2012 PLP 1308 (MLD)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners have challenged the judgment and decree dated 1-7-1996 passed by the Addl: District Judge, Bahawalpur, whereby the appeal filed by the petitioners was dismissed and the judgment and decree dated 28-7-1993 passed by the Civil Judge, Bahawalpur, whereby suit filed by the respondents was partially decreed.

2. Briefly, the facts as leading to this civil revision are that the respondents-plaintiffs filed a suit for declaration challenging therein the mutation of inheritance No.408 attested on 29-3-1967 of Gumna who died issueless, on the grounds that Allah Wasaya and Faiz Bakhsh are sons of Chutta, real brother of Gumna and there were also three other brothers of Gumna, namely, Elaho, Bacho and Kalo. Elaho had one son, namely, Gullan. Kalo had also one son, namely, Saharo. Bacho had two sons, namely, Azeem Bakhsh and Allah Bakhsh and three daughters, namely, Mst. Kundan Mai, Mst. Sahib Khatoon and Mst. Alam. Through the inheritance mutation, 1/8th share was given to each of the six nephews and two nieces. The case of plaintiffs was that the daughters of Bacho were not entitled to inherit Gumna and that six nephews of Gumna were entitled to inherit equally. In the suit two other transactions were also challenged but the suit was partially decreed by the trial court to the extent that Mst. Kundan Mai, Mst. Sahib Khatoon were not entitled to inherit Gumna. To the extent of other prayer, suit was dismissed. The petitioners-defendants preferred an appeal before the first appellate court, which was dismissed. Hence, this civil revision.

3. The claim of petitioners-defendants is that as Gumna had four brothers who died in his life time, therefore, the property of Gumna will be distributed in four shares and the son or sons of his each brother will be entitled to inherit the share which was to go to the each brother of Gumna if he was alive. By the scanning of statement of P.W.3 (Allah Ditta), one of the plaintiffs, it is clear that all the brothers of Gumna died in his life time. The other point is that the first appellate court has dismissed the appeal on the basis that it is time barred. Learned counsel for the petitioners states that the judgment and decree was dated 28-7-1993 and application for providing certified copies of judgment and decree was filed on 31-7-1993, which were delivered on 12-10-1993. The appeal was filed on 2-11-1993. Learned counsel states that copies were prepared on 28-9-1993, therefore, the appeal was filed within time prescribed under the law. Further states that the time from the date of making application on 31-7-1993 till its delivery was to be excluded from counting of period of limitation; that the record shows that copies prepared on 28-9-1993 for which no notice was issued to the petitioners; that the first appellate court wrongly counted the time in the limitation from 28-9-1993 to 2-11-1993 in the period of limitation. On this point I agree with the learned counsel for the petitioners that under section 12(2) of the Limitation Act, 1908, when no notice for preparation of copies was given, the period when actually the copies delivered was to be excluded from the time of limitation. As it is evident from the record that application was made on 31-7-1993 and ordinarily the Copying Agency gives a proposed period for delivery of copies i.e. near about seven days but in this case the certified copies were prepared after about two months of making of application. Therefore, notice for preparation of copies was necessary by the Copying Agency to the applicants. The period consumed from 31-7-1993 to 28-9-1993 and 12-10-1993 when copies were actually delivered, was to be excluded from counting the period of limitation.

4. So far as the other point before this Court is concerned, I have noticed that Para 75 of the Mohammadan Law by Mulla is clear. The first appellate court has rightly reached to the conclusion by dismissing the appeal on this point. The interpretation advanced by the learned counsel for the petitioners with regard to Para 75 of the Mohammadan Law by Mulla that nephews were to receive share of their father if the latter would have been alive at the time of death of Gumna, the propositus, is not correct. I hold that the findings recorded by the courts below on this point are correct. Ever otherwise I have noticed that the petitioners were defendants in the suit. They have prayed for dismissal of suit in their written statement. Now they cannot claim anything in contrary to the pleadings made in written statement. The suit was decreed partially in accordance with the prayer of plaintiffs. It was no one's prayer before the trial court, the interpretation before the first appellate court and this Court, the petitioners-defendants want to advance. I hold that the petitioners cannot be permitted to raise this objection against their pleadings.

5. In the light of what has been discussed above, I see no force in this civil revision, which is dismissed with no order as to costs. K.M.Z./E-3/L Revision dismissed.