2006 PLP 1671 (MLD)

JAWWAD S. KHAWAJA, J.

The two applicants, namely, Mst. Rabia Bibi and Mst. Kako Bibi are the daughters of Mst. Fatima (now deceased). They seek review of the order, dated 30-10-2001 passed by me in C.M. No.1-C/01 in C.R. No.2522/85.

2. C.R. No.2522/85 arose out of a suit filed by Bati son of Mst. Fatima from her marriage with Bagga and Dosa son of Bagga from Bagga's marriage with Mst. Rehman. The said plaintiffs (respondents herein), namely, Bati and Dosa had sought annulment of a gift mutation No.1737 sanctioned on 23-10-1982 whereby Mst. Fatima had purportedly gifted land measuring 20 kanals, 3 marlas in favour of one of her sons, namely Inayat (respondent No.3 herein). The Appellate Court had decreed the suit of Bati and Dosa thereby annulling the aforesaid mutation. This appellate judgment was upheld in C.R. No.2522/85. As a consequence, the land in dispute measuring 20 kanals, 3 marlas was held to be the property of Mst. Fatima to be vested in all her legal heirs by way of inheritance after her death. The review applicants Mst. Rabia and Mst. Kako assert that they being daughter of Mst. Fatima are entitled to inheritance in the estate of Mst. Fatima. Although they were not impleaded as parties in the suit filed by Bati and Dosa, they nonetheless are beneficiaries of the decree whereby gift mutation No.1737 was annulled. It is contended by learned counsel that Bati and Dosa filed C.M. No.1-C/01 without disclosing to the Court that the two review applicants were also legal heirs of Mst. Fatima. According to him, it is on account of this concealment that the order, dated 30-10-2001 was passed declaring Bati and Dosa to be entitled in equal shares of 2/3rds of the total land owned by Mst. Fatima. It is further pointed out that Mst. Nizam Bibi (respondent No.5), who is also a daughter of Mst. Fatima and full sister of the two review applicants, was not brought to the attention of the Court when the order, dated 30-10-2001 was passed.

3. In addition to the above, learned counsel for the appellants has pointed out that Dosa was not the son of Mst. Fatima although he was the son of Bagga from Bagga's marriage with Mst. Rehman. On this basis, it is contended that Dosa was not entitled to inherit any part of the estate of Mst. Fatima.

4. It is not disputed by learned counsel for the respondents that the applicants Mst. Rabia and Mst. Kako and their third sister, Mst. Nizam Bibi, respondent No.5, are the daughters of Mst. Fatima. Furthermore the fact that respondent Dosa was not the son of Mst. Fatima has also not been disputed by learned counsel for the respondents. In the circumstances, it was incumbent upon the respondents to disclose the aforesaid facts in C.M. 1-C/2001. This, however, has not been done and constitutes concealment of material facts from the Court. At this juncture it is relevant to note that in para-6 of the judgment, dated 7-10-1999 whereby Civil Revision No.2522 of 1985 was decided, the following finding was recorded:- "The net result of the decree is that the suit-land reverts back to Mst. Fatima after the decree, dated 26-1-1985." It was this portion of the judgment, dated 7-10-1991 which the respondents had sought to be modified. It is obvious that in view of the above finding, Mst. Fatima was clearly held to be the owner of the property. Her daughters, therefore, including the two applicants, were interested parties but were neither impleaded in C.M. 1-C/2001 nor was their existence brought to the notice of the Court. Had this been done, the order, dated 30-10-2001 sought to be reviewed would not have been passed.

5. In addition to the above, it needs to be noted that after the judgment, dated 7-10-1999, Mutation No.2985 was recorded in the name of Mst. Fatima alone. After her death on 27-8-2000, Mutation No.3134 was sanctioned on 8-2-2001 in favour of the legal heirs of Mst. Fatima. It is thereafter that C.M. 1-C/2001 was filed and the order, dated 30-10-2001 was obtained by the respondents. Based on this order the respondents have obtained Mutation. No.3254, dated 1-12-2001. Since the order, dated 30-10-2001 is based on concealment of material circumstances which the respondents were obliged to disclose, the said order is hereby recalled. Consequently, all consequences following from the finding that the suit-land reverted to Mst. Fatima shall follow. This will include the right of the applicants and their third sister to inherit from Mst. Fatima. This review application is allowed in the above terms. H.B.T./R-36/L Revision application allowed.