2015 PLP 909 (YLR)

SAJJAD ALI SHAH, J.

The petitioners through instant petition have impugned order dated 31-1-2012 passed by the IInd Additional District Judge, Karachi East, in Civil Revision Application No.125 of 2011 whereby the learned Judge while reversing the order of the trial Court allowed the respondent's application under Order VII, Rule 11, C.P.C. and rejected the plaint of the petitioner. Briefly, the petitioners filed a suit claiming their share in House No.M-375, Muhammadi Colony, Malir Extension, Karachi. It was the case of the petitioner that the said house was originally owned by one Abdul Rauf, their paternal uncle, who expired issueless leaving behind one brother Basheer Ahmed i.e. predecessor-in-interest of the petitioner and Mst. Shahnaz, his widow i.e. predecessor-in-interest of the respondents. It was asserted that Basheer Ahmed, the predecessor-in-interest of the petitioner, had died and, therefore, his share in the subject property has devolved upon them and, therefore, they are entitled to their respective shares in the suit property as legal heirs of Abdul Rauf. There is no denial from the respondent to the effect that the subject property was not owned by late Abdul Rauf but the respondent claims without any documentary evidence that her husband had given the subject property to her in lieu of her dower and some amount taken from her by the deceased in his life time as loan. The record further reflects that previously one Wali Muhammad after the death of Abdul Rauf had filed Suit No.665/2001 against the respondents and predecessor-in-interest of the petitioner claiming the subject property on the basis of a will allegedly executed by late Abdul Rauf. In that suit as is evident from its judgment the predecessor-in-interest of petitioner did not file written-statement and the same was proceeded ex parte against him and ultimately was dismissed as Wali Muhammad could not establish his claim. In this background an application under Order VII Rule 11, C.P.C. was filed by Mst. Shahnaz predecessor-in-interest of the respondent seeking rejection of the plaint which was rejected by the trial Court, however, the revisional Court after hearing the parties allowed the application of respondent and rejected the plaint through its impugned order. Counsel for the petitioners contends that the suit in fact was an Administration suit for which law does not provide any limitation as the petitioner's claim was never refuted which fact Revisional Court totally ignored. Per counsel, the Revisional Court has failed to give any finding on the ground which prevailed with the Court while rejecting the plaint. It was therefore, pleaded that the impugned order is perverse, without reason and therefore, is liable to be reversed. On the other hand, learned counsel for the respondent vehemently contended that in fact the petitioners has not filed a suit for administration but for recovery of money. It was further contended that in the earlier round of litigation the predecessor-in-interest of the petitioner has admitted that the property was owned by the respondent. Per counsel the first round of litigation the respondent was held to be the owner throughout till Supreme Court therefore, the second round of litigation was not maintainable. We have heard the learned counsel for the respective parties at length and have perused the record. Perusal of the plaint clearly reflects that the petitioners have claimed their shares in the suit property being legal heirs of late Abdul Rauf who admittedly and undisputedly was the owner of the subject property and the claim of the respondent that Abdul Rauf has given the subject property to her in lieu of her dower and/or against loan is yet to be established. We have perused the judgment of the case in the earlier round of litigation and the judgment does not hold the respondent as owner of the property but it only rejects the claim of said Wali Muhammad as owner on the basis of will. Since there is no denial of the fact that the deceased Abdul Rauf was issueless and that he is the real brother of Bashir Ahmed, husband/father of the petitioner, therefore, prima facie they are his legal heirs and entitle to inherit from his estate, if any. We were highly disappointed while going through the impugned order as the Additional District Judge reversed the order of the trial Court and rejected the plaint on the basis of following findings:-- "But the question is how they are claim share holder in the property which is left by their deceased uncle, had the suit property been allotted to both the deceased brother. The title documents with the husband of appellant/defendant amounts the suit property owned by the deceased Abdul Rauf. The respondent have to prove their title and legal character with regard to their share for which nothing is mentioned in the plaint." Perhaps the Court had totally ignored the principle of inheritance and was of the view that if the property would have been in the joint name of petitioners' husband/father and late Abdul Rauf then and then only the petitioner would have been entitled. The findings are not only pathetic but also reflect the lack of legal acumen on the part of the Presiding Officer, who does not appear to be conversant with the basic principle of inheritance that if a person dies issueless then his siblings would become entitled to a share in his estate. The observations regarding non-mentioning of legal character and share in view of detail provided in paras Nos. 2, 3 and 7 of the plaint are virtually incorrect. Additionally without determining about the period of limitation in an administration suit adverse inference regarding limitation has been drawn and further to say that it is second round of litigation between the parties is also incorrect, as the first round was between one Wali Muhammad and respondent, whereas petitioner's 'predecessor-in-interest was just a defendant who perhaps did not contest and against whom ex parte proceedings had taken place. There was no dispute of the kind between the parties that has now come up before this Court. The order further without any discussion or reasoning holds that the suit is barred under sections 42 to 56 as well as under the law of limitation which is also bad. In view of what has been discussed above, we allow this petition and set aside the impugned order and direct the trial Court to decide the main suit expeditiously on merits. A copy of this order be placed in the personal file of Additional Sessions Judge. AG/K-31/Sindh Petition allowed.