2000 PLP 1606 (MLD)

Ashfaque Hussain Kiani Advocate for Respondents. Date of hearing: 1st November, 1999. MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal by way of leave of the Court has been directed against the judgment and decree of the High Court, dated 18‑10‑1998, whereby the findings of the District Judge

2. The brief facts of the case are that respondents; herein, instituted a suit for declaration regarding their share in the suit land comprising in Khewat No.4 in village Sachain, Tehsil Muzaffarabd measuring 109 Kanals. The trial Court after hearing the suit dismissed the same vide its judgment and decree, dated 30‑9‑1991. The plaintiffs‑respondents aggrieved by the judgment of the trial Court filed an appeal to the District Judge who accepted the same and set aside the judgment and decree of the trial Court. The appellant‑defendant challenged the judgment and decree of the District Judge before the High Court which was dismissed and the findings of the District Judge were upheld vide the impugned order, dated 18‑10‑1998. It is against the aforesaid judgment and decree of the High Court which are subject of the present appeal before this Court.

3. The District Judge expressed the view that Manzoor Ullah Shah, the grandfather of Ghulam Ali Asghar Shah appellant‑defendant, had five sons out of two wives. Muzammal Shah the father of appellant herein, and Maqbool Shah were from his first wife while other three were from the second one Muzammal Shah and Maqbool Shah, the real brothers, died during Dogra regime in the lifetime of Manzoor Ullah Shah and thus, no share was inherited by Muzammal Shah or Maqbool Shah. Consequently, Muzammal Shah, the father of the appellant, did not inherit any share from the estate left by his father. The District Judge as well as the High Court have concurrently held that Ghulam Ali Ashgar Shah defendant‑appellant could not prove that Manzoor Ullah Shah, his grandfather, had partitioned his land in his lifetime and share in dispute fell to the lot of Muzammal Shah the father of appellant, herein. The District Judge and the High Court have also come to the conclusion that it has not been proved by the appellant, herein that the land in dispute fell to the lot of his father as a result of partition.

4. We have heard the appellant and the learned counsel for the respondents. Both the parties agreed on the point ‑that Muzammal Shah, the father of appellant, and Maqbool Shah died during the lifetime of Manzoor Ullah Shah, and thus, no share of land could have been inherited by, Muzammal Shah, the father of appellant, from the estate left by his father. On account of death of the father of the appellant prior to the death of his grandfather the appellant under the Muslim Law of Inheritance could not I inherit any share. The learned District Judge as well as the High Court unnecessarily probed into the matter that Manzoor Ullah Shah, the I grandfather of appellant, during his lifetime had partitioned his land and the share in disputed land fell to the lot of Muzammal Shah. Though both the Courts observed that it was not proved by the appellant, herein, that the land in dispute fell to the lot of his father as a result of partition. In our view even if the partitioned had been proved the appellant could not have got any share from the suit land because he stood ousted from getting any share on account of death of his father having taken place earlier than the death of his grandfather.

5. We may also observe that respondents have agreed in open Court that on some portion of land in dispute the appellant had constructed a house since long and is living there. Apart from that they have also agreed to leave 6 Marlas of more land which falls in front of the house constructed by the appellant and used as a courtyard. We have also noted that respondents ' in their plaint have not mentioned the piece of land wherein the house of appellant stands constructed. As a result of the offer made by the respondents themselves it is directed that the piece of land on which the house of appellant stands constructed and 6 Marlas of mote land which is used by the appellant as courtyard shall be out of the decree granted in favour of respondents. This, they are directed to refrain from dispossessing the appellant from the above‑stated piece of land. In the light of what has been stated above finding no force in this appeal the same stands dismissed. However, in the circumstances of the case we pass no order as to the costs. H.B.T./29/SC(AJ&K) Appeal dismissed.