P L D 2005 Lahore 641 (PLP)

On 28-11-1984, the petitioners filed a suit against the respondents. According to them Abdul Ghafoor was the last male owner of the suit-land mentioned in the plaint. He was allotted the same. On his death apart from his sons i.e. three defendants in the case he was survived by Abdul Shakoor a 4th son who died after death of Abdul A Ghafoor. He was survived by petitioner No.1 as widow and petitioner No.2 as daughter and son Jafar Khan who died after Abdul Shakoor and his estate devolved upon the petitioners. However, the defendants in the case got mutation of inheritance No.881 attested to the exclusion of Abdul Shakoor and consequently the petitioners. A declaration was accordingly sought. The petitioners, while admitting that Abdul Shakoor was son of the said Abdul Ghafoor and that the petitioners are his widow and daughter stated that whereas Abdul Ghafoor died in 1957, Abdul Shakoor died in the year 1947 and as such the land has been accordingly mutated in their favour to the exclusion of the petitioner lady. It was also denied that Abdul Shakoor was survived by a son. Issues were framed. Evidence of the parties was recorded. Learned trial Court found that Abdul Shakoor had in fact predeceased Abdul Ghafoor and that he was not survived by a son. The suit was dismissed on 8-12-1987 learned Additional District Judge, Multan dismissed first appeal filed by the petitioners on 26-2-1991.

2. Learned counsel for the petitioners states that he would not be questioning the said finding and contends that the mutation of inheritance was attested at a point of time when Abdul Ghafoor was not a confirmed allottee and as such the matter was to be governed by paras. 46 and 46-A of the Rehabilitation Scheme. Learned counsel for the respondent, on the other hand, object that they have rather been taken by surprise and as this plea was never taken in the trial Court or the Appellate Court or even at the time of admission of this C.R. Kanwar Intizar Muhammad, Advocate, has cited a judgment in the case Muhammad Siddiq and others v. Fateh Muhammad (1989 SCMR 57) to urge that in this revision petition this Court would not be competent to entertain the said plea.

3. I have gone through the copies of the records. It is an admitted position that Abdul Ghafoor had four sons, i.e. the defendants in the suit c and the said Abdul Shakoor. It is also admitted that petitioner No.2 is the daughter of said Abdul Shakoor. Now learned counsel for the petitioner has conceded that Abdul Shakoor predeceased Abdul Ghafoor. The other admitted fact on the record is that Mutation No.881 (Exh.P-6) was taken up and attested at a point of time when Abdul Ghafoor was not a confirmed allottee. This being so, upon admitted facts on record the C petitioner No.2 is entitled to inherit the property of her grand father to the extent of her share in the estate of her father i.e. it will be deemed that Abdul Shakoor survived his father and then petitioner No.2 inherited on the death of her father her Muslim law share.

4. Needless to state that it is by now well-settled that inheritance in the case of non-confirmed allottee is to be governed by para.46 of the Punjab Rehabilitation Settlement Scheme. Reference be made to the case of Zafarullah and 23 others v. Muhammad Siddiq and others. (PLD 1980 SC 76). Now coming to the said objection of the learned counsel for the respondents, I do find that throughout the petitioners had been fighting with the plea that Abdul Shakoor survived Abdul Ghafoor. However, other admitted facts have already been referred to by me above. I further find that it was on 3-5-2005 that the learned counsel for the petitioner raised the said contention in presence of the learned counsel for the contesting parties and if I may say so, they cannot feign surprise. So far as the said judgment being relied upon by Kanwar Intizar Muhammad Khan, Advocate is concerned, I have gone through the same. Their Lordships specifically observed that the plea would not be allowed to be taken as it requires first to be established and then to be rebutted by the opposite party and this would cause prejudice. In the present case upon admitted said facts, petitioner No.2 is entitled to the relief under the law. Section 115, C.P.C. authorizes this Court to examine the records and to pass such orders as are deemed to be just and proper. Said relief flows from the admitted facts on the record and the Court will not wait for a party to take a plea of law in order to enable it to grant relief. To my mind even if the plea had not been taken, upon the said facts of the case, this Court is bound to grant the relief to which the said lady is entitled.

5. C.R. is accordingly allowed. Both the impugned judgments and decrees, passed by both the learned Courts below are set aside. The suit filed by the petitioners is decreed inasmuch as Mst. Jafri Begum daughter of Abdul Shakoor is held entitled to 1/2 share out of share while Abdul Shakoor might have inherited from Abdul Ghafoor, his F father. In other words, Mst. Jafri Begum, plaintiff/petitioner No.2 is found entitled to 1/8 share in the suit-land, mentioned in the plaint and 'is declared to be the co-owner in the suit land to the extent of 1/8 share. Mutation No.881 (Exh.P-6) shall stand revised accordingly. No orders as to costs. H.B.T./F-104/L Revision allowed.