Suleman etc VS Ghulam Nabi

Stereo. H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT

BAHAWALPUR BENCH BAHAWALPUR

JUDICIAL DEPARTMENT

Civil Revision No. 449-D/2010/BWP

Suleman (deceased) through legal heirs etc.

Versus

Ghulam Nabi (deceased) through legal heirs etc.

JUDGMENT

Date of hearing: 02.03.2026

Petitioners by: Mr. Muhammad Mahar Hussain Khan, Advocate assisted by Malik Saif ur Rehman, Advocate.

Respondents by: Mr. Khadim Hussain Khan Khaskhali, Advocate assisted by Mr. Muhammad Rashid Khan Balouch, Advocate.

MALIK WAQAR HAIDER AWAN, J. Through this Civil Revision, the petitioners have assailed the validity and legality of consolidated judgment and decree dated 17.05.2010 passed by learned Additional District Judge, Rahim Yar Khan, whereby learned appellate court dismissed the appeal of the petitioners with costs whereas appeal filed by the respondents was accepted with costs. It has further been prayed that suit filed by the petitioners be decreed.

2.Brief facts of the case are that the petitioners/plaintiffs filed a suit for declaration with regard to suit land situated in Mouza Chak Abbas and in Mouza Kot Qutab Tehsil and District Rahim Yar Khan owned by deceased Din Muhammad. It is averred in paragraph No.1 of the plaint that Sama, Din Muhammad and Jung were three brothers. Din Muhammad died issueless. Jung was succeeded by Allah

Ditta and Ghulam Muhammad, predecessor of petitioners/plaintiffs, while Sama was succeeded by Ghaus, predecessor of respondents/ defendants. It is asserted in the plaint that after the death of deceased Din Muhammad, predecessors of petitioners Allah Ditta and Ghulam Muhammad and predecessors of respondents Ghaus were entitled to inherit equal shares from the Estate left by deceased Din Muhammad. It is averred in the plaint that predecessor of the parties possessing their respective equal shares after the death of deceased Din Muhammd as being his legal heirs. It is alleged in the plaint that predecessor of respondents Ghaus secretly got transferred land left by deceased Din Muhammad in Mouza Chak Abbas in his name on the basis of a false and fictitious document of will vide Mutation No.436 dated 22.09.1945. He also got transferred land left by deceased Din Muhammad in Mouza Kot Qutab in his own name which was allotted to deceased Din Muhammad under RL-II No.82. It is further asserted that inheritance Mutation No.436 and transfer of land situated in Mouza Kot Qutab in the name of predecessor of respondents could not come into the knowledge of predecessors of petitioners as parties were in possession in accordance with their respective shares and predecessor of respondents never tried to disturb possession of petitioners over the suit land. However, after the consolidation proceedings in two Mouzas, the above referred transfers came into the knowledge of petitioners, therefore, they asked the defendants to get Mutation and alienation of land in two Mouzas cancelled and to get the record corrected but they refused which compelled the petitioners to institute a suit for declaration. The suit was contested by respondents by way of filing written statement wherein specific plea was taken that transfer of suit land situated in Mouza Chak Abbas in favour of their predecessor Ghaus is result of “ ”تملیکwhereas transfer of land in Mouza Kot Qutab in favour of Ghaus took place on the basis of RL-II No.82 and he was the sole owner and in possession of the land. Preliminary objections were also

raised with regard to maintainability of the suit on the basis of limitation, estoppel and adverse possession.

Learned trial court summed up the pleadings in shape of 08 issues including relief. Both the parties led their respective evidence to prove their stances. Learned trial court partially decreed the suit only to the extent of 2/3rd and with regard to 1/3rd of the property situated in Mouza Chak Abbas dismissed the claim whereas the suit regarding claim of land situated in Mouza Kot Qutab was dismissed.

Both the parties, feeling aggrieved, preferred their respective appeals before learned appellate court. Learned Additional District Judge, Rahim Yar Khan vide consolidated judgment and decree accepted the appeal of respondents and dismissed the appeal of petitioners. Hence this Civil Revision.

