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HJD/C -42
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In the Court of Mr. :em Ahrned

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 Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT

.'

BAHAWALPUR BENCH BAHAWALPU R

JUDICIAL DEPARTMENT

Civif Revision No.41 -D of 2009

Allah Diwaya and others

Versus
Mst. Pathani and others
JUDGMENT

Date of hearing: 06.02.2017

Petitioners by, Mr. Tariq Mahrnood Khan, Advocate.

Respondents by, IWs Saeed Anwar Chaudhary and

Muhammad Asirn Khan, Advocates.

ii\

MUJAHID MUSTAOEEM AHMED. J: By

filing the instant civil revision, the petitioners have assailed the
concturent judgments and decrees passed
by learned Civil
Judge, Khanpur and learned Additional District Judge,
Khanpur, dated 16.09.2003 and 29.11.2008 respectively, by
which suit of contesting respondents No.1 to 4 (respondents) to
the effect that they alongwith pro forma respondents No.5 & 6
were legal heirs of Ali Muhammad son of Muhammad Bakhsh
deceased and were entitlecl to inherit his revenue estate in
Mouza Mud Ilyas, Tehsil Khanpur, District Rahim Yar Khan
CLI
 stood decreed and mutati'n of inheritance No.g5 dated
07.06.1938 (Exh.pI) sanctioned exclusively in favour
of Allah
Dawaya-petitioner No.1 was set aside.

2. Brief facts necessary for decision of the instant civil

revision are that on death of Ali Muhammad son of
Muhammad Bakhsh, his revenue estate measuring g7
Kanal I
Marla situated at Mouza Mud Ilyas Khanpur, District Rahim
Yar Khan was transferred through mutation of inheritance in
favour of present petitioner No.r and he vide Tamleek
Mutation No.33i attested on 10.05.19g7 Exh.Dl transfened
this land to his sons remaining petitioners. Mst. pathani
Mai
and legal heirs of Mst. sharam Bibi-deceased respondents
No.1 to 4/plaintiffs in year 1999 filed suit for declaration to
the
effect that they alongwith pro forma defendants No.5
& 6 were
legal heirs of Ali Muhammad-deceased and entitled to inherit
his revenue estate and impugned mutation of inheritance was
against facts, law and ineffective upon their rights. The
petitioners i contested the suit claiming that the
respondents/plaintiffs were not entitled to inherit revenue
estate of AIi Muhammad-deceased. present petitioner No.l
specifically denied his. blood relation with Mst.pathani and
sharam Bibi. The leamed civil Judge, framed necessary issues
and after recording the evidence of the parties, while deciding
crucial issues No.l, 2 & 5 against the petitioners decreed the
suit of the respondents. The present petitioners assailed the
impugned judgment and decree before learned Additional
District Judge, Khan pur, whr vide impugned judgment and
decree dated 29JL2008 disnrissed the appeal. Thus the
petitioners have filed the instant civil revision mainly on the
grounds that the impugned judgments and decrees are
against
(l- |
 facts, law, result of misreading and non-reading
of evidence
and as such not sustainable.

3' During course of arguments, learned counsel

for the
petitioners hasr' vehemently maintained
that paternity of
Mst.Pathani and Sharam Bibi has been denied
by the
petitioners and respondents have failed to
produce any
documentary evidence to establish their craim
to inherit
revenue estate of Ali
Muharnmad-deceased and the courts
below have not correctly and legally appreciated
the evidence
on record.

4. Heard.

5. I
Mst'Pathani has specifically stated that she
PW-
was daughter of Ali Muhammad, and that Mst.sharam
Bibi
and Allah Diwaya were legal heirs of Ali Muhammad-
deceased. After death of her father, her brother (petitioner
No.l) was looking after his revenue estate and used to give
them produde of land. Three years back on consultation
of
revenue record she came to know that she and her sister
sharam Bibi-deceased had been deprived of the
revenue estate 4.
of their father. During cross examination she being illiterate
?ardanasheen' lady, due to slip of tongue made
a bald
statement that Yaqoob Ahmad rvas father of
Ari Muhammad
(whereas actual parentage of Ali Muhammad
is Muhammad
Bakhsh). she specificaly stated that present petitioner
No.l
was her younger brother. she denied the suggestion
that the
petitioner No.1 was not her brother and he had
never paid any
produce to her. Pw-2 Azeem Bakhsh deposed that pathani,
Mst. sharam Khatoon and Allah Diwaya are son and daughters
of Ali Muhammad and as such are entitled to inherit revenue
estate left by Ali Muhammad deceased. He deposed that Mst.
0-
Civil Reyision No.4I-D of 2009

