge, Ziarat (“Trial Court”) was modified in a suit for declaration, possession, through partition, cancellation and correction of mutation entries with permanent injunction in respect of joint properties.
2. Genesis of the case when unfolded, reveals that predecessor-in-interest of the parties late Samand had four sons late Mir Afzal, late Saadat, Abdul Karim and late Haji Rehmat. Petitioners and respondents No.10-A to 10-C are sons of late Haji Rehmat; respondent No.1 Abdul Karim is son of late Samand; respondents No.2 to 5 are sons of late Saadat and respondents No.6 to 9 are sons of Mir Afzal, whereas respondent No.11-A to 11-C are sons and 11-D is widow of late Muhammad Zaman.
3. Claim of the petitioners is that their grandfather Samand Khan had purchased an agricultural land bearing Khewat/Khatooni No.4/4, 9 Qitas along with 1 Shabana Roz share of water at Mohal Sarri, Mouza Talari, Tappa Kach, measuring 8 rods 12 poles (hereinafter also known as “Charri“), whereas another property bearing Khewat/Khatooni No.30/30, 3 Qitas at Mohal & Mouza Kan, Tappa Kach and another agricultural land measuring 10 rods and 34 poles along with share of water of 3 shingars, Tehsil & District Ziarat (hereinafter referred as “Kan“) and a shop measuring 904 sq. ft situated at Jinnah Road, Quetta constructed upon Old Ward No.10, present Ward No.11 situated at Mohal & Mouza No.11 Tappa Urban-III, Tehsil City District Quetta (hereinafter known as “shop at Quetta”), which were purchased together by their grandfather and his four sons from the earning of the business ran by them jointly. According to petitioners, respondent No.1 Abdul Karim with connivance of the revenue authorities had made incorrect entries in the revenue record pertaining to the first two agricultural properties situated at Ziarat and that respondent No.1 Abdul Karim with collusion of their elder brother late Ghulam Nabi deprived the petitioners from their right and share in the shop at Quetta, which had fallen in their share after an informal family settlement arrived at amongst their predecessors named above. Lastly prayer was made that besides declaration of title, correction be directed to be made in respect of the incorrect entries made at the behest of respondent No.1 Abdul Karim with the connivance of the official respondents and decree the suit for possession in consequence of partition with permanent injunction of interference.
The respondents contested the suit by raising legal objections as well as controverting the facts narrated in the plaint. Respondents did not contest the correction in the revenue record in respect of agricultural properties situated at Ziarat, but vigorously contested that the petitioners have any right of share in the shop at Quetta.
4. Issues were framed out of the divergent stances of the parties, whereafter the petitioners produced seven witnesses and petitioner No.1 Muhammad Alam got recorded his statement as attorney, whereas on the other hand, respondents produced five witnesses and respondent No.1 Abdul Karim got recorded statement on his behalf as well as on behalf of remaining private respondents. Official respondents, having no interest, remained away.
5. At the end of the trial, learned trial Judge decreed the suit in favour of the petitioners in entirety as prayed.
6. The respondents, being annoyed and dissatisfied from the judgment & decree dated 20th February 2020, preferred an appeal before the Appellate Court, which was partly accepted and thereby modified the decree. For ease of convenience, modification made by the Appellate Court is reproduced hereunder;
“A. It is declared that the predecessor in interest of the plaintiffs and defendants No.10-A to 11-C namely Rehmat, defendant No.1 (Abdul Kareem), the predecessor in interest of defendants No.2 to 5 (Saadat) and predecessor in interest of defendants No.6 to 9 (Mir Afzal) are the legal heirs of late Samand and are co-owners of the property at serial No.1 to 2 mentioned in Para no.2 of the plaint as per Sharia.
D. Defendant No.12 is directed to cancel/rectify the Revenue record of the disputed properties whereby the name and share of each shareholder be corrected.”
Hence, this revision petition.
7. Adversarial parties have been heard and the record has minutely been gone through. The contentions raised by learned counsel for the parties are not highlighted at this stage, however, their averments shall reflect ahead while drawing reasons.