3.Learned counsel for the petitioners contends that as per Islamic Law, “will” cannot be made in favour of legal heirs and it could only be made in favour of non-successors to the extent of 1/3rd of the property owned by deceased. Submits that mutation was allegedly made on the basis of unregistered document which was neither brought on record nor its author or witnesses ever entered in the witness box, even no summary inquiry was made before sanctioning of inheritance mutation. Submits that no limitation runs against void orders. Even otherwise, the parties were joint owners in joint Khata before consolidation proceedings and after consolidation proceedings, the suit was within time. Avers that in written statement, stance was taken that actually تملیکwas made in favour of Ghaus, predecessor of respondents, but mistakenly written as “will” and during the proceedings tried to change that stance which was disallowed and no further challenge was put to it. Submits that no third- party interest has been created so far. Prays for decreeing the suit in toto while accepting this revision petition. Places reliance on Zakirullah Khan and others v. Faizullah Khan and others (1999 SCMR 971), Eada Khan v. Mst. Ghanwar and others (2004 SCMR 1524), Ghulam Qasim

and others v. Mst. Razia Begum and others (PLD 2021 Supreme Court 812), Noor Din (Deceased) through legal heirs v. Pervaiz Akhtar and others (2023 SCMR 1928), Muhammad Siddique and others v. Mst. Ayesha Bib and others (2016 YLR 383) and Nusrat Abbas v. Nighat Parveen and others (2018 CLC 1115).

4.Conversely, learned counsel for respondents submits that to the extent of land situated in Mouza Kot Qutab, judgments and decrees of both the learned courts below are concurrent and no proof was produced by the petitioners in evidence to dispel RL-II No.82 in favour of Ghaus. Submits that suit was barred by time and neither the father nor the grandfather of the petitioners have ever challenged the impugned transaction, therefore, third generation is estopped to challenge the same. Under Section 9 of the Limitation Act, 1908, once limitation starts running, it never stops. Avers that the petitioners got no locus standi to file the suit as no date of knowledge is mentioned therein with regard to challenged transactions. Argues that initial burden was upon the petitioners in which they miserably failed to initially prove and shift the same. Seriously challenges the maintainability of the suit as possession has not been sought which is the prerequisite of Section 42 of the Specific Relief Act, 1877. Submits that after the consolidation proceedings, filing of suit amounts to challenging the consolidation proceedings which is barred under Section 26 of the West Pakistan Consolidation of Holdings Ordinance, 1960 (hereinafter called “Ordinance 1960”). Prays for dismissal of the instant Civil Revision. Relies upon dicta laid down in judgments reported as Abdul Haq and another v. Mst. Surrya Begum and others (2002 SCMR 1330), Muhammad Amir and others v. Mst. Beevi and others (2007 SCMR 614), Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs (PLD 2011 Supreme Court 657), Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 Supreme Court 212), Ghulam Abbas and others v. Mohammad Shafi through legal heirs

and others (2016 SCMR 1403), Muhammad Riaz v. Government of Punjab through Collector and others (PLD 2021 Lahore 33), Intelligence Bureau Employees Cooperative Housing Society through Secretary v. Shabbir Hussain and others (2022 SCMR 877), Mst. Rabia Gula and others v. Muhammad Janan and others (2022 SCMR 1009), Haji Muhammad Yunis (Deceased) through legal heirs and another v. Mst. Farukh Sultan and others (2022 SCMR 1282), Muhammad Din v. the Deputy Settlement Commissioner and others (2022 SCMR 1481), Mst. Rafique Begum and another v. Muhammad Rafique and others (1996 CLC 667), Noor Akbar through Attorney v. Alah Yar and 7 others (2008 YLR 854) and Ijaz Ahmed Khan v. Jahanzeb Khan and others (2016 CLC Note 128).

5.Heard. Record perused.

6.Pleadings are the basic stances of parties, which are to be proved by leading evidence. It is the basic criterion and principle/doctrine that proof and evidence to be in line with the pleadings.

