SAJWAR KHAN Versus MAQBOOL
1. This judgment will dispose of this revision petition as also Criminal Original No.129‑C of 1986 which has arisen out of the present revision petition.
2. Aroora, the last male owner of the land in dispute died before 1947 in India. The present litigation relates to his claim and allotment of land in Pakistan. As he had died issuless whole of his property was mutated in the name of his widow, Mst. Rahiman, as a limited owner. She died in 1961. Mutation No.14 of her inheritance was sanctioned on 2‑6‑1962 in favour of the respondents. The petitioner filed the present suit for a declaration that they were as heirs of Mst. Rahiman and Aroora, entitled to the inheritance to the extent of 1/3rd share. The suit was contested by the respondents on the grounds that the same was time‑barred; that the valuation of the suit was incorrect, that the petitioners were estopped from filing the suit; that the petitioners were not the legal heirs of Aroora and that the mutation in dispute has been sanctioned lawfully and validly. The following issues were framed:‑
(1) Whether the suit is barred by time ?
(2) Whether the valuation of the suit for the purpose of Court fees and jurisdiction is incorrect, if so what is the correct valuation? OPD.
(3) Whether the plaintiffs are estopped to file this suit by their words and conduct? OPD.
(4) Whether the plaintiffs are legal heirs of Aroora deceased? OPP.
(5) Whether the mutation No.14, dated 2‑6‑1962 is illegal void and ineffective on the rights of the plaintiffs to the extent of 1/3rd share of the suit land?
(6) Relief.
2. The learned Civil Judge, Depalpur decreed the suit vide judgment dated 17‑2‑1986. The respondents filed an appeal which was accepted by the learned Additional District Judge, Okara, vide judgment and decree, dated 21‑9‑1986 and the suit of the petitioners was, therefore, dismissed. This revision petition has been filed to challenge the said appellate judgment and decree. I have perused the record and have heard the learned counsel for the parties.
3. For facility of reference the following pedigree‑table which is almost admitted and which is proved from the record is reproduced:‑
3. Ahmad Khan
4. ________________|____________________
5. | | | |
6. Khairu Jeeba Lal Khan Moonda
7. | | | |
8. Aroora Kale Khan Nathoo Ali Nawaz
9. Lastmale owner died | ______|______ |______
10. (before 1947) | | | |
11. Mst. Rehman | Munshi Ismail |
12. (Widow, died 1961) | | | Sikandar
13. | | | (died after
14. ______________________________| | | Rahiman)
15. | | | | | |_____
16. Mst.peetan Maqbool Rehmat | SajwarKhan | |
17. Res No.2 Res. No.2 (died after | Pet No. 1. | Mst. Jeeben |
18. Rehiman) | Res. No. 6 |
19. | | (Widow) |
20. | ___ |________________________ | | | | | | | | ________________________| Mst. Tam Vakeel Iqbal Abdul Amin | | | | eez Bibi Pet Pet.3 Razzak Pet.2 | AkhtarBibi Rafi Khushi (not a No. 4 (died | respondent Res. No.4 Muhammad Pty.) after |
21. No.5 Res. No.4 Rahiman) |
22. ______|_____ | Manzoor Ahmad | Pet No.5 |
23. _________________________________________________ | | | | | |
24. Nasreen Mehdi Muhammad Mushtaq Muhammad
25. Respondent Hassan Altaf Ahmad Shafi
26. No. 10. Res. No.9 Res. No.8 Res. No.7 Res. No.11
27. I have mentioned earlier that the above pedigree‑table has almost been admitted by the parties. To elaborate the matter it may be stated that the petitioners' case is based on the said pedigree‑table and they have given the same in para 2 of the plaint and I have only added certain notes in regard to their rights, deaths and existence. The name of Mst. Tameez Bibi as daughter of Munshi has been added as admitted by the learned counsel for the parties. The case of the respondents is based on mutation No.14 attested on 2‑6‑1962, EXh.D.l. Most of the pedigree‑table is reproduced in the said mutation and it does not lie in the mouth of the respondents to deny the accuracy of the same because, as already said, they have based their claim on the same and they are contesting the case on the basis of the same. 'Hameed Khan was produced by the respondents as DWI and he made up the deficiency, if there was any. In any case both the learned counsel for the parties have admitted before me that the above pedigree‑table is correct.
