MUHAMMAD IBRAHEEM Versus ABDUL REHMAN
ORDER
ALI AKBAR QURESHI, J.--- This civil revision is against the judgment dated 12.12.1997 passed by learned Additional District Judge, Muzaffargarh, whereby the judgment and decree dated 11.04.1994 passed by the learned trial court was set aside and consequently the suit was dismissed.
2. The necessary facts for the disposal of this petition are that, the petitioners instituted a suit for declaration with perpetual injunction regarding the property (detail of which is given in the headnote of the plaint) on the grounds, that their predecessor in interest, namely, Saleh Muhammad son of Gohar, original owner of the property in question died on 07.01.1973 leaving behind the legal heirs (detail of which is given in Para No.2 of the plaint); after the death of Saleh Muhammad, inheritance mutation No.94 was entered and sanctioned on 08.06.1973, wherein the name of the predecessor in interest of the petitioners was entered; one Abdur Rehman, defendant No.1 in the suit and grandson of Saleh Muhammad got attested a gift mutation No.99, sanctioned on 08.06.1973, of the suit land, on the basis of a Will and by this way alienated the property in question in his favour; that the alleged gift and the will in the presence of the inheritance mutation has no legal sanctity and no gift or will was made by deceased Saleh Muhammad in favour of the defendant No.1 in the suit, that the aforesaid alleged documents has been prepared by fraud and misrepresentation and the petitioners are entitled to 2/9 share out of the suit property being legal heirs of Saleh Muhammad.
3. The suit was contested by the defendants of the suit mainly on the grounds, that suit is barred by time, the plaintiffs are stopped by their conduct to file this suit, a valid gift was made, therefore, the gift mutation was rightly attested in his name, whereas the defendants No.13 to 22 recorded their statements and conceded the claim of the petitioners/ plaintiffs.
4. The learned trial Court framed as many as 8 issues, recorded the evidence of the parties and finally decreed the suit, against which, an appeal was filed by the respondents which was accepted and the suit filed by the petitioners was dismissed. Hence, this revision petition.
5. Learned counsel for the petitioners submits, that admittedly and not denied by the other side, the inheritance mutation No.99 (Exh.P-1) was entered in favour of all the heirs of deceased Saleh Muhammad, therefore, after attesting the aforesaid mutation, the entry and sanctioning of a mutation of the same property on the same day is against the law.
6. The record was examined with the assistance of learned counsel for the parties from where, it is found that the inheritance mutation was sanctioned on 08.06.1973 after the demise of predecessor in interest of the parties to the suit strictly in compliance of Section 42 of the Land Revenue Act. All the heirs of the aforesaid deceased including the petitioner and the respondents are mentioned in the mutation No.94 (Exh.P-1). On the other hand, the mutation No.99 dated 08.06.1973 has been entered and sanctioned on the basis of Will (Wasiatnama) and Gift (Tamleek). The contents of aforesaid mutation for reference are reproduced in Urdu as under:--
8-6-73
7. The aforesaid contents recorded by the concerned Patwari while entering the mutation No.99 depicts that this mutation was entered on the basis of a Will ( ) along with Tamleek, allegedly as claimed by the respondents, were made by Saleh Muhammad Predecessor in interest of the parties to the suit. The learned counsel for the respondents, when confronted, to show the Wasiatnama/Will or the gift/Tamleek, the learned counsel for the respondents frankly conceded that the aforesaid documents were never produced by the respondents, therefore, are not on the record in any shape. However, as regards the gift, learned counsel for the respondents submitted that the gift was oral one and in fact through the Will/Wasiat, the predecessor in interest of the parties directed some of the person named in the Will to implement the gift made in favour of the respondent No.1/defendant No.1 of the suit. It is very strange that the respondents are claiming the ownership/title/ transfer of the land in question on the basis of the mutation No.99 dated 08.06.1973, entered on the basis of two documents i.e. Wasiatnama/Will and Tamleek but both the documents were not produced and proved by the respondents in accordance with law. Further, the respondents have miserably failed to prove the factum of gift and the Will made in their favour by any cogent or confidence inspiring and independent evidence, therefore, such type of the entry in the Revenue record including the mutation is totally illegal, unlawful, void ab initio and having no legal effect in the eye of law.
8. The respondent, as appears from the record of the instant case, in order to deprive the other legal heirs, with the connivance of the Revenue staff, succeeded to manage the entry of mutation No.99. This act of the respondent is not only against the law but also ordain of ALLAH, the Almighty. The Hon'ble Supreme Court of Pakistan, way back in the year 1990, through a landmark judgment cited as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), has concluded that the legal heir cannot be deprived. (It is also notable, that the inheritance mutation was entered prior to the mutation No.99). The judgments cited as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), Vakil Ahmad Siddiqui v. State Life Insurance Corporation of Pakistan and another (2011 CLC 2002), Muhammad Bakhsh v. Ellahi Bakhsh [Deceased] through Umar Khan and others 2003 SCMR 286 by the learned counsel for the petitioners are fully applicable on facts of this case, whereas the judgments cited by the learned counsel for the respondents Manzoor Hussain and 3 others v. Muhammad Siddique (2000 CLC 623), District. Evacuee Trust Committee, Hyderabad v. Ismail and 4 others 1990 SCMR 20), Arbab Jamshed Ahmad and another v. Ghazan Khan and others (1995 CLC 695), Muhammad Hafeez v. Muhammad Hanif Khan and another (1991 MLD 1576) and Mohammad Tufail and 4 others v. Mst. Mohammad Bibi alias Mahadan (Law Notes 1967 (W.P.) Lah. 60) have no relevance with the issue involved in this case.
9. Resultantly, this civil revision is allowed with cost throughout.
ZC/M-41/L Revision allowed.