7.Pleadings are the stances of parties and the Court, keeping in view the divergence, are obliged to frame issues while placing onus according to stances of parties in the nature of controversies, therefore, it is the requirement of law to lead evidence in line with the pleadings and in case evidence is led in contradiction of pleadings, it could not be read whereas the respondents in the written statement took a specific stance of تملیکin favour of their predecessor but instead of proving the تملیک, they produced Mutation No.436 dated 20.09.1945 which was based on “will” allegedly made by Din Muhammad, therefore, the stance took in written statement and evidence produced are at variance and could not be relied upon. From perusal of record, it transpires that respondents were conscious of this lacuna in written statement/pleading and during the course of trial, they moved an application under Order VI Rule 17 CPC to substitute word “will” for word تملیکwhich was dismissed and

dismissal order attained finality. Even otherwise, the alleged وصیت which was the basic document and backbone of the Mutation was neither produced in evidence nor it was proved.

8.Without prejudice to the foregoing, the case of the respondents rests primarily upon Mutation No.436 dated 20.09.1945 (Ex.D-1), which must be examined in its totality. From its bare reading, it comes to light that objection was raised by Ghulam Muhammad, son of Jung, the legal heir of Din Muhammad, that he did not accept the will but this objection was not taken up or even dealt with summarily and mutation was sanctioned on 20.09.1945.

9.It is an admitted fact amongst the parties that they are legal heirs of Din Muhammad. The only exception to it is the “will” which is in dispute.

10.During the course of arguments, one of the objections raised by learned counsel for the respondents was that jurisdiction of civil court was barred as after the consolidation proceedings, filing of suit before the civil court amounts to challenging the findings of consolidation proceedings which is prohibited under Section 26 of the Ordinance, 1960 while ignoring the fact that petitioners have not challenged any proceedings or act of consolidation authorities rather challenged the Mutation No.436 of the year 1945. The bar mentioned in Section 26 of the Ordinance 1960 would only be effective and applicable if somebody challenges the action taken during the proceedings of consolidation which is not the case here.

11.Now coming to the controversy which is touching root of the case; whether “will” could be made in favour of legal heirs/successors or not? Earlier, through revelation of Surah Baqarah, following commands were given:-

CR No. 449-D/2010/BWP 7

Surah Baqarah Ayat 180 in Arabic Text

ِ تََإِنَتركََخ ۡی ًراَ ۡٱلو ِصیَّةََُ ِل ۡل َٰو ِلد ۡي ِنََو ۡٱۡل ۡقربِینََ ِب ۡٱلم ۡع ُر َوفََحقًّا ُ ُكتِبََعل ۡی ُكمََۡإِذاَحضرََأحد ُك ُمََ ۡٱلم ۡو َعلىَ ۡٱل ُمت َّ ِقین

English Translation

Sahih International

Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.

Yusuf Ali

It is prescribed, when death approaches any of you, if he leaves any goods that he makes a bequest to parents and next of kin, according to reasonable usage; this is due from the Allah-fearing.

Abul Ala Maududi

It has been prescribed for you that when death approaches one of you and he is leaving some property behind him, he should bequeath it equitably for his parents and relatives: it is an obligation on those who fear Allah.

Muhsin Khan

It is prescribed for you, when death approaches any of you, if he leaves wealth, that he makes a bequest to parents and next of kin, according to reasonable manners. (This is) a duty upon Al-Muttaqun (the pious – see

V. 2:2).

Pickthall

It is prescribed for you, when death approacheth one of you, if he leaves wealth, that he bequeath unto parents and near relatives in kindness. (This is) a duty for all those who ward off (evil).

Dr. Ghali

Prescribed for you, when death is present to any of you, in case he leaves behind some charitable (benefit), is to make testament to parents and nearest kin, with beneficence-truly (binding) on the pious.

Abdel Haleem

it is prescribed that he should make a proper bequest to parents and close relatives- a duty incumbent on those who are mindful of God.