4. In view of this pedigree‑table the question is whether the petitioners have any claim in the inheritance of Mst. Rahiman? When she died the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 (IX of 1948) was in force. Section 3 of the same makes it clear that on the termination of the limited interest of a female owner A the inheritance of the last male owner will open as if Shariat Law was applicable at the time of the death of the said last male owner. Mst. Rahiman the female limited owner died in 1961 and there is no dispute about it. Similarly, her husband Aroora admittedly died issueless before the independence of the country in 1947. Therefore, under section 3 (ibid) it will be the inheritance of Aroora which will once again open and it will have to be assumed that Shariat Law and not Customary Law was then applicable for his inheritance. It is admitted before me that at the time of death of Aroora, Kaloo and Ali Nawaz the predecessors‑in‑interest of the respondents and Nathu the predecessor‑in‑interest of the petitioners were alive. Therefore, the property of Aroora will pass to Ali Nawaz, Kaloo and Nathu in equal shares i.e. 1/3rd each. Under section 3 (ibid) if an heir of the last male owner had died in the meantime his share will pass on the heirs. Therefore, the shares of Ali Nawaz, Kaloo and Nathu will pass on to their heirs. Resultantly, the petitioners being the descendants of Nathu will inherit 1/3rd share of the whole property while the respondents being the heirs of Kaloo and Ali Nawaz will get 2/3rd share. Accordingly, it is held that the petitioners are the legal heirs of Aroora, the last Male owner and are entitled to inherit the property left by Mst. Rahiman, on her death, to the extent of 1/3rd share as claimed by them. Mutation No.l,l, dated 2‑6‑1962 to this extent is illegal. Either the same shall be revised or a new mutation shall, according to this decision be sanctioned by the Revenue Authorities. The decision of the learned appellate Court on Issues Nos. 4 and 5 is reversed and that of the learned trial Court is restored.
5. It has been argued by the learned counsel for the respondents that at the time of the sanctioning of the said mutation Ismail, father of Sajwar, petitioner No.l, was present and, therefore, Ismail at least and as a result, his son Sajwar is estopped from filing the suit. It may be noted that Ismail was present as a Lambardar as of duty and not as a party to the litigation. Therefore, he .could not be estopped from claiming his legal right. Similarly, Sajwar is not estopped from filing the suit. It may be added that if Ismail or Sajwar were estopped from filing the suit the respondents will gain nothing because the share of Nathu in any case will pass on to his heirs and not to the respondents. No estoppel against the petitioners or any one of them is proved. Issue No.3 is decided accordingly.
6. The petitioners had been in possession of the land in dispute to the extent of 12, Kanals and 11 Marlas all along. DW2, Maqbool, one of the respondents, admits that they were in possession since 15/16 years i.e. since the death of Mst. Rahiman. When they were in physical possession of the same the limitation did not start to run B against them. They could, therefore, file a suit for declaration when they came to know that the Revenue record was not showing them as owners. Their suit was, therefore, within time. Issue No.l is decided accordingly. Issue No.2 is not pressed before me.
7. Before parting with the case it will be appropriate to deal with Criminal Original No.129‑C of 1986 filed by the petitioners. The petitioners filed the revision petition on 30‑9‑1986. A status quo order was issued in their favour on 1‑10‑1986. The said Criminal Original was filed with the allegation that in spite of the said status quo order the respondents had taken forcible possession from the petitioners. The learned counsel for the respondents has half heartedly contended that physical possession of even the said land measuring 12 Kanals and 11 Marlas was with the respondents. However, Maqbool, D.W.2, who is, one of the respondents, admitted in the cross examination that the petitioners were continuing in possession and they were in possession for the last 15/16 years. The learned counsel for the respondents has also contended that after the appellate decision dated 21‑9‑1986 the petitioners amicably handed over the possession of the said land to the respondents. He has also contended that the possession was obtained through the revenue authorities on 27‑9‑1986 through Rupt Roznamcha No.27. A perusal of the said report shows that only the decision of the civil Court was incorporated in the revenue record through the said report and no possession was transferred or delivered to 'the respondents. Even otherwise the contentions of the respondents are self contradictory. Therefore, it appears that the respondents somehow took over possession after the issuance of status quo order dated 1‑10‑1986. Most of the parties are percent in person today and they have co‑operated with their learned counsel and with the Court in bringing the true facts to light. They are related to each other. Therefore, I would not like to take any action t the respondents. The learned counsel for the petitioners has also agreed to it and prays that the petitioners will be happy if the possession is restored to them.
8. The revision petition is accepted. The appellate judgment and decree dated 21‑9‑1986 are set aside. The petitioners are held to be owner‑‑ in possession of the land left by Mst. Rahiman to the extent of 1/'2rd share. Resultantly, the judgment and decree passed by the learned Civil Judge, Depalpur are restored. The respondents are ordered to restore physical possession of the 12 Kanals and 11 Marlas of land to the petitioners within one month, otherwise the learned Trial Court/Executing Court shall get the physical possession of the same restored to the petitioners. Criminal Original No.129‑C of 1986 is disposed of accordingly The parties shall bear their owns costs throughout.
28. S.Q./S‑156/L Petition accepted