Iftikhar Hussain Shah Vs Muhammad Afsar Shah & others

.IUDGMENT SHBET

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

(ludicial Department) CR No. 474-N20ll

Iftikhar Hussain Shah & others (Petitioners) vs

M. Afsor Shah & others. (Respondents) Present Syed Hammad Hussain Shah Gilani, Advocate for the petitioners.

Mr. Muhammad Saleem Awon, Advocate for the respondents.

Date of hearing: 29.11.2024

JUDGMBNT

MUHAMMAD FAHEEM ALI. J.- This order is directed to dispose of instant Civil Revision petition filed by the petitioners against Judgment and decree dated 30.06.2011, whereby learned appellate Court acceptecl appeal of the respondents aud set-aside judgment and decree passed by the learned trial Court dated 14.02.2011, decreeing suit of the re spondents/p laintiffs.

2 Itespondents Vluhamntacl Afsar Shah & cthers brought a suit for declaration to the effect that

they are the legal heirs of Mst. Bibi Maroof Jan daughter of Lal Shah. The grand predecessor of the parties namely Lal Shah son of Sher Shah had a son namely Shah Sultan (predecessor of the petitioners/ defendants) as well as a daughter Mst. Bibi Maroof Jan (predecessor of respondents/plaintiff). Upon death of [,al Shah, his inheritance mutation bearing No. 1625 was attested on 30.05.1936 in favour of Shah Sultan (predecessor of petitioners/defendants) whereby the daughter of Lal Shah namely Mst. Bibi Maroof Jan was deprived fi'om the legacy of her father. Petitioners alleged that they came to know about the said fraud, when the revenue record was scanned and it surfaced that the predecessor of the I petitioners/ defendants got attested the inheritance mutation in his favour by exclusion of Mst. Bibi Maroof Jan. The suit was contested by the petitioners/ defendants by filing their written statement, wherein they have raised legal as well as factual ob.iections. Learned trial Court framed issues, recorded pro and contra evidence and upon conclusion of trial, disrnissed the suit of the respondents/ plaintiffs vide judgment and decree

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datecl 14.02.2011. The appeal filed by the respondents/ plaintiffs, was accepted by the learned appellate Court/Additional District Judge-III, Abbottabad, vide judgment and decree dated 30.06.2011 and consequently, the suit of the rt:sponderils/plaintiffs was decreed. Not contended with the findings recorded by the learned appellate Court, the petitioners/defendants have approached this Court through instant Civil Revision.

3.I have heard arguments of learned counsel for the parties and perused the record.

{. Perusal of record reveals that the plairrtiffs claimed that their predecessor Mst. Bibi Maroof Jan was the daughter of Lal Shah and through inheritance mutation No. 1625 dated 30.05.1936, she was deprived from the legacy of her father, therefore, the said mutation is liable to cancellation to the extent of rights of Mst. Bibi Irlaroof Jan. The leamed trial Court dismissed suit of the respondents/plaintiffs mainly on the ground of limitati<ln, because the mutation attested on 30.05 .1936, was assailed in the suit, filed in the year

2005. On appeal, the learned appellate Court allowed the appeal of the respondents/plaintiffs by holding that the limitation would not operate against the inheritances rights and therefore, decreed the suit.

The plaintiffs/respondents remained successful in proving that the Mst. Bibi Maroof Jan was the daughter of Lal Shah, by producing Syed Daud Shah (PW-3) and Dilawar Shah (PW-4). Therefore, the rnoot question for determination before this Court is "whether the respondents/plaintffi could maintain a suit, challenging a mutation ottested long ogo, os a result whereof third-party rights were creoted?" No doubt in ordinary cases of inheritance, the limitation is not given much worth and mostly, the cases are decided on the basis of evidence brougflrt before the Court. However, it is rvhen an heir is deprived of his right in the legacy of his predecessor, by way of attestatiott of inheritance mutation and upon getting knowledge abottt infringement of his such right, he approaches the Court of law, seeking a declaration, the matter is tried atrd decided in the light of available evidence, however, such a right could only be claimed by the person injuriously affected as a