8. Unfurled facts emanating from the pleadings transpires that the predecessor-in-interest of the parties late Samand along with his four sons late Mir Afzal, late Saadat, respondent No.1 Abdul Karim and late Haji Rehmat purchased an agricultural land at Charri and their another agricultural land at Kan besides purchasing a shop at Quetta. Petitioners claimed that after demise of their father late Haji Rehmat in the year 1981, the elder brother of the petitioners late Ghulam Nabi, father of respondents No.10-A to 10-C and brother Zaman predecessor-in-interest of respondents No.11-A to 11-C on their and on behalf of their mother (died) entered into a family settlement with respondent No.1 Abdul Karim, late Saadat, father of respondents No.2 to 5 and late Mir Afzal, father of respondents No.6 to 9, whereby a share in the agricultural land at Charri and half share in the shop at Quetta fell into the share of late Haji Rehmat, whereas a cabin at Mansafi Road and a van with route permit came into the share of late Haji Mir Afzal and late Haji Saadat. Petitioners claimed that in the year 1988, the first family settlement was revoked, whereby their share was usurped by deleting the name of their father from the revenue record with the connivance of revenue staff; name of Abdul Karim was earlier mentioned in the revenue record as Hikmat, which was corrected by inserting his name as Abdul Karim, however, the previous entry as Hikmat remained intact, which caused infringement of their share in the said property. Petitioners maintained that they made an attempt to correct the entries, but failed. Conversely, attorney for respondents Abdul Karim deposed that besides ancestral land of their father at Killi Charri, a property was purchased by the four brothers at Kan, they also owned a cabin at Mansafi Road and a van with route permit and that in the year 1971 they rented a shop at Quetta styled as ‘Itehad General Store’ and then on 3rd May 1980, the said shop was purchased from its previous owners Shariq Raza Zaidi and Syed Nadeem Raza Zaidi in the sum of Rs.1,50,000/- (Rupees one hundred & fifty thousand) on three equal installments, whereof on the same date, an agreement was executed; after three & half years later, his brother Haji Rehmat died. According to attorney Abdul Karim on 23rd November 1980, the brothers entered into a family settlement, whereby their elder brother late Haji Saadat divided the ancestral property at Charri and joint property purchased by them situated at Kan in equal four shares; the property at Charri fell into his and late Mir Afzal share equally, whereas property at Kan fell into the shares of late Saadat and legal heirs of late Haji Rehmat (father of the petitioners), and since then all of the shareholders are enjoying their peaceful possession. Attorney for private respondents further claimed that their elder brother Saadat also divided the property situated at Quetta in the manner that the price of cabin at Mansafi Road was fixed Rs.20,000/- and van was priced at Rs.80,000/-, making it to be one share and the shop at Quetta with the investment and goods lying therein was priced at Rs.1,00,000/- as another share, which was equally distributed between the two brothers; the van and cabin were held by late Haji Saadat and late Mir Afzal, whereas the shop at Quetta fell into his and legal heirs of late Haji Rehmat equally. According to respondent No.1 Abdul Karim, attorney for the private respondents, Rs.50,000/-, being earnest amount paid to the previous owners of the shop at Jinnah Road, Quetta were divided into four bits of Rs.13,000/- inclusive of Rs.2000/- as payment made to the property agent. The legal heirs of late Haji Rehmat refused to have the share in the shop and demanded the amount in cash, whereof an instrument dated 17th December 1980 (Ex.D/3-A) was also executed. It is crucial to make note of the fact that late Ghulam Nabi, elder brother of the petitioners, on his and remaining legal heirs of late Haji Rehmat signed and executed the instrument and in continuation thereof, Rs.40,000/- were paid to late Haji Saadat, late Haji Mir Afzal and late Ghulam Nabi, elder brother of the petitioners, through a receipt (Ex.P/D-4) dated 10th January 1981 and Rs.45,000/- against which receipt (Ex.P/D-5) dated 4th January 1982 were issued.
9. Reverting back to the claim of the petitioners that since demise of their father, they have not been given the share in none of the properties inherited by them. The written statement of the private respondents, more particularly, the statement of respondent No.1, clearly manifests that correction in revenue record to the extent of petitioners and other legal heirs of late Haji Rehmat is not disputed and opposed. Respondent No.1, in clear words, testified that the wrong entries made in the revenue record is the fault of revenue staff, which cannot be attributed to him and denied that the name of late Haji Rehmat has been deleted in the revenue record at his behest and categorically stated that if the revenue staff corrects the revenue record by mentioning the name of late Haji Rehmat in the revenue record pertaining to their share in the agricultural land situated at Kan as per private family settlement, he shall have no objection at all.
