Abdul Haleem Vs Habibullah etc

JUDGMENT SHEET

IN THE PESHA WAR HIGH COURT, Of

BANNU BENCH - -

(./ut/icial Dexirmen

CR. No. 16-B of2007

Abdul Haleem & others

VS

flab/bigliaji and a/h crc

JUDGMENT

Date of hearing 14.09.2015

Appellant-Petit

Responden

MUHAMMAD YOUN1S THAIIEEM, .1.- The

petitioners through the instant revision petition called in question the judgment and decree dated 8.02.2007 of the learned Additional District Judge-Il, Lakki Marwat, whereby on acceptance of appeal, decree \ and judgment (laded 26.10.201 5 ol trial court was set aside and suit of the real respondents/plaintiffs was decreed in their ftvoiir.

2.Brief facts of the case are that llabibullab and others, Petitioners/plaintiffs has filed a suit for declaration and permanent injunction against Abdul Ghaffar etc, petitioners/defendants to the effect that they being legal heirs of Mst. Bibi Noor, the pre- deceased daughter of Abdul Ghaffar son of Baz GuI are entitled to 1/8 shares in the legacy of Abdul Ghaffar in view of Section 4 of Muslini lamily Laws Ordinance, 1961. It was averred that they are owners /co sharers in the suit Katha Jat alongwilh defendants No.1 to 23 and inheritance mutation No.3504 attested on 24.7.1993 in respect of legacy of deceased Abdul Ghaffar and inheritance mutations No.313, 314 and 3 15 etc in respect of Mauza Umar Tattar Khel and Tattar Khel Guli Jan to the extent of their mother Mst.; Bibi Noor are illegal, based on fraud and collusion and thus in effective upon their rights. It was also averred that if possession is not proved, then the same be delivered to them and Fard jamabandi for the

year 1974 till date in respect of Mauza Umar Khel and mauza Tattar 1(hel GuI Jan is against law and their rights. They prayed that they being the legal heirs of Mst. Bibi Noor, who was pre deceased daughter of deceased Abdul Ghaffar and legal heirs of Mst. Bibi Noor, i.e. plaintiff, are entitled to 1/8 shares of their mother; that Abdul Ghaffar who was their maternal father, died during the year 1973, while their mother Mst. Bibi Noor died after his death, therefore, defendants No.1 to defendants No.23 with their mutual collusion deprived of her mother Mst. Bibi Noor from the inheritance of her father with the active connivance of Revenue officials while attesting the impugned inheritance mutation No.3504.

II was averred in the plaint that inheritance mutation \ of deceased Abdul Ghaffar bearing No.3504 and subsequent mutations No.3 13, 314 & 315 to the extent of share of their mother Mst. Bibi Noor are against their rights and thus are liable to be declared as null lx-

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and void; that defendants No.1 to 23 were asked time and again to cancel the inheritance mutation and considered them as owners/mortgagors to the extent of their shares in the legacy of deceased Abdul Ghaffar but they refused, hence the suit was instittited.

3.When summoned, defendants No.5 & 12 appeared and submitted written statement, wherein they raised several legal and factual objections therein. The divergent pleadings of the parties gave rise to the framing of as many as 12 issues including the relief. Therefore, the parties produced their pro and contra evidence which they wished to adduce, where after arguments of their learned counsel were heard and the learned trial judge on scanning the evidence brought on file and considering the arguments of learned counsel For the parties addressed at the Bar, dismissed the suit of the plaintiffs vide judgment and decree dated 26.10.2005.

4.Feeling aggrieved from the aforesaid

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judgment and decree of the learned trial court, plaintiffs assailed the same through an appeal before the learned lower appellate court which was accepted by the learned Additional District Judge-Il, Lakki Marwat, the impugned judgment and decree dated 8.2.2007 of the lower court was set aside and consequently the suit of the plaintiffs was decreed to the extent of 1/9 shares in the legacy of deceased Abdul Gliaffar.

S. Not contended with the aforesaid

judgment and decree of the learned lower Appellate court, the petitioners/defendants have also assailed the same through the present Revision petition.

6.Learned counsel for the petitioners contended that the impugned judgment and decree of the learned lower appellate court is based on surmises and conjectures and thus , it suffers from material illegalities and irregularities. He argued that

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predecessor of the plaintiffs/respondents was dead at the time when the inheritance of deceased Abdul Ghaffar got opened. Thus there was no person surviving to whom the legacy of Abdul Ghaffar could be devolved. His contention that the provision of Section 4 of Muslim Family Laws Ordinance, 1961 has been declared repugnant to injunction of Islam and thus there is no ambiguity regarding devolution of inheritance.

On the other hand, learned counsel for the respondents/plaintiffs has strongly defended the judgment and decree of the learned lower appellate court on the grounds mentioned therein.

1 have carefully gone through the entire record of the case and anxiously considered the valuable rights of the learned counsel for the parties.

The perusal of the record depicts that the deceased Abdul Ghaffar had died in the year 1973

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leaving behind four sons and two daughters. One of his daughter Mst. Bibi Noora and his son Muhammad IKhan had already died in his life time. They were survived by children when in 1973 Abdul Ghafir died and his inheritance mutation No.3504 was attested on 24.7.1973, wherein children of his pre deceased son Muhammad Khan were given 2/9 shares in his inheritance . Besides one of his daughter namely Bibi Hawa was given 2/9 share in his legacy.

The plaintiffs in their plaint had claimed 1/8 shares in the legacy of deceased Abdul Ghaffar but it was not based on correct legal footings that being the children of pre deceased daughter of Abdul Ohaffar like Bibi 1 lawa, they were also entitled to 1/9 shares in the inheritance mutation No.3504 attested on 24.7.1973.

The learned trial court while placing reliance on the \ case law reported as "PLD 2000 Federal Sliariat court Pae-1" wherein the provisions of Section 4 of Muslim Family Laws, Ordinance, 1961 have been r t4.

declared repugnant to the injunction of Islam, has 0 fallen into an error because the said authority was not applicable to the case in hand on the ground that the plaintiffs were children of pre-deceased daughter of Abdul Ghaffar and they were excluded from their Legacy at the time of attestation of mutation No.3504 on 24.7.1973. Judgment of Federal Shariat Court is pending before the Apex Court and its operation has been suspended, so the aforesaid provisions of Section 4 ibid are in existence and in the field and are applicable on all score to the case in hand.

10.For the reasons discussed above, the learned Appellate court below has rightly appraised the evidence brought on record by properly applying the law in field and reached to a correct conclusion while passing the impugned judgment and decree dated 8.02.2007. Moreover, the legal heirs of one pre- deceased son were given the share of their father, so i'fl\

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she, (the plaintiff Mst. flibi Noor), was at par with her brother.

11.Learned counsel for the petitioners/ defendants failed to point out any illegality or irregularity, mis reading/non-reading of evidence or jurisdictional defect in the impugned judgment and decree dated 8/2/2007 passed by the learned Additional District Judge-Il Lakki which could justify interference therein and thus the same is upheld and resultantly the Revision petition being devoid of any meritable consideration is hereby dismissed leaving the parties to bear their own costs.

Announced

JUDGE

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iv r 14 ii '. dench AutIciri,.'. U Ai ts 87 of The Qaflull -e Oider 194