result of such inheritance mutation, or arly other person, acting on his behalf in good faith. However, in cases where after attestation of inheritance mutation, third-party rights have accrued because of the afflux of time, the limitation is a pivotal question and cannot be left in vacuum merely on the ground that the question pertains to inheritance. In the instant case, the inheritance mutation of deceased Lal Shah was attested on 30.05.1936 and it is the claim of the respondents/plaintiffs that by way of such mutation, the rights of their predecessor Mst. Bibi Maroof Jan, were infringed. Mst. Bibi Maroof Jan has never questioned said mutation during her life time and as per available evidence, she died in the f year 1973. Even after her death, the mutation was not called in question before any forum and for the first tirne, the plaintiffs/ respondents questioned the validity of said mutation through suit, filed in the year 2005 and admittedly by that time, the rights of third-party had been created as a result of impugned mutation. Attorney of the plaintiffs namely Muhammad Afsar Shah, while appearing in the witness box as PW-5, admitted that the suit property

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is in possessiou of the defendants and he is not firm as to how much area is still in their possession and how rnuch area has fuither been alienatecl by them.

Similarly, PW-3, Syed Daud Shah admitted during cross-examination that Iftikhar Shah has sold out sufficient portion of the property, while some portion of the suit properly is still available around the houses of Iftiktrar Shah etc. The plaintiffs/ respondents have, however, not arrayed said persons to whom Iftikhar Shah sold out the property, as pa*y to the suit. Recently, honourable Supreme Court of Pakistan, while giving judgment in the case of "Khaleelullah & Others Vs. Muhoim Khan & others" (Civil Appeal No. 25-Ql2018), was pleased t to hold;

"In the case of denial oJ'the inheritance to an heir, the cause of action to sue accrLrcs to him, when the co'sltarer(s)/ legol heir(s) in actual possession of the inherited property denies (actually) or is interested to deny (tlreatens) the share of the claimant legal heir in the inhertted property. The actual denial of right of a co-sharer by the other co- sharer nxay occur, when the latter does

something explicit in denial of the rights of former, such os by making o fraudulent sale or gft deed. Thts Court has recently clarified thot the transfer of property to a third party, be it through sale or gift, constitutes an actual denial of rights. In contrast, a simPle annotation in the revenue record is regarded as o threatened or apprehended denial of rights."

5.The plaintiffs/respondents have never remained in possession of the suit property, nor their predecessor could be considered to be in constructive possession of the properly, as admiued by PW-5 (Muhammad Afsar Shah) during his cross- examination that their mother never received any share from the produce of the suit property. Thus the ( right of inheritance of the predecessor of plaintiffs/ respondents was actually denied during the lifetime of predecessor of Mst. Bibi Maroof Jan, when the possession of the properly was taken over by the predecessor of the petitioners/defendants. In the case titled "Mst. Granan lhroagh legal heirs and others v. Sahib Kamula Bibi snd others" (PLD 2014 SC W) the apex Court has held that the law of

limitation would be relevant when the conduct of the claimant detnonstrates acquiescence and particularly when third party interest is created in the inherited property. Relevant observations of the apex Court are reproduced for ready reference;

"The plaintiff had assailed th:e registered sale-deed dated 08.06.1916 and the sale mutation No. 1273 dated 23.12.1917. She had also question inheritcrnce mutations No. 281 dated 05.12.1930, 2089 dated 01.09.199 and gift mutations of 11.11.1959 and fitrther mutations made fro* time to time attested on 18.10.1956, 09.12.1964, 12.12.1981, i1.01.1984 and 30.07.1987 and further all subsequent sale and gift mutations. The challenge was thrown in the year l99l when she vtas more thqn 80 yeqrs old; as according to the evidence she

