1. In respect of a house as detailed in the heading of the plaint in Suit No.32/1, bearing No.923, situated at Mohallah Shah Faisal Kochi Bazar, Chowk Nasir Khan, Peshawar City (hereinafter referred to as “suit house”), on 21.1.2002, respondent through her brother and special attorney had instituted a suit for declaration and permanent injunction against the appellant.
2. The claim of respondent in respect of the suit house was based on two gift deeds dated 21.7.1986 and 02.8.1995, Ex.PW-1/1 and PW-1/2 respectively. As per the earlier gift of 1986, purportedly Mst. Fehmida Begum wife of Abdul Majeed Khan, who owned the suit property through registered deed dated 17.1.1977, had gifted the suit house to her brother Mirza Rab Nawaz, who was husband of the respondent, while by second gift deed dated 02.8.1995, said Mirza Rab Nawaz had purportedly gifted the suit house in favour of his wife, the respondent.
3. In her written statement, the appellant categorically denied such claim of respondent and disputed the genuineness of both the purported gift deeds produced and relied upon by the respondent to establish her title over the suit house. She also disclosed other relevant facts about the legal heirs/brothers of Mst. Fehmida Begum, and her own relationship with the respondent, being her only paternal niece (daughter of her deceased husband’s brother). The appellant further disputed the maintainability of the suit on various legal grounds, as shown in the plaint.
4. Upon divergent pleadings of the parties, as noted above, the trial Court of learned Civil Judge, Peshawar, framed six issues, out of which issue No.5 was the crucial issue for determination, which related to the genuineness or otherwise of the two purported gift deeds Ex-PW1/1 and PW1/2, relied by the respondent to claim her exclusive title over the suit house.
5. At the stage of evidence, the respondent had examined five witnesses including herself while the appellant had examined only her mother in law and attorney. Besides, another witness was examined by the Court as CW-1/1, who was the handwriting expert, to whom Ex-PW1/1 and some other documents purportedly bearing signatures/thumb impression of Mst. Fehmida Begum were sent for comparison of her signature/thumb mark over Ex-PW1/1.
6. The Civil Judge, Peshawar at the conclusion of proceedings in the suit, vide judgment dated 30.7.2004 decreed the suit in favour of respondent. This judgment was challenged by the appellant through an appeal under section 96, CPC filed before the Court of 2nd Additional District Judge, Peshawar on 29.9.2004, which was dismissed by the first appellate Court vide its judgment dated 18.11.2004.
7. These concurrent findings of the two Courts below were then challenged by the appellant in Revision Petition No.1575/2004, filed before the Peshawar High Court, Peshawar on 15.12.2004, which was finally heard and dismissed vide impugned judgment dated 24.11.2008. Against these concurrent findings of the three Courts below, when Civil Petition for leave to appeal was filed by the appellant, leave was granted in terms of the order dated 06.4.2010, which reads as under:
“A suit for declaration and perpetual injunction was filed by Mst. Gul Bibi (respondent) against Mst. Saadia (the petitioner). Respondent/plaintiff on the basis of un-registered Hiba claimed to be owner in possession of the suit property. Also pleaded that petitioner (real niece of the real owner of the house) had no right or interest in view of Hiba. Contesting written statement was filed by the petitioner. Issues were framed. Evidence was recorded by the learned trial Judge. The suit was decreed and appeal of the petitioner-defendant was dismissed. Her Civil Revision also failed before the High Court. Hence the present petition for leave to appeal.
2. Learned ASC for the petitioner raised the following questions:
(i) As to whether the two Hiba namas could be legally relied upon without due registration in accordance with Section 17 of the Registration Act. And as to whether un-registered Hiba-namas were admissible under Section 49 of the Registration Act ibid;
(ii) Whether the learned Courts below should have legally examined the above questions even if petitioner had failed to properly raise the same in her written
statement or in the memo of appeal; and
(iii) As to whether the respondent/plaintiff succeeded in proving execution of Hiba namas and making of Hiba thereof in terms of law;
3. The above questions require consideration, leave is granted.”
8. We have heard the arguments of learned ASC for the appellant. He has briefly stated relevant facts of the case forming background of this litigation, particularly with reference to the legal heirs of Mst. Fehmida Begum, wife of Abdul Majeed, the original owner of suit house vide registered deed dated 17.1.1977, who died issueless, having five brothers, Mirza Mushtaq, Mirza Nisar, Mirza Abdul Latif, Mirza Nazir Ahmed and Rab Nawaz. Learned ASC submitted that out of them, three had died issueless, while it was only Mirza Nisar, the fourth brother, who had one daughter Mst. Saadia, the present appellant, who was minor at the time of death of Mst. Fehmida Begum. But in order to deprive her of her legitimate claim in the suit house, being the only descendant from the brothers of Mst. Fehmida Begum, two fraudulent, fabricated and forged gift deeds were prepared/managed. He argued with vehemence that surprisingly both these deeds were attested by four witnesses each, but except one, no other marginal witness of the gift deeds Ex-PW1/1 was examined nor it had been registered to give some credibility or authenticity as to the time of execution of such gift deeds, which could otherwise be easily fabricated and prepared at any time after the demise of original owner Mst. Fehmida. As regards the possession of suit house, he argued that possession of the suit house all along remained jointly with the family of Mst. Fehmida Begum till her death and thereafter with her brothers, including the father of the appellant, when she was a minor, therefore, question of delivery of possession also remained unproved. He further argued that judgments of all the three Courts below suffer from misreading and non-reading of evidence, so much so, that even the original Hibanamas Ex-PW1/1 and PW1/2 were not proceeded before the Court to prove their authenticity, whereas the witnesses were confronted with their photostat copies, which were not admissible in evidence, irrespective of the fact whether any objection to this effect was raised or not.
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