Claim of Inheritance After 50 Years – Legal Position and Burden of Proof”
50پچاس سال بعد جائیداد اپنے نام کروانے کا دعویٰ — قانونی پوزیشن، اصول اور شہادت کا معیار
1. 50 سال بعد دعویٰ —
2. قانونی اصول
3. ایسے مقدمات میں ثبوت
(
سال بعد دعویٰ کیوں زیادہ مشکل ہو جاتا ہے؟
5. ایسے مقدمے میں عدالت کون سے سوال کرتی ہے؟
6. دعویٰ کب قابلِ قبول ہو سکتا ہے؟
7. 50 سال بعد دعویٰ کب کمزور یا ناقابلِ سماعت ہو جاتا ہے؟
نتیجہ
---Must read judgement
2025 C L C 47
[High Court (AJ&K)]
Before Chaudhary Khalid Rasheed, J
RASHEEDA BEGUM and 9 others---Appellants
Versus
RAUF SUBHANI and others---Resondents
Civil Appeals Nos. 370 and 371 of 2019, decided on 18th October, 2024.
(a) Qanun-e-Shahadat (10 of 1984)---
----Art. 79---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of documents and perpetual injunction---Document relied upon by party being deficient---Proof---Marginal witnesses, non-production of---Effect---Claim of the predecessor of appellants (original plaintiff) was that the mutation/gift deed and subsequent sale deed in favour of defendants were liable to be cancelled as suit-land was purchased by him in the year 1963 from their (defendants') father---Trial Court dismissed the suit filed by predecessor of appellants for want of proof whereas it decreed the counter suit filed by the respondents, and the District ( First Appellate) Court concurred with the findings of the Trial Court---Validity---Predecessor of appellants (being plaintiff) based his claim on a receipt having been exhibited by him ('Exhibited Receipt') , perusal of which (Exhibited Receipt) revealed that description of property was not mentioned in the same, that is, which of the land had been sold through the Exhibited Receipt---It was enjoined upon the plaintiff to produce the marginal witnesses of the Exhibited Receipt in order to prove the same under Art. 79 of the Qanun-e-Shahadat Order, 1984, or to mention the reasons that why the marginal witnesses of the receipt were unable to record their statements and if the marginal witnesses had died, it was necessary to bring on record the proof of their death or non-availability for recording their statements---But the plaintiff neither produced marginal witnesses of Exhibited Receipt nor mentioned any reason for their non-availability---Plaintiff also failed to produce the writer of the receipt, thus the Courts below were justified to observe that the plaintiff had failed to prove the execution of the document (Exhibited Receipt)---The witnesses having been produced by the plaintiff failed to depose that Exhibited Receipt was written in their presence, thus, they were hearsay witnesses who could not be relied upon---Even otherwise, said Exhibited Receipt revealed that the whole consideration amount was paid and the possession was handed over to the vendee and nothing was to be done in future, thus the same could be considered at the most as a defective sale which did not create any right---Even if it was an agreement to sell a declaration could not be granted---No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed , in circumstances.
(b) Registration Act (XVI of 1908)---
----S. 17(2)(v)---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of documents and perpetual injunction---Unregistered document---Effect---It was enjoined upon the plaintiff to get the sale deed from the vendor registered because under S. 17(2)(v) of the Registration Act any document having the value of 100 rupees and upwards to or in immovable property is compulsory to be registered---Thus, receipt exhibited by plaintiff being violative of law could not be relied upon---No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed, in circumstances.
(c) Specific Relief Act (I of 1877)---
----Ss. 42, 39 & 54---Suit for declaration, cancellation of documents and perpetual injunction---Limitation---Suit filed by plaintiff (predecessor of appellants) was time barred because the plaintiff filed the suit after about fifty years of alleged sale-receipt having been written, and he failed to explain plausible cause for filing the suit with such delay (of about fifty years)---No illegality or infirmity having been noticed in the impugned judgments and decrees dismissing the claim on the point of limitation, Regular Second Appeal was dismissed, in circumstances.
(d) Specific Relief Act (I of 1877)---
----Ss. 12, 42, 39 & 54---Suit for possession and suit for declaration, cancellation of documents and perpetual injunction filed separately---Possession, claim of---Claim of the predecessor of appellants (plaintiff) was that the mutation/gift deed and subsequent sale deed in favour of defendants were liable to be cancelled as suit-land was purchased by him in the year 1963 from their(defendants') father while respondent also filed a suit for possession against predecessor of appellants (herein) pleading that he was the owner of the land and defendant (predecessor of appellants) had forcibly occupied the same, thus, the sale-receipt relied upon by him(predecessor of appellants) was fake and fraudulent---Trial Court dismissed the suit filed by predecessor of appellants for want of proof whereas it decreed the counter suit filed by the respondent, and the District (First Appellate) Court concurred with the findings of the Trial Court---Validity---As far as the suit filed by respondent for possession of the land was concerned since the [predecessor of appellant (being plaintiff) [failed to prove the Exhibited Receipt, thus, the ownership of respondent was established and relevant mutation, gift deed and sale deed were maintained---In the revenue record, predecessor-in-interest of appellants was entered as possessor as Ghair Moroos who had not challenged the entries in the revenue record, so the Courts below were justified to decree the suit filed by respondent---No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed, in circumstances.
(e) Specific Relief Act (I of 1877)---
----S.9----Suit for possession of immovable property---Limitation---Respondent had claimed possession of the suit land on the basis of ownership, and a suit for possession on the basis of ownership can be filed at any time, thus, no limitation ran against plaintiff/respondent--- Hence, the judgments and decrees recorded by the Courts below were liable to be maintained---No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed, in circumstances.
(f) Civil Procedure Code (V of 1908)---
----S. 100---Specific Relief Act (I of 1877), Ss. 42, 39 & 54---Suit for declaration, cancellation of documents and perpetual injunction---Findings of fact---Concurrent findings---Second appeal---Scope---Parties filed counter/separate suits claiming ownership of the suit property---Trial Court dismissed the suit filed by predecessor of appellants for want of proof, whereas it decreed the counter suit filed by the respondents, and the District/Appellate Court concurred with the findings of the Trial Court---Validity---Question whether the plaintiff now survived by appellants herein was the owner of land or whether the suit land was in the ownership of respondents, was a pure question of facts and both the Courts below had concurrently decided the same---Thus, the concurrent findings of facts could not be disturbed in Second Appeal unless some flagrant misreading, non-reading of evidence or violation of any settled law was pointed out---Appellants had failed to point out apparent violation of any settled law by the Courts below while passing the impugned concurrent judgments, thus the impugned judgment and decrees deserved to be maintained---No illegality or infirmity having been noticed in the impugned judgments and decrees, Regular Second Appeal was dismissed, in circumstances.
2022 SCR 416 ref.
Hafiz Fazal-ur-Rehman Dar for Appellants.
Chaudhry Khurram Manzoor for Respondents.
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