2017 PLP 152 (YLRN)

QALANDAR ALI KHAN, J.

This Civil Revision Petition under Section 115 C.P.C. by Phool Zeb Khan and his sister Shaheen Bibi, son and daughter of Daud Khan, petitioners, is directed against the judgment and decree dated 14.12.2011 of the learned trial Court/Civil Judge-X, Mansehra, in Suit No. 78/1, whereby, the petitioners along with others and respondent No.4 were held entitled to the legacy of Hidayat Ali, without specifying their names and shares, and also against the judgment and decree of learned District Judge, Mansehra , dated 15.3.2014, whereby, Appeals Nos. 5/13 of 2012 and 2/13 of 2012 were disposed of, impugned judgment and decree set aside, and case remanded to the learned trial Court with direction to the petitioners to implead the other legal heirs of Hidayat Ali.

2. The petitioners/plaintiffs had instituted a suit for declaration that their predecessor, Hidayat Ali son of Juma Khan, was unknown/unheard of for the past eighty years, therefore, he was to be considered as dead, and the petitioners/plaintiffs being his grand children and respondent No.4/proforma defendant No.1 his son were to be declared entitled to inheritance to the extent of their shares in the land measuring 143 kanal and 03 marla (specified in the suit through Khasra Numbers) situated in Village Khaki Tehsil and District Mansehra and also land represented by Khasra No. 36 measuring 6 kanal 18 marla situated in Village Sosal, Tehsil and District Mansehra. The petitioners/plaintiffs also prayed for a mandatory injunction to respondents/ defendants Nos.1 and 2 to transfer the land owned by deceased Hidayat Ali in favour of the petitioners/plaintiffs and respondent No.4/proforma defendant No.1, according to their 'Shari' and legal shares, in the revenue record.

3. In their plaint, the petitioners/ plaintiffs averred that Hidayat Ali son of Juma Khan left for Malaysia in order to earn his livelihood before partition of the subcontinent, and at that time, he left behind his wife Mst. Sahib Jan, his son, Muhammad Sadiq Khan, respondent No.4/proforma defendant No.1 and a daughter Mst. Sahara Bibi, aged three years, and mother of the petitioners/ plaintiffs. According to the petitioners/ plaintiffs, Hidayat Ali, predecessor of petitioners/plaintiffs and respondent No.4/proforma defendant No.1 was owner of the property mentioned in the plaint to the extent of his share in the joint property; but he neither returned nor his whereabouts were known ever since and he also did not contact his family members, while his other legal heirs, except the petitioners/plaintiffs and respondent No.4/proforma defendant No.1 also passed away after attaining the age of as much as 90/95 years, leaving behind the petitioners/plaintiffs and respondent No.4/proforma defendant No.1, who were entitled to the legacy of Hidayat Ali to the extent of their shari shares; but the revenue authorities were adamant to retain his name as owner of the suit land and were not acceding to their request to transfer inheritance of Hidayat Ali in their favour; hence, the suit.

4. The suit of the petitioners/ plaintiffs was vehemently contested by respondent No.4/proforma defendant No.1 on several legal as well as factual grounds, including his contention to the effect that Hidayat Ali had contracted four marriages in his life time and that out of four wives, two died issueless, while he was son of his third wife, Mst. Sahib Jan, and there were four sons and two daughters of fourth wife of Hidayat Ali, namely, Mst. Nareepa, a Malaysian national. The names of four sons of Mst. Nareepa were Gohar Rehman, Khani Zaman, Ali Zaman and Peer Khan, whereas names of two daughters were Bibi Hawa and Bibi Sahara, who were still alive, and Mst. Nareepa was also alive. In order to meet his father, Mst. Nareepa, brothers and sisters, respondent No.4/proforma defendant No.1 claimed to have visited Malaysia on different occasions, and had also regular contact with them through mail. Respondent No.4/proforma defendant No.1, therefore, denied share of the petitioners/plaintiffs in the inheritance of Hidayat Ali.