Pathani was his cousin ancl petitioner No.l always admitted

them (Mst. Pathani and Mst. sharam Khatoon) his sisters
and
used to give them produce of the rand. During cross
examination he deposed that shah Muhammad and Mian
Naseer were 'brothers of Ari Muhammad. He categorically
denied the suggestion that Mst. Sharam Khatoon and Mst.
Pathani were not daughters of Ali Muhammad. pw-3 Hafiz
Faqeer ullah in his examination in chief supported the verison
of respondents. He rejected the suggestion that Mst. pathani
and sharam Khatoon were not daughters of Ali Muhammad.

6. In rebuttal present petitioner-Allah Diwaya as DW-

1 stated that he was sole legal heir of Ali Muhammad, pathani
and Sharam were not daughters of Ali Muhammad. He further
stated that he never gave share of produce to Mst.pathani and

Sharam Mai. During cross examination he deposed that

mutation of inheritance was sanctioned in the years lg3s-37
and his father died 213 years after sanction of mutation. (This
fact hints that the petitioner is not even aware of the fact that
mutation of inheritance is attested after death of a person and
not in his life time). He deposed that Mst. pathani is alive and
residing in Mouza Mud Ilyas. He admitted that her father's
name was Ali Muhanimad but he had no knowledge that who
r was said Ali Muhammad (rvhat was his parentage etc). He
deposed that he had not seen father of Mst. pathani and
sharam. He conceded that they were residing with Mian
Naseer. This clearly indicates that these two ladies are family
members/real sisters of the petitioner No.l and he is
concealing their relationship just to deprive them of the
inheritance. DW-2 Muhamad Nawaz in his examination in
chief stated that he had not seen Ali Muhammad in his life
time. He admitted that I\4ian Naseer and Mian shah
O-

.li
Civil Revision No.47-D of 2009

Muhammad were brothers of Aii Muhammad and Ali

Muhammad was father of Allah Diwaya-petitioner No.1. He
admitted that Mian Naseerwas the person with whom Pathani
and Sharam were residing. The above referred evidence proves

the claim of respondents that they are daughters of Ali

Muhammad, and this fact has been denied by petitioners,
without any valid and cogent basis. The petitioner
No.l/DWl has admitted that these ladies were residing
in the house of his paternal uncle but still he has not
given straight forward and true version about their
correct parentage and relationship with him and his
version in this regard. is fishy fishy and cannot be
accepted as gospel truth to adversely effect and
jeopardize the lega1 rights of respondents/plaintiffs. The
leamed Courts below have rightly concluded that at the time of
birth and marriages of respondents, there was no proper
mechanism for maintenance of binh registers, Nikah Registers
and for that very reason, the respondents/plaintiffs were
handicapped to produce such documents before the Court.

7. . The plea of petitioners that Mst. Sharam Bibi in her

life time has not demanded inheritance of Ali Muhammad and
thus it validly constitutes surrender of right and estoppel. But
this plea of surrender and estoppel is not established from
record, rather it stood proved that petitioner No.1 used to give
produce of the land to these ladies. In this regard reliance is
placed on '2004YLR l20L Lahore 'Muhammad Ali Sabtain
and 4 others Versus Mst. Shahjahan Bibi and 9 others' and
2005 SCMR 1447 'Muhammad lqbal and 5 others Versus
Allah Bachaya and 18 others'. In the latter precedent, it has

been laid down that right of inheritance of a female recognized

in "Shariah" cannot be denied on the basis of an oral assertion

Civil Revision No.47-D of 2009

of surrender in favour of a male member of family and in any

case, there is no concept of'estoppel to deprive a person of his

right in the inheritance in Islam. In PLD 1.990 Supreme Court

| 'Ghulam Ali and 2 others Versus Mst. Ghulam Sa m
Naqvi', it has been laid down that mere omission to pay profit
does not constitute ouster. The law does not penalise a co-
owner who relies on the honesty of his co-sharer and,
therefore, ordinarily the mere fact that he does not take the
trouble to assert his rights as he may be entitled to, would not
justiff an inference of ouster.

