2026 PLP 1094 (YLR)

Dr. Khurshid Iqbal, J.

The instant civil revision petition wasfiled by Riaz Ahmad etc (the petitioners), against the judgment and decree dated 07.09.2017 of the learned Additional District Judge/Izafi Zilla Qazi, Chitral, whereby the appeal of the petitioners against the judgment and decree of the learned Civil Judge/Illaqa Qazi-II, Chitral, passed on 26.09.2014, in favour of Mst. Saeeda Fayaz (the respondent No.1), was dismissed.

2. The factual background as reflected from the pleadings is that the respondent No.1 filed a civil suit for passing a decree of declaration and possession through partition of her Shari shares in the suit property being the legacy of her grandfather, namely, Zarmast Khan, (father of the respondents Nos.2 to 9 and grandfather of the petitioners) in her favour against the defendants. In alternative, she prayed that if the suit property is proved as partitioned between the two sons of Zarmast Khan i.e., Meer Fayaz (father of the petitioners Nos.1 and 2, husband of the petitioner No.3 and father of respondent No.1) and Muhammadullah (father of the respondents Nos.2 to 9), then her shari shares may be decreed in the property already possessed by the petitioners as legacy of her father Meer Fayaz. She also sought mesne profit to the extent of her shari shares in the suit property.

3. The petitioners though contested the suit of respondent No.1 by rising several legal as well as factual objections in their written statement. However, they neither denied her relationship, nor did refuse her shari shares in the suit property. They contended that the suit property is unpartitioned and still joint amongst the defendants. However, the portions of suit property in their respective possessions are purely on temporary basis subject to confirmation of permanent partition amongst them under the law. They further averred that the respondent No.1 can claim her shari shares only after permanent partition.

4. On the other hand, the respondents Nos.2 to 9 through their written statement denied the claim of respondent No.1 and contended that the suit property has been partitioned by Zarmast Khan in his life time amongst his two sons i.e., Muhammad Khan and Meer Fayaz, therefore, she cannot claim any shares in the property left by late Muhammadullah Khan. They further contended that the respondent No.1 can only claim her shares in the property given to her father Meer Fayaz, presently in possession of the petitioners.

5. The learned trial Court after recording evidence of the parties and hearing arguments, passed a preliminary decree of partition against the petitioners in the legacy of her father Meer Fayaz on 26.09.2014, subject to confirmation of her shari shares through a commission after passing a final decree. Being aggrieved, the petitioners assailed the aforesaid judgment/decree in appeal before the learned District Judge/Zila Qazi, Chitral, which was dismissed on 07.09.2017. Hence, this civil revision petition.

6. The main ground on which the petitioners have sought the intervention of his Court is that while they admit the shari shares of the respondent No.1 in the legacy of their father, who had been passed away after one year of the death of their grandfather in the year 1973, when they were minors and were having no other support but to live in the same house with Muhammadullah Khan, their uncle. Elaborating their grounds further, they maintained that Muhammadullah Khan alienated by way of sale and even gifts/donation much of the highly valuable property in the Chitral city. Mr. Abdul Wali Khan, learned counsel for the petitioners vehemently canvassed before this Court that they have convincingly prove their contention. In this respect, he referred to para 5 of the preliminary and para 2 of the factual defences in their written statement and the statement of Shah Azmat, husband of respondent No.1, where it was averred and admitted that the entire property of Zarmast Khan remained in the possession and management of Muhammad Ullah Khan,

7. Mr. Javid Ali, learned counsel for the respondents Nos.2 to 9 argued that it is an admitted fact that Zarmast Khan had divided his entire legacy between his two sons Meer Fayaz and Muhammadullah Khan, equally during his life time. He added that Zarmast Khan had 02 other sons by the name of Azam, Ashfaq and a daughter Mst. Bishawri, who all had passed away while Zarmast Khan was alive. He maintained that one Dr. Shuja Ahmad, a son of late Mst. Bishawri, filed a suit for share of her mother. In that suit, the petitioners and respondent No.1, set-up a defence that Zarmast Khan had left no legacy on the eve of his death because he had equally divided it between Muhammadullah Khan and Meer Fayaz. It is this plea that plays a decisive role in adjudication of the matter in hand.

8. Before I advert to determine the key issue, I shall refer to the arguments of Mr. Abdul Halim Khan, learned counsel for the respondent No.1. He did not prefer to delve deep into the merits of the contention of the petitioners. He rather vehemently stressed that irrespective of the entitlement of respondent No.1 in the legacy of her father Meer Fayaz or of her grandfather Zarmast Khan, her due shari share shall be given to her without further loss of time as she is an old lady and has been facing the agonies of this more than a decade long civil litigation.

9. I am constrained to observe here that respondent No.1 who was personally present in the Court, at the close of arguments of learned counsel for the parties, stood up and personally addressed the Court. She stated in the open Court that she wants her shari share in the property of her father only and that her real brothers, the petitioners have been denying it to her it adamantly.

