Akbar Ali Khan Vs Habib Ullah Khan etc

v

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

CR No.16-B/2020

Akbar Ali Khan Vs Habib UIIah Khan, etc.

JUDGMENT

Date of hearing: 22.09.2025

For petitioner(s): Mr. Younas AIi Khan Marwat Advocate

For respondent(s): Mr. Gul Aslam Khan Advocate 4 **{€rl.{.**

MUHAMMAD TARIO AFRIDI. J.- Through the

instant revision petition, filed under Section 115 of the Code of Civil Procedure, 1908 ("CPC"), the petitioner, Akbar Ali Khan, has questioned the legality and validity of judgment and decree dated 28.09.2019, passed by the learned District Judge, Lakki Marwat, maintaining the judgment and decree dated 17.01 .2019 of Civil Judge-III, Lakki Marwat, whereby his plaint was rejected under ORDER VII Rule 11 CPC.

2.Claiming superior rights of pre-emption as being Shafi Sharik, Shafi Khalit, and Shafi Jar, the petitioner instituted a suit for the enforcement of his right of pre- emption in respect of the suit property measuring 04-

u Kanal Ol-Marla, sold through a sale mutation, bearing the endorsem'ent of the revenue officers as well as signatures of parties and attesting witnesses but which remained pending for completion of payment of Government taxes. During pendency of the suit, the respondents filed an application before the Trial Court, seeking rejection of the plaint under ORDER VII Rule 11 CPC, mainly on the ground that the petitioner had no cause of action, as the property on the basis of which he claimed superior rights of pre-emption was not even ( transferred in his name, but still recorded in the name of his late father.

3.By its judgment and decree dated 17.01 .2019, the application was allowed, and the plaint was rejected under ORDER VII Rule 11 CPC. This decision was appealed against but was affirmed by the Appellate Court vide the impugned judgment, leading to the filing of the present revision petition.

4, Arguments heard. Record perused.

5.It is evident from the record that the petitioner has claimed superior rights of pre-emption on the basis of property which, at the relevant time, was recorded in the name of his father in the revenue record. On the date

when the sale transaction was struck between the respondents and the vendee, the property had not yet been transferred in the name of the petitioner as legacy of his late father. From the record, it transpires that the suit was instituted on 29.ll.2016, whereas the inheritance mutation No.1816 was attested in favour of the petitioner on 17.12.2018, subsequent to the institution of suit. It fuither reveals that the father of the petitioner had passed away on 29.08.2015, as is evident from the Death Certificate issued on 03.11.2015. It is thus beyond dispute that the father of the petitioner had passed away prior to the impugned sale mutation which was entered in the above lnanner.

6.In this backdrop, the pivotal question is whether the petitioner was competent to exercise the right of pre- emption on the basis of property which was not yet formally transferred in his name as legacy of his late father? The record demonstrates that the contesting respondents, through their application under ORDER VII, Rule 11 CPC, sought rejection of the plaint on the ground that the petitioner was neither the recorded owner of the disputed property nor reflected as such in the relevant Khata. Conversely, the petitioner, in his reply to the said application, categorically denied the objections

raised and asserted his ownership on the basis of inheritance, claiming to be the legal heir of his deceased father. Despite this, the learned Trial Court, accepted the respondents' application and rejected the plaint. In appeal, the petitioner produced the death registration certificate of his father dated 03.11.2015, wherein the date of death was recorded as 29.08.20L5 and placed a copy of the same on record. However, the appellate court declined to take this document into consideration on the ground that it appeared to have been produced 4 subsequently with the intention to raise a new plea, which had not been taken earlier and thus maintained the order of rejection of plaint. When a computer generated death certificate issued by NADRA, being an official document, was produced before the appellate forum, the same could not have been outrightly rejected merely on the assumption that it was obtained subsequently. Prima facie, the plea of the respondents does not fall within the naffow scope of ORDER VII, Rule 1 1, CPC. Accordingly, the objection of the respondents and the plea of the petitioner regarding the death of his father in the year 2015, as well as the question of genuineness of the death registration certificate, are matters involving disputed questions of fact, which require determination at

v the trial stage after proper appraisal of evidence and not at this preliminary stage. Consequently, the impugned orders of both the Courts below are not sustainable in 1aw.