5. The pleadings of the parties were reduced to the following issues:-- "

1. Whether the plaintiffs have got any cause of action? OPP

2. Whether Plaintiffs are estopped to sue? OPD

3. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD

4. Whether the where-abouts of Hidayat Ali are not known for the last 80 years and Plaintiffs and defendant No. 4 are the only legal heirs of Hidayat Ali? OPP

5. Whether the Hidayat Ali having other legal heirs? OPD

6. Whether plaintiff is entitle for the decree as prayed for? OPP

7. Relief.

6. After recording evidence of the parties and hearing arguments of their counsel, the learned trial Court/Civil Judge-X, Mansehra,rendered judgment dated 14.12.2011, whereby, decree was granted in favour of plaintiffs/petitioners to the extent that they were entitled to the inheritance of Hidayat Ali to the extent of 'share' of their mother along with other legal heirs of Hidayat Ali. The judgment and decree dated 14.12.2011 of the learned trial Court/Civil Judge-X, Mansehra, was assailed by both the petitioners and respondent No.4/proforma defendant No.1, which were disposed of by the learned Appellate Court/District Judge, Mansehra, vide judgment dated 15.3.2014, whereby the impugned judgment and decree of the learned trial Court were set aside with the result the case was remanded to Mr. Muhammad Umar-ul-Farooq, learned Civil Judge-VIII, Mansehra (as the learned trial Judge has been transferred and his judicial work has been given to different courts) with the direction that the plaintiffs shall implead all the LRs of Hidayat Ali and thereafter decide the case in accordance with law; which is impugned herein through the instant Revision Petition.

7. Arguments of learned counsel for the parties heard, and record perused.

8. The learned counsel for respondent No.4, while placing reliance on 2012 MLD 447 (Lahore), raised a preliminary objection with regard to maintainability of revision petition on the ground that the revision petition has been filed not against a final judgment/order but against order of Appellate Court remanding the case to the trial Court with direction to the plaintiffs/petitioners to implead all the LRs of Hidayat Ali. The learned counsel for the petitioners had no answer to the preliminary objection raised to the maintainability of revision petition by the learned counsel for respondent No.4. Therefore, the objection is sustained.

9. Apart from the non-maintainability of revision petition for being against the remand order in the light of 2012 MLD 447 (Lahore), the burden of proof with regard to issue No. 4 relating to whereabouts of Hidayat Ali and the fact that the petitioners/plaintiffs and respondent No.4/proforma defendant No.1 were the only legal heirs of Hidayat Ali was on the plaintiffs/petitioners; whereas burden of proving other legal heirs of Hidayat Ali was placed on respondent No. 4/proforma defendant No.4; but the petitioners/ plaintiffs were unable to prove that whereabouts of Hidayat Ali were not known for the last 80 years and that plaintiffs/petitioners and proforma defendant No.1 /respondent No.4 were the only legal heirs of Hidayat Ali; while on the other hand, respondent No.4/proforma defendant No.1 was able to bring on record the other legal heirs of Hidayat Ali on the basis of pedigree table of Hidayat Ali (Ex.DW.1 /1), which was neither objected to by the petitioners/plaintiffs at the time the same was being exhibited in the statement of respondent No.4/proforma defendant No.1 (DW-1), nor the portion of statement of DW-1 with regard to other legal heirs of Hidayat Ali was cross-examined by the petitioners/plaintiffs; rather there were suggestions in the cross-examination of DW-1 towards the fact that there are other LRs of Hidayat Ali. As such, it is to be deemed that Hidayat Ali also had other legal heirs and that petitioners/plaintiffs and respondent No.4/proforma defendant No.1 are not the only legal heirs of Hidayat Ali, in the light of 2010 CLC 1866 (Supreme Court AJ&K), 2011 CLC 921 (Peshawar) and 2016 YLR 302 (Peshawar).

10. As regards issue No. 4 relating to allegations of the petitioners/plaintiffs that whereabouts of Hidayat Ali are not known for the last 80 years, suffice it to say, that on the one hand, they failed to substantiate this allegation through production of independent evidence; while, on the other hand, respondent No..4/proforma defendant No.1 was able to depose about this fact and produce copy of his passport (Ex.DW.1/2), showing his visits to Malaysia, together with a copy of correspondence (Ex.DW.l/3) in order to prove that he was also in touch with his father, mother Mst. Nareepa, brothers and sisters through letters/ correspondence, which were neither objected to at the time they were being exhibited in his statement before the Court nor he was cross-examined on the subject, rather cross-examination of the petitioners further augmented his stance to the effect that he has been in touch with his said relatives in Malaysia.

11. In view of the foregoing discussion, the petitioners/plaintiffs failed to point out either any illegality or legal infirmity in the impugned judgments and decrees of both the courts below, particularly that of the learned Appellate Court/District Judge, Mansehra dated 15.3.2014, nor any non-reading or mis-reading of evidence was pointed out so as to call for interference by this Court in its revisional jurisdiction. The, revision petition, found bereft of merit, is dismissed, accordingly. ZC/80/P Revision dismissed.