2013 Y L R 2187

2013 Y L R 2187

[Lahore]

Before Nasir Saeed Sheikh, J

Syed ABRAR HUSSAIN NAQVI---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No.4741 of 2013, decided on 28th February, 2013.

(a) Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration---Application under S.12(2), C.P.C. was dismissed summarily by Trial Court without recording evidence---Trial Court was not obliged to record evidence in each case---Prejudice had been caused to the case of the petitioner denying him the opportunity to prove the ownership of disputed property---No documentary proof was placed on record---Effect---No fraud was committed which could have given a cause of action for filing an application under S.12(2), C.P.C. against judgment and decree and there was no substance in the application to put it to trial---Application moved under S.12(2), C.P.C. not necessarily be decided after recording of evidence---Constitutional petition was dismissed in circumstances.

(b) Civil Procedure Code (V of 1908)---

----S. 12(2)---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration---Suit was decreed in favour of the plaintiff through written consent statement of widow who was owner of the land in question---Contention that lady was reflected in the record-of-rights as widow, therefore presumption arose that she herself was not owner of the land but inherited the land of her deceased husband as per custom and thus she could not become absolute owner of the subject property---Validity---Widow (allottee of land)  was  recorded  as  an  absolute  owner of the subject land in the record of rights---Lady could not be presumed to be a limited owner as a widow under the custom in circumstances.

     Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others PLD 1971 SC 791 and Syed Muhammad Munir (represented by 10 heirs) and others v. Abu Nasar Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others PLD 1972 SC 346 distinguished.

            Petitioner in person.

ORDER

            NASIR SAEED SHEIKH, J.---One Moazma Khatoon instituted a suit for declaration and permanent injunction on  31-5-2000 against Dilbari Begum widow of Syed Jalal Hussain. This suit was instituted in the Court of Senior Civil Judge, Mandi Bahauddin. The case of Moazama Khatoon was that Dilbari Begum was owner of 314 Kanals, 12 Marlas fully described in para-B of the plaint. She was also owner of house described in para-A of the plaint. Moazma Khatoon claimed that Dilbari Begum has gifted the entire her ownership to the plaintiff. Dilbari Begum appeared in the Court and submitted a consenting written statement. During the pendency of the suit, Dilbari Begum died and her L.Rs. were also brought on the record as defendants in the suit. Those L.Rs. are Sakeena Khatoon, Tasneem Kausar, Nargus Bano, Sanjeeda Bano and Maqadsa Khatoon. They also appeared in the suit and made a statement that they have no objection upon passing the decree in favour of Moazama Khatoon. Accordingly the learned Civil Judge on the basis of those consenting statements decreed the suit in favour of Moazma Khatoon on 23-4-2009. This suit remained pending for about nine years. A number of persons moved applications under Order I Rule 10 of C.P.C. which was dismissed.

2.         An application under section 12(2) of C.P.C. was moved on 21-7-2009, by two persons Syed Tasleem Hussain son of Syed Talib Hussain and Syed Abrar Hussain Naqvi son of Jamila Begum who is daughter of Talib Hussain. It was alleged in the application under section 12(2) of C.P.C. by the petitioners that the subject land was owned by Syed Jalal Hussain son of Syed Muhammad Ali who was in turn son of Syed Muhammad Naqi. Syed Jalal Hussain was stated to have married with Dilbri Begum and had died issueless before 1947 but no specification of his date of death was given in the application. It was further alleged in the application under section 12(2) of C.P.C. that the true owner of the land belonging to Dilbari Begum was Syed Jalal Hussain son of Syed Muhammad Ali. The applicants of application under section 12(2) of C.P.C. claimed their relationship with Jalal at third degree. It was further contended that as Dilbari Begum was not full owner of the subject property, she was just a widow of Syed Jalal Hussain and enjoyed no more status than that of a limited owner, therefore, she could not have made a statement in favour of Moazama Khatoon as absolute owner of the subject land and therefore the judgment and decree dated 23-4-2009 was the result of fraud and misrepresentation. It is further contended that after her death her L.Rs. also could not have consented to the passing of the decree dated 23-4-2009.

3.         The application under section 12(2) of C.P.C. was contested. The learned Civil Judge, Mandi Bahauddin through order dated 31-3-2012 dismsised this application under section 12(2) of C.P.C. holding that no fraud was committed which could have given a cause of action for filing an application under section 12(2) of C.P.C. against  the  judgment  and  decree  dated  23-4-2009. A revision petition was also filed by the petitioners against the order dated 31-3-2012 dismissing the application under section 12(2) of C.P.C. This civil revision came up for hearing before a learned Addl. District Judge, Mandi Bahauddin which was also dismissed vide judgment and decree dated 28-11-2012.

