Mst. AAMNA BIBI Versus ALI SHER

SYED ASGHAR HAIDER, J.--- This single judgment shall dispose of the instant petition(Civil Revision No.2317 of 2006) as well as Civil Revision No.1784 of 2006, as they emanate of same cause. The predecessor of the petitioners Mst. Salma Bibi filed a suit for declaration claiming inheritance in the estate of Qasib, her maternal-grandfather, challenging Mutation No.7, dated 11-11-1952, pleading that she was illegally deprived of her inheritance in the estate of Qasib deceased. The pedigree-table of the parties reads:---

Qasib (deceased) | Mst. Bhagi | (deceased) | | ________________________|________________________ | | | | Kaki (deceased) Muhammad Din Ramzan Ali, Sher | Salma Bibi (deceased) | | ___ |________________________ | | | Aamna Bibi Aasia Shafi Najma Bibi

2. Qasib owned land in India after partition he migrated to Pakistan and was allotted 74 Kanals and 17 Marlas land in Chak No.365/JB, Tehsil Gojra, District Toba Tek Singh.

3. The respondent controverted the claim, filed written statement and denied that Mst. Kaki, petitioners' predecessor was daughter of Qasib, of the divergent pleadings of the parties issues were framed, after contest the trial Court dismissed the suit. Aggrieved thereof the petitioners filed appeal before the District Judge, Toba Tek Singh, it too was dismissed. The petitioners assailed these judgments and decrees in this Court and filed Civil Revision No.1477 of 1990, which was allowed, the proceedings were remanded to the District Judge, Toba Tek Singh for decision on merits. After remand the appeal was again dismissed, the petitioners again filed Civil Revision No.1933 of 1996, in this Court, if again was allowed, the judgment and decree was set aside and the matter again remanded back to the stated Court for re-decision. The appeal, this time was partly allowed and Mutation No.7, dated 11-11-1952 was declared illegal and ineffective qua rights of Mst. Salma Bibi, it was declared that her mother was entitled to the legacy and estate of Qasib deceased, in land subject-matter of this mutation. However, her claim to the extent of land subject-matter of Mutation No.1243, dated 25-6-1973 was declined. The petitioners are aggrieved to the extent of Mutation No.1243, dated 25-6-1973 and pray that they be granted the land subject-matter of this mutation, hence this petition.

4. The facts in the other petition (Civil Revision No.1784 of 2006) are similar and identical, except that the respondents pray that the judgment and decree granting share to the petitioners' predecessor by declaring Mutation No.7, dated 11-11-1952 is illegal and be set aside.

5. Mr. Jari Ullah Khan, Advocate learned counsel for the petitioner contended that it was held in the impugned judgment that Mst. Kaki was daughter of Qasib, therefore, she was entitled to his legacy and estate subject-matter of both mutations, viz. Mutations Nos.7 and 1243. The observations made in the impugned judgment that Mutation No.1243 dated 25-6-1973, has not been challenged in the plaint is incorrect, Exh.P.13 (registered sale-deed dated 21-3-1973), the basis of Mutation No.1243, dated 25-6-1973, clearly proves the petitioners' entitlement in this land. On equitable grounds the learned counsel submits that it is a case in which brothers have connived and colluded with each other to the disadvantage of the petitioners' grandmother and mother and deprived them of inheritance in the estate of Qasib, their agony and suffering are immeasurable and lastly that on legal plain the impugned judgment is not tenable as it stands established and proved that Mst. Kaki was entitled to succeed to the estate of her father, she could, therefore, not be deprived of the fruits of his estate in land which was subject-matter in Mutation No.1243. To fortify his contentions learned counsel has relied on the following precedents:--

(i) Nazir Ahmad and others v. Abdullah and others 1997 SCMR 281, (ii) Muhammad Boota and 48 others v. Allah Ditta and 14 others 1998 SCMR 2764, (iii) Siraj Din through L.Rs. and 2 others v. Akbar Ali and others 2005 SCMR 921 and (iv) Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.

