GHULAM NABI Versus FAQIR MUHAMMAD
ORDER
1. SAIDUZZAMAN SIDDIQUI, J. ‑‑‑This order will govern the disposal of Civil Petition for Special Leave to Appeal No.878‑L of 1994 and Civil Petition for Special Leave to Appeal No.896‑L of 1994 as both these petitions arise out of suit for declaration in which the dispute related to inheritance of land left behind by one Ladha Khan, who died in the year 1917.
2. These petitions have arisen in the following circumstances. Ladha, the last male‑holder in the case died on 6‑2‑1917 leaving behind about 2560 Kanals of agricultural land. It is an admitted position that Ladha had only one son namely, Karam Ilahi, who predeceased him. Karam Ilahi at the time of his death left behind 2 sons Muhammad Ali and Noor Din alias Noora and a daughter Mst. Begum. There is some dispute with regard to the date of death of Noor Din. According to some of the parties in the present litigation Noor Din died immediately after the death of Ladha while according to others Noor Din also predeceased Ladha. However, it is not disputed that in the mutation which was effected in the record of rights on 6‑6‑1917 in respect of the properties of Ladha 1/2 share was mutated in favour of Muhammad Ali while the other' 1/2 was entered in the name of Mst. Karam Bibi who was admittedly the widow of Noor Din alias Noora. It may be mentioned here that Noor Din at the time of his death was survived besides his widow Karam Bibi a daughter by the name Sardar Bibi, but no share was assigned to Mst. Begum in the mutation which was effected on 6‑6‑1917. The petitioners in Civil Petition No.896‑L of 1994 are the legal heirs of Mst. Begum.
3. Mst. Karam Bibi, widow of Noor Din alias Noora died in 18‑3‑1923 and on her death the limited estate to the extent of 1/2 in the properties of Ladha entered her name was also transferred in the revenue record on 26‑9‑192 7 in favour of Muhammad Ali presumably under the customary law. It mad be mentioned here that Sardar Bibi, the daughter of Noor Din alias Noora who was alive at the time of death of Mst. Karam Bibi, was not given any share in the estate which Karam Bibi held in her capacity as the widow of Noor Din alias Noora. The petitioners in Civil Petition No.878‑L of 1994 are the legal heirs of Mst. Sardar Bibi. Muhammad Ali who thus became the sole owner of the entire properties of Ladha, transferred his entire property in favour of his sons Faqir Muhammad, Wazir Ali, Amir Ali, and Bashir Ahmed vide mutation which was effected on 5‑8‑1969. Muhammad Ali died on 11‑10‑1969. On 23‑2‑1993 the petitioners in Civil Petition No.878‑L of 1994, who are sons of Sardar Bibi instituted a suit claiming 1/2 share in the properties of Ladha being Sharaee share of Noor Din alias Noora. In the aforesaid suit besides legal heirs of Muhammad Ali and Mst. Begum, the daughter of Karam Ilahi. all these person in whose favour properties were alienated by the sons of Muhammad Ali were also impleaded as parties. Two applications under Order VII, Rule 11, C.P.C, were filed in the suit praying for dismissal of the suit. The trial Court by order dated 18‑12‑1993 dismissed the application against which Civil Revision Application was filed in the High Court which has been accepted by the impugned judgment and the suit instituted by the petitioners in Civil Petition 878‑L of 1994 has been dismissed as barred under section 2‑A of the Muslim Personal Law (Shariat Application) Act, 1962 (hereinafter to be referred to as 'the Act' only). The petitioners in the above petitions are seeking leave to appeal against the impugned judgment of the learned Judge it Chambers.
4. In support of the above petitions, the learned counsel for the petitioners, inter alia, jointly contended that the rejection of the plaint under Order VII, rule 11, C.P.C was totally uncalled for in the present cases as the questions raised in the suit required examination of evidence in order to establish, whether on the death of Mst. Karam Bibi the property was inherited by Muhammad Ali as the male heir to the exclusion of other heirs. It is also contended by the learned counsel for the petitioners jointly that the learned Judge in Chambers fell in error in giving effect to the provisions of section 2‑A of the Act without adverting to the other provisions of the said Act. According to the learned counsel, the learned Judge in Chambers should have read section 2‑A (ibid) alongwith section 5 of the Act of 1962 in order to give effect to the intention of the Legislature. The learned counsel for the petitioners also jointly contended that according to the entry in the register recorded on 26‑9‑2927, the following entries appear:‑‑
5. The learned counsel for the petitioners. accordingly, contended that in view of this entry in the Revenue Record, the conclusion arrived at by the learned Judge in Chambers that Muhammad Ali on the demise of Mst. Karam Bibi inherited to the 1 /2 share of Karam Bibi also, to the exclusion of other heirs through ancestor Ladha is completely negatived.
6. The learned counsel for the respondents, on the other hand. contended that the entry in the register is partly based on mistake as at the time the entry was being made in favour of Muhammad Ali, Mst. Sardar Bib: was admittedly alive and it was in fact the question of inheritance which arose on the demise of 'Mst. Karam Bibi' was incorrectly described in the entry as 'Sardar Bibi.' The learned counsel for the respondents also contended that the judgment of Civil Court dated 17‑8‑1927 mentioned in the entry of dakhil kharij does not exist at all and as such the learned Judge in Chambers was perfectly justified in rejecting the plaint under Order VII, Rule 11, C.P.C as the suit instituted by the petitioners was not maintainable in view of the provisions of section 2‑A of the Act of 1962. The contentions raised by the parties require deeper examination and we, accordingly, grant leave to appeal in both the petitions to consider whether the rejection of the plaint by the learned Judge in Chambers under Order VII, Rule 11, C.P.C in the facts and circumstances of the case was justified?
7. A.A./G‑556/S Leave granted.