Raheem Dad and others Vs Lal and others

Judsment Sheet

Prsna,wlRHrcH CoURT AsnorrA,saD BENCH

JUDICIAL DEPARTMENT

Civil Revision No.396-A/2009 Raheem Dad and others.., (Petitioners) versus Lal and others, , , (Respondents) Present: Qazi Ubaid-ur-Rehman and Mr.Haqnawaz, Advocates for petitioners.

Mr.Khurshid Khan, Advocate for respondents.

Date of hearing: 28.02.2025.

JUDGMENT

AURANGZEB J.- Throu gh the instant revision petition, petitioners have prayed for the following relief:

"On acceptance of instant revision petition, the Honourable Court may be pleased to set aside the judgments and decrees of both the courts below and dismiss the suit of real respondents/ plaintiffs with cost throughout.n'

(5.B. ) Hon' bl e Mr. Justice Aurqngze b

2.Precisely, the facts of the case as per contents of instant revision petition are that real respondents/plaintiffs Lal etc filed a suit bearing No.16411 of 2003 against petitioners/defendants Raheem Dad etc qua declaration pertaining to the suit property which suit was contested by the petitioners by frling their written statement followed by amended plaint and amended written statement. After full-fledged trial, leamed trial court vide judgment and decree dated 25.01.2007 decreed the suit of real respondents/plaintiffs.

Feeling aggrieved, petitioners filed an appeal, however, the same was dismissed by the leamed appellate Court vide judgment and decree dated 12.06.2009, hence, the instant revision through which petitioners have assailed concurrent findings ofthe Court below through the aforesaid judgments and decree.

3.Arguments of both the leamed counsel for the parties heard in considerable detail and record perused with their valuable assistance.

(5.B.) Hon' ble Mr. Justice Aurangzeb

4, It is the case of petitioners that both the Courts below have not properly appreciated evidence produced by the parties and they have decreed the suit despite the fact that it was hopelessly time barred. They further contended that at the time of death of Hashoo, his all the five sons namely Gulab, Nawaz, Hassu, Azad and Hayat were alive, therefore, all of them were entitled to his inheritance. It is also the case of petitioners that case of the respondents comes under tenancy law, however, the same was not considered at all by the Courts below. On the other hand, it is the case of respondents that their predecessor Hashoo was Dakhilkar (rV) ln Khasra No.23 and 15 measuring 156 Kanals - 03 Marlas and he was having five (05) sons Gulab, Nawab, Hassu, Azad and Hayat and out of them Hayat was his predeceased son, therefore, mutation No.54 dated 06.11.1916 to the extent of aforesaid predeceased son Hayat Khan is liable to rectification on the ground that before enlorcement of The Muslim Family Laws (5.8.) Hon'ble Mr.Justice Aur.tngzeb

Ordinance, l96l,legal heirs ofpredeceased son or daughter, as the case may be, were not entitled to inheritance. The also pleaded that property ofSaid Noor (widow of Nawab/daughter-in-law of Hashoo) was also required to be devolved upon the legal heirs of Hassu and Azad and not upon the legal heirs of Hayat and Gulab on the premise that Hayat and Gulab were not alive at the time of death of Said Noor coupled with the factum that aforesaid Nawab died issueless, therefore, inheritance mutation No.178 and its incorporation in the subsequent Jamabandi is liable to correction.

5.Sifting of the record would transpire that respondents ln support of their case produced Awal Khan SOK as PW-2 who produced Jamabandi for the year 1904-05 to 1953-54 relating to the suit property and exhibited the same as Ex.PW-2/1 wherein their predecessor namely Hashoo has been incorporated AS Dakhilkar (16?r. PW-z also produced subject Mutation No.54 as Ex.PW-2/3 which reads that

(5.B.) Hon'ble Mr.Justice Aurqngzeb

after the death of Hashoo, his inheritance devolved upon Gulab, Nawab, Hassu and Azad as well as Fazal Dad son of Hayat despite the fact that father ofFazal Dad was a predeceased son of predecessor of respondents, which entry got its way in the Jamabandi for the year 1915-16, which devolution of property was not allowed before promulgation of The Muslim Family Laws Ordinance, 1961 coupled with the fact that this Ordinance is not retrospective in nature.

6.In addition to the above, the revenue record which fortifies the contention of the respondents is in shape of mutation No.89 dated 02.02.1919 pertaining to the inheritance of deceased Nawab was exhibited as Ex.PW-2/16 which reflects that legacy of Nawab devolved upon his widow Said Noor, while inheritance mutation of Said Noor bearing No.l78 was exhibited as Ex.PW-2/9. It is also part of the record and as contended by the respondents that at the time of her death, Hassu and Azad were alive whereas Hayat and Gulab were not. Though petitioner No.3 appeared as

(5.B.) Hon' ble Mr. Justice Aurdngzeb

DW- l, however, he remained unsuccessfi;l either to deny the relationship of the respondents with their predecessor or to rebut their contentions through any cogent evidence