10. Referring to the legal objections raised by learned counsel for the respondents pertaining to the petitioners having no locus standi, the fora has dealt with the issue rightly by holding that the petitioners have every right to institute the present suit for redressal of their grievance in regard to the questioned properties under lis. So far, the suit having been hit by sections 135 & 172 of the Land Revenue Act, 1967 (“Act of 1967”) is concerned, it may be observed that Section 52 of the Act of 1967 reads that an entry made in the revenue record of rights or in a periodical record shall be presumed to be true until the contrary is proved otherwise or a new entry is lawfully substituted thereof. Section 172 of the Act of 1967 relates to exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of revenue officer, but objections raised pursuant to clause (vi) of Section 172 of the Act of 1967 is not sustainable as the same is applied when there is no dispute with regard to the title and character of a property, but since in the instant case, there is factual controversy involved with regard to denial of the title that is why the suit is competent and clause (vi) of Section 172 of the Act of 1967 does not debar the petitioners to bring the present suit. More-so, since the petitioners had approached the revenue authorities for correction for revenue entries and as such failed, thus, after failure in resort to correct the entries by the revenue authorities, they had rightly approached the civil court to redress their grievance.
11. The bone of contention of the petitioners is that they were minor at the time of family settlements, particularly, referring to 17th December 1980, when purported instrument regarding shop in question (Ex.D/3-A) was executed in between respondent No.1 Abdul Karim and elder brother of the petitioners late Ghulam Nabi on his and on behalf of other legal heirs, for which their elder brother was not authorized. Scanning the evidence on record in view of the pleadings, there appears no doubt in my mind that a family settlement was arrived in between the parties, which was accordingly acted upon by them and their predecessors, and as such courts below have rightly endorsed the private family settlement [SEE: “IRSHAD ALIAS ABDUL RAHIM V. ASHIQ HUSSAIN” (PLD 2007 KAR 421)].
12. Muhammad Naeem (PW-7) testified that, although, the parties have entered into a family settlement, but officially partition has not been carried out. He also stated that due to family settlement, the shop in question fell into the share of late Haji Rehmat, father of the petitioners and respondent No.1 Abdul Karim and that the petitioners have not received anything from the family settlement. He showed ignorance that as to when father of the petitioners died and that in the year 2012 respondent No.1 Abdul Karim made further construction in the shop; that priorly it was single storey which has not been turned into two storey building. He also stated that he does not know anything about the sale of shop in question and that each shareholder is holding possession as per his share.
Undeniably, with regard to the agricultural land situated at Kan, having been fallen into the share of late Haji Rehmat, none of the respondents deny the right and title of the petitioners and their siblings entitled to the legacy of their father in consequence of the family settlement arrived at between the predecessor-in-interest of the parties, thus, the decree awarded to such extent has been found by this Court to be valid and based on proper appreciation of the oral and documentary evidence, particularly, admission by the private respondents in the written statement and no objection recorded by respondent No.1 Abdul Karim as attorney.
13. Foremost and crucial question is that as to whether half share fallen in favour of the father of the petitioners in the disputed shop can be relinquished by their late brother Ghulam Nabi, when they were minors. There is no other cavil with the proposition that the minor cannot enter into compromise rather, it would be appropriate to observe that the person who has attained majority can only be competent and qualified to enter into a contract as enunciated under Section 11 of the Contract Act (IX of 1972) (“Contract Act”). Excerpt of Section 11 of Contract Act is reproduced hereunder;
“11. Who are competent to contract. Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.”
14. Admittedly, late Ghulam Nabi, being elder brother was, albeit, not authorized by any court nor had any power of attorney while executing the purported instrument dated 17th December 1980 (Ex.D/3-A), but the silence on behalf of the petitioners and the other legal heirs including mother and adult brother late Zaman for more than three decades amounts to acquiescence. Imperative to observe that as per identity card of petitioner Muhammad Alam, his date of birth is 6th March 1979 and it is admitted feature of the case that at the time of execution of instrument dated 17th December 1980 (Ex.D/3-A), both the petitioners were minor and if roughly their ages are computed then they seem to have attained majority in the year around 1998 at least, but soon after attaining the age of majority, they should have rang the bell of the courts within three years as contemplated under Article 44 of the Limitation Act (ACT IX OF 1908) (“Limitation Act”) or six years as enunciated under Article 20 of the Limitation Act, but it is an undeniable feature that the petitioners have instituted the suit in the year 2017, after lapse of eighteen years and that too without any cogent explanation offered in the plaint or in their evidence. In this regard reference can be made to the judgment reported as “MEHR MANZOOR HUSSAIN & OTHERS V. MUHAMMAD NAWAZ & ANOTHER” (2010 SCMR 8042).