10. I shall now come to the evidence of the parties. Shah Azmat, husband/attorney of the respondent No.1 (PW1) has deposed that the property listed in list "Alf" is in possession of the petitioners and the remaining legacy of Zarmast Khan is in possession of legal heirs of Muhammad Ullah Khan, respondents Nos.2 to

9. He further deposed that the legacy of Zarmast Khan is liable to be distributed amongst the legal heirs. Be has further deposed that at the time of his death, Zarmast Khan was survived by his two sons, father of the petitioners, respondent No.1 and father of respondents Nos.2 to 9; that other legal heirs of Zarmast Khan instituted a suit whicht was dismissed and that whatever, the Court rules whether the legacy of Zarmast Khan and that of Meer Fayaz, she is a shari sharer in both of Zarmast Khan as well as Meer Fayaz, in any eventuality. As he stated that:

11. Shah Azmat has admitted that after the death of Meer Fayaz, the children of Meer Fayaz were residing in the same house. The evidence of the petitioners, comprising of the statement of petitioner No.1 Riaz Ahmad, real brother of respondent No.1 and Dr. Ziaullah son and attorney of other legal heirs of Muhammadullah Khan, reflect that the aforesaid contention has been fully admitted. However, in a previous suit instituted by Shuja Ahmad and four others, claiming shari entitlement in the legacy of Zarmast Khan, the parties to the present litigation set-up a defence that Zarmast Khan had no legacy on the eve of his death. Attested copies of the written statement, judgment and decree in that suit (No.325 of 199) decided on 04.09.2004 were submitted through civil miscellaneous petition. The aforesaid record shows that Dr. Shuja Ahmad etc were the legal heirs of the daughter of Zarmast Khan who had passed away during the life time of Zarmast Khan. Both the parties set up the following pleas:

12. On this plea, issue No.4 was framed which the learned trial Court determined along with issues Nos.2 and

3. The issue No.4 was determined in such a way that the legacy of Zarmast Khan was held to have been partitioned possession delivered to Meer Fayaz and Muhammadullah Khan. As corollary of the above discussion, I find that the respondent No.1 was rightly non-suited on issue No.2 (estoppel). This Court, in the case of "Ghulam Farid and 2 others v. Mst. Hamida Bibi and 2 others", reported as 2011 YLR 2188, elaborated the principle of estoppel in the following words: "As the above cited provision prevents the litigant from raising inconsistent thing in subsequently instituted proceedings, he cannot blow hot and cold at the same time. To be more specific, the approbation and reprobation is not permissible in the legal proceedings, therefore, the litigant cannot deviate, from his previous stance."

13. The respondent No.1 having been admitted one of legal heirs of Meer Fayaz, she was rightly held entitled to her shari share in the legacy of her father.

14. I shall now come to the next contention of the petitioner for appointment of a commission. The petitioners submitted an application in this respect before both learned Courts below. Their contention was that since the petitioners and respondent No.1 were jointly residing with Muhammadullah Khan, who was in possession of the share of Meer Fayaz Khan, therefore, it should be determined through a commission as to how much property with its boundaries constitute the legacy of Zarmast Khan, and what is the market value of the different kinds of property in which Muhammadullah, the respondents Nos.2 to 9 has sold lands from time to time. Once it has been established that their grandfather Zarmast Khan had no legacy on the eve of his death, there appears no justification to determine as to how much property was owned by him. On this score, too, I find that both the learned Courts below have rightly dismissed the application of the petitioners for appointment of commission. There are, however, rulings that if a matter could be decided on direct evidence, a local commission could not be appointed to collect additional evidence. To this effect, I would refer to the case of "Muhammad Bakhsh v. Nizam Din" (PLD 1978 Lahore 31), produced by learned counsel for the respondent No.1 . In "Abdul Aleem Khan v. Idara National Industrial Co-operative Finance Corporation Defunct through Chairman Punjab Cooperative Board for Liquidation, Lahore and another" (2016 SCMR 2067) [Supreme Court of Pakistan], it was held that recording of additional evidence is discretionary power, however, the same is not absolute and unfettered. In the case of Fazal Hanan v. Mukaram Jan and others (2007 CLC 894) [Peshawar High Court], this Court ruled that a local commission could not be appointed so as to provide leverage to a party to plug gaps in its evidence.

15. Before I move forward to conclude, I shall refer to the relevant jurisprudence on the subject. Our higher Courts particularly the august Supreme Court has persistently deprecated the common practice of depriving female legal heirs from their shari shares on one or another pretext. Guidance may be sought from a leading judgment in the case of "Mst Parveen (deceased) through LRs v. Muhammad Pervaiz and others", reported as 2022 SCMR

64. The august Supreme Court has observed as follows: "

12. We may once again state that we are dismayed to observe the all too frequent practice in Pakistan of male heirs resorting to fraud and other tactics to deprive female heirs from their inheritance. While this deprivation causes suffering to those deprived, it also unnecessarily taxes the judicial system of the country, resulting in a needless waste of resources. Each and every day that a male heir deprives a female heir is also an abomination because it contravenes what has been ordained by Almighty Allah." In the case of "Mrs. Khalida Azhar v. Viqar Rustam Bakhshi and others", reported as 2018 SCMR 30, the august Supreme Court moved a bit further, entitling female legal heirs in addition to her shari shares also to mesne profits while issuing the following directions: "32. [...] The respondent No.1 thus having failed to prove the essential elements of gift in his favour, and having also failed to prove the authenticity and veracity of the relevant attestation, no valid gift of the subject land can be presumed in his favour, the respondent No.1 is, therefore, liable to share the land with the appellant to the extent of appellant is entitled to inherit in accordance with Sharia, and also to pay her the amount of mesne profit in respect of her such share in the land at the rate of Rupees eight thousands (Rs.8000/-) per acre, per annum, from the date commencing three years before the date of filing the suit by the appellant, and till the date the possession of the land to the event of her share is delivered to her after proper partition and demarcation by the revenue authorities, which entire exercise shall be concluded within two months from the date hereof In addition to the amount of mesne profit the respondent No.) shall also pay to the appellant the amount of markup accrued thereon at the bank rate on year to year basis and till the time the entire amount is paid."

16. In the light of above discussion, facts, circumstances of the case and principles of law, I find no force in the instant civil revision petition, therefore, the same stands dismissed being bereft of merits. The learned executing Court is directed to complete the proceedings of final decree within two (02) months, positively. JK/136/P Revision dismissed.