7.In view of the above, Fazal Dad son of Hayat was not entitled to inheritance of his father Hayat (predeceased son of Hashoo), AS such mutation No.54 (Ex.PW-2/3) is liable to correctior/rectification to his extent. Similarly, neither Hayat and Gulab nor their legal heirs including predecessors of petitioners/defendants namely Muhammad Zaman and Fazal Dad were entitled to the inheritance of Nawab on the basis of mutation No.178 (Ex.PW-2/9), for the reason that Nawab is shown to have died issueless, while her widow Said Noor contracted second marriage after his death, therefore, mutation No.178 also needs to be corrected/rectified

8.So far as the ground pressed hard by leamed counsel for the petitioners suit of the respondents ls hopelessly time barred, ls concerned, albeit the subject mutations were

(5.B. ) H on' b I e Mr. Juslice Aur angze b

attested way back in the years 1916 and 1933-34, while the suit was filed in the year 2003, however, the petitioners, except contending that they have filed a partition suit against the respondents, have failed to prove that the respondents were having prior knowledge of the subject mutations or entries in the revenue record followed by them rather DW- 1 during his cross-examination has showed his unawareness regarding the facts narrated by the respondent in their plaint. Since the impugned mutations and entries in the revenue record pertain to ancestors of the parties, therefore, stance of the respondents that they got knowledge the moment a partition suit was filed by the petitioners against them, seems more plausible. Even otherwise by now it is a settled law that owner in possession cannot be non-suited on the ground of limitation where wrong entries in revenue record are alleged and every fresh entry against hisArer interest would give him/her a fresh cause of action. The Supreme Court of Pakistan in

(5.B.) Hon' ble Mr.Justice Aurangzeb

a cas €1, has held that treating the six-year limitation o eriod under Article 120 of the Limitation Act. 1908 to start from the date of sanction of the (wrons) inheritance mutation. is not leeallv correct. This Court too in a case2 , has alreadv held that owner in possession, even otherwise. would never be hit bv limitation on account of mere wronq entries in revenue record and every fresh entry a nst his interest would (, ive him a fresh cause of action. In the present case, statedly possession of the suit property lies with the respondents, therefore, their suit is not hit by limitation.

9.As regards the objection raised by leamed counsel for the petitioners that case of the respondents falls under tenancy law, is concemed, the same has no force as the petitioners have not raised any such plea either in their written statement before the trial Court or before the appellate Court particularly when they have I ABDUL REHMAN v. Mst. ALLAH WASAI and others 12022 SCMR 3991 2 Khawaja Muhammad Klan vs. Hayat Khan [1997

MLD 21821

(5.B.) Hon' ble Mr.Justice Aurangzeb

neither filed any declaratory suit nor produced record of their partition suit.

10.In view of the above the two Courts below have properly appreciated the legal and factual aspects of the case and thus the impugned judgements and decree do not call for any interference by this Court in its revisional .jurisdiction. In this case two Courts below have concurrently recorded their findings as against the present petitioners and in favor of respondents by correctly appreciating the law and facts on the subject, which this Court find them perfectly in accordance with law on the subject and thus, the same do not suffer from any irregularity or material irregularity, so as to warrant interference of this Court in revisional jurisdiction under section 115 CPC. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Supreme Court of Pakistan in its recent judgments3, where

3.Nasir Ali vs. Muhammad Asghar 22 SC , Salamat Ali and others vs. Muhammad Din and others (PLD 2022 Suoreme Coutt 353\, Muhammad Sarwar and others vs. Hashmal Khan and others PLD Court , Mst. Zarsheda vs. Nobat Khan

(5.B.) Hon' b le Mr. Just ice Aurangzeb

it has held that section 115 C.P.C empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law.

The scope of revisional iurisdiction is limited to the extent of misreadin sor non-readin s of evidence. iurisdictional erro r or an ille alitv of the nature in the iudement which mav have material effect o n the result of the case or if the (PLD 2A22 Slprene Court 21), Shahbaz Gul and others v. Muhammad Younas Khan and others, (2!2!-;eAB-SlZ and Khudadad vs Syed Ghazanfar Ali Shah alias S. lnaam Hussain & orhers (l!!! scMR 933)

(5.B.) H on' ble Mr. Just ice Aurangzeb

conclusion drawn therein is Derverse or conflictin to the law Furthermore, the Hieh Court has verv limi ted urisdiction to interfere in the concurrent conclusions arrived at bv the Courts below while exercisins power under section 115 C.P.C.

11.For what has been discussed above, both the Courts below have properly appreciated the facts and evidence brought on record and have rendered well-reasoned findings, therefore, their judgments and decree impugned herein are neither suffering from any misreading or non-reading of the evidence nor are the result of any misapplication of law on the subj ect nor any irregularity or illegality could have been pointed out therein, therefore, the same are hereby maintained and consequently the instant petition being devoid of any merit is dismissed

ANNOUNCED. L

(Jamil)

JUDGE

(5.B.) Hon'ble Mr.Justice Aurdngzeb