2009 PLP 1418 (CLC)

MUZAFFAR ALI, J.

Through this revision petition, the petitioners assail impugned concurrent decrees dated 2-9-2006 passed by learned Additional District Judge, Ghizar and 16-12-2003 passed by the learned Civil Judge, Punjab wrapped with the facts that the parties to the revision along with the two other ladies Mst. Jeelnama and Forhat Nama are real sisters inter se having equal shares in hereditament left by their late father Mulki Shah as admittedly the father was passed away without any male issue, but the daughters mentioned above. Since petitioners were residing with the father in his life time even after their marriage, as such they remained in actual possession of the property left by the father, hence they denied the heirship of the other daughters and claimed exclusive ownership of the devolved property. Therefore, the present respondents filed Suit No.107 of 2001 before the learned Civil Court Punjal for their share in the property. The present petitioners contested the suit and claimed ouster of the plaintiffs from heirship on the basis of gift in favour of the present petitioners by the father in his lifetime but at the stage of recording their statement they converted their plea of gift into "Dukhtaran Khana Nisheen" claiming under customary law. The learned trial Court did not accede to the plea of ouster taken by the present petitioners to deprive the plaintiffs from their legal share and decreed the suit in favour of the present respondents and the decree is upheld by the learned 1st Appellate Court, hence this revision petition against the concurrent findings of Courts below. I heard the learned counsel for the parties, the learned counsel for the petitioners urged that, (a) father of. the parties had left no property as he had transferred his property to the present petitioners under custom of the area as the petitioners remained with their father 'at his home even after their marriages and extended their services and maintenance to their father and in response the father delivered ownership of his property to the present petitioners under custom of the area called "Dukhtar Khana Nisheen" hence the father left no property to devolve into his legal heirs but both the Courts below have failed to appreciate this important aspect of the case and have committed material irregularity and the impugned decree against the petitioners are liable to be set aside being illegal and without jurisdiction. The learned counsel for the respondent denied the point raised by the learned counsel for the petitioners and argued, that father of the parties has admittedly died in the year 1997-98 and at that time Islamic law of inheritance was prevailing in the area and is continued. The father of the parties was owner of his property up to the point of his death and after his death his property has devolved to the legal heirs and is joint property. The present petitioners have failed to prove any gift or custom of "Dukhtar Khana Nisheen" in their favour in respect of suit property as such the decrees passed by Courts below are not open to interfere by this Court in exercise of its revisional jurisdiction. I have gone through the record of the case to understand and to know, whether the point raised by the learned counsel for the petitioners is supported by the record, but the point is devoid of substance, admittedly, the parties to the revision along with the two other sisters are legal heirs of the late Mulki Shah and are share-holders of the hereditament from their father, unless a strong and popular plea is proved contrary to Islamic law i.e.. gift, custom or sale of the property by the father in his life. The present petitioners have taken plea of gift in their favour through their written statement but failed to prove and during recording of their statement before Court they have taken plea of "Dukhtar Khana Nisheen" under custom contrary to plea taken in the written statement, but again failed to prove the plea upto the standard fixed by the superior Courts to prove such custom which are derogatory of Islamic law of inheritance. The standard of proof of such custom has been discussed by this Court exhaustively in a previous case of like nature published in 2006 CLC page 1614, furthermore, this plea cannot be considered as it has not been taken by the petitioners in their written statement and no party is allowed under law, to go beyond its pleadings. The petitioners have taken plea of gift in their written statement but failed to prove the same. Consequent upon the above discussion, revision petition is dismissed and the impugned decrees passed by the Courts below are upheld. No order as to costs. H.B.T./13/Glt. Petition dismissed.