2015 PLP 1127 (CLC)

ALI AKBAR QURESHI, J.

The petitioners, through this civil revision, are calling in question the judgment and decree dated 23-1-1996, passed by learned Additional District Judge, Taunsa, whereby the judgment and decree passed by the trial court dated 9-3-1994, in favour of the petitioners was set aside, by accepting the appeal of the respondents.

2. Since it is an old litigation, therefore, it is necessary to state the facts in brief. The petitioners, who are legal heirs of Mst. Ayesha daughter of Fazal Khan and sister of Musa Khan, filed a suit for declaration to correct the inheritance mutation entered in the revenue record, after the death of predecessor/father of Mst. Ayesha, by which she was excluded from the list of the heirs of Fazal Khan at the time of entering the inheritance mutation, on the ground that Mst. Ayesha daughter of Fazal Khan married with Muhammad Bakhash and died issueless; whereupon the Muhammad Bakhash, husband of deceased Mst. Ayesha became an heir to the extent of 1/2 share of her property as the succession opened in the life time of Mst. Ayesha; the petitioners/ plaintiffs are the heirs of said Muhammad Bakhash, which is shown in detail in the pedigree-table mentioned in this civil revision. Further contended, that the land of deceased father of Mst. Ayesha was mutated in the name of his two sons namely Musa and Ahmad by ignoring Mst. Ayesha, who was admittedly the daughter of Fazal Khan and real sister of the respondents; as Mst. Ayesha and after his death Muhammad Bakhash deceased predecessor in interest of the petitioners, became owners to the extent of 1/5 share of the property left by Fazal Khan, therefore, the petitioners are entitled to inherit the property of Mst. Ayesha to the extent of 1/40 shares and they are also in possession of the land.

3. The suit was contested by the respondents mainly on the grounds, that after the death of Fazal Khan mutation was entered according to the custom prevailing at the time of death of Fazal Khan, whereby the daughter was not entitled to inherit anything from the legacy of her father.

4. The learned trial court out of the pleadings, settled issues, recorded evidence of the parties and finally decreed the suit vide judgment and decree dated 9-3-1994.

5. The respondents being aggrieved of the judgment and decree dated 9-3-1994, filed an appeal which was accepted and the suit filed by the petitioners was dismissed vide judgment and decree dated 23-1-1996. Hence, this civil revision.

6. In this case, the petitioners have been non-suited by the learned appellate court, while recording findings on issue No.3 framed by the learned trial court. Issue No.3 is as under:

(1) .. (2) ..

3. Whether the suit is not maintainable in its present form? OPD Although the respondents did not specifically raise any preliminary objection by referring Order II, Rule 2 or section 11 of C.P.C. (res judicata) but the learned trial court framed the aforesaid issue. The learned trial court decided the issue in negative as the respondents, upon whom the burden was placed could not discharge the same, the learned appellate court decided the same although without referring any evidence, on the ground, that the petitioners earlier to this filed a suit regarding the residential property left by predecessor-in-interest of the parties to the case and did not include the landed property subject matter of this case, therefore, the petitioners relinquished their right to the extent of the landed property and are precluded to agitate their right under the provisions of Order II, Rule 2, C.P.C. and principle of res judicata to file the instant suit.

7. Learned counsel for the petitioners submits, that the findings recorded by the learned appellate court are not only against the law but also the record maintained by the learned trial court. The learned counsel for the petitioners submits, that in the earlier suit, which was not decided on merits and dismissed by applying Order XVII, Rule 3 of C.P.C., the petitioner sought the partition of the residential property left by the predecessor of the parties to the suit, on the basis of a family settlement, whereas in this case, the petitioners have challenged the entries of inheritance mutation in the revenue record.