4.         Through the instant writ petition, the order passed by the learned Civil Judge, Mandi Bahauddin dated 31-3-2012 and the judgment dated 28-11-2012 passed by the learned Addl. District Judge have been assailed.

5.         The learned counsel who has argued the case himself as he claimed to be a party in the application under section 12(2) of C.P.C. contended that Dilbari Begum was reflected in the record of rights for the year 1988-1989 as widow of Syed Jalal Hussain, therefore, a presumption arises that she was herself not owner of the land but inherited the land of Syed Jalal Hussain as per customary law and thus she could not become absolute owner of the subject property. It is further contended that in the application under section 12(2) of C.P.C. the petitioners claimed that the subject property was owned by Syed Jalal Hussain son of Syed Muhammad Ali and that this statement was sufficient for the petitioners to seek the decision of the application under section 12(2) of C.P.C.  with an opportunity to prove the ownership of Syed Jalal Hussain through some documents but the learned counsel contends that as the application under section 12(2) of C.P.C. has been dismissed summarily, therefore, the prejudice has been caused to the case of the petitioner denying him the opportunity to prove the ownership of Syed Jalal Hussain. It is next contended that even if it is presumed that there is no documentary proof that the property was owned by Syed Jalal Hussain, it is not necessary to produce documentary proof of ownership of Syed Jalal Hussain as the mere entry in the record of rights for the year 1988-1989 in favour of Dilbari Begum, reflecting her as the widow of Syed Jalal Hussain was sufficient proof of the fact that she was inheriting the subject property under customary law. The learned counsel contends that the impugned orders passed by the two Courts below be set-aside and the case be remanded to the learned Civil Judge for allowing an opportunity to the petitioners to prove the contentions raised in application under section 12(2) of C.P.C. The learned counsel has placed reliance to the case-law reported as Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others (PLD 1971 SC 791) and Syed Muhammad Munir (represented by 10 heirs) and another v. Abu Nasar,  Member (Judicial) Board of Revenue, Punjab, Lahore and 7 other, (PLD 1972 SC 346) to contend that every widow under the customary law even if professing the religion of Islam before partition was presumed to be a limited owner of the property inherited from her husband.

6.         I have considered the arguments of the learned counsel for the petitioners.

7.         The petitioner has come before this Court in constitutional jurisdiction by filing the instant writ petition. The learned Additional District Judge in the judgment dated 28-11-2012 has recorded at page three of the judgment passed by him the following observation:--

            "It is important to note that the petitioners could not bring on record any proof that initially the property in dispute was allotted in the name of Syed Jalal Hussain (deceased husband of Mst. Dilbari Begum) and the said property subsequently was inherited by Mst. Dilbari Begum after the death of Syed Jalal Hussain as her widow."

8.         In the light of the above mentioned observation, this Court specifically put a question to the learned counsel that in order to persuade the interference by this Court, is the petitioner in possession of any document that the subject property was allotted to Syed Jalal Hussain or was his ownership and that Dilbari Begum inherited the same from her husband, the learned counsel contends that this is what he wanted to prove before the learned trial Court in this matter. No such documentary proof has however been placed on the record in the instant writ petition. The bona fides of the contention raised by the learned counsel are seriously open to question. As apparently the petitioner is not in possession of any document showing the subject property to be  that  of  Syed  Jalal  Hussain,  there  was  no substance in the application under section 12(2) of C.P.C. so as to put it to trial. It is not necessary that all applications moved under section 12(2) of C.P.C. be decided after recording of evidence. The two Courts below have not interfered with a consent decree which has been passed on the basis of statements recorded by the LRs of Dilbari Begum as well as of Dilbari Begum herself. It is not legally correct argument to raise by the petitioner that notwithstanding the fact that Mst. Dilbari Begum was recorded as an absolute owner of the subject land allotted to her in the record of rights of the year 1988-1989, she be presumed to be a limited owner as a widow under the customary law. The case-law relied upon by the petitioner has no relevance and application to the facts and circumstances of the instant case. No case for interference under section 12(2) of C.P.C. was made out. In exercise of my Constitutional jurisdiction, I am not persuaded to interfere in the orders passed by the two Courts below. The instant writ petition is accordingly dismissed in limine.

JJK/A-34/L                                                                                          Petition dismissed.