Rehmant Ullah Vs Aman Ullah (deceased) through L.Rs and others

JUDGMENT SHEET

PESHAWAR HGIH COURT, D.I.KHAN BENCH

(Judicial Department)

C.R.No.189-D/2017 with C.M.Nos.230 & 231-D/2017

Rehmat Ullah Versus Aman Ullah (deceased) through L.Rs and others

JUDGMENT

For petitioner: Mr. Mutee Ullah Rind, Advocate.

For respondents: Mr. Zain ul Abideen Afridi, Advocate.

Date of hearing: 08.10.2026.

SADIQ ALI, J.- Through this revision petition under Section 115 of the Code of Civil Procedure, 1908, the petitioner, Rehmatullah, has challenged the judgment and decree, dated 28.04.2017, passed by the learned Additional District Judge-III, D.I.Khan, whereby his appeal (RCA No.38 of 2015) against the judgment and decree, dated 14.09.2015, passed by the learned Civil Judge-VII, D.I.Khan, dismissing his suit, was dismissed.

2.Brief facts leading to the present revision petition are that the petitioner/plaintiff filed a suit for declaration, perpetual injunction, and in the alternative, possession regarding the suit property, situated in Mouza Rangpur Janubi, Tehsil and District D.I.Khan. The plaintiff asserted that the suit property formed part of the legacy of late Rab Nawaz son of Sheran son of Hassu son of Naseer Khan. It

was contended that the common ancestor, Naseer Khan, had two wives: Mst. Sabhai (mother of Ahmad Khan, Mehmood Khan, and Hassu Khan) and Mst. Bakhtan (mother of Haider Khan and Hussain Khan). The plaintiff asserted that Noor Khan (predecessor of respondents No. 1 to 13), being the son of Haider Khan, was a consanguine uncle/relative and had no lawful right to inherit from Rab Nawaz. It was alleged that Noor Khan fraudulently got inheritance mutation No.1699, attested on 27.09.1954, in his favour by depicting Rab Nawaz as the grandson of Hussain Khan, whereas Rab Nawaz was in fact the grandson of Hassu Khan. The plaintiff maintained that he and proforma respondent No.28, being agnatic cousins (collaterals), were the lawful heirs entitled to the legacy of Rab Nawaz.

3.Respondents No.1 to 13 contested the suit by filing their written statement. While admitting that Rab Nawaz was indeed the grandson of Hassu Khan and that the reference to Hussain Khan in mutation No.1699 was a clerical entry by the revenue staff, they maintained that at the time of Rab Nawaz's death, all his paternal uncles had predeceased him except Noor Khan. Therefore, Noor Khan, as the sole surviving paternal uncle (even if consanguine), was the nearer agnate (Asabah) who completely excluded distant collaterals/cousins like the plaintiff.

4.The learned trial Court initially dismissed the suit on 06.07.2010, and the appeal therefrom was dismissed on 23.08.2011. However, in earlier revision proceedings, this Court remanded the suit on 03.04.2015 with directions to record specific evidence regarding inheritance mutations of other uncles of Rab Nawaz to ascertain whether any full paternal uncle or closer heir was alive at the time of Rab Nawaz’s death. Post-remand, the learned trial Court examined the official from the District Record Room (APW-1) and placed relevant mutations on record (Ex.

APW-1/1 to Ex. APW-1/6). Upon re-appraisal, the trial Court again dismissed the suit vide judgment and decree, dated 14.09.2015. The petitioner’s appeal before the appellate court met the same fate on 28.04.2017; hence, the instant revision petition.

5.Arguments of learned counsel for the parties have been heard and the available record examined.

6.The principal core of the controversy turns upon two factual-cum-legal questions: (i) Whether any nearer agnate or full uncle of Rab Nawaz was alive when Rab Nawaz died; and (ii) Under the Islamic law of inheritance, whether a consanguine paternal uncle (Am-li-ab) excludes agnatic cousins/full paternal uncle's sons (Ibn Am-Aani).

7.Addressing the first question, the inheritance mutations produced through APW-1 (Ex. APW-1/1 to Ex.