8. Since it is an old matter, therefore, the record was scrutinized carefully with the assistance of learned counsel for the parties, from where it is found that the earlier suit filed by the petitioners was pertaining to the residential property and the petitioners sought the partition, whereas in the second suit, subject matter of this litigation, the petitioners are seeking the correction of the adverse/wrong entries made in the revenue record whereby the predecessor in interest of the petitioners, namely, Ayesha Bibi deceased was excluded from the list of the heirs of Fazal Khan. The predecessor-in-interest of the respondents while filing the written statement did not deny that the predecessor-in-interest of the petitioners, namely, Ayesha Bibi was their real sister. But she was excluded from the list of legal heirs on the ground of custom . It is also very important to mention here, that at the time of filing the earlier suit (Suit for partition of residential property), according to the revenue record, the predecessor-in-interest of the petitioners was not owner of the agricultural land for the purpose of any type of further transaction of the land/property in question, although the predecessor of petitioners became owner of the land/property in question by operation of law, the moment Fazal Khan, father of the predecessor of petitioners, namely, Ayesha Bibi died. At the time of entering the inheritance mutation, the real brothers of the predecessor of the petitioners, namely, Musa etc., with the connivance of the revenue staff, excluded the name of Mst. Ayesha Bibi from the list of inheritance on the ground of custom and by this way the predecessor of the petitioners was deprived from her right of inheritance ordained by the Allah, the Almighty.

9. In this suit, the petitioners have sought the correction of the revenue record whereby the predecessor of the petitioners was excluded, therefore, the claim of the petitioners in the earlier suit and in this suit is entirely different, therefore, the findings of the learned appellate court on issue No.3 are contrary to the record as well as law and un-sustainable in law. As regards, the question of res judicata, it has earlier been observed, that as the predecessor of the petitioner was not owner as per the revenue, record for the purpose of any further transaction, therefore, was not entitled to make the landed property/agricultural land subject matter of the earlier suit unless the revenue entries are corrected, thus it has wrongly been held by the learned appellate court that the principle of res judicata is applicable in this case.

10. In this respect I am fortified by following esteemed judgments:

1. Muhammad Tahir v. Abdul Latif and 5 others (1990 SCMR 751),

2. Mst. Nazima Begum and others v. Mst. Hasina Begum and others (1991 SCMR 177), 3 Dilawar Khan and others v. Ghulam Nabi and others (1991 SCMR 398),

4. Mst. Gohar Khanum and others v. Mst. Jamila Jan and others (2014 SCMR 801),

5. Rafique Ahmad v. Mst. Tafseela and others (1992 CLC 1401),

6. Chiragh v. Abdul and others (PLD 1999 Lahore 340),

7. Muhammad Bachal v. Province of Sindh through Home Secretary and 12 others (2011 CLC 1450),

8. Nazeer Ahmad and 9 others v. Naseer Ahmad (2011 YLR 121). In a judgment cited as 1991 SCMR 398 (supra) the honourable Supreme Court of Pakistan, interpreted sec.11 and Order II, Rule 2, C.P.C. in the following manner: "[P.399] A . suit was barred by constructive res judicata as also by the Provisions of Rule 2 of Order II, C.P.C., by contending that the evidence has not been properly read. He also took us through the alleged sale documents relating to 1895 and others which also related to the period near the end of the last century. He also took us through some of the depositions recorded in the legal proceedings conducted during the first quarter of present century. Notwithstanding the same he has not been able to satisfy us that the previous cases/decisions in this matter did not operate as res judicata. Otherwise too we are of the view that even if the question of constructive res judicata is looked at from the petitioners' point of view, this petition would not succeed on that hypothesis either. If the questions raised in the present litigation were raised and decided previously, the present litigation would be barred by res judicata, and in the circumstances of the case if the subject-matter of the present litigation was not brought within the net of the previous litigation, Order II, Rule 2, C.P.C., would be a bar. Looked at from whatever angle this petition fails and the leave to appeal is accordingly refused." As regard the recording of wrong entries in the revenue record in the matter of inheritance the honourable Supreme Court of Pakistan in the judgment cited as "Mst. Gohar Khanum and others v. Mst. Jamila Jan and others" (2014 SCMR 801), (mentioned supra) has held as under:

"We have heard learned counsel for the parties at great length and have also gone through the impugned judgment and the record with their assistance. The relationship between the parties is undisputed. It is, therefore, clear that on the death of Hashim, in accordance with Islamic Sharia which was applicable to the question of inheritance in this case, the petitioners through their predecessor-in-interest Dost Muhammad became owners of 2/3rd of the property while the respondents through their predecessor Mst. Zarina Jan became owners through inheritance of the remaining 1/3rd of the land. "The main emphasis of the learned counsel for the appellants was that the suit was time barred having been filed 50 years after the mutation dated 31-8-1940. This contention, is however, easily dispensed with as Mst. Zarina Jan admittedly came to own a 1/3rd share of the land by operation of law and not by any mutation. The mutation was meant to record the legal entitlement of Dost Muhammad and Mst. Zarina Jan. If the mutation was erroneously made in favour of Dost Muhammad, such mutation would not create title in favour of Dost Muhammad in accordance with Sharia Law of inheritance. Learned counsel for the appellants repeatedly emphasized that Mst. Zarina was fully aware of the decision and assertion of title by her brother Dost Muhammad and Dost Muhammad had also constructed a house on the disputed land. This, however, does not attract the provisions of Limitation Act in the circumstances of the present case. Mst. Zarina Jan being the sister was co-owner and the possession/occupation of the land by her brother as the other co-owner could only be construed as possession on behalf of all co-owners including Mst. Zarina. In order to relinquish or transfer her interest in the property, there had to be a positive and affirmative act. We have not been shown any document or deed of relinquishment, sale, transfer or gift which would establish that Zarina Jan had either relinquished her interest in the disputed property or actually conveyed or transferred the same in favour of Dost Muhammad. In the absence of any such affirmative act on the part of Mst. Zarina Jan, it cannot be said that the property came to vest entirely in Dost Muhammad." "It was next contended that Mst. Zarina Jan did not appear in the witness box herself and instead her daughter in law namely Mst. Karam Jan appeared as P.W.1. The fact is that Mst. Zarina Jan was close to 100 years old and it was this exigency which required her to act through her daughter in law. Since it is not disputed that the brother and sisters were owners of the disputed land by way of inheritance, the onus squarely fell on the appellants to establish that the 1/3rd interest of Zarina had been transferred in favour of Dost Muhammad or that Zarina had relinquished her rights in the suit property. But this onus was not discharged."

11. The learned counsel for the respondents supported the findings recorded by the learned appellate court on issue No.3 and submitted, that the predecessor of the petitioner i.e. Ayesha Bibi was very much aware of the entries in the Revenue Record and had relinquished her right regarding the property left by Fazal Khan, predecessor of the parties to the suit. I am afraid, that the arguments advanced by learned counsel for the respondents have any force being contrary to law and the principle laid down by the honourable Supreme Court of Pakistan in the judgments supra. The learned counsel for the respondents, anyhow, has not denied that the predecessor of the petitioners, namely, Mst. Ayesha Bibi was the daughter of Fazal Khan and real sister of Musa Khan etc. sons of deceased Fazal Khan, therefore, in these circumstances, even otherwise, the predecessor of the petitioners being one of the legal heir, could not be deprived from her right on the ground of alleged custom etc. It is also notable here, that the respondents could not placed on record any evidence pertaining to the custom/Rawaj alleged by them therefore, this ground taken by the respondents is not sustainable in law and further the honourable Supreme Court of Pakistan through a land mark judgment cited as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). The relevant para is reproduced as under:

"Scope of rights of inheritance of females is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in accordance with Islamic Jurisprudence is yet to take its own time."

12. The another aspect of the case is that the original owner of the suit land, namely, Fazal Khan predecessor of the parties to the case left residential as well as agricultural land. As regard the residential land situated in the urban area, if any dispute is arisen the jurisdiction is vested with the Civil Court whereas in the case of agricultural land some time the parties had to approach to the Revenue Courts/authorities, therefore, this could also hardly be one of the ground that the earlier suit was filed only regarding the residential property by relinquishing her right of inheritance, therefore, the contention raised by learned counsel for the respondents has no force.

13. In view of above, it is held, that the judgment dated 23-1-1996, impugned herein, is not sustainable being of law, therefore, this revision petition is accepted, the judgment and decree passed by the learned appellate Court is set aside and that of the learned trial court is affirmed, with no order as to cost. SL/R-12/L Petition accepted.