ALI MARDAN Versus Mst. HAMIDA

ORDER

MUHAMMAD ALAM, J.--- Order datd 25-6-2014, passed by the learned Additional District Judge Skardu in C.F.A. No.29/2013, whereby, the learned Additional District Judge upheld the judgment/decree dated 27-05-2013, passed by the Civil Judge Skardu, in Civil Suit No.06/2010, has been challenged through this petition.

2. Respondents/plaintiffs filed Civil Suit No.06/2010 seeking possession of 1/3rd of the suit land on the ground that the same belonged to their father Mohammad Rafi. Soon-after death of Mohammad Rafi, his properties were registered in the name of Mohammad Murad, who was his only son. After death of Mohammad Murad, properties of Mohammad Rafi were registered in the name of Ali Mardan, grandson of Mohammad Rafi (petitioner/defendant). Mst. Rooh Hamza Begum was daughter of Mohammad Rafi besides his son Mohammad Murad. Mst. Rooh Hamza Begum is mother of plaintiff Mst. Hamida. Name of Mst. Rooh Hamza Begum did not appear in the revenue mutations. Mst. Hamida Begum, respondent/plaintiff No.1, Mr. Rustam Ali and Mr. Mohammad Hussain Baig are the heirs of Mst. Rooh Hamza Begum. In the year 2001, Mr. Rustam Ali, who was then residing in held Kashmir, came to Skardu and gifted his share to Mr. Ghulam Mohammad/respondent No.2. Petitioner/ defendant contested the suit through their written statement. Learned trial court framed issues and completed the trial proceedings. Learned trial court decreed the suit to the extent of SHARI share of respondents/plaintiffs. On appeal, the learned first appellate court upheld judgment/decree of the learned trial court.

3. I have gone through the file and have heard learned counsel for parties. In the case in hand, it is very important to note that respondent No.2/plaintiff is not legal heir of Mohammad Rafi, the grandfather of respondent No.1, or Mst. Rooh Hamza Begum, mother of respondent No.1. Per averments of the pleadings of parties, it is evident that the landed properties of Mohammad Rafi were mutated in the name of his son Mohammad Murad, and on his death, his son Ali Mardan. The suit in hand is for 1/3rd share of said landed properties. I have further noted that the learned trial court has passed the following decree:-

RELIEF:-

In view of the above issue wise discussion suit of I come to the conclusion that the plaintiffs are sharers in the suit property left by deceased Mst. Rooh Hamza Begum in accordance of Islamic Law. Therefore, the suit of the plaintiffs is decreed to the extent of their Shari shares in respect of property left by deceased Mst. Rooh Hamza Begum."

From the wording of the above operative part of judgment of Civil Court, it is evident that he has held respondent No.2 as legal heir of Mst. Rooh Hamza Begum, while para No.5 of the amended written statement dated 17-04-2010 does not show name of respondent No.2 among the legal heirs of Mst. Rooh Hamza. Per averments of para No.5 of the plaint, Rustam Ali and Mohammad Hussain Baig are among the legal heirs of Mst. Rooh Hamza Begum besides respondent No.1, but they have gifted their share from the properties of Rooh Hamza Begum in the name of respondent/plaintiff No.2. So it is very important to note that respondent/plaintiff No.2 is owner of the share of Rustam Ali and Mohammad Hussain Baig, if he could succeed gift of share of said persons in his name. Plain perusal of pleadings of parties clearly shows that respondent No.2 is plaintiff of the suit on the basis of gift of shares of Rustam Ali and Mohammad Hussain Baig in his name and never as legal heir of Mst. Rooh Hamza Begum. Property of Mst. Rooh Hamza Begum devolves on respondent No.1 and her two brothers namely Rustam Ali and Mohammad Hussain Baig if we accept that Mr. Rustam Ali and Mohammad Hussain Baig are her real brothers. In such a case, the question arises that whether the suit in hand is not result of mis-joinder of causes of action or mis-joinder of parties? Respondent No.1 is entitled to 1 /3rd share in the property of Mst. Rooh Hamza Begum on the ground that she is legal heir of said lady while respondent No.2 is bound to establish gift of the shares of Rustam Ali and Mohammad Hussain Baig independently. Respondent No.2 has obviously no share in 1/3rd of the property of Mst. Rooh Hamza Begum as a legal heir. Learned trial court has very wrongly declared respondent No.2 as legal heir of Mst. Rooh Hamza Begum. Yet another important aspect of the case is that respondents did not challenge findings of the learned trial court in any forum. In my opinion, learned trial court has based his decision on the plaint dated 29-06-2006 while the latest amended plaint is of 17-04-2010. The learned first appellate court has agreed with the findings of the learned trial court without applying his judicious mind to the above material irregularities.

4. In the above circumstances, I hold that the above pointed out defects in the impugned order as well as in the order of trial court are flouting, inviting interference of this court. Petition accepted. Impugned order of learned first appellate court and learned trial court are set aside. Case remanded to the trial court for trial of the case from any appropriate stage. Learned trial Court is further directed to afford chance to the parties for necessary amendments in the pleadings or even parties or either of the parties are free to file fresh suits if so advised. Learned trial Court is free to transpose parties if so needed. This file be consigned to record.

HBT/95/GB Case remanded.