2019 PLP 388 (YLR)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners have challenged the judgment and decree dated 14.04.2009 passed by the learned Additional District Judge, Samundri District Faisalabad whereby the appeal filed by the respondents/defendants was accepted through which the judgment and decree dated 24.06.2008 passed by the learned Civil Judge 1st Class, Samundri District Faisalabad decreeing the suit of the petitioners/plaintiffs were set aside.

2. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

3. The case pleaded by the petitioners was that Hakim Ali was having three sons namely Fateh Muhammad, Sher Muhammad and Atta Muhammad. Fateh Muhammad is predecessor of petitioners and on the death of Dulla issueless brother of Hakim Ali the property was devolved upon Fateh Muhammad, Sher Muhammad and Atta Muhammad in equal shares, therefore, learned counsel for the petitioners states that three sons of Hakim Ali were also entitled to inherit Hakim Ali in equal shares. I have gone through the evidence as well as the findings recorded by two courts below. The stance taken by the petitioners is misconceived. No doubt, on the death of Dulla who was issueless the property devolved upon Fateh Muhammad, Sher Muhammad and Atta Muhammad in equal shares being brother's son of the propositus but petitioners could not prove that the property they are claiming through the suit was owned by Hakim Ali. It is on the record that after partition of subcontinent the, land was allotted to Fateh Muhammad, Sher Muhammad and Atta Muhammad. After the scrutiny of record learned first appellate court reached to a conclusion that Hakim Ali passed away before the partition of subcontinent and inheritance was devolved upon his three sons in India and after migration each son of Hakim Ali was given property in lieu of the property he left in India and as per the record Sher Muhammad and Atta Muhammad were having more property which was mortgaged, therefore, they were given subject property which is admittedly more than the property given to Fateh Muhammad. I have further noticed that Fateh Muhammad sold out all of his property through registered sale deed dated 10.10.1966 and he became landless and the suit in hand for declaration was filed by his legal heirs on 14.09.2000. Needless to observe that a suit for declaration declares pre-existing rights but no new right can be created. Further when connivance has been pleaded by the private respondents with the officials of provincial government, neither the province of Punjab nor the Officials have been impleaded as defendants in the suit. Non impleading the revenue officials as defendants in the suit is a fatal defect. In this view of the matter, I have no reason to disagree with the findings recorded by the learned first appellate court, which are based upon true scrutiny of oral as well as documentary evidence. Consequently, this civil revision having no substance stands dismissed. SA/M-180/L Revision dismissed.