2026 PLP 424 (CLC)

FARAH JAMSHED, J.

Introduction:

1. Petitioner, Asliyat Khan, has brought this revision petition against the judgment and decree dated 07.03.2020, of the learned Additional District Judge-IV, Nowshera, vide which appeal filed by the petitioner was dismissed and judgment and decree dated 28.05.2019 of the learned Civil Judge-cum-Judicial Magistrate-II, Nowshera was maintained. Background: Background:

2. Facts leading to this revision petition are that petitioners filed a Civil Suit Bearing No. 04/1 of 2016 titled "Asliat Khan v. Mst. Saeeda and others" against Mst. Saeeda and three others, respondents herein, seeking decree for declaration, permanent injunction and possession through partition.

3. As per the contents of plaint, petitioners and respondent No. 1 are owners in the disputed property, details whereof are mentioned in the head note of the plaint. Allegedly, respondents Nos. 1 and 2, in connivance with the respondents Nos. 3 and 4, patwari halqa of Moza Manki Sharif and Tehsildar, Nowshera, fraudulently got attested impugned mutation No. 1707 dated 08.10.1999 in their favour. Through their suit, under discussion of this petition, petitioners prayed for cancellation of said mutation being wrong, illegal, and ineffective upon their rights. Further contended that while revoking impugned mutation, revenue record is to be corrected by incorporating correct entries in their favour. Suit was contested by the respondents by filing their written statement hence from the divergent pleadings of the parties learned trial court framed (08) issues including the relief, as below: Issues: i. Whether the plaintiffs has got cause of action? OPP ii. Whether the suit of plaintiffs is based on mala fide? OFD iii. Whether the instant suit of plaintiffs is time barred? iv. Whether this Court has got jurisdiction to entertain the instant suit? OPP v. Whether the predecessor in interest of the plaintiffs and defendant No. 01 were the owners and in possession of suit property measuring 06 'canals? OPP vi. Whether the inheritance mutation No. 1707 dated 08.10.1999 attested in favour of defendants Nos. 01 and 02 is illegal, wrong and ineffective upon the rights of plaintiffs and is liable to cancellation? OPP vii. Whether defendant No. 02 Mst. Nayab is the daughter of one Ayaz, therefore, she is not legal heirs of Aurang Khan? OPP viii. Whether plaintiffs are entitled for decree as prayed for? Relief

4. Upon conclusion of trial and after hearing arguments and examining the record, learned Civil Judge-cum-Judicial Magistrate-II, Nowshera, dismissed the suit of petitioners with cost of Rs. 30,000/-, vide its impugned order and judgment dated 28.05.2019.

5. Feeling aggrieved, petitioners filed an appeal before the learned Additional District Judge-IV, Nowshera who upheld the judgment and decree dated 28.05.2019 of learned trial court and dismissed the appeal vide its impugned order dated 07.03.2020.

6. Hence the instant revision petition.

7. It is pertinent to mention here that the office Note transpires that efforts were made to procure the attendance of the respondents Nos. 1 and 2, and both respondents were placed ex-parte by the learned Deputy Registrar of this Court vide order-note sheet dated 18.01.2024.

8. Arguments of learned counsel for the petitioners heard and available record thoroughly perused. Discussion:

9. Perusal of record reveals that issues Nos. 5 to 7 have narrowed down the bone of contention between the parties, that is, legacy of Aurang son of Qalam Khan which devolved upon his legal heirs Mst Saeeda, widow, and Nayab, daughter, respondents Nos. 1 and 2, on the basis of impugned inheritance mutation No. 1707 dated 08.10.1999.

10. Record when examined reveals that petitioners produced four witnesses in support of their claim. According to the revenue record, predecessor in interest of the parties Jehangir was survived by his two widows and sons - Ashraf Khan, Zarif Khan, Shereen, Babu Sher Muhammad and Qalam Khan. Mutation No.1706 is the inheritance mutation of Qalam Khan son of Jehangir who was survived by his widow and sons Doulat Khan, Asliyat Khan, Aurang Khan and daughter Mst. Jamsheda Begum. Similarly, upon death of Aurang Khan son of Qalam Khan, his inheritance mutation No.1707 was entered and attested on 08.10.1999 in favor of Mst. Saeeda (widow) and daughter Nayab, respondents Nos. 1 and 2 before this court.

