2005 PLP 686 (CLC)

Brief facts giving rise to the filing of this revision petition are that Dan Khan died issueless and left behind agricultural land measuring 98-K, 9-M in Village Bhamba, Tehsil and District Kasur. His brother Giyane inherited 86-K, 3-M and Mst. Pannah, his widow, inherited 12-K, 6-M. A Mutation of Inheritance bearing No.1278 was attested on 22-6-1961 (Exh.P.6) Mst. Pannah died and her land stood transferred to respondent No.1 Giyani by virtue of Mutation of Inheritance bearing No.5308 dated 5-12-1988 (Exh.P.7). Respondent No.1 Giyani exchanged some of the land inherited by him with Ismaeel and Mangta and the mutations of exchange were attested by the Revenue Authority in this respect (Exh.P.1 and Exh.P.2).

2. The respondents filed a suit for declaration and challenged the mutation of inheritance dated 5-12-1988 claiming themselves to be real sons and daughters of Mst. Pannah deceased. The learned trial Court dismissed the suit vide judgment and decree dated 9-9-1997. While deciding Issue No.5, learned Court was pleased to hold that the plaintiffs/respondents have failed to prove the factum of marriage of Mst. Pannah with Dhannay Khan, the predecessor of the petitioners. The Appellate Court affirmed and upheld the decision of the trial Court vide judgment, dated 14-12-1998.

3. The Appellate Court dismissed the suit of the respondents but proceeded further and held that petitioners being not the legal heirs of Mst. Punnah, cannot inherit the estate left by her. The appellate Court set aside the Mutation No.5308 dated 5-12-1988 and all other mutations subsequent to that.

4. Learned counsel for the petitioners contends that the mutations were cancelled without any notice and the petitioners were deprived from their valuable rights without any opportunity of being heard. He has referred to AIR 1971 SC 361 to contend that finding without proper pleadings and necessary issues do not have the binding impact. Learned counsel has vehemently argued that question whether petitioners are not the legal heir of Mst. Pannan, being brother of her predeceased husband, has wrongly been considered in the impugned decision as neither any particular prayer was made nor any specific issue was framed in this respect.

5. I have heard the learned counsel for the parties and gone through the record minutely.

6. The petitioners claim the suit property on the basis of Mutation of Inheritance No.5308 dated 5-12-1988 wherein the suit property was transferred to the name of Giyani petitioner No.1. The Patwari Halqa got incorporated the mutation of inheritance in favour of Giyani being real brother of deceased husband of Mst. Punnah. The Appellate Court set aside the Mutation No.5308 because Giyani was not entitled under law to inherit the property of Mst. Punnah. The learned counsel for the petitioners when confronted with the proposition that brother of predeceased husband of a lady cannot inherit the property, has frankly conceded that the property, according to the Muslim Law of Inheritance, does not devolve upon such relative.

7. The conclusion drawn by Courts without any particular prayer or specific issue, cannot be set at naught, specially when such conclusion is on the basis of settled law. The provisions contained in the Code are merely rule of procedure and are subservient to the cause of justice, therefore, such laws do not control the power of the Court to pass such order which is necessary to do the full justice in the circumstances of a case. I am fortified in this respect by the view taken in case titled Province of Punjab v. Ch. Abdul Majeed 1997 SCMR 1692.

8. There is no merit in this revision petition and I am not persuaded to interfere in the findings arrived at by the Courts below. The petition is dismissed accordingly. S.A.K./G-101/L Revision dismissed.