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was 6/7 years old when her fother had died somewhere in the year lglI/12. Upon her father's death the entire property wcts htherited by her as limited owner, which, upon her marriage in the year 1930, she had to give up in Javctur of her step-sister, Mst. Bibi, born out of her mother's wedlock with one, Rasool. Since then she had remained out of possession. It cannot be said that she was unawqre as to how the property was handled there-after and of her rights therein. Rather her atvareness is

demonstrated by the order o/'the Collector, Mardan, dqted 15.04.1942 where she u,as marked personalllt present. In the appeal before the Collector she had questioned the pennanent transfer by Mst. Bibi of certain property alleging that the respondent was a limited owner. Hotvever, she had neither then or ever questioned the sale deed of the year 1916 till /iling of the suit in the year, 1991, being well aware of such transfer. Again, as the above order of the Callector shou,s thqt the plaintilf was cotxscious and nware haf ct limitecl owner wqs not empowered to transfer permanently property inherited by him or her, she did not question the gift nrutation by Mst. Bibi in favour of the latter's tnother, Mst. Habib Khanunt, aslso the plaintiff's mother, in the year 1945. It may also be noted that bv then the North-West Frontier Province Muslim Personal Law (Shariat) Applic:ation Act, 1935 hacl come into force and the plaintiff

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could have asserted her right of inheritance. While the property was further ,sold and resold, constntcted and reconstructed, the plaintiff took no action to annul or prevent such transfers. lYhen she filed the suit there were qs many as 251 transferees of the property. The. condttct of t he plaintiff clearly demonstrated acquiescence in all the impugned transfers o.f the property which amounting to waiver

oJ' her right. The tronsferees tvere, on accotlnt of the plaintiff's inaction, led to believe that the tronsferors had valid titled in the suit properQ. The plaintiff hqd died during early stages of the litigation and has now represented b), her legal heirs. The intpugned concurrent findings of the two Courts on the above questions therefore, do not call for any inter"ference. "

6.In view of the above referred case law, it has rrow a well-developecl larv that in case where a legal heir was deprived of'his right in the legacy of his/her predecessor and after attestation o1' the inheritance mutation, he/she remains alive for' sufficient period without challenging the irrheritance mutation, injuriously affecting his/her rights, upon his/her death, the legal heirs would have no locus- standi to question such injuriously affecting

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irrheritance mutation, morc particularll', rvhetl ttrird- par:ty rights have accrued in the suit property and the inheritance mutation remained unchallenged during tife-time of the affected legal heir. The inheritance mutation in question was attested on 30.05.1936 and Mst. Bibi Maroof Jan remaitred alive till 1973, but she never challengerl said rnutation. It was also

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admitted on record that the partics remained locked 1n litigation in respect of landed properties at different forums, however, the suit mutation was never questioned in the former proceedings. Even after the death of Mst. Bibi Maroof Jan, the respondents/ plaintiffs have not challenged the suit mutation and for the first time, the suit was filed in tlre year 2005, therefore, their suit r,vas hit by Article 120 of the Limitation Aot. 'Ihe knowledge, as disclosed by the respondents/plaintiffs in their suit, cannot be considered true, because it is admitted position on record that thc parties had civil litigation inter-se, much prior to the filing of present suit.

Similarly, the acquiescence and waiver also operates against the predecessor of the respondents/plaintiffs because admittedly the actual possession of the property was rvith the predecessor of the petitioners/ defendants and during her life-time, the predecessor of the respondents/plaintiffs had not received any share frorn the produce of the property.

7.Learned appellate Court has thus fallen into error, while setting aside the judgment and

decree passed by the learned trial Court and \ /rongly decreed the suit through impugned judgnrent, which requires interference b1, this Court.

8.Accordingly, this Civil Revision petition is allorved and the impugned judgment and decree passed by the leamed appellate Court is set-aside, by restoring the judgment and decree passed by the lcarned trial Court. Consequentll', the suit of the plaintif respondent stands dismissed.

Announced Dt: 29.11.2024 t Tufail./*

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