2010 PLP 230 (CLC)

MAULVI ANWARUL HAQ, J.

On 19-2-1991 respondents Nos.1 to 13 filed a suit against Inayat Ali predecessor-in-interest of the petitioners as well as the remaining respondents. In the plaint it was stated that the last male owner of the suit-land mentioned in plaint was Moula Bukhsh, who died on 29-7-1953. The father of the said plaintiffs died on 6-10-1956 while Ali Muhammad father of the said Inayat Ali died on 19-3-1963 while Ilam Din predecessor-in-interest of the remaining respondents died on 16-12-1952 and Fazal Din and Nawab Din died before independence of the country while Karam Din died in the year, 1951. Latter three persons died issueless and unmarried and as such on the death of Moula Bukhsh only Wali Muhammad and Ilam Din were surviving heirs. However, in Mutation of Inheritance No.163 attested on 13-10-1960 all the said dead persons were shown as alive and mutation was attested accordingly, whereas the plaintiffs on the one hand and Inayat Ali on the other were only legal heirs entitled to share each. The plaintiffs and Inayat Ali filed a suit against the remaining respondents on 25-5-1978 seeking a declaration that Ilam Din having died before Moula Bukhsh was not entitled to inherit a share in the estate of Moula Bukhsh. This suit was decreed on 29-9-1979 but Inayat Ali got Mutation No.1387 attested whereby, 5/6 share was mutated in his favour and 1/6 in favour of the plaintiffs. Then there is reference to another suit, which was earlier filed and withdrawn with permission to file afresh. A declaration was sought accordingly and setting aside of Mutation No.1387 attested on 31-12-1987 was prayed for. The suit was contested only by Inayat Ali. His plea was that all the said four brothers, namely, Ilam Din, Fazal Din, Nawab Din and Karam Din died somewhere between 13-10-1960 and 19-3-1963. It was asserted that mutation 163 was got entered by Abdul Hameed, plaintiff himself. The filing of the suit by both the parties and fact that it was decreed was not denied. However, it was stated that Mutation No.1387 is lawful. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree- dated 31-3-1997. A first appeal filed by the plaintiff was allowed by a learned Additional District Judge, Faisalabad, on 27-6-2001, who partly decreed the suit. I may note here that after examining the evidence the learned Additional District Judge held that Ilam Din was not alive when Moula Bukhsh died and further that parties i.e. plaintiff and Inayat Ali will inherit the estate of Fazal Din and Nawab Din equally, while estate of Karam Din will go to Inayat Ali exclusively.

2. Learned counsel for the petitioners have argued that the suit was barred by time and they rely on the case of Muhammad Hussain and others v. Muhammad Shafi and others 2008 SCMR

230. Further contention is that admission made by Inayat Ali would be relevant only for the purpose of suit filed by the parties jointly and not for this suit which had to be decided on the basis of evidence recorded therein. Reliance is placed on the case of Muqarrab Hussain through LRs and another v. Pirzada Muhammad Rafiq 2001 YLR 1103. Learned counsel for the plaintiffs supports the impugned judgment and decree of the learned Additional District Judge, Faisalabad, with reference to evidence on record.

3. I have gone through the copies of the records. The learned Additional District Judge has primarily relied upon Exh.P.5, which is plaint in the suit admittedly filed jointly by Inayat Ali and the plaintiffs. He was duly confronted with said plaint and he admitted that he was plaintiff in the case but proceeded to state that his signatures were obtained through some manoeuvring. It is stated in para.11 of the said plaint that share of brothers of Ilam Din who are dead has already devolved upon the plaintiffs in the said suit, Exh.P.5. The bald allegation of Inayat Ali D.W.2 would be of no avail as he is defending the mutation that was attested with reference to the decree passed in the said suit filed by him along with plaintiffs. Apart from this he was confronted and he stated that he has no personal knowledge of date of death of Fazal Din, I1am Din, Karam Din and Nawab Din but these were told to him by his father that he has not produced their death certificates. In response to further cross-examination he stated that he does not remember the dates of death of the said persons.

4. Coming to the said judgment in the case of "Muqarrab Hussain through L. Rs. the admission in the said case was made in the ground of appeal and ground of revision which documents are not required to be verified on oath unlike a plaint, or a written statement, besides the said admission was found to be factually incorrect with reference to the evidence recorded in the said case. In the present case the admission has been made in a plaint admittedly filed by Inayat Ali along with plaintiffs. Needless to state that a plaint is part of pleadings and admissions made in the pleadings are species which are binding and can be used against the maker of the same and as held in the case of Ahmad Khan v. Rasul Shah and other PLD 1975 SC 311 besides, he was given a chance by the cross-examiner to show that admission was wrong but he failed to do so as he was unable to state the dates of death of said person and further relied upon hearsay attributed by him to his father.

5. So far as the question of limitation is concerned, the suit filed by both the contesting parties had been decreed. The grievance arose because of the mutation attested on 31-12-1987. The suit filed on 19-2-1991 was, therefore, well within time prescribed by Article 120 of the limitation Act, 1908. Civil revision is accordingly dismissed but without any order as to costs. S.A.K./M-588/L Revision dismissed.