APW-1/5) unequivocally establish that all other uncles/ predecessors in the line of Ahmad Khan and Mehmood Khan had passed away prior to the death of Rab Nawaz.

This factual position was even admitted by the plaintiff (PW-6) and PW-3 in their cross-examination, acknowledging that at the time of Rab Nawaz's death, no other uncle except Noor Khan was alive. Thus, the factual premise framed during remand stands fully answered.

8.Regarding the legal rule of inheritance, the common pedigree table confirms that Hassu Khan and Haider Khan were consanguine brothers (having the same father, Naseer Khan, but different mothers). Consequently, Noor Khan son of Haider Khan stood in the degree of a consanguine paternal uncle (Am-li-ab) to the deceased Rab Nawaz. The petitioner/plaintiff and proforma respondent No.28 are the sons of Muhammad Nawaz son of Mehmood Khan, placing them as agnatic cousins (paternal uncle's sons).

9.Under the settled principles of Islamic Law of Inheritance (ilm-ul-Faraid), among the Asabah (residuaries), rule of proximity in degree (Al-Aqrabu Fal- Aqrab) governs. As illuminated by the August Supreme Court of Pakistan in the landmark judgment Abdul Khaliq (Deceased) through LRs v. Fazalur Rehman and others

(2022 SCMR 1665):

"In our view, Mst. Roshnae would also inherit the remaining 1/2 share in the estate of Abdul

Ghafoor as a residuary because a full sister is placed higher in the Table of Residuaries at serial No.6, whereas, descendants of the true grandfather how-high-so-ever are placed at serial No.13 and below and thus, would not be entitled to inherit after being excluded by the full sister placed higher to them."

Furthermore, the Supreme Court elaborated upon the structure of the Table of Residuaries from Principles of Mahomedan Law by D.F. Mulla, emphasizing:

"The words 'above named' are of great significance and negate the submission of the learned counsel by entitling a full sister to inherit as a residuary in absence of the residuaries detailed in serial No.1 to serial No.5, meaning thereby, that the residuaries placed below serial No.6 would not inherit anything in the presence of full sister. Admittedly, the plaintiffs/respondents are placed much below i.e. under sub-heading No.IV as 'DESCENDANTS OF TRUE GRANDFATHER h.h.s' and therefore, would be excluded from inheriting the property as residuaries by the full sister which is placed above them."

Similarly, in Saadullah and others v. Mst. Gulbanda and others (2014 SCMR 1205), the apex Court reaffirmed the cardinal rule of exclusion among residuaries:

" As applying the doctrine of return (Radd) and rule of "exclusion", the three sisters of the deceased would not only inherit 2/3rd share, as sharers, from the estate of their deceased real brother, having died issueless but being nearer in the category of residuary at serial No.6, the remaining 1/6th share will also devolve upon them in such capacity. Thus, in their presence, the consanguine brother, being at serial No.7; would not inherit anything from the estate of the deceased as residuary."

10.Applying this settled exposition to the case at hand, a paternal uncle, even if consanguine, occupies a closer degree of relationship to the deceased than a paternal uncle's

son. Therefore, Noor Khan (Am-li-ab), being one degree closer to Rab Nawaz than the petitioner/plaintiff (Ibn Am), lawfully inherited the entire residual legacy of Rab Nawaz to the total exclusion of the petitioner and proforma respondents.

11.The mere misdescription of Rab Nawaz’s grandfather as Hussain Khan instead of Hassu Khan in mutation No.1699, dated 27.09.1954, was a clerical defect of revenue records which does not invalidate the underlying legal entitlement of Noor Khan under Shariah. Both the Courts below have thoroughly appreciated the evidence on record pursuant to the remand directions and correctly applied the law of inheritance. No misreading, non-reading of evidence, material irregularity, or jurisdictional error could be pointed out by learned counsel for the petitioner to warrant exercise of revisional jurisdiction under Section 115 CPC.

12.For the reasons discussed above, this revision petition is devoid of merit and is accordingly dismissed.

Announced.

Dt:08.10.2026. Sd/- Imran/* JUDGE

(S.B)

Hon'ble Mr. Justice Sadiq Ali