2011 MLD 395 (PLP)

We have heard the counsel for the petitioners, the respondents and officers present in Court. We have recorded the statements of Mst. Jana and Mst. Sukhaj. Both of them disputed the factum of gift in favour of father of the petitioners and have stated that they have never executed any instrument in favour of the petitioner's father relinquishing, their rights in the lands. They specifically disputed the factum of the gift and state that at no point of time, after death of their father, they were ever put in possession of the property jointly inherited by them. The ladies respondents are of the age of 70 years and above. According to the revenue record there is no material available to substantiate that the ladies have gifted their share in the inherited property which is subject matter of this petition. The statements recorded in the revenue register in Deh 114 shows the thumb impression of the ladies appearing on it, which the ladies also admit in their statements recorded by us. The subject matter of these proceedings is distinct and the lands which are in Deh 113 were never gifted as per the ladies. The Mukhtiarkar Revenue states that they maintain the registers according to Dehs and there is no such statement recorded in the register of Deh 113 which could reflect that the ladies have gifted the land. If the factum of the gift is disputed, the party which is asserting the gift made in their favour, has to approach the Court of competent jurisdiction to establish their claim and therefore, petitioners should have approached the Civil Court of competent jurisdiction to establish their claim as far as the alleged gift in favour of their father made by the respondents Nos.1 and 2 is concerned. According to Mukhitarkar, the property, till date, is jointly owned by the parties and was never partitioned. The ladies respondents Nos.1 and 2 have stated that neither they have sold out their share nor gifted their share in the lands in Deh 113 or any portion thereof to the father of the petitioners. The petitioner's father, according to them, was managing the property being trustee and co-owners, as he was 'the only male member of the family. Under these circumstances, the original entry in favour of the father of the petitioners claiming share in the properties inherited by the respondents Nos.1 and 2 was based on no material. The gift having been disputed and the possession of the father of the petitioners was never exclusive as he was one of the co-owner and the trustee sufficiently suggests that the original entry after the death of respondent's father was erroneously kept, therefore, the petitioner's claim that the ladies did not object over the gift for the last 36 years and the plea of continuous possession of the father of the petitioners without any interruption, is insignificant. In the inherited transaction, the limitation does not apply. The co-owner can retain property as trustee for the other co-owners and non-claiming of the share would not extinguish the rights of the other co-owners on the ground of longer duration. We, therefore hold, that the petitioner's father was the trustee and co-owner and was never in exclusive possession of the lands which the respondents ladies, sisters of the petitioner's father acquired in Deh 113 by way of inheritance and the original entry in the record of right be corrected accordingly. The petitioners, however, may approach the Civil Court of competent jurisdiction to establish that their father was gifted the land in Deh 113 by the respondents Nos.1 and

2. In absence of any material original entry made in favour of the petitioner's father was not in accordance with law. We, therefore, direct the Mukhtiarkar Revenue to rectify the defect by curing it. All the orders impugned in these proceedings are set-aside and after the Foti Khata Badal be kept in terms of the above direction. The D.D.O. (Revenue) shall partition the lands and take all steps as required under section 135 of Land Revenue Act. The D.D.O. Revenue shall complete this exercise within one month from today. This order, however, is subject to outcome of the proposed civil proceedings which, the petitioners may file before the civil Court of competent jurisdiction to establish factum of gift in favour of their father and in case the Civil Court comes to the conclusion that the gift was valid, in such eventuality, the Mukhtiarkar Revenue shall comply with the terms of the decree passed in the proposed proceedings. The petition stands disposed of in the above terms along with listed application. H.B.T./M-194/K Order accordingly.