Muhammad Junagarhi

َتمَپرَفرضَکرَدياَگیاَہےَکہَجبَتمَمیںَسےَکوئیَمرنےَلگےَاورَمالَچھوڑَجاتاَہو َ،تو َاپنے َماں َباپ َاور َقرابت َداروں َکے َلئے َاچھائی َکے َساتھ َوصیت َکرجائے پرہیزگاروںَپرَيہَحقَاورَثابتَہے

Thereafter, Surah An-Nisa (4:11–12) was revealed when the Holy Qur’an fixed specific shares of inheritance for heirs such as parents, children, and spouses. The earlier instruction of will for parents and relatives was modified by the detailed inheritance system in Surah An- Nisa and final touch in this regard was given by the Holy Prophet, Hazrat Muhammad صلى الله عليه وسلمat the time of Hajjatul Wida that “there is no will for an heir.

12.Hajj is the largest congregation of Muslims. The Holy Prophet, Hazrat Muhammad صلى الله عليه وسلمknowingly addressed that it was his last Hajj. In the Holy Qur’an, the completion of religion was also announced in the following verse revealed to our Last Prophet, Hazrat Muhammad صلى الله عليه وسلم during the Farewell Pilgrimage (Hajjatul Wida):-

“This day I have perfected for you your Deen, completed My favour upon you, and have chosen for you Islam as your Deen.” (Qur;an, Surah Al-Ma’idah 5:3)

13.After the revelation of Surah An-Nisa ( )سورةَالنساءand after the Hajjatul Wida, it was clearly established in Islam that making a will in favour of an heir is not allowed.

14.It is noteworthy to point out here that just after three months of Hajjatul Wida, Holy Prophet, Hazrat Muhammad صلى الله عليه وسلمpassed away. This fact is mentioned to elaborate that at the eve of Hajjatul Wida, Holy Prophet, Hazrat Muhammad صلى الله عليه وسلمin order to emphasize the importance of Hajjatul Wida, with regard to completion of Deen, mentioned twice as under:-

ََمیںَتمہارےَسامنےَواضحَطورَپرَبیان،َاماَبعدَ!َاےَلوگو!َمیریَباتَغورَسےَسنو َ)کرتاَہوںَکیونکہَمیراَخیالَہےَکہَشايدَمیںَاسَسالَکےَبعدَاسَموقفَ(َمیدانَعرفات َ میںَتمَسےَکبھیَنہَملَسکوںَگا۔

اے لوگو! تم اپنے حج کا طریقہ (مجھ سے) سیکھ لو کیوں کہ شاید میں اس سال کے بعد حج نہ کر سکوں ۔

At the eve of Hajjatul Wida, Holy Prophet, Hazrat Muhammad صلى الله عليه وسلم highlighted the completion and finalization of Deen in the following words:-

اور میں تمہارے درمیان ایسی چیز چھوڑے جاتا ہوں کہ اگر تم اسے مضبوطی سے تھامے رہے تو اس کے بعد کبھی گمراہ نہ ہو گے اور وہ ہللا کی کتاب اور اس کے نبی کا طریقہ (سنت) ہے ۔ اور (قیامت کے دن) تم سے میرے بارے میں سوال کیا جائے گا تو تم اس وقت کیا کہو گے ۔ سب نے عرض کی کہ ہم گواہی دیں گے کہ بیشک آپ نے ہللا تعالی کا پیغام پہنچا دیا اور رسالت کا حق ادا کر دیا اور آپ نے امت کی پوری پوری خیر خواہی کی ۔ پھر آپ اپنی انگشت شہادت کو اٹھا کر آسمان کی طرف اشارہ کرتے اے ہللا گواہ رہ ۔ آپ نے، اور لوگوں کی طرف جھکاتے اور فرماتے ۔ اے ہللا گواہ رہ َ تین بار یہی فرمایا ۔

15.Significantly, revelation of Surah Al-Baqarah was completed in 3rd Hijri; revelation of Surah An-Nisa ( )سورةَالنساءwas completed in 5th Hijri; Hajjatul Wida was performed in 10th Hijri in the month of Dhul- Hijjah which is the last month in Islamic calendar and Holy Prophet; Hazrat Muhammad صلى الله عليه وسلمpassed away in the month of Rabi’ al-Awwal in 11th Hijri which is the 3rd month of the year in Islamic calendar meaning thereby just after three months of Hajjatul Wida.

