2010 PLP 742 (CLC)

SH. AZMAT SAEED, J.

This Civil Revision is directed against the appellate judgment and decree dated 7-8-2007, whereby the appeal filed by respondents Nos.1 and 2 against the judgment and decreed dated 12-12-2006 was partially accepted.

2. Brief facts necessary for adjudication of the lis at hand are that respondents Nos.1 and 2 filed a suit for declaration, possession through partition and mesne profit against the petitioner and respondents Nos.3 to

5. It is contended in the suit that the property in dispute was owned by their father Fazal Karim. On his death, mutation of inheritance was recorded, whereby his widow Bakht Bibi was given 5/12 share and the balance property was divided between the petitioner and the respondents according to the Shariat. Apparently, Fazal Karim had executed a will and it is on the basis whereof that Bakht Bibi had been given 5/12 share instead of 1/8th share, to which she would have been entitled under the law of inheritance. Subsequently, Bakht Bibi transferred her share to the present petitioner. In the plaint, it is contended that the will was ineffective and Bakht Bibi was only entitled to 1/8th hare, hence the impugned mutation was illegal and the plaintiffs were entitled to possession through partition. The suit was contested, issues were framed, evidence was led, whereafter the trial Court dismissed the suit primarily on the ground that it was barred by limitation. Aggrieved, the said respondents filed an appeal which was partially accepted in terms that the suit for declaration challenging the so-called will and the mutation in favour of Bakht Bibi to the extent of 5/12 share, was held to be time barred, while the suit for partition and mesne profit was decreed. In the above circumstances, a preliminary decree was passed, vide the impugned appellate judgment and decree dated 7-8-2007.

3. The learned counsel for the parties have been heard and record, appended with this petition, has been perused.

4. The challenge by the plaintiffs i.e. respondents Nos.1 and 2 to the so-called will has been held to be barred by limitation by the trial Court which has been upheld by the Appellate Court. The said respondents have not challenged the said finding independently. However, as a consequence of the said will, Bakht Bibi was entitled to 5/12 share in the property which she has transferred to the present petitioner. The balance property was transferred to the legal heirs including respondents Nos.1 and 2 by way of inheritance, a fact duly recorded in the mutation of inheritance of Fazal Karim, on which the present petitioner is relying. Thus, even as per the case of the, present petitioner, the respondents are co-owners in the property in dispute. The counsel for the petitioner has been unable to show as to why in such circumstances the suit for partition would not lie or would become barred by limitation and the same would also hold true for the claim of mesne profit. In the circumstances, for all practical purposes, the contention of the respondents has been accepted. Respondents Nos. 1 and 2 are co-owners in the property in dispute, hence are entitled to partition thereof and mesne profit, as held by the Appellate Court. This petition is without any merit and is dismissed. H.B.T./I-73/L Petition dismissed.