6. Learned counsel for the respondents Mr. S.M. Masud, Advocate, vehemently contested this position, he raised preliminary objection qua the maintainability of the 'proceedings stating that the matters of inheritance of refugee right holders cannot be challenged in. the Courts of plenary jurisdiction, therefore all proceedings carried out in this context are coram non judice, the forum for redressal of dispute was Settlement Authorities, the petitioners did not invoke their jurisdiction, as such, they are not entitled to any relief now. To further augment-his view point he stated that the orders passed by the Settlement Authorities attained finality and, therefore, cannot be questioned. In this context he relied on Muhammad Saleem and others v. Sardar Ali and others 2004 SCMR 1640 and Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762. He thereafter gave break up of the disputed land as under: --

(a) Total land allotted

71-K, 17-M

(b) Personal claim of the petitioners

10-K, 4-M

(c) Land transferred to Mst. Bhagi excluded by

7-K, 10-M

Additional District Judge, as purchased by the petitioners and registered sale-deed Exh.D.3 on 21-3-1973

(d) Mortgagee land

37-K, 7-M

Note

This land was purchased by the petitioners and they paid the entire sum. Even this fact is admitted by P.W.2 that even the price was paid by the petitioners. However, total land 37 Kanals, 7 Marlas has been shown in the register Ishtimal Arazi proved as Exh.D.9.

(e) Land of Jhanda

7-K, 10 M

He also raised issue of maintainability of the suit on the question of limitation and referred to Mst. Salma Bibi v. Ali Sher and others 1994 CLC 2189 and lastly stated that the petitioner Kaki etc. are all females, they have no male child, they are followers of Hanfi Fiqa and, therefore, their entitlement to .the estate of Qasib is on principles of Hanfi Law and they cannot get more than their due share of 1/2, thus, rest of the land has to revert back to the respondents.

7. I have heard the learned counsel for the parties at length and perused the impugned judgment and decree in depth. The dispute is narrowed down and restricted to' the question of maintainability of this .petition and proceedings before the Courts of plenary jurisdiction and also the entitlement of the petitioners in two mutations qua the estate of deceased Qasib. As far as question of maintainability is .concerned the parties have been litigating for the last 20 years, the matter was adjudicated and decided by the trial Court, lower Appellate Court and this Court twice, the proceedings were remanded and it was clearly, directed that the matter shall be adjudicated on merits. It is, thus, obvious that: the respondents did not raise issue of jurisdiction in all these tiers, fully participated in the proceedings, contested them, therefore, it is too late for them, now, to -raise objection qua maintainability, therefore, this objection is overruled, the question of limitation too has been addressed therefore, it also warrants no interference. Now adverting to the question of share of inheritance of the petitioners in the estate of deceased Qasib it is clear from the head note of the' plaint that the petitioners' predecessor challenged only Mutation No.7, dated 11-11-1952 and did not challenge the other mutation (Mutation No.1243). This position is further affirmed from the judgment, dated. 8-2-1990, passed by the' Civil Judge, Toba Tek Singh. The petitioners had ample time and opportunity to amend the plaint because the matter was agitated in different tiers of judicial hierarchy. No effort in this context was made, therefore, the petitioners cannot now call in question Mutation No.1243 in the present proceedings, claiming benefit of the estate of the deceased subject-matter of Mutation No.1243, therefore, the impugned judgment is in complete consonance and harmony with the pleadings of the parties and evidence tendered, warrants no interference. All material evidence produced by the parties has been considered in the impugned judgment, learned counsel for both parties have not been able to point out any' material illegality, irregularity, jurisdictional error or misreading and non-reading of evidence. Therefore, it is unexceptionable, resultantly, this petition as well as other petition have no merits and are dismissed. No order as to costs.

S.A.K./A-184/L Revision dismissed.