2008 PLP 1734 (CLC)

KHALIL AHMAD, J.

The petitioner filed a suit for declaration and permanent injunction against respondent alleging therein that Allah Ditta son of Ghas was owner of suit property measuring 113 Kanals, 16 Marlas description of which is given in para. No.1 of the plaint and that Mst. Bhagan was widow of Allah Ditta and daughter of Shahbal. It was alleged that Shahbal had got suit property from Allah Ditta as after the death of Allah Ditta the suit property devolved upon Bhagan under the Rewaj and after second marriage of Bhagan the same devolved upon Shahbal. Further alleged that Mst. Bhagan contracted second marriage with Muhammad Ismail and property of Allah Ditta devolved upon Shahbal father of Mst. Bhagan and that after the death of Allah Ditta Mst. Bhagan had to inherit 1/4th share of property from the property of Allah Ditta while after the death of Shahbal, Bhagan has to inherit 1/3rd share from the property of Shahbal and that Bhagan has not inherited 1/3rd share from the property of Shahbal being his real daughter and further relied upon pedigree-table well described in para. No.2 of the plaint. The petitioner further claimed that after the death of Shahbal the father of defendant has got mutated whole property in his name and Mst. Bhagan and after her death petitioner being son of Mst. Bhagan was ousted from inheritance of property of Allah Ditta and Shahbal. And after the death of Mir Dad son of Shahbal the property devolved upon the defendant and that Bhagan being widow of Allah Ditta and daughter of Shahbal is entitled to get share from both the deceased persons and mutation in favour of Mir Dad real brother of Bhagan and father of defendant is not correct and as such the plaintiff is entitled to get her share from the suit property.

2. The suit was contested by the respondents who took certain preliminary objections and claimed that the property devolved upon the father of defendant long ago as Shahbal has died in the year 1925 and denied the correctness of pedigree-table and stated that only Mir Dad father-of-defendant was legal heir of Shahbal and the mutation in favour of Mir Dad and afterwards defendant was correct. Further stated that even otherwise the property of deceased Shahbal can devolve upon defendant under the Rewaj as Shahbal was a faithful of Rewaj instead of Sharia and under the Rewaj after the death of Shahbal in the year 1925 his property devolved upon father of defendant vide Mutation No.141, dated 20-6-1925 and thereafter the learned Civil Judge on the pleadings of the parties framed issues and after recording of evidence vide judgment and decree, dated 6-11-2002 decreed the suit. The respondent challenged the same by filing appeal and the learned Additional District Judge vide judgment and decree, dated 29-1-2004 accepted the appeal and set aside the judgment of the learned Civil Judge dated 6-11-2002. Hence, this petition.

3. The learned counsel for the petitioner states that the judgment of the learned Additional District Judge is against law and facts and result of misreading and non-reading of evidence and has relied on 2003 SCMR 362.

4. Arguments heard and record perused.

5. It has already been held by the Honourable Supreme Court of Pakistan in the case reported as Muhammad Hussain and others v. Muhammad Shafi and others 2008 SCMR 230 and the relevant portion is hereby reproduced as under:

"Attestation of inheritance mutation in year 1943 in favour of sons while excluding daughters of last female owner. Validity of section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 would not apply to such case. Suit for declaration filed by daughters after 47 years of such mutation was dismissed in circumstances." The connected civil suit was subject-matter of Civil Appeal No.1720 of 2005 and the apex Court decided that suit was barred by time because mutation dated 23-1-1919 Exh.P.4 was challenged on 28-2-1997 and in this suit too, entry of Mutation No.141, dated 20-6-1925 has been challenged on 24-3-1997 after more than eight decades, therefore, the judgment of the learned Additional District Judge is upheld. The learned counsel for the petitioner is unable to point out any illegality, irregularity or substantial error in the judgment of the learned Additional District Judge warranting interference by this Court in its revisional jurisdiction. This petition being devoid of any force is dismissed. A.M.R./D-5/L Petition dismissed.