Ghulam Qadir etc vs Mir Farosha etc

2010 C L C 640

[Peshawar]

B ef o r e Mazhar Alam Khan Miankhel, J

GHULAM QADIR and others----Petitioners

Versus

MIR FAROSHA and others----Respondents

Civil Revision No.116 of 2010, decided on 17th February, 2010.

Specific Relief Act (I of 1877)---

----S. 42---Islamic law---Inheritance---Concurrent findings of the two courts below passed in a declaratory suit filed by the plaintiffs wherein they had sought indulgence of civil court by declaring them to be the legal heirs of their predecessor---Plaintiffs had also challenged inheritance mutation wrongly entered and attested in favour of defendants by excluding them-- -Pedigree-table brought on record could not be disputed---In absence of evidence, it could sufficiently be presumed that there were no other legal heirs of the deceased, except shown in the pedigree-table---Had there been any of such legal heirs, they would themselves had joined the proceedings---No evidence on record was referred to by the counsel for the defendants which could reflect that the same was misread or misinterpreted by the courts below; or there was any jurisdictional defect in the proceedings before the courts below---Revision was dismissed.

Manzoor Khan Khalil for Petitioners.

ORDER

MAZHAR ALAM KHAN MIANKHEL, J ---Through the instant revision petition, the impugned herein are the concurrent findings of the two Courts below passed in a declaratory suit filed by the respondents wherein they had sought indulgence of civil Court by declaring them to be the legal heirs of their predecessor namely Noor Ullah and have also challenged an inheritance mutation wrongly entered and attested in favour of the present petitioners by excluding them. Their claim was denied by the present petitioners and even they disputed the pedigree-table shown in the para 1 of the plaint.

2.The learned counsel for the petitioners submitted that the two Courts below have not appreciated the evidence on the record in its true perspective and have also failed to determine the question of limitation involved in the case and thereby requested for setting aside of the same by dismissal of the suit of the respondents. >

3.Learned counsel for the petitioners 'was heard at length and record of the case was perused.

4.Record of the case reveals that initially the property was owned by the propositus of the parties namely Noor Ullah who died somewhere in 1935-1936 and thereafter mutation of inheritance bearing No.786 dated 25-1-1936 was entered and attested in favour of his sons alone by excluding his two daughters and his widow on the strength of customary law. One daughter and .the L.Rs. of the second daughter came with the present suit to claim their share whereas after the death of the widow of the propositus, her share devolved on her two sons and two daughters.

5.The main contention of the learned counsel for the petitioners remained that the respondents having knowledge of the inheritance mutation did not bring the suit within the period of limitation. So, their suit was hopelessly time-barred. In my opinion, his submission in this regard holds no ground for the reason that the respondents being the legal heirs of Noor Ullah deceased were equally entitled to inherit their respective shares along with the petitioners and just after the

death of their predecessor, they became co-owners with the present petitioners. So, no question of limitation would arise against the respondents being co-owners, as efflux of time would not extinguish any right in inheritance simply because of non attestation of mutation of inheritance in their name. Under the Muslim Law of inheritance, they are the owners of their respective shares just after the death of their predecessor. The mutations are attested just fog the fiscal purposes to streamline the record of rights. Such non-attestation of mutation in the names of the respondents would not create any hurdle in their way to get their property incorporated in the revenue record.

5-A. The argument of the learned counsel regarding the pedigree-table shown in the plaint can also be held to be an evasive denial in absence of any evidence in this regard as no other pedigree-table was given by the petitioners. So, in absence of the same, the pedigree-table brought on the record cannot be disputed. The reference to the statement of P.W.6 in absence of any specific evidence would not be of any help. There is nothing on the record which could reflect that the second wife of said Noor Ullah died earlier to him or she died later on and similarly, there is no piece of evidence reflecting the fact that there were any issues of the deceased from said wife. So, in absence of such evidence, it can sufficiently be presumed that there were no other legal heirs except shown in the pedigree-table. Had there been any of such legal heirs, they would themselves have joined the proceedings. However, even if their existence is proved, the right of inheritance would be their secured right which can be claimed by them.

6.No evidence on the record was referred to by the learned counsel for the petitioners which could reflect that the same was misread or misinterpreted by the Courts below or there was any jurisdictional defect in the proceedings before the lower Courts.

7.In view of the above circumstances, I see no merits in this revision petition. Hence, dismissed in limine.

H.B.T./54/P Petition dismissed.