Saddat Khan etc Vs Shashid-ur-Rehman etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR.

(Judicial Department) Civil Revision No.411-P-2014 Saadat Khan & other Vs Shashid-ur-Rehman & other.

JUDGMENT

Date of hearing .05.04.2017.

Date of decision.10.04.2017.

Petitioner(s) by Mr. Nasir Khan Khalil, Advocate Respondent(s) by Malik Naeem Khan, Advocate.

MUHAMMAD YOUNIS THAHEEM, J:- The present petitioners have called into question the judgment of learned appellate Court of Additional District Judge- II, Peshawar dated 06.02.2014 vide which Civil Appeal filed by present respondents was allowed and the judgment of learned trial Court of Civil Judge/JMIC-I, Peshawar dated 28.01.2012 was set aside.

2.Brief facts of the case are that present petitioners filed a suit wherein they averred that Isa Khan and Mosa Khan sons of Hamidullah Khan were the owners in possession of suit property measuring 39 kanal 15 marla according to the Jamabandi pertaining to the year 1929-30. Isa Khan died and after his death his legacy devolved upon his one son namely Abd-ur-Rehman vide Ijaz

inheritance mutation No.327 attested on 23.03.1935 and both daughters of Isa Khan and sisters of Abdur Rehman Mst: Mehro and Mst: Afro were deprived.

The plaintiffs being legal heirs of Mst: Mehro and Mst: Afro had challenged the said inheritance mutation No.327 sanctioned on 23.03.1935 on the basis of fraud, misrepresentation with the collusion of revenue officials.

3.Defendants were summoned. Among them defendants No.1 to 6 submitted their written statement by raising variety of legal as well as factual objections mainly asserting that suit is time barred, the plaintiffs have no cause of action and are estopped to file the present suit. In the light of divergent pleadings of the parties, learned trial Court framed issues. Parties led their respective evidence and at the conclusion of trial, learned trial Court after hearing the arguments of both the parties, decreed the suit. The present respondent feeling dissatisfied from the judgment and decree passed by the learned trial Court had filed regular civil appeal before learned District Judge, Peshawar which was entrusted to the Additional District Judge-II, Peshawar for disposal. After hearing the Ijaz

arguments of learned counsel for parties, the learned appellate Court allowed the appeal vide order, judgment and decree dated 06.02.2014 by setting aside the judgment and decree of learned trial Court. The present petitioners feeling aggrieved from the judgment and decree passed by learned appellate Court had filed the instant revision petition on the ground mentioned therein.

4.Arguments heard and record perused.

5.From the perusal of record, it reveals that predecessor of the parties Isa Khan and his brother Mosa Khan were joint owners in possession of area measuring 39 kanals 15 marla, according to Jamabandi pertaining to the year 1929-30 placed on record as Ex PW1/1 to Ex PW1/18 and out of this area Isa Khan was owner of half share measuring near about 19 kanal 17 marla after his death inheritance mutation was sanctioned in the name of his only son Abdur-Rehman vide said inheritance mutation No.327 placed on record as Ex PW1/19.

6.Admittedly plaintiffs are the legal heirs of Mst: Mehro and Mst: Afro, now the question for determination before this Court is as to whether the present petitioners/plaintiffs have cause of action to Ijaz

challenge the inheritance mutation passed in the month of March 1935 or whether they are estopped to instituted the civil suit to challenge the said mutation on 19.11.2004 after the lapse of near about 70 years. In this respect the learned trial Court framed following issues in particular:-

i)Whether the plaintiffs have got a cause of action?

ii)Whether plaintiffs are estopped to sue by their own conduct?

iii)Whether the suit is within time?

7.The learned trial Court after evaluating evidence decided the above three issues in favour of plaintiffs/present petitioners. It is admitted position that predecessor of present petitioners Mst:

Mehro and Mst: Afro did not challenge the said inheritance mutation No.327 in their life time. The present petitioners/plaintiffs challenged the same mutation after the lapse of 70 years on allegation of fraud, collusion and misrepresentation but failed to substantiate this very alleged fraud through cogent and believable evidence. Whereas the burden of proof was upon the plaintiff which he failed to prove.

In this respect reliance is placed in case 2008

SCMR 1095, 2011 CLC 355 & 2011 CLC 790.

Predecessor of present respondent during his life Ijaz

time sold out most of the land inherited by him and some chunk of land was acquired by the Sarhad Development Authority for Industrial Estate of Khyber Pakhtunkhwa for Small Industrial State purposes. The present plaintiffs in their statements admitted the fact that some land was acquired by the Provincial Government back in the year 1960-61 and they demanded their share in the compensation but defendants refused. The record shows that they had not filed suit for share in the compensation in the year 1960-61 despite knowledge but they kept mum. Thus the judgment of Hon’ble Supreme Court in Ghulam Ali’s case cited as PLD 1990 Sc Pag-1, could not be pressed into service to the circumstances of instant case.

8.The conduct of present petitioners showed that they remained satisfied till the filing of present suit filed on 19.11.2004, so they by their conduct abundaned their claim, if any when same cause of action was available to them or to their predecessors Mst: Mehro and Mst: Afro, so now they are estopped to file suit for inheritance rights and challenge mutation on the basis of fraud and collusion. In this respect wisdom is derived from the Ijaz

judgments of Hon’ble Supreme Court of Pakistan titled “Ghulam Abbas & others Vs Mohammad Shafi through LRs & others” (2016 SCMR 1403), “Lal Khan through LRS Vs Muhammad Yousaf through LRs” (PLD 2011 SC 657), “Mst: Grana through LRs & others Vs Sahib Kasmala Bibi & others” (PLD 2014 SC 167) “Kala Khan & others Vs Rab Nawaz & others” (2004 SCMR 517) and “Muhammad Rustam & another Vs Mst: Makhan Jan & others” (2013 SCMR 299)

9.The present petitioners and their predecessors Mst: Mehro and Mst: Afro lost their locus standi and cause of action due to their conduct with the afflux of time. Moreover, after examining the entire record this Court is of the view that the learned appellate Court has properly reappraised the evidence on record and has correctly set aside the judgment of learned trial Court according to law by giving findings that suit was time barred and under the principle of estopple, they are barred to challenge the impugned mutation and has dismissed the suit. No other point worth consideration has been pointed out by the learned Ijaz

counsel for petitioners for interference u/s 115 of C.P.C by this Court.

10.Thus in view of above discussion, this petition being bereft of merits is dismissed.

Announced.

JUDGE

Ijaz