11. The stance of petitioners is that Mst. Nayab was not the real daughter of Aurang Khan for the reason that after his death, his widow, Mst. Saeed, contracted second marriage with one Ayaz and Mst. Nayab is the daughter of said Ayaz. The evidence led by the parties on perusal reveals that petitioner Asliyat Khan appeared before the court as PW-2, and according to his cross-examination Aurang Khan was younger to him, however, he does not know the exact date of his death. Similarly, he also could not state that when respondent No.1 contracted second marriage with Ayaz. It is pertinent to mention here that PW-2 in his cross-examination stated that they were only two brothers and one sister and one of the brothers i.e. Aurang Khan is dead whereas, the sister is petitioner No.2. Conversely, when petitioner No.2 appeared before the court and recorded her statement as PW-3, she admitted in her cross-examination that they were three brothers and one sister. This fact is validated by the inheritance mutation of Qalam Khan, bearing No.1706 wherein, 03 sons and one daughter of Qalam Khan are duly mentioned. On the other hand, in the plaint of the suit, under discussion of this petition, only Asliyat Khan and Mst. Jamsheda, are arrayed in the panel of plaintiffs, being the legal heirs of Qalam Khan, whereas, the name of Doulat Khan is not mentioned in the panel of plaintiffs or defendants. The plaint is also silent in respect of any reference to existence of 3rd son of Qalam Khan or about his legal heirs. His status of alive or dead, married, issueless, etc. is not where explained.

12. Regarding the status of Nayab, the stance of the petitioners was that she was born out of the wedlock of respondent No.1 and one Muhammad Ayaz. In this regard, Mullah's Muhammad Law has dealt with the issue of Parentage of a child in Chapter-XVII. Relevant provisions are referred here for quick reading: CHAPTER XVII PARENTAGE LEGITIMACY AND ACKNOWLEDGEMENT A. Establishment of Parentage.

337. Paternity and maternity. Parentage is the relation of parents to their children. Paternity is the legal relation between father and child. Maternity is the legal relation between mother and child. These legal relations give rise to certain rights and liabilities as regards inheritance, guardianship, and maintenance.

338. Maternity how established. The maternity of a child is established in the woman who gives birth to the child, irrespective of the lawfulness of her connection with the begetter.

339. Paternity how established. (1) The paternity of a child can only be established by marriage between its parents. The marriage may be valid (sahih), or irregular (fasid), but it must not be void (batil). Marriage may be established by direct proof. If there be no direct proof, it may be established by indirect proof, that is, by presumption drawn from certain facts. It may be presumed from prolonged cohabitation combined with other circumstances (Section 267), or from an acknowledgement of legitimacy in favour of a child. (2) When the paternity of a child is established, its legitimacy is also established.

340. Legitimacy: when conclusively presumed. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

341. Legitimacy presumed from presumptive marriage. The legitimacy of a child may be presumed from circumstances from which a marriage itself between its parents may be presumed (Section 268). Case Analysis:

13. As evident from the record, prior to the present suit, respondent No.1 also filed a suit titled Mst. Saeeda v. Mst. Feroza bearing No.50/FC, decided on 26.04.2006, wherein, respondent No.1, while seeking decree for recovery of her dower, categorically alleged that her marriage with deceased Aurang Khan was solemnized in the year 1991 and out of the wedlock a daughter, Mst. Nayab, was born. Said suit was contested by present petitioners as well as their mother Mst. Feroza. The question of the parentage of Mst. Nayab was never raised in said suit. Now, petitioners by their own conduct are also estopped to question the parentage of respondent No.2 being the daughter of deceased Aurang Khan. Moreover, not a single witness was produced by the petitioners to establish the fact that Mst. Nayab is in fact the daughter of Ayaz as a result of second marriage of respondent No.1 . Furthermore, the evidence available on the record in the shape of school and NADRA record, also reveals that the date of birth of respondent No.2 is recorded as 1997 whereas, respondent No.1 contracted second marriage with one Ayaz in the year 2005. No rebuttal to this effect is available on the record from petitioners' side. In the absence of any convincing and cogent evidence, the mere oral assertion of petitioners is no valid and acceptable ground to hold that Mst. Nayab is not the daughter of deceased Aurang Khan.