8. The leamed counsel for the petitioners has further

maintained that the limitation to claim inheritance was six
years and the suit was instituted in year 1999 aftet more than
60 years and as such the suit was time barred. Reliance has
been placed on 2007 SCMR 1446'Atta Muhammad Versus-
Maula Bakhsh and others-', whereas learned counsel for the
respondents has relied on the latest precedent reported as 20L4

MLD 1706'Khaliq Dad l'ersus Ahmad Nawaz' wherein it has

been laid down that wrong entry made in record of rights after

every four years in jamabandi gives a fresh cause of action to

plaintiff on every denial and suit can not be termed as time
barred. In 2015 SCMR 869 'Mahmood Shah Yersus Slted
Khatid Hussain Shah and others', it has been held that
possession of one co-heir would be deemed to be on behalf of
even those who were out of it, and preparation of every new
record of rights, in their case would confer on them a fresh
cause of action and no length of time would culminate in
extinguishment of their proprietary/possessory rights. Similar
view was taken in 201.4 SCMR 806 'Pakistan through

Secretalv' Ministry qf Communication and Worla and others

Versus S:red Muhammad .lsmail Shah and others'. In 2007
 scMR 635'Mst. suban versus Ailah Ditta and others,, it has
been held that limitation starts running not from the
time of
death of predecessor-in-interest
nor even from the date of
mutation but from the date when right of any such co-
sharers/co-inheritors in such property was denied. In pLD
1990 supreme court 1 referred supra, it has been laid down
that wrong mutation confers no right in property as revenue
record is maintained only for purposes of ensuring realization
of land revenue, co-sharers/co-owners are not obliged to file a
suit to seek a declaration to the effect that a mutation had
wrongly been sanctioned, suit filed, due to denial of rights of
the co-sharer, for declaration would be within time and the
Revenue Authorities on success of such suit would be required
by law to correct the wrong mutation. It was also observed by
Apex Supreme court in this case law, that as soon as an owner
dies, succession to his property opens and no state intervention
needed for the passing of the title immediately to the heirs.
Thus it is obvious that a Muslim's estate legally and juristically
vests imr{rediately on his death in his or her heirs and their
rights respectively come into separate existence forthwith.
Notwithstanding that whether legal heirs like it, want it, abhor
it or shun it. It is the public policy of Isiamic Law. It is oniy
, when the property has thus vested in the heir after the
succession opens, that he r;r she can alienate it in a lawful
manner. In this precedent while examining the scope of rights
of inheritance of females, it has been observed that such rights
are so wide and their thrust so strong that it is the duty of the
courts to protect and enforce them. Thus the learned courts
below have rightly concl'ded that in view of the facts,
circumstances of the case aud evidence on record, the suit of
the respondents is not hit by law of lirnitation.
, {r

9' In view of above discussion, to my view the

learned
courts below have rightry appreciated the evidenc6
on record
and decreed the suit of contesting respondents
in their favour
and other pro forma respondents hording them
regal heirs of
Ali Muhammad son of Muhammad Bakhsh and that they
alongwith petitioner No.l are entitred to inherit
his revenue
estate and impugned mutation of inheritance is ineffective
upon their rights. The impugned judgments
and decrees do not
suffer from misreading or non-reading of evidence
and call for
no interference in revisional jurisdiction of this Court.
Consequently, the instant oivil revision being
devoid
merits is dismissed. .uny

ujahid Mustaqeem Ahmed)

Judge

Approved for reporting.

yV >-t2

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