KHAIR DIN vs Mst. SALAMAN and others

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal has been instituted by petitioner against the judgment dated 21-4-1999 passed by Lahore High Court, Multan Bench, Multan whereby civil revision filed by respondents has been allowed and the judgments/decree dated 12-7-1987 and 15-11-1989 passed by Civil Judge 1st Class, Vehari and Additional District Judge, Vehari respectively were set aside.

2. Precisely stating the facts of the case are that land measuring 157 Kanals and 7 Marlas situated in Village Sattar Shah, Tehsil Mailsi (hereinafter referred to as the "property in dispute") originally belonged to Qabool Khan son of Mola Bukhsh Rajput. On his death the property in dispute devolved upon his two daughters namely Mst. Salaman and Mst.Gaman and a son Khair Din. Through Mutation dated 15-5-1957 Mst.Salaman and Mst. Gaman purported to have sold their share in the property in dispute to Khair Din for a sale consideration of Rs,6,000. In December, 1980 Mst. Salaman and Mst. Gaman filed a suit for declaration to the effect that they are owners in possession of 1/2 share in the property in dispute and that mutation dated 15-5-1957 was illegal, void and ineffective upon their rights being the result of fraud as they had never entered into any such transaction of sale. They also sought permanent injunction restraining the petitioner from making an assertion on the basis of above mutation and interference in the correction of mutation entries. It may be noted that Mst. Gaman died during pendency of the suit; as such Chairagh etc. Were impleaded as her legal heirs.

3. The suit was contested by petitioner both on factual and legal grounds.

4. On pleadings of the parties issues including Issue No,8 "whether the plaintiffs are equally joint owners to the extent of half share of the suit land and the Sale Mutation No,305 dated 15-5-1957 in favour of Khair Din defendant No,1 was fictitious, without consideration. Collusive and fraudulent and thus, was ineffective upon the plaintiffs rights were framed. The parties were directed to produce evidence pro and contra. After recording evidence learned trial Court found Issues Nos.1 and 8 in favour of plaintiffs but while deciding Issue No,2 against respondents dismissed the suit being barred by time. The respondents being aggrieved from the judgment/decree of trial Court preferred appeal before Additional District Judge, Vehari. It is pertinent to mention here that petitioner also preferred cross-objections against the finding of trial Court on Issues Nos.1 and 8.

The Appellate Court vide judgment/decree dated 15-11-1989 dismissed both the appeal and cross- objections. The respondents being dissatisfied from the judgments/decrees of Courts below filed Civil Revision before Lahore High Court Multan Bench, which has been allowed by learned Judge in Chambers vide impugned judgment dated 21-1-1999. It may be noted that learned Revisional Court after scanning the overall evidence available on record concluded that petitioner has failed to establish that Mst. Salaman and Mst. Gaman had sold their share in the property to him, therefore, limitation shall not run against them because their status is of a co-sharer on the basis of earlier admitted mutation of inheritance bearing No,9, dated 16th May, 1957. As such instant petition for leave to appeal has been filed.

5. Learned counsel for the petitioner vehemently contended that suit filed by respondents was hopelessly barred by time because mutation under challenge was attested on 22nd September, 1959 whereas the suit was filed on 23rd June, 1986, as such learned High Court may not have interfered in the concurrent findings of fact recorded by Civil Judge 1st Class, Vehari and Additional District Judge, Vehari holding that the suit filed by respondents is barred by time.

6. It may be noted that as it has been pointed out hereinabove the parties inherited the property from their predecessor-in-interest namely Qabool Khan and on his demise Inteqal-e-Warasat was attested on 16th May, 1957 in favour of petitioner as well as Mst. Salaman and Mst. Gaman. Case of the respondents as wet up in the plaint was that petitioner got transferred their share on his name fraudulently in their absence by producing two other ladies. The claim of the respondents was repudiated. However, learned trial Court, Appellate Court as well as High Court concurrently held that petitioner deprived his sisters fraudulently from the land which they inherited from their father namely Qabool Khan, therefore, respondents shall be deemed to be in constructive possession of the property and their rights arising out of inheritance of their father Qabool Khan cannot be denied on limitation either under Article 142 or Article 144 of the Limitation Act, as it has been held by this Court the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.

Relevant para. Therefrom is reproduced hereinbelow;-- "It is not for the first time that it is being so held. Even earlier commentators on Islamic Law (its inheritance branch in particular) have indicated the same approach with reference to some decided case. The heir in possession was considered to be in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession, e.g., the possession of the brothers would be taken to be the possession of their sisters, unless there was an expression repudiation of the claims of the sisters by the brothers. Hyder Khan v. Chanda Khan (501 IC 691 (All.)." Besides above observation it is also to be noted that petitioner has adopted tactics to non-suit the respondents in view of Mutation No,305 dated 15-5-1957 which he fraudulently got attested from the name of respondents on his own name as it has been held by learned trial Court and confirmed by the appellate as well as High Court vide impugned judgment. Undoubtedly. No benefit can be derived by a person claiming proprietary rights in a particular property based on fraudulent transaction because it is well-settled that fraud if established on record is sufficient to vitiate most solemn proceedings. Reference in this behalf may be made to the judgments (1)

Ghias-ud-Din v. Iqbal Ahmad and 5 others PLD 1975 Lah 780, (2) Lal and another v. Muhammad Ibrahim 1993 SCM R 710, (3) Government of Sindh through Chief Secretary and others v. Khalil Ahmad and others 1994 SCM R 782, (4) John Paul v. Irshad Ali and others PLD 1997 Kar..267, (5) Mst.

Sarwari- Begum v. Atta-ur-Rehman 1997 CLC 1500 and (6) Muhammad Yaqoob v. The State 1997 PCr.LJ 1979. Thus for the foregoing reasons the petition being without substance is dismissed and leave declined.