7.In order to beffer appreciate the pivotal question formulated as aforesaid, guidance may be taken from some landmark judgments of the Superior Courts. In Mst. Suban v. Allah Ditta and others (2007 SCMR 635), it was unequivocally held that under Islamic Law, 4 as soon as a person who owns property dies, succession to his property opens, and the property immediately vests in the heirs. Such vesting, the Court maintained, is not dependent upon any intervention or act of the revenue authorities, Similarly, in Zohra Bibi and another v.

Haii Sultan and others (2018 SCMR 762),

it was laid down that inheritance of a person opens the moment he dies, and all legal heirs become owners of their respective shares instantly, without the need for sanction of mutation or issuance of succession certificate.

The Court also observed that such steps are merely procedural, intended to maintain fiscal and revenue records. Likewise, in Mst. Juma v. Umar Akhtar (NLR 2006 Civil 218), this Court held as under:

Non-entry of the name of any person entitled to

\r' inheritance does not disentitle him for such inheritance and does not debar him from claiming rights in the property on the basis of inheritance.

Devolution of right of inheritance is not contingent upon any entry in the Revenue Record or upon any other document, oral statements or any other commission or omission by any person.

8.From a bare reading of the aforementioned jurisprudence, it is well established that the moment a proprietor of land dies, ownership of his estate devolves I automatically upon his heirs by operation of law, and no procedural formality such as attestation of mutation is a condition precedent for the acquisition of ownership rights. Rather, the attestation of mutation is merely a fiscal entry and does not create or extinguish title.

9.The case of Khan Badshah v. Mst. Noor Nama (2013 CLC 379 Peshawar) is also relevant, as it involved somewhat similar facts and circumstances, wherein it was ruled:

7.The contention of the learned counsel for the petitioner on the point of superior right of pre- emption is misconceived. Although, sale Mutation No.403, has been attested prior in time than inheritance Mutation No.404, in favour of the plaintiff/respondent, by virtue of which, she became co-owner in the suit-land. But that mutation in favour of the plaintiff is not that of sale, rather is of inheritance of her late husband. Mutation No.404 is not available on the record, from which it may be ascertained that when it was entered, but it is certain that husband of the plaintiff might have

v died prior to attestation of mutation, which was reported to Patwari Halqa and then was attested. The legal heirs of the deceased become owners in his legacy, the moment their propositus passes away. Attestation of mutation is not a condition precedent for creation of right in the legacy of the propositus. Rather, it is attested to maintain the record up-to-date. In view of the above discussion, the plaintiff was already co-owner in the suit property, when the suit mutation was attested in favour of the defendant-vendee.

10.Applying the settled principles to the present case, it is manifest that although the name of the petitioner was not recorded in the revenue record at the time of filing of 4 the suit, however, he had already become the co-owner of his late father's property by operation of law on 29.08.2015, the date on which his father had passed away. Thus, the view taken by the Trial Court and affirmed by the Appellate Court that the petitioner had no cause of action merely because the inheritance mutation had not yet been attested in his favour, was legally unsustainable. Once the legal status of the petitioner as heir and co-owner of the property stood established from the date of his father's death, his claim of superior right of pre-emption could not be non-suited on the technical ground of mutation entries. The Courts were bound to consider substantive rights rather than being swayed by procedural or fiscal formalities.

11.For the foregoing reasons, this revision petition is accepted. The impugned judgments and decrees dated 28.09.20t9 and 17.01.2019, passed by the learned District Judge and Civil Judge-III, Lakki Marwat, respectively, are hereby set aside. The case is remanded to the Trial Court for decision afresh on merits in accordance with law.

lrrL a Announced

(Ghafoor Zaman\ Uq

JUDGE

(S.8.) Hon'ble Justice Muhammad Tariq Afridi