14. Moreover, undeniably the impugned inheritance mutation No.1707 was entered and attested on 08.10.1999 whereas, the petitioners have brought their suit on 24.02.2016 i.e. after more than 17 years without giving any convincing justification for not seeking the relief at the earliest especially when respondent No.1 also claimed her dower through her Suit Bearing No. 50/FC on 13.12.2005. Similarly, in the said suit, petitioners in their written statement categorically raised the plea that Aurang Khan had transferred his share of property during his life time. Now, they by their own conduct are estopped to claim the share in property which according to their earlier stance was already transferred to some third party. Not only the question of limitation is involved in the instant case but petitioners through acquiescence have also weakened their stance while claiming the inheritance of their deceased brother. Reliance in this respect is placed on Mst Grana1 case, wherein the apex court held that: Inheritance Limitation Scope Property claimed on basis of inheritance

Acquiescence of claimant-heir

Effect

Waiver of inheritance right in property

Scope

Plaintiff-heir filed suit in the year 10 1991 assailing registered sale deed dated 8-6-1916 and sale mutation dated 23-12-1917

Plaintiff had also challenged inheritance and gift mutations dated 5-12-1930, 1-9-1949 and 11-11-1959 respectively along with further mutations attested from time to time up to the year 1987

Plaintiff-heir was more than 80 years old at the time of filing the suit in the year 1991, and according to evidence she was 6/7 years old, when entire suit property was inherited by her as a limited owner

Plaintiff-heir married in the year 1930 and as a result had to give up her property in favour of her step-sister, and since then plaintiff remained out of possession of suit property-- Plaintiff-heir was aware as to how property was handled thereafter and of her rights therein

Plaintiff-heir was well aware of the transfer of suit property made by her stepsister and the subsequent gift transfer, but never questioned the sale deed of the year 1916 till filing of suit in the year, 1991

Suit property was further sold and re-sold, constructed and re-constructed upon, but the plaintiff took no action to annul or prevent the transfers of suit property

When plaintiff filed suit in the year 1991, there were as many as 251 transferees of suit property-Conduct of plaintiff clearly demonstrated acquiescence in all the impugned transfers of property which amounted to waiver of her right

Transferees of suit property, on account of plaintiff-heir's in action, led to believe that defendant-heir-transferor had a valid title in the suit property

Suit of plaintiff-heir had been rightly dismissed.

15. Similarly, this Court in Shad Muhammad's2 case had also held that: Finally, the petitioners lack 'locus standi' to seek the legacy of Mukaram Khan, as they claim the same through Haider Khan, who during his life time never agitated the said claim. Faced with similar circumstances, the apex Court in Abdul Haq's case (2002 SCMR 1330), has laid down in terms that:- "Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his life time. The petitioners claimed the property through Atta Muhammad as his heirs, who filed the suit as late in 1979 about 9 years after the sanction of mutation, which had already been given effect in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his life time." The aforementioned principle has been consistently followed in other decisions of the apex Court including the case of Ghulam Haider's case (2008 SCMR 1425).

18. This court is adjudicating the present petition in its revisional jurisdiction, the scope thereof as provided under section 115 of the Civil Procedure Code, 1908 has been dilated upon by the august Supreme Court in Muhammad Idrees v. Muhammad Parvez (2010 SCMR 5) and held that:-‑ "The High Court in exercise of its revisional jurisdiction under section 115, C.P.C. unless such findings suffer from 12 controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC

26. With regard to section 115, C.P.C. it is observed by the Privy Council as under: -- (i) This section empowers the High Court to satisfy itself upon three matters: -- (a) That the order of the subordinate Court is within its jurisdiction. (b) That the case is one in which the Court ought to exercise jurisdiction. (c) That in exercising jurisdiction, the Court has not acted illegally, that is breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law. " Conclusion and Order:

16. Though the petitioners have claimed the ownership/possession of the disputed property but failed to produce any document and pertinent evidence to establish their stance. Similarly, in respect of question of limitation, they have also failed to bring on record any convincing evidence. They have failed to pin point any flaws in the impugned concurrent judgments of the learned court below who have rightly decided the issue in hand vide impugned judgments dated 28.05.2019 and 07.03.2020, respectively. Consequently, the instant revision petition in hand, being devoid of merits, is hereby dismissed. SA/186/P ?????. 1 Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167). 2 "Shad Muhammad through L.Rs. and others v. Mst. Samara" (2015 MLD 582).