16.In the light of last sermon of Holy Prophet, Hazrat Muhammad صلى الله عليه وسلم at the eve of Hajjatul Wida, it was conveyed to all the Muslims that no “will” could be made in favour of legal heirs. The Muslims are at consensus concerning the authenticity of sayings of Holy Prophet, Hazrat Muhammad صلى الله عليه وسلمwhile mentioning the same in Al-Sihah al-Sittah. Reference from famous books of Hadith are reproduced below:-

17.It is settled law that upon death of a Muslim owner, Estate left by him by operation of law devolves upon his surviving legal heirs and they become co-sharers of the Estate left by deceased owner, therefore, possession of one co-sharer is deemed to be possession of other co-sharers. Thus, suit would not become incompetent under proviso to Section 42 of the Specific Relief Act, 1877. Non claiming of recovery

of possession by any of the co-heir/co-sharer would not make the suit incompetent. No limitation would run against co-heir to enforce his right of inheritance. Reliance is placed upon Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). The limitation could start running from the date of completion of consolidation proceedings from which the suit was within time. Therefore, the date of knowledge would be considered from the conclusion of consolidation proceedings.

18.Upshot of the above discussion is that the suit is competent for the reason that the petitioners had not prayed for recovery of possession. Moreover, the suit is not time barred and the petitioners/plaintiffs were fully competent to file it. Mutation No.436 sanctioned on 20.09.1945 in Mouza Chak Abbas is not only fictitious, collusive and fraudulent but also against the injunctions of Islam, therefore, cannot remain in the field. However, the petitioners throughout failed to prove that deceased Din Muhammad was owner of land situated in Mouza Kot Qutab, therefore, to this extent claim of the petitioners is not established.

19.As regards the judgments cited by learned counsel for the petitioners, the same are relevant in a context that matters of inheritance limitation would not run and no limitation runs against the orders without jurisdiction and that mere silence of heirs would not raise an inference that they had consented to the “will” made out whereby their share in the inheritance was substantially reduced and Muslim could not make any “will” in favour of any heir. That succession of Muslim could not be defeated by law of limitation. Islamic law of succession is divine law and has preference on man-made law. Possession by an heir was considered to be constructive possession on behalf of all the heirs.

20.In terms of Article 2 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as “Constitution”), Islam shall be the State religion of Pakistan. According to Article 2-A of the

Constitution, the principles of the Objectives Resolution which have also been enshrined in the Preamble are made substantive part of the Constitution. The preamble of the Constitution states as under:

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah.

(Underlining is mine)

21.In the light of above, the case law referred to by learned counsel for respondents becomes irrelevant, when tested on the touchstone of Supreme Law i.e. Holy Qur’an, Sunnah and last sermon of Holy Prophet, Hazrat Muhammad صلى الله عليه وسلمat the eve of Hajjatul Wida, which specifically dealt with the subject of “will”.

22.In view of the foregoing, this Civil Revision is partially allowed. The impugned judgments and decrees of the learned courts below are set aside to the extent of Mutation No.436 dated 20.09.1945 pertaining to the land situated in Mouza Chak Abbas, and the suit is decreed to that extent. However, insofar as the land situated in Mouza Kot Qutab is concerned, the findings of both the learned courts below are maintained and upheld, and the dismissal of the suit to that extent is affirmed. Resultantly, the land situated in Mouza Chak Abbas would be distributed amongst the legal heirs of Din Muhammad in accordance with law of inheritance.

(MALIK WAQAR HAIDER AWAN)

JUDGE

Announced in open Court on _____________

APPROVED FOR REPORTING

JUDGE

Abis Ali