2002 PLP 877 (MLD)

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Anwar Muhammad and others v. Sharif Din and others 1983 SCMR 626 ref. Shehbaz Khurshid Chaudhry for Petitioners. Nemo for Respondents. Date of hearing: 15th October, 2001. The admitted facts of this case as gleaned from the record are that on the death of Sardara son of Khushia who was the last male owner of the suit‑land. The land was mutated in favour of his widows Hussain Bibi vide Mutation No.5731 attested on 20‑3‑1942 (Exh.P.2). The widow remarried and the land was then mutated in favour of daughter of said Sardara, namely, Bibi vide Mutation No.7135 attested on 7‑8‑1946 (Exh.P.3) Mst. Bibi married after 5‑3‑1948. The grievance made out in the suit filed by the petitioners on 24‑6‑1972 was that the land continues to be recorded in favour of Mst. Bibi. According to the, petitioners they were entitled to 7/24 share in the suit‑land being the sister and brother of said Sardara. A written statement was filed inter alia objecting that the suit is barred by time. It may be stated here that in reply to para.2 where the pedigree‑table of the parties was drawn up only ignorance was expressed. Issues were framed. Evidence of the parties was recorded. The suit was dismissed on 10‑2‑1981. A first appeal filed by the petitioners was allowed and the case was remanded by the learned Additional District Judge on 25‑9‑1983 After the remand the suit was again dismissed on 16‑9‑1084. However, in appeal it was again remanded on 11‑2‑1986. After this remand the learned trial Court traced the devolution of the said estate of Sardara and concluded that the plaintiffs in the suit were entitled to inherit 585/960 share in the suit‑land. The suit was accordingly decreed vide judgment and decree dated 1‑4‑1987. The respondents filed a first appeal which was heard by a learned Additional District Judge, Gujrat. The learned Additional District Judge was not able to find anything wrong with the determination of the said share of the plaintiffs in the suit‑land. He, however, found that the suit is not maintainable without seeking relief of possession and that it is barred by time. The appeal was accordingly allowed on 26‑3‑1990 and the suit was dismissed.

2. Learned counsel for the petitioners contends that it has been held as a fact and not question by the learned Additional District Judge that the petitioners were found to be co‑sharers in the suit‑land. This being so, neither the form of the suit could be questioned nor could the suit be held to be barred by time. Reliance is placed on the case Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and Anwar Muhammad and others v. Sharif Din and others (1983 SCMR 626). No one has turned up for the respondents who have been served and are represented by Mr. Abdul Majid Khan, Advocate whose name stands listed in the cause list for today, despite calls. They are proceeded against ex parte.

3. I have gone through the copies of the records, with the assistance of the learned counsel. The facts stated by me above are borne out from the same. A bare perusal of the impugned judgment of the learned Additional District Judge would show that he has not caked to explain as to how the suit was barred by time when admittedly she was a sister of Sardara and as such entitled to inherit alongwith her brother, the E second original plaintiff in the estate of Sardara to the residue left after satisfying the share of, Mst. Bibi daughter of Sardara. The learned Additional District Judge also lost sight of the fact that because of failure of the Revenue Authorities to attest the mutation upon opening of succession by the marriage of Bibi, the further devolution resulting from the death of another brother of Sardara could not be incorporated in the Revenue Records. The learned trial Court on the basis of admitted k entries in the pedigree drawn in the plaint has proceeded to trace the course of said devolution and correctly worked out the shares of the parties. These were not even challenged before the learned Additional District Judge. In this view of the matter, the plaintiffs in the suit were Muslim Law co‑heirs and as such co‑sharers in the suit‑land. They were not bound to sue for possession as possession of one co‑owner enures for E the benefit of all the co‑owners. This is the ratio of the judgment relied upon by the learned counsel. I, therefore, hold that the learned Additional District Judge has acted without lawful authority for non -suiting the petitioner on the grounds stated in the impugned judgment. The suit was neither barred by time nor was there anything wrong with its form. This civil revision is accordingly allowed. The judgments and decrees dated 26‑3‑1990 of the learned Additional District Judge, Gujrat is set aside and the one passed by the learned trial Court on 1‑4‑1987 is restored leaving the parties to bear their own costs. H.B.T./M‑1062/L Revision allowed.