15. Viewing the issue from another angle that if para-361 of the D.F Mulla’s book “PRINCIPLES OF ISLAMIC LAW” (“Muhammadan Law”) is consulted, it defines de facto guardian as a person who may neither be a legal guardian nor guardian appointed by the court, but who may have placed himself in charge of the person and property of a minor. For ready reference para-361 ibid is reproduced herein below;
“361. De factor guardian. A person may neither be a legal guardian (S. 359) nor a guardian appointed by the Court (S. 360), but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor.”
In the case of “ADEEL SULTAN V. KHALID RASHEED & TWO OTHERS” (PLD 2017 LAHORE 590), the powers of de facto and de jure have been elaborated; summarizing that the property of the minor can be sold out by legal guardian to obtain double its value; where the minor has no other property and the sale is necessary for its maintenance; there are debts on deceased and other ways to pay the expenses exceeds the income of the property; whereas property is falling into decay and when the property has been usurped and the guardian has the reason that there is no chance of restitution. Driving to draw conclusion that paramountly, the benefit and welfare of the minor has to be kept in mind while selling the property of a minor. In Adeels Sultan’s case, while referring to para-272 of “Muhammadan Law by Faiz Badaruddin Tayyab G”, para-270 was quoted, which reads that guardian of the property of ward is bound to deal with it carefully as a man of ordinary prudence would deal with it as if it was his own and he may do all acts which are reasonable and proper realization, protection or benefit of the property. While dealing with the query as to whether the father being guardian without any express authority can alienate the property of minor, it was concluded in affirmative. In this case too, albeit, the brother late Ghulam Nabi was not enjoying legal authority, but, being an elder brother, having implied consent of his adult brother Zaman and mother of the petitioners, the instrument of understanding-acknowledgement (Ex.D/3-A) with Abdul Karim was correct, seemingly for the benefit of the petitioners, transpiring from the fact that on relinquishing the share he opted to receive cash amount, receipt whereof has been produced as Ex.P/D-4 and Ex.P/D-5 respectively.
16. Perusal of the purported instrument, it cannot be considered as a sale deed, rather the same at the best is an instrument of understanding or undertaking between the legal heirs of late Haji Rehmat and respondent No.1 Abdul Karim, late Haji Saadat and late Haji Mir Afzal (uncles) regarding questioned shop, whereof in lieu of the share of late Haji Rehmat, his late son Ghulam Nabi for the benefit of his siblings and mother, instead of retaining the share preferred to receive the cash amount, so received by him through receipts Ex.DW/4 & 5. Thus, if any wrong doing or the share of the petitioners has been usurped that may have been done by the elder brothers, impliedly well within the knowledge of their mother but not by respondent No.1 Abdul Karim or late Haji Saadat and late Mir Afzal. In the purported instrument (Ex.D/3-A), there is no mention of sale and purchase, therefore, it cannot qualify to be a contract within the meaning of Section 10 of the Contract Act, therefore, the conditions provided under Section 11 of the Contract Act and the bar contained in para-364 of the Muhammadan Law in no way debar brother late Ghulam Nabi being a de facto guardian to execute the purported instrument (Ex.D/3-A), thus, it cannot be invalidated or held to be void otherwise.
17. After relinquishment of the share, late Ghulam Nabi executed a sale deed containing seven pages produced as Ex.P/1-1 to 1-7 with its previous owners of the shop Shariq Raza Zaidi and Syed Nadeem Raza Zaidi, which was duly registered on 9th December 1981, wherein earnest amount of Rs.1,00,000/- were shown to have had already been paid whereas Rs.50,000/- were to be paid in the presence of Sub-Registrar. Respondents produced Abdul Malik (DW- 2) Junior Clerk of Sub-Registrar Office, Quetta, who produced the record and affirmed the registration of the registered sale deed as (Ex.D/1-1 to 1-7). Taj Muhammad (DW-5) appeared in court and affirmed that Abdul Karim became the owner of shop in 1980, who made payments to his brothers and nephew and produced the agreement dated 17th December 1980 as Ex.DW/3 and also produced receipts Ex.DW/4 & 5 in respect of disputed shop. He categorically denied that the signatures of late Ghulam Nabi are not on the receipts Ex.D/4 & Ex.D/5. Allah Noor (DW-3) testified and affirmed that he has seen the properties in question situated in Charri and Kan, which were partitioned in the year 1980 amongst the family members and each of the shareholder is in possession of the said properties as per their share and a shop at Quetta is owned exclusively by respondent No.1 Abdul Karim and that he is in possession of the same; despite lengthy cross-examination, nothing favourable could be extracted from him.
18. After execution of sale deed registered on 9th December 1981 and full payment thereof, the respondent No.1 Abdul Karim on 16th December 1981 vide mutation No.707 got alienated shop at Quetta from the names of its previous owners Shariq Raza Zaidi and Syed Nadeem Raza Zaidi in his name, which was produced and exhibited as Ex.P/16 through Shahabuddin Patwari (PW-6), representative of Saddar Qanungo Tehsil Quetta and onwards respondent No.1 Abdul Karim got mutated the said shop in the name of his sons Ehsanullah, Kaleemullah, Samiullah and Rafiullah vide mutation No.920 on 15th November 2018, produced by Shahabuddin Patwari (PW-4) as Ex.P/13.
19. Learned counsel for the petitioners augmented his stance by stating that the marginal two witnesses as required under Article 79 of the Qanun-e-Shahadat Order, 1984 (“Order of 1984”) have not been produced to prove the instrument (Ex.D/3-A). Such assertion and objection has no force as the requirement of Article 79 of Order of 1984 comes into play and such condition is attached only with a registered sale deed, but not to a document or instrument of understanding-acknowledgement, such as Ex.P/D-3.
20. As concluded earlier in preceding para supra the evidence on record persuades the court to believe that the parties had arrived at an informal family settlement as discussed hereinbefore and as such in consequence whereof the properties were partitioned and at a later stage the share of the questioned shop was left by the heirs of late Haji Rehmat and brothers of late Haji Rehmat (uncles) in lieu of cash in favour of respondent No.1 Abdul Karim. In the case of “YAR MUHAMMAD KHAN V. SAJJAD ABBAS”, (2021 SCMR 1401) in somewhat similar situation, it was alleged that the brother of plaintiff had committed fraud by using general power of attorney but it was held that the brother who had defrauded the parties was left with the choice of aggrieved party to pursue their remedies against any estate, which he had left at the time of his death. In the instant case, if any fraud has been committed by late Ghulam Nabi with his siblings, including petitioners then in that case the petitioners can sue the heirs of late Ghulam Nabi for recovery of amount received from respondent No.1 Abdul Karim, for non-disbursement amongst the siblings and mother of the petitioners and damages, but for that matter respondent No.1 Abdul Karim cannot be put at task or penalized as he had made payment independently to own the shop from its owners Syed Shariq Ali Zaidi and Syed Nadeem Ali Zaidi through a registered sale deed, which transaction has even not been questioned under the lis in hand.
Interestingly, the petitioners are on one side and his brothers, his nephews and uncles are on the other hand to repudiate their claim in respect of the agricultural land and in particular the shop in question, which infers the court to conclude that he has not approached the court with clean hands. Learned counsel for the petitioners made reference to the judgments MUHAMMAD ANWAR V. KHUDA YAR, (2008 SCMR 905), UMAR FAROOQ V. HAMID ALI, (2018 CLC 254), GHULAM SARWAR V. GHULAM SAKINA 2019 SCMR 567, and LAITF KHAN V. ALTAF KHAN 2018 CLC 608, which have been gone through, but the facts and legal propositions involved therein are distinguishable.
21. Petitioners have failed to discharge onus of proof of issues No.3 & 4 pertaining to mutations No.920 & 707 of the disputed shop for being fake and product of fraud and misrepresentation and the respondent No.1 being a sole owner of the said property.
22. Impugned judgment of Appellate Court regarding correction in the revenue record and inserting the name of the heirs of late Haji Rehmat in the agricultural land situated at Kan with possession through partition has been found to be based on proper appraisal of evidence, which warrants no interference and as such is upheld. However, the relief with regard to the shop in question stands unproved and hit by limitation is declined.
Corollary, the civil revision petition having been shorn of merits is dismissed.
Parties to bear the expenses